The Oxford Handbook of International Organizations 9780199672202, 0199672202

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The Oxford Handbook of

INTERNATIONAL ORGANIZATIONS

The Oxford Handbook of

INTERNATIONAL ORGANIZATIONS Edited by

JACOB KATZ COGAN IAN HURD IAN JOHNSTONE

1

1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2016 The moral rights of the authors‌have been asserted First Edition published in 2016 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number:  2016957589 ISBN 978–​0–​19–​967220–​2 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Preface

The growth of formal interstate organizations through the twentieth century means that virtually every important question of foreign policy, trade, and international affairs falls under the auspices of an international organization (IO). Understanding the power, limits, and consequences of these institutions is increasingly important. Occupying a position at the intersections of law and politics and of the domestic and the international, intergovernmental organizations (IGOs) are created in law by sovereign states but by facilitating multilateral action they are expected to constrain or regulate the exercise of discretion by those states. They must respect the legal autonomy of their members and at the same time induce governments to conform with rules. How they manage that tension sheds light not only on the nature of IOs, but also on how international affairs are conducted in the contemporary era. This volume addresses these and other issues by drawing together a multidisciplinary team of academics and a diverse collection of practitioners to write about the legal, political, and practical issues that concern contemporary IOs. It offers diverse perspectives on the creation and functioning of IOs, combining international law and international relations theory with insights from history, economics, and sociology. It digs deeply into IO practice by looking at the purposes they serve, the activities in which they engage, their structure and decision-​making processes, and their relations with other organizations—​intergovernmental, governmental, and nongovernmental. Rather than presenting chapters on particular organizations, this Handbook considers the problems, powers, and practices that cut across the field, and uses examples and cases from a multiplicity of organizations to examine these points. The main focus is on intergovernmental organizations, but the book includes analyses of nongovernmental organizations (NGOs), the private sector, and networks of various sorts—​both on their own and in their relations to formal IGOs. In this preface we highlight four threads that run through the book: the creation and proliferation of IOs; their effectiveness and adaptability; their institutional design; and governance. Within each thread, a number of key themes, issues, and dilemmas that cut across the chapters are identified.

vi   preface

Creation and Proliferation Why do states create and act through IOs, regimes, networks or other institutionalized arrangements? Many of the chapters in this book provide answers to that question, drawing on alternative theoretical perspectives—​either implicitly or explicitly. Neorealists, Marxists, and others claim institutions are creatures of the international system’s organization; they reflect the distribution of power in that system and are dominated by the most powerful states, which use institutions for their own ends. Institutionalists focus less on power and more on mutual interests, emphasizing the role of regimes as vehicles for coordination. A variant of institutionalism is principal–​agent theory, which—​in the field of IGOs—​considers the powers that member states delegate to the organization and the mechanisms they put in place to ensure that those powers are not exceeded. Unlike these instrumental, interest-​based theories, social constructivists emphasize the discursive role and power of institutions: they imagine organizations as locations where actors employ and contest shared understandings of international politics, sometimes but not always formalized as law. Critical theorists, like realists, look at power in the international system, but stress both its materiality and its contingent nature. It is not a natural phenomenon but rather a product of historical circumstances. They ask how the structure came about and how institutions contribute to its stability and its possibility for change. Liberal international relations scholars draw attention to the internal dynamics of states, rather than the structure of the international system. They, along with others, reject the “billiard ball” view of international relations, which envisages states as uniform entities and looks only at what they do in relation to each other. Liberals are interested in what goes on within states, and how domestic politics and processes contribute to the creation and functioning of IOs. For some or all of the above reasons, many international institutions have been created since the end of World War II. Few have died. The sheer growth in numbers has caused some analysts to worry about institutional overload. Are there simply too many organizations performing overlapping functions, stepping on each other’s toes, and sucking up resources without adding value? Is this spurring a fragmentation of the global system, generating conflicts and incoherence among international regimes and bodies of international law? Some argue that the diversity, pluralism, and forum shopping that result from the proliferation of IOs are not a bad thing. In the human rights sphere, for example, whatever is lost in coherence may be more than made up for by the gains from multiple channels of influence. A fully integrated global order, after all, could be overly exclusive—​shutting out voices, values, and interests that ought to be represented.

preface   vii Adding to the regime complexity, intergovernmental organizations often serve as focal points for transnational and transgovernmental networks. They are places where representatives of government agencies, international secretariats, NGOs, private sector actors, and individuals work together with member states to tackle matters of public policy. What is the relationship among the various actors in these networks? Are they in a hierarchical relationship, with states leading the way and other actors playing a subservient role? Or can international secretariats or NGOs take the initiative in an area of public policy—​catalyzing action and pulling states along? An implication of this “network” approach to global governance is that it sidesteps normal channels for the conduct of international affairs. Instead of the diplomatic branches of government interacting with each other on behalf of their citizens, bureaucrats, experts, and business people engage with each other directly in a complex web of transnational interactions, oftentimes through or with IOs. What does that tell us about the evolution of state sovereignty? Many of the chapters in this book explore that question.

Effectiveness and Adaptability International organizations serve many purposes. At the most fundamental level, intergovernmental organizations are “talking shops”—​places where representatives of states meet to discuss and ideally manage their mutual relations. As such, they play an agenda-​setting role. They also play a normative role, in numerous ways. They legitimate action by states (like humanitarian intervention), and sometimes legitimate states themselves (like Palestine); they can also undermine state policies (like apartheid). IGOs (and NGOs) help to create, interpret, implement, and sometimes enforce international law—​both soft and hard. They do this through their explicitly normative work as well as through their operational activities. With the expertise that resides in IOs, they generate ideas, knowledge, and policy advice. They are also service providers—​from dispute settlement and peacekeeping to human rights monitoring and development assistance. Most IOs serve more than one purpose. A question that runs through this volume is how an institution can perform multiple functions concurrently without one undermining the other(s). Can a peacekeeping mission engage as an honest broker between the parties to a conflict while also acting forcefully to protect civilians? Can an NGO be both a humanitarian aid provider and human rights advocate? Because they perform well in one area, IOs come under pressure to expand into another; mission creep of this sort can lead to underperformance in both.

viii   preface Even without mission creep, many organizations exhibit dysfunction. While most IOs have mission statements that maximize consensus over goals—​promoting peace, reducing poverty, protecting human rights—​in practice they all fall somewhere short of those goals. Even worse, they can do positive harm perhaps as an unintentional byproduct of their intentional acts or because they operate in a domain of politics where there are winners and losers. Comprehensive economic sanctions, for example, can have dire humanitarian consequences. Declaring “safe areas” can become a deathtrap if the organization can’t make good on the promise of protection. Why do IOs sometimes act dysfunctionally? Is it because their activities are necessarily the product of competing interests and values, resulting in compromises that make sense on paper but are incoherent and counterproductive in practice? Is it because they get overly “bureaucratized,” with the rules, procedures, and routines becoming ends in themselves? Many chapters in this volume shed light on these questions. A related concern is the tendency of institutions to go on forever, even when they seem to have outlived their original purpose. Why? A cynic might suggest it is because employees of the organization fight to hang on to their means of livelihood. A  less cynical answer is that organizations adapt to changing circumstances, using their existing expertise, knowledge, skills, and networks to deal with new challenges. NATO and the Organization for Security and Co-​operation in Europe (OSCE) transformed themselves at the end of the Cold War. The Office of the United Nations High Commissioner for Refugees went from being an organization for European refugees to an all-​purpose humanitarian agency concerned with internally displaced persons, vulnerable migrants, and humanitarian crises more generally. Global development actors are currently struggling to adapt as the North–​South dynamic changes and thinking about growth and inequality evolves. A thread that runs through this book is whether and how IOs learn and adapt.

Institutional Design Form, as they say, should follow function. But does it? This brings us to questions of institutional design and reform. Membership, representation, structure, decision-​ making processes, and financing are all features of IOs. Two critical issues that relate to these design features are the powers of the constituent parts of the organization and the impact of power within the organization. The first can be framed in terms of autonomy. How much power does an organization have independent of its member states? Do the executive head and

preface   ix secretariat of the organization serve primarily an administrative role, or are they able to perform independent functions? The independent functions could be political, like those of the Secretary-​General and Secretariat of the United Nations (UN). They could be based on expertise, like the professional staff of the World Bank or World Health Organization. Sometimes the powers are explicitly set out in the constituent instrument of the organization; often they are not. A  critically important legal issue is how much power can or should be implied from an organization’s charter. On one hand, the International Court of Justice has ruled in the Reparations case that each organization “must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” On the other hand, the “duties” of some IOs are so comprehensive that the “implied powers doctrine” is essentially a license for an organization to do whatever a majority of its members (or its most powerful members) want it to do. The most far-​ reaching form of independent power is supranational. The European Union (EU), for example, can take decisions binding on its members by majority or qualified majority vote. It even has the power to make rules that directly bind European citizens and corporations, without any need for implementing legislation by national governments. The UN Security Council has supranational powers, as does the Executive Council of the African Union (AU), which can adopt binding decisions by a 2/​3 majority vote. In some highly technical but important areas, UN specialized agencies have been granted legislative powers by their constituent instruments. Thus the International Civil Aviation Organization Council can make binding rules regulating aircraft over the high seas. While the World Health Organization, World Meteorological Organization, and International Maritime Organization do not have supranational powers per se, they can all make regulations through a tacit consent/​opt out procedure. Adopted by simple majority vote, these regulations are nevertheless binding on all members of the organizations unless they explicitly opt out. This dilutes the principle that states are bound only by rules to which they have consented: consent is still required, but the mechanism by which that consent is granted—​or deemed to be granted—​is less demanding than typical. The dilution of consent brings us to the second critical design issue:  the impact of power within an organization. Most intergovernmental organizations operate on the basis of one state, one vote. A few employ weighted voting, such as the World Bank, the International Monetary Fund, and the EU. The UN does not have weighted voting, and because of the veto power held by the five permanent members of the Security Council, it does not operate entirely on the basis of full sovereign equality either. Even in organizations that formally operate on that basis, discrepancies in power matter in practice, to varying degrees. An important thread that runs through this book is shifting global power relations, not only geopolitically but also between state and nonstate actors.

x   preface Equally important are questions about the type of power that counts most. Military capacity matters in organizations that engage in coercive intervention and peace operations (like NATO, the UN, and the AU); money matters to all organizations but particularly in the international financial institutions and development agencies and their private sector partners; diplomatic weight matters in regional organizations like the OSCE and the Organization of American States; expertise matters in specialized agencies and NGOs; and norms and ideas matter in institutions like the International Criminal Court, the Organisation of Islamic Cooperation, and human rights organizations. These various forms of power tend to shade into each other in complicated ways. While it may be tempting for analytical purposes to distinguish hard military and economic power from softer forms of diplomatic and ideational power, the two cannot be easily separated. Indeed critical theorists (both legal and international relations) claim that hegemony characterizes the discourse about norms and ideas as much as it does the exercise of hard power.

Governance There are three dimensions to this thread: governance of the globe or regions; governance of states; and governance of the IOs themselves. With respect to the first, the term governance without government is used to connote the idea that many functions of governance are performed beyond the level of the nation-​state without the formal trappings of government. From that perspective, international law serves both enabling and constraining functions: it enables states to do through IOs things they would not legally be allowed to do unilaterally (such as using force beyond self-​defense); it also constrains states and organizations by setting out prohibitions, the violation of which can result in the formal imposition of sanctions or the informal extraction of costs through other means. Staying with the theme of global and regional governance, it seemed not long ago that more and more areas of international life were being regulated by formal rules and procedures (like trade and criminal justice). Today, the enthusiasm for grand codification schemes is diminishing, either because achieving consensus is too difficult (like on terrorism or migration) or because the problems are too complex (like internet governance and cybersecurity). Related to this is the distinction between hard and soft law: precise, binding black-​letter rules as opposed to more general, less obligatory principles. An issue this volume considers is how to account for the different degrees of “legalization” of international institutions. It also considers the relationship between law and practice in IOs: on the one

preface   xi hand, law impacts the practice of IOs; on the other hand, practice can impact the law—​causing it to harden in some situations, like the rights of internally displaced persons, and to soften in others, like humanitarian and human rights law in the context of counterterrorism. This brings us to the second governance-​related theme:  the extent to which the activities of IOs interfere in domestic governance. Along with the supranational and other “legislative” powers of IOs, human rights, humanitarian intervention, democracy promotion, peace operations, transnational organized crime, and civil society participation are all having an impact on state sovereignty as traditionally understood. Yet it would be premature to declare the death of “sovereignty.” Many of the chapters in this volume illustrate the extent to which states remain the principal actors in law and politics. Indeed, a central question is whether a principal function of IOs is to preserve, restore, and build state capacity. Put differently, do IOs serve the governments of the world or the peoples (assuming a distinction in the interests of the two)? Finally, what about governance of the organizations themselves? This question only arises because many IOs have acquired autonomy and independent power. If intergovernmental organizations were simply forums for states to coordinate their activities, we would not worry much about accountability and legitimacy. Power and influence would reside with the governments, not the organizations, and so what would matter is the accountability and legitimacy of those governments—​not the IOs. But if an IO wields influence separate from the collective will of its member states, questions must be asked about how that power is wielded, to whom are organizations accountable for the exercise of that power, and whence do organizations gain the authority and legitimacy for their actions. Again, adding to the complexity, to the extent that intergovernmental organizations are participating in networks, international civil servants, government agencies, nongovernmental experts and activists, and business leaders have become an influential class of international actors. Does broadening the scope of participants in this way enhance legitimacy—​bringing in voices that would not normally be heard? Or does it undermine legitimacy? The notion of unelected civil servants conspiring with NGOs and multinational corporations, over the heads or behind the backs of governments, raises questions about accountability. For whom do they speak and on what authority?

Structure of the Book The world of IOs is complex, and this volume aims to give it some structure and clarity. It shows the similarities across organizations and some of the particulars

xii   preface that differentiate them. Because it links discussion of the legal and the political aspects of IOs, it should be of interest to legal scholars, social scientists, and international practitioners. The practical content of the book seeks to engage with people who work in IOs, NGOs, governments, and private practice. The scholarly content engages with ongoing debates in law and political science about the power and consequences of IOs. Two sets of framing chapters introduce and conclude the volume. The opening chapters situate the study of IOs in its broader intellectual setting. They address the place of IOs among the forces of world politics; the role of IOs as creatures of the law and as makers and interpreters of the law; and IOs as laboratories for studying the intersection of law and politics in international affairs, synthesizing the growing body of international law and international relations scholarship. Part II traces the history of IOs from their beginnings more than 150 years ago to the present. This Part’s chapters split that period into two, with World War II as the dividing line. Conferences, congresses, and other intergovernmental meetings have, of course, been a fixture of international relations for some time. These gatherings, though, were sporadic and ad hoc, if increasingly frequent over time, convened as necessary to solve transnational problems as they arose. The establishment of permanent organizations of states—​IOs—​only came about in the nineteenth century. Part III is comprised of chapters on different types of organizations and the reasons why states (and other global actors) choose one form over another. The simplest definition of an IO is an institution established by treaty among two or more governments for the conduct of regular interactions. IOs are distinguished from other institutional arrangements by two principal characteristics:  permanence and machinery. They are established for an indefinite rather than temporary period, and they have at least a constituent instrument, a governing body, and a secretariat that functions on a continuous basis. That definition leaves out NGOs, self-​regulation by the private sector, and transgovernmental networks and public policy networks that include governmental, intergovernmental, and nongovernmental actors. While the focus of this book is on intergovernmental organizations as defined above, these other arrangements are also considered, especially in the relationship to formal IOs. Part IV, the longest part of the book, covers seventeen activities of IOs, from peace operations though human rights, trade, and development. Most IOs perform more than one activity and most activities are performed by more than one organization. For that reason, we chose to devote Part IV to the fields of human endeavor in which multiple organizations operate rather than to case studies of particular organizations. This approach not only corresponds better to the universe of IOs but also is better-​suited to interdisciplinary analysis. Within each chapter, authors consider the scope of their field and the law that relates to it, as well as the mandates and practices of the most important organizations that operate in the field, with an assessment of how effective the organizations have been.

preface   xiii Part V is dedicated to the functioning of IOs: how decisions are made, what kinds of decisions, and various institutional issues associated with the decision-​ making process. Looking at how organizations function, as well as their structural features (covered in Part VII), tells us something about the character of each organization and the character of the international system. At the intersection between international and domestic affairs, IOs are pushed and pulled by the entire range of legal and political actors. Part VI examines the relations of IOs with each other, civil society, and the private sector. As IOs grow in number and in substantive authority, how they interact with each other is increasingly important—​whether as partners, competitors, or in a form of delegation. The relationship between IOs and NGOs flows in two directions, in the sense that IOs are frequently lobbied by NGOs, both local and international, and that civil society groups are often greatly influenced by the decisions of IOs, for better or worse. Relations with business enterprises and associations are increasingly complex as IGOs try to harness the resources of the private sector, without compromising on the public goals they seek to advance. Part VII considers the design of IOs as well as the competences, activities, and powers of their component organs. Though some general elements are common to contemporary IOs (typically an assembly of member states and a secretariat), designers of organizations have many choices to make concerning an institution’s architecture—​the number and variety of an organization’s organs, the organs’ powers, the relationships of organs inter se, their composition, and their control by member states. Successive chapters look at the principal organs and related bodies that constitute IOs, describing their purpose, functions, composition, powers, and operations. The chapters in Part VIII describe the primary legal issues and problems that arise in the course of designing and running an IO. Consideration will be given both to international institutional law as it now exists as well as to contemporary challenges to the established law, which have arisen as IOs have become more active and powerful. Thus we cover the nature and interpretation of the constituent instruments of IOs, rules on membership and representation, their legal powers and the legal constraints on their operations. This part also includes chapters on whether IOs and their officials can be held liable for wrongful acts. The book concludes in Part IX with four chapters on broad themes that arise for all organizations. All IOs confront questions about their legitimacy, accountability, and transparency, and all must operate by some rules regarding who can participate and how. These are at the heart of universal concerns about democratic governance, and they are raised with increasing frequency of IOs as these organizations become more numerous and more powerful. Jacob Katz Cogan, Ian Hurd, and Ian Johnstone

Contents

List of Figures List of Tables Table of Cases Table of Instruments List of Abbreviations List of Contributors

xxix xxxi xxxiii xlv lxxxi lxxxix

PART I  INTRODUCTION 1. International Organizations in World Politics 

3

Jon Pevehouse and Inken von Borzyskowski The Demand for IOs: What Drives IO Formation?  Designing IOs: Once IOs Are the Solution—​How Are They Built?  Deciding which IOs to Join or Act Through  Operating IOs  Outcomes  Conclusion 

2. International Organizations and International Law  Anne Peters

The Effectiveness of International Organizations  The Accountability of International Organizations: Law as a Constrainer  Conclusions: Effectiveness and Accountability in Tune 

3. The Law and Politics of International Organizations  Jeffrey L. Dunoff

Theory  Conceptual Issues  Policy Dilemmas  Conclusion 

4 8 16 20 24 31

33 34 41 58

60 61 67 76 88

xvi   contents

PART II  HISTORY 4. International Organizations, 1865–​1945 

91

Madeleine Herren The Crucial Decade of the 1860s and Its Consequences  Internationalism: People, Ideologies, Platforms, and the Ambivalences of Eurocentrism  “Thoroughgoing Internationalism”: New Actors and New Interactions under the Umbrella of the League of Nations  Fascist Internationalism and International Organizations during World War II  Conclusions 

5. International Organizations, 1945–​Present  B. S. Chimni

Mainstream History of IOs  Critical Histories  Emerging Themes 

93 97

101 108 111

113 115 122 129

PART III  FORMS OF ORGANIZATION 6. Formal Intergovernmental Organizations 

133

Jan Klabbers Why Create an International Organization?  Legal Personality  The Traditional Elements  Powers?  Conclusion 

137 140 143 147 150

7. Supranational Organizations 

152

8. Private Transnational Governance 

171

Peter L. Lindseth

Walter Mattli

The Privatization of Transnational Governance and Its Limits Endogenous Growth of Private Governance  Conclusion 

173 180 186

contents   xvii

PART IV  ACTIVITIES OF ORGANIZATIONS 9. Peace Operations 

191

Anjali Dayal and Lise Morjé Howard Definitions  Evolving Mandates  Interpositional Peacekeeping  Multidimensional Peace Operations  Success, Failure, and the Brahimi Report Civilian Protection, Peace Enforcement, and R2P Mission Composition  Efficacy  Conclusion 

192 195 196 197 198 200 203 205 208

10. Counterterrorism and Transnational Crime 

211

James Cockayne

The Emergence of Transgovernmental Policing Networks  Counter-​Narcotics: Hegemonic Criminal Law  Financial Crime: Hegemonic Criminal Law Goes Multi-​Sectoral  Counterterrorism: Transgovernmental Networks Built on Hegemonic Foundations  Transnational Organized Crime: A Patchwork of Solutions  Resource Trafficking: A Multi-​Sectoral Approach  Counter-​Piracy: Mixing Transgovernmentalism and Multilateralism  Conclusion 

11. Non-​Proliferation and Disarmament  Waheguru Pal Singh Sidhu

The Long and Winding Road to the NPT  The UNSC and the Non-​Proliferation Regime  Informal Arrangements  Three Challenges  Three Responses  Conclusion 

12. Human Rights  Dinah Shelton

Organizations and Activities Prior to the United Nations  Human Rights in the UN Charter and Charter Bodies  Other Global Organizations 

212 213 216 218 224 226 227 230

232 236 241 242 243 244 247

249 251 255 267

xviii   contents Regional Organizations  Conclusion 

13. Criminal Justice  David J. Scheffer

The Role of International Organizations in the Creation of International and Hybrid Criminal Tribunals  Structural and Substantive Law Comparison of the Tribunals  Conclusion 

14. Humanitarian Action  Thomas G. Weiss

Some Definitions  Three Historical Periods  Who Comes to the Rescue?  Conclusion: Coordination, a Fool’s Errand? 

15. Refugees and Internally Displaced Persons  Gil Loescher

Refugees and IDPs: Similarities and Differences  Refugees: The UNHCR and the Evolution of the Refugee Regime  The UNHCR’s Normative Agenda  Political and Financial Constraints on the UNHCR  IDPs: The Evolution of an International Institutional Framework  Key Policy Challenges: Failure of Durable Solutions and the Rise of Protracted Displacement  Key Policy Challenges: The UNHCR’s Dependence on Funding and Cooperation from States  Key Policy Challenges: The Refugee Regime Complex  Key Policy Challenges: Changing Trends in Forced Migration  IDPs: Current Challenges and Emerging Issues  Toward a More Effective Response to Refugees and IDPs 

16. Trade 

Joel P. Trachtman Functions of International Law of Trade and Functions of International Organizations for Trade  Structure of the WTO  Free Trade Areas and Customs Unions  Conclusion: Relating Structure to Function 

269 279

282 284 292 301

303 304 306 312 321

323 325 326 329 331 332 336 338 340 341 342 344

347 348 353 362 363

contents   xix

17. International Finance  Manuela Moschella

Political Fragmentation: Who Does What in Global Financial Governance  Financial Stability as a Shared Responsibility Where Does Interinstitutional Conflict Come From?  Conclusions 

18. Economic Relations and Integration  Frank Schimmelfennig

The Design and Development of Regional Economic Integration  Economic Theory  Intergovernmentalism and Rationalist Institutionalism  Supranationalism and Historical Institutionalism  Constructivism and Sociological Institutionalism  Conclusion 

19. Development 

David M. Malone and Rohinton P. Medhora The UN and Bretton Woods  Nontraditional Actors  Transitions  Conclusion 

20. Environment 

David A. Wirth United Nations System  UN Specialized Agencies and Related Organizations  Non-​U N Organizations  Cooperative Programs of Existing Organizations  Freestanding Multilateral Environmental Regimes  Bilateral and Regional Agreements  International Environmental Institutional and Regulatory Toolbox  Conclusion 

21. Health 

Gian Luca Burci and Andrew Cassels International Organizations and Global Health Governance  The World Health Organization  Normative Functions  Technical Collaboration  Financing 

365 367 373 376 381

384 385 391 393 398 401 404

405 407 415 419 422

425 426 429 433 435 436 440 442 445

447 448 452 455 463 465

xx   contents Coordination and Coherence  Conclusion 

22. Labor 

Brian Langille Difficult Terrain: Five Dimensions of “Labor” as a Subject Matter for International Organizations  The ILO  The Labor Debate in Other Interstate Organizations— ​The World Trade Organization  The Market in Labor Rights  Conclusion 

23. Religion 

Helge Årsheim The ‘Resurgence’ of Religion  Religious International Organizations  International Organizations and Religion  Conclusion 

24. Democracy Promotion 

Ian Johnstone and Michael Snyder Approaches to Democracy Promotion  Normative Roots  Operational Activities  Impact of Operational Activities on International Law  Conclusion 

25. Communications and the Internet  Milton Mueller

Global Liberalization of Telecommunications Services  Four Types of International Organizations  The Institutionalization of Internet Governance  Conclusion 

467 470

472 473 477 483 486 489

490 491 494 499 506

508 509 511 516 529 533

535 536 539 546 555

PART V  THE FUNCTIONS OF INTERNATIONAL ORGANIZATIONS 26. Lawmaking 

559

Nigel D. White Organizations as Lawmakers 

560

contents   xxi The Inadequacies of Traditional Sources of International Law  Lawmaking by Organizations  A Source of International Law?  Conclusion 

27. Monitoring Processes 

Timm Betz and Barbara Koremenos A Survey of Monitoring Provisions in International Agreements  Explaining the Design of Monitoring Provisions  Conclusion 

28. Sanctions 

Jeremy Farrall How United Nations Sanctions Work  How EU Sanctions Work  The Contest between Politics and the Rule of Law in International Organization Sanctions  Conclusion 

29. Use of Force  Marc Weller

The League as an Organization against War  The United Nations Organization as a System of Collective Security  Hierarchies within the Organizations in Relation to the Use of Force  Regional Organizations and Arrangements  Conclusion 

30. Dispute Settlement  John R. Crook

Dispute Settlement Not Based on Application of Legal Principles  Dispute Settlement Based on Application of Legal Principles  Conclusion 

31. Information Gathering, Analysis, and Dissemination  David Le Blanc and Jean-​Marc Coicaud

Mandates as a Way of Understanding the Type and Content of Information Managed by International Organizations  Information Gathering, Analysis, and Dissemination  Assessing the Performance of International Institutions in Producing, Using, and Disseminating Information  The Way Ahead: Some Opportunities and Challenges for IOs Related to Information 

564 567 573 579

581 584 589 601

603 604 611 616 621

622 626 629 638 640 641

644 646 651 662

663 664 669 678 686

xxii   contents

PART VI  RELATIONSHIPS OF INTERNATIONAL ORGANIZATIONS WITH OTHER ACTORS 32. Relations with Other International Organizations 

691

Laurence Boisson de Chazournes Elements of the Relationships between International Organizations  Public–​Private Partnerships as a Means of Diversifying Relationships  Participation of the European Union in International Organizations:  Need for Adaptation from Other International Organizations  Relationships with Other International Organizations and Responsibility Issues  Concluding Remarks: From an Interstate Model to an Inter-​International Organizations Model 

33. Relations with Civil Society  Jan Aart Scholte

What Is Civil Society?  Civil Society Involvement in Global Governance  Theories of Civil Society and Global Governance  Impacts of Civil Society on Global Governance  Civil Society and Legitimacy in Global Governance  Conclusion 

34. Relations with the Private Sector  Georg Kell

Contextual Factors Shaping UN–​Private Sector Relations  The First Six Decades of the UN–​Private Sector Relationships (1945–​2000)  A New Beginning on the UN–​Private Sector Relationships (2000–​Present) Institutional Developments  Economic Developments  Political Developments  Outlook for the Future 

692 701 704 707 711

712 713 715 720 723 726 728

730 732 733 738 742 744 746 748

PART VII  STRUCTURE AND OPERATIONS 35. General Assemblies and Assemblies of States Parties 

757

Margaret P. Karns Historical Roots 

759

contents   xxiii The League of Nations  The UN General Assembly  The UN Specialized Agencies and Other UN Bodies  Regional Organizations: Limited Application  Assemblies of States Parties to Treaties  Conclusion 

36. Parliaments 

Bjørn Høyland Parliamentary Bodies in International Organizations  Direct Elections and Full-​Time Parliamentarians  Legislative Empowerment  Budgetary Empowerment  Selection and Control of the Executive  Conclusion 

37. Executive Boards and Councils  Ramses A. Wessel

Nature and Types of Boards  Decision-​Making by Executive Boards  Conclusion 

38. Executive Heads 

Simon Chesterman Appointment  Functions  Independence  Conclusion 

39. Secretariats 

Touko Piiparinen The Rise of International Secretariats  The Functions of Secretariats  The Powers and Competences of Secretariats  The Mission Expansion of Secretariat Functions:  Three Explanatory Factors  The Dynamics of Mission Expansion: The Case of the OIC  Inter-​Secretariat Capacity-​Building … or Secretariat-​Replication? The Embeddedness of International Secretariats in Global Networks of Cooperation  Conclusions 

761 764 773 777 778 781

782 783 786 788 796 798 799

802 804 814 821

822 823 830 835 838

839 840 842 844 846 849

855 857

xxiv   contents

40. High-​Level Panels  Ramesh Thakur

859

The Changing Diplomatic Landscape  Commission Diplomacy  Impacts  Explaining Success  Conclusion 

860 863 865 872 880

41. International Adjudicative Bodies 

881

Chiara Giorgetti

International Adjudicative Bodies: The Basics  What Do International Adjudicative Bodies Do?  How Do Judicial and Quasi-​Judicial Bodies Work?  Conclusion 

42. Financing and Budgets  Jacob Katz Cogan

Financing International Organizations  Budgets of International Organizations  Financing, Budgets, and Governance 

43. Organizational Culture 

Stephen C. Nelson and Catherine Weaver Conceptualizing Organizational Culture  Why and How Organizational Culture Matters  Theorizing the Cultures of International Organizations  Studying IO Cultures  Conclusion: A Research Agenda for the Study of IO Cultures 

882 892 897 901

903 904 914 918

920 923 926 929 935 938

PART VIII  INTERNATIONAL INSTITUTIONAL LAW 44. Constituent Instruments 

943

Niels Blokker What’s in a Name …  Content  Parties  Special Characteristics of Constitutions  Constitutional Development  Concluding Observations 

943 945 947 948 953 960

contents   xxv

45. Membership and Representation 

962

Membership  Succession of States  Rights of Membership  Obligations of Membership  Observers  Suspension and Expulsion  Withdrawal  Conclusion 

963 970 972 976 977 979 982 983

Stephen Mathias and Stadler Trengove

46. Legal Capacity and Powers  Dan Sarooshi

The Development of International Law Relating to International Legal Personality: The Curious Case of International Organizations  The Conferral by States of Powers on International Organizations and the Issue of Responsibility for Unlawful Acts by an Organization  Concluding Remarks 

47. Assessing the Legality of Decisions  Jan Wouters and Jed Odermatt

Acts of International Organizations  Forum  Grounds for Judicial Review  Legal Consequences and Remedies  Informal Review Mechanisms  Conclusion 

48. Responsibility  Pierre Klein

Issues of Attribution  Breach of an International Obligation  Circumstances Precluding Wrongfulness and their Relevance to International Organizations  Interplay between the Responsibility of International Organizations and that of their Member States  Issues of Implementation  Content of Responsibility  Conclusion 

985

986

997 1004

1006 1007 1009 1018 1020 1022 1025

1026 1029 1034 1036 1037 1043 1045 1047

xxvi   contents

49. Privileges and Immunities  August Reinisch

The Past and Present Typical Content of Privileges and Immunities of International Organizations  The Legal Bases of Privileges and Immunities  The Justification for Privileges and Immunities  The Core Issue: The Scope of Jurisdictional Immunity  The Jurisdictional Immunity of International Organizations in Practice  The Impact of Access to Justice Considerations on Jurisdictional Immunity  Conclusion 

50. The Law of the International Civil Service  Santiago Villalpando

The Nature of the Law of the International Civil Service  The Sources of the Law of the International Civil Service  Conclusion 

51. International Administrative Tribunals  Santiago Villalpando

The History of Internal Justice Systems in International Organizations  The Institutional Components of International Administrative Tribunals  Conclusion 

1048 1049 1052 1053 1055 1057 1060 1068

1069 1071 1076 1083

1085 1086 1094 1102

PART IX  PRINCIPLES OF GOVERNANCE 52. Legitimacy 

1107

Dominik Zaum Legitimacy and International Organizations  Legitimation  Conclusion 

53. Participation 

Klaus Dingwerth and Patrizia Nanz

1108 1115 1125

1126

Patterns of Participation in International Organizations  1129 The Special Case of European Governance: The Participation of Citizens  1140 Conclusions: Democratic Principle, Marketing Tool, or Both? 1144

contents   xxvii

54. Accountability 

Mathias Koenig-​Archibugi Perspectives on Accountability  Participation and Delegation as Bases for Accountability  A Way Forward for Assessing Accountability to Affected Interests  An Illustration of the Approach: Global Health Policy  Conclusions 

55. Transparency 

Jonas Tallberg Theoretical Approaches to Transparency and Openness  The Empirical Study of Transparency and Openness  Conclusion 

1146 1147 1151 1153 1157 1169

1170 1171 1182 1192

Appendix: Primary Instruments

1193

Index

1197

List of Figures

16.1 WTO Structure (WTO 2013)  19.1 Regional Distribution of IBRD/​IDA Lending Commitments (World Bank, World Development Indicators (Washington, DC: World Bank, 2013); Devesh Kapur, John P. Lewis, and Richard Webb, The World Bank: Its First Half Century, 2 vols. (Washington, DC: Brookings Institution Press, 1997)) 19.2 Sectoral Distribution of IBRD/​IDA Lending Commitments (Devesh Kapur, John P. Lewis, and Richard Webb, The World Bank: Its First Half Century, 2 vols. (Washington, DC: Brookings Institution Press, 1997); World Bank Annual Reports (2004/​2007/​2012)) 19.3 The Evolving Magnitude and Composition of Developing World Financial Inflows (Low and Middle Income Countries, Net % of Regional GDP, 1970–​2012; World Bank, World Development Indicators (Washington, DC: World Bank, 2014); OECD, International Development Statistics (2014)) 27.1 Average predicted probabilities, marginal effect, with 95 percent confidence intervals, based on the results in Table 27.3  27.2 Marginal effects, with 95 percent confidence intervals, of uncertainty about behavior on self-​monitoring, in the absence and presence of incentives to defect. Based on results in Table 27.4  27.3 Marginal effects, with 95 percent confidence intervals, of uncertainty about behavior on delegated monitoring, in the absence and presence of incentives to defect. Based on results in Table 27.4 

355

410

412

420 594 596 597

List of Tables

11.1 The changing verification role of the International Atomic Energy Agency  27.1 Does the agreement create a system of compliance monitoring?  27.2 If the agreement calls for a system of compliance monitoring, who monitors behavior?  27.3 Does the agreement call for a system of compliance monitoring?  27.4 Self-​monitoring and delegated monitoring  27.5 Does the agreement call for a system of compliance monitoring?  31.1 Examples of information managed by IOs according to different types of mandates and functions  31.2 Common methods used by IOs for gathering information  31.3 Examples of information dissemination by IOs  35.1 Plenary bodies of UN specialized and related agencies  35.2 Assemblies of states parties to treaties and conventions  36.1 Overview of supranational parliaments  43.1 Approaches to IO cultures 

240 586 587 593 595 599 667 672 676 774 780 784 934

Table of Cases

International Courts, Tribunals and QUASI-JUDICIAL Bodies Administrative Tribunal of the International Labour Organization (ILOAT) Bustani, ILOAT Judgment No. 2232, 16 July 2003 . . . . . . . . . . . . . . . . . . . . . 54, 59 Duberg, ILOAT Judgment No. 17, 26 April 1955 . . . . . . . . . . . . . . . . . . . . . . . 1078 Klausecker v EPO, ILOAT Judgment No. 2657, 11 July 2007 . . . . . . . . . . . . . . . . 1061 Liaci v EPO, ILOAT Judgment No. 1964, 12 July 2000 . . . . . . . . . . . . . . . . . . . 1061 Lindsey, ILOAT Judgment No. 61, 4 September 1962 . . . . . . . . . . . . . . . . . . . . 1074 Rubio v Universal Postal Union, ILO Administrative Tribunal, 10 July 1997, Judgment No. 1644, para 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1064 Waghorn, ILOAT Judgment No. 28, 12 July 1957 . . . . . . . . . . . . . . . . . . . . . . 1071

African Commission on Human and Peoples’ Rights (ACHPR) Amnesty International (on behalf of Orton and Vera Chirwa) v Malawi, African Commission on Human and Peoples’ Rights, Comm. Nos. 64/​92, 68/​92, and 78/​92 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Democratic Republic of Congo v Burundi, Rwanda and Uganda, African Commission on Human and Peoples’ Rights, Comm. No. 227/​99 (2003) . . . . . . . Njoka v Kenya, African Commission on Human and Peoples’ Rights, Comm. No. 142/​94, (2000) AHRLR 132 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon, African Commission on Human and Peoples’ Rights, Comm. No. 39/​90 (1997) . . . . . . . . . . . . . . . . Union Interafricaine des Droits de l’Homme, Commission International de Juristes v Togo, African Commission on Human and Peoples’ Rights, Comm. Nos. 83/​92, 88/​93, 91/​93 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

277 278 277 277 277

xxxiv   table of cases

Arbitration Awards Alabama claims of the United States of America against Great Britain, Arbitration Award of 14 September 1872, XXIX RIAA 125 . . . . . . . . . . . . . . . . . . . . . . . 652 Case concerning the differences between New Zealand and France arising from the Rainbow Warrior Affair, Arbitration Award of 6 July 1986, XIX RIAA 199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649 European Molecular Biology Laboratory v Germany, Arbitration Award of 29 June 1990, 105 ILR (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Tax Regime Governing Pensions Paid to Retired UNESCO Officials Residing in France (France—​U NESCO), Arbitration Award of 14 January 2003, XXV UNRIAA 231–​66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Texaco v Libya, Arbitration Award of 19 January 1977 (1977) 53 ILR 389 . . . . . . . . . 570 Westland Helicopters United/​Arab Organization for Industrialization, Case No. 38/​79, March 25, 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038

Court of Justice of the European Union (ECJ) Commission of the European Communities v Council of the European Communities (Case 22/​70)—​European agreement concerning the work of crews of vehicles engaged in international road transport (1971) ECJ Rep 263, 31 March 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 Commission of the European Communities v Council of the European Communities, (Case C-​176/​03), 13 September 2005 . . . . . . . . . . . . . . . . . . . . 226 Commission of the European Communities v Council of the European Communities, (Case C-​440/​05), 23 October 2007 . . . . . . . . . . . . . . . . . . . . . 226 Cornelis Kramer and others (Joined Cases, 3, 4, and 6–​76) (1976) ECJ Rep 1279, 14 July 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 705 Costa v ENEL (Case C-​6/​64) [1964] ECR 587 . . . . . . . . . . . . . . . . . . . . . . . . . 34 European Commission & the Council of the European Union v Yassin Abdullah Kadi, (Joined Cases C-​584/​10 P, C-​593/​10 P, and C-​595/​10 P) [2013] ECR not yet reported (18 July 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611, 617, 1022 International Fruit Company NV and others/​Produktschap voor Groenten en Fruit (Joined Cases, 21 to 24–​72) (1972) ECJ Rep 1219, 12 December 1972 . . . . . . 705 Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case 11/​70) ECR XVI (1970–​1) 1125 . . . . . . . . . . . . . . . . 35, 1010 Meroni & Co, Industrie Metallurgiche, SpA v High Authority of the European Coal and Steel Community (Case 9/​56) [1957–​58] ECR 151 . . . . . . . . . . . . . 813, 814 Netherlands v European Parliament and Council (Case C-​377/​98) [2001] ECR I-​7079 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Nold v Commission (Case 4/​73) [1974] ECR 491 . . . . . . . . . . . . . . . . . . . . . . . 1010 Othman v Council and Commission, (Case T-​318/​01) 2009/​C180/​66, Judgment of the European Court of First Instance, 11 June 2009 . . . . . . . . . . . . 221 Parti Ecologiste “Les Verts” v European Parliament (Case 294/​83) [1986] ECR 1339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 1010

table of cases   xxxv SAT Fluggesellschaft mbH v EUROCONTROL (Case 364/​92) [1994] ECR I 43 . . . . .1064 Van Gend & Loos v Administratie der Belastingen (Case C-​26/​62) 5 February 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 46 Yassin Adullah Kadi v Council of the European Union and Commission of the European Commmunities (Case T-​315/​01) [2005] ECR II-​3649, 21 September 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 611, 617 Yassin Abdullah Kadi v European Commission (Case T-​85/​09) [2010] ECHR II-​0000, 30 September 2010 . . . . . . . . . . . . . . . . . . . . . . . 611, 617 Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities (Joined Cases C-​402/​05 P and C-​415/​05) [2008] ECR I-​635, (3 September 2008) . . . . . . . . . . . . . . . . . . . . . . . . 44, 80, 221, 611, 617, 619, 620

European Court of Human Rights (ECtHR) Al-​Dulimi and Montana Management, Inc v Switzerland, Application No. 5809/​08, Judgment (26 November 2013) . . . . . . . . . . . . . . . . . . . . . . . . 44 Al-​Jedda v United Kingdom, Application No. 27021/​08, Judgment (7 July 2011) . . . . 1033 Ary Spaans v The Netherlands, Application No. 12516/​86, Admissibility, (12 December 1988) 58 Decisions and Reports (1988) 119 . . . . . . . . . . . . . . . . .1062 Beer and Regan v Germany, Application No. 28934/​95 (18 February 1999) . . . . . . 55, 1063 Behrami v France, Saramati v France, Germany and Norway, Applications 71412/​01 and 78166/​01, Judgment (2 May 2007) . . . . . . . . 709, 1031, 1032 Bosphorus Hava Yollary Turizm ve Ticaret Anonim Sirketi v Ireland, Application No. 45036/​98, Judgment (30 June 2005), ECtHR Reports, 2005-​VI, 157–​8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1015, 1041, 1042 Burghartz v Switzerland, Application No. 16213/​90, Judgment (21 October 1992) . . . . 275 Costello-​Roberts v UK, Application No. 13134/​87, Judgment (25 March 1993) . . . . . . 275 Gestra v Italy, Application No. 21072/​92, 80B Eur. Comm’n HR Dec. & Rep. (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Golder v United Kingdom, Application No. 4451/​70 (21 February 1975)  Series A No. 18, [1975] ECHR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062 Matthews v United Kingdom, Application No. 24833/​94, Judgment (18 February 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1002, 1003, 1014 Müller v Switzerland, Application No. 10737/​84, Judgment (24 May 1988) . . . . . . . . 275 Nada v Switzerland, Application No. 10593/​08, Judgment (12 September 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 1014 Osman v United Kingdom, Application No. 23452/​94 (28 October 1998)  [1998] ECHR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062 Soering v United Kingdom (1989) 11 EHRR 439, Judgment (7 July 1989) . . . . . . . . . 275 Stichting Mothers of Srebrenica and Others against the Netherlands, Application No. 65542/​12, Judgment (11 June 2013) . . . . . . . . . . . . . 37, 56, 1067, 1068 Tomasi v France, Application No. 12850/​87, Judgment (27 August 1992) . . . . . . . . . 277 Waite and Kennedy v Germany, Application No. 26083/​94, Judgment (18 February 1999) . . . . . . . . . . . . . . . . . . . 55, 1002, 1041, 1063–​8, 1102

xxxvi   table of cases

Extraordinary Chambers in the Courts of Cambodia (ECCC) Prosecutor v Kaing Guek Eav alias Duch, Case File/​Dossier No. 001/​18-​07-​2007/​ ECCC/​TC, Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes (26 July 2010) . . . . . . . . . . . . . . . . 296

Inter-​American Commission on Human Rights (IACHR) Abella v Argentina, Case 11.137, Inter-​Am Comm’n HR, Report No. 55/​97, OEA/​Ser.L./​V/​II.9, Doc. 6 rev P 161 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . .251

Inter-​American Court of Human Rights (IACtHR) Barrios Altos Case, Inter-​Am Ct HR (Judgment) (Series C) No. 87 (30 November 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895 Caballero Delgado & Santana Case (Preliminary Objections), Inter-​Am Ct HR (Series C) No. 17 (21 January 1994) . . . . . . . . . . . . . . . . .276, 277 Case of the ‘Juvenile Reeducation Institute’ v Paraguay, Judgment (Preliminary Objections, Merits, Reparations and Costs) Inter-​Am Ct HR (2 September 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 536 Gangaram Panday Case, Inter-​Am Ct HR (Series C) No. 16 (21 January 1994) . . . . . . 276 Nicaragua v Costa Rica, Inter-​State Case 01/​06, Report No. 11/​07 (8 March 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Velásquez Rodríguez v Honduras, Inter-​Am Ct HR (Judgment) (Series C) No. 4, (29 July 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276, 277 Velásquez-​Rodríguez v Honduras, Inter-​Am Ct HR (Judgment) (Series C) No. 7 (21 July 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .251 Viviana Gallardo v Government of Costa Rica, Inter-​Am Ct HR (Series A) No. 101 (13 November 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 276

International Court of Justice (ICJ) and Permanent Court of International Justice (PCIJ) Access to German Minority Schools in Upper Silesia, Advisory Opinion (1931) PCIJ Series A/​B, No. 40 (15 May 1931) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Acquisition of Polish Nationality, Advisory Opinion, (1923) PCIJ Series B, No. 7, ICGJ 274 (PCIJ 1923) (15 September 1923) . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Administration of Prince Von Pless (Germany v Poland), (1933) PCIJ, Series A/​B, No. 59 (Order of 2 December 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Admission of a State to the United Nations (Article 4 of the UN Charter), Advisory Opinion [1948] ICJ Rep 57 . . . . . . . . . . . . . . . . . . . . . . 640, 964, 965

table of cases   xxxvii Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), Judgment, 18 August 1972 [1972] ICJ Rep 46 . . . . . . . . . . . . . . . . . . . . . 1016, 1021 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993 [1993] ICJ Rep 3 . . . . . . 1017 Application of the Convention on Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Yugoslavia), 7 October 1993 [1993] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 Case Concerning Military and Paramilitary Activities in and against Nicaragua, Merits, 27 June 1986, ICJ Rep 14 . . . . . . . . . . . . . . . . . . . . . . . 80, 570, 630, 640 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion [1962] ICJ Rep 151 . . . . . . . . 640, 833, 907, 916, 949, 956, 1020, 1021 Certain German Interests in Polish Upper Silesia (Germany v Poland), Merits, 1926 PCIJ, Series A, No. 17 (25 May 1926) . . . . . . . . . . . . . . . . . . .254, 654 Competence of Assembly Regarding Admission to the United Nations [1950] ICJ Rep 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957, 959, 965 Consistency of Certain Danzig Legislative Decrees with Constitution of Free City, Advisory Opinion (1935) PCIJ, Series A/​B, No. 65 (4 December 1935) . . . . . . . . . 254 Constitution of the Maritime Safety Committee of the Inter-​Governmental Maritime Consultative Organization, Advisory Opinion, 8 June 1960 [1960] ICJ Rep 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957, 1017, 1021 Corfu Channel Case (UK v Albania), Preliminary Objections [1948] ICJ Rep 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights [1999] ICJ Rep 62 . . . . . . . . . . . . . . . 1030, 1051 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, 13 July 1954 [1954] ICJ Rep 47 . . . . . . 916, 1073, 1085, 1088 Electricity Company of Sofia, Preliminary Objections, (Belgium v Bulgaria), 1939 PCIJ, Series A/​B, No. 77, Judgment (4 April 1939) . . . . . . . . . . . . . . . . . . 645 Exchange of Greek and Turkish Populations, Greece v Turkey, Advisory Opinion, PCIJ, Series B, No. 10, ICGJ 277 (PCIJ 1925) (21 February 1925) . . . . . . . . . . . . . 254 Factory at Chorzow (Germany v Poland) (1928) PCIJ, Series A, No. 17 (13 September 1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .254, 654 Greco-​Bulgarian Communities, Advisory Opinion (1930) PCIJ, Series B, No. 17 (31 July 1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Interpretation of Statute of Memel Territory (UK v Lithuania) (1932) PCIJ, Series A/​B, No. 47 (24 June 1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion [1980] ICJ Rep 73 . . . . . . . . . . . . . . . . . . . . . . . 47, 1018, 1035 Interpretation of the Greco-​Bulgarian Agreement of 9 December 1927, Case Between France and Greece, Judgment, PCIJ, Series A/​B, No. 624 (17 March 1934) . . . . . . . 254 Interpretation of the Greco-​Turkish Agreement of December 1st, 1926 (Final Protocol, Article IV), Advisory Opinion (1928) PCIJ, Series B, No. 16, ICGJ 283 (PCIJ 1928), 28th August 1928, Permanent Court of International Justice (historical) [PCIJ] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion (1 February 2012) . . . . . . . . . . . 1091

xxxviii   table of cases Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO, Advisory Opinion [1056] ICJ Rep 77 (23 October 1956) . . . . . . 1091 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), ICJ Judgment (3 February 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1067 LaGrand (Germany v United States of America), Provisional Measures, Orders of 3 March 1999 [1999] ICJ Rep 9 . . . . . . . . . . . . . . . . . . . . . . . . . 894 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] ICJ Rep 16 . . . . . .256, 262, 263, 640, 957, 1015, 1017 Legal Consequence of the Construction of Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004 [2004] ICJ Rep 136 . . . 251, 655, 957, 1017, 1018 Legality of the Threat of the Use of Nuclear Weapons, Advisory Opinion, 8 July 1996 [1996] ICJ Rep 226 . . . . . . . . 34, 251, 565, 630, 655, 945, 949, 952, 955, 957–​9, 961, 986, 997, 1018 Legality of Use of Force (Serbia and Montenegro v United Kingdom), Preliminary Objections, Judgment [1994] ICJ Rep 1321 . . . . . . . . . . . . 971, 1016, 1017 Legality of Use of Force (Yugoslavia v United States of America), Provisional Measures, Order of 2 June 1999, [1999] ICJ Reports 235 . . . . . . . . . . . . . . . . . 1016 Lotus Case (France v Turkey), (1927) PCIJ Series A, No. 9 (7 September) . . . . . . 566, 578 Mavrommatis Palestine Concessions (Greece v United Kingdom), (1924) PCIJ, Series A, No. 21 (13 August 1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645 Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v United States of America), Merits: Judgment [1986] ICJ Rep 14 . . . . . . . . . . 304, 631 Minority Schools in Albania, Advisory Opinion (1935) PCIJ, Series A/​B, No. 64 (6 April 1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Polish Agrarian Reform and German Minority (Germany v Poland) (1933) PCIJ, Series A/​B, No. 60 (Order of 2 December 1933) . . . . . . . . . . . . . . . . . . . 254 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahirya v United Kingdom), Provisional Measures [1992] ICJ Rep 3; Preliminary Objections, [1998] ICJ Rep 26 . . . . 568 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Request for the indication of Provisional Measures, Order of 14 April 1992, [1998] ICJ Rep 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion [1949] ICJ Rep 174 . . . . . . . . . . . . . . . 35, 68, 141, 142, 148, 561, 831, 957, 986, 994, 1019, 1026, 1030 Reservations to the Convention on Genocide, Advisory Opinion, ICJ General List No. 12 (28 May 1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 Settlers of German Origin in Poland, Advisory Opinion, (1923) PCIJ, Series B, No. 6, ICGJ 273 (PCIJ 1923) (10 September 1923) . . . . . . . . . . . . . . . . . . . . . . 254 South West Africa Cases (Ethiopia v Liberia; Liberia v South Africa), Judgment [1962] ICJ Rep 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656 South-​West Africa—​Voting Procedure, Advisory Opinion of 7 June 1955, Separate Opinion of Judge Lauterpacht [1955] ICJ Rep 67 . . . . . . . . . . . . . . . . . . . . . . 954

table of cases   xxxix Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion (1932) PCIJ, Series A/​B, No. 44 (4 February 1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Merits [1980] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . 640

International Criminal Court (ICC) Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-​02/​05-​01/​09, Decision Regarding Omar Al-​Bashir’s Visit to the Federal Republic of Nigeria, 14 August 2013 . . . . . .1024

International Criminal Tribunal for Rwanda (ICTR) Prosecutor v André Rwamakumba, Case No. ICTR-​98-​44C-​T, Decision on Appropriate Remedy, 31 January 2007 . . . . . . . . . . . . . . . . . . . . . . . . . 1030

International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecutor v Furundžija, Case No. IT-​95-​17/​1-​T, Trial Chamber Judgment (10 December 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .251 Prosecutor v Simić et al., Case No. IT-​95-​9-​PT, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness (27 July 1999) . . . . 995 Prosecutor v Tadić, Case No. IT-​94-​1-​AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) . . . . . . . . . . . . . . 43, 47 Prosecutor v Tadić, Case No. IT-​94-​1-​T, Trial Chamber Opinion and Judgment (7 May 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287, 294, 813 Prosecutor v Tadić, Case No. IT-​94-​1-​A, Appeals Chamber Judgment (15 July 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Prosecutor v Tadić a/​k /​a “Dule,” Case No. IT-​94-​1-​28, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1020

Special Court for Sierra Leone (SCSL) Prosecutor v Morris Kallon et al., Case No. SCSL-​2004-​16-​AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, 13 March 2004 . . . . . . . . . 289

xl   table of cases

Special Tribunal for Lebanon (STL) Prosecutor v Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, Assad Hassan Sabra, Case No. STL-​11-​01/​PT/​AC/​AR90.1, Decision on the Defence Appeals against the Trial Chamber’s Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, 24 October 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43

UN Administrative Tribunal Aglion, Judgment No. 56, 14 December 1954 . . . . . . . . . . . . . . . . . . . . . . . . . 1078 Howrani, Judgment No. 4, 25 August 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . 1077

UN Appeals Tribunal Ljungdell, Judgment No. 2012-​U NAT-​265, 1 November 2012 . . . . . . . . . . . . . . . 1078 Megerditchian, Judgment No. 2010-​U NAT-​088, 27 October 2010 . . . . . . . . . . . . . 1078 Muthuswami et al., Judgment No. 2010-​U NAT-​034, 1 July 2010 . . . . . . . . . . . . . 1083 Sandiwi, Judgment No. 2010-​U NAT-​084, 27 October 2010 . . . . . . . . . . . . . . . . 1078 Tabari, Judgment No. 2010-​U NAT-​030, 30 March 2010 . . . . . . . . . . . . . . . . . . 1083 Valimaki-​Erk, Judgment No. 2012-​U NAT-​276, 1 November 2012 . . . . . . . . . . . . . 1078

UN Committee against Torture Pelit v Azerbaijan, CAT/​C/​38/​D/​281/​2005, 29 May 2007 . . . . . . . . . . . . . . . . . . 222

UN Dispute Tribunal (UNDT) Chen, Judgment No. UNDT/​2010/​068, 22 April 2010 . . . . . . . . . . . . . . . . . . . . 1083 Hastings, Judgment No. UNDT/​2009/​030, 7 October 2009 . . . . . . . . . . . . 1076, 1078 Obdeijn, Judgment No. UNDT/​2011/​032, 10 February 2011 . . . . . . . . . . . . . . . . 1083 Villamoran, Judgment No. UNDT/​2011/​126, 12 July 2011 . . . . . . . . . . . 1076, 1078, 1082

UN Human Rights Advisory Panel DP v UNMIK, Case No. 04/​09, 6 June 2013 . . . . . . . . . . . . . . . . . . . . . . . . . 1046 Milisav GOGIC v UNMIK, Case No. 135/​09, 31 October 2013 . . . . . . . . . . . . . . .1046 Nexhmedin Spahiu v UNMIK, Case No. 02/​08, 20 March 2009 . . . . . . . . . . . . . 1040 Petko Milogoric and Others v UNMIK, Case No. 38/​08, 24 March 2010 . . . . . . . . .1040 PS v UNMIK, Case No. 48/​09, 31 October 2013 . . . . . . . . . . . . . . . . . . . . . . .1046

table of cases   xli

UN Human Rights Committee Mohammed Alzery v Sweden, UN Human Rights Committee, Comm Number:  1416/​200, CCPR/​C/​88/​D/​1416/​2005, 10 November 2006 . . . . . . . . . . . . . . . . . 222 Nabil Sayadi and Patricia Vinck v Belgium, Comm. No. 1472/​2006, UN Human Rights Committee, CCPR/​C/​94/​D/​1472/​2006, 29 December 2008, 48 ILM 570 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

WTO and GATT Disputes European Communities—​Measures Affecting the Approval and Marketing of Biotech Products, Panel Report, WT/​DS291/​R, WT/​DS292/​R, WT/​DS293/​R (29 September 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 Japan—​Taxes on Alcoholic Beverages, Report of the Appellate Body, WT/​DS8/​AB/​R, WT/​DS 10/​AB/​R, WT/​DS11/​AB/​R, 15 (October 4, 1996) . . . . . . . . 37 Mexico—​Tax Measures on Soft Drinks and Other Beverages, Report of the Appellate Body, WT/​DS308/​AB/​R, (March 24, 2006) . . . . . . . . . . . . . . . . 362 United States—​Section 301–​310 of the Trade Act of 1974, WT/​DS152/​R (27 January 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

National Courts Austria Firma Baumeister Ing. Richard L v O, Austrian Supreme Court, 14 December 2004, 10 Ob 53/​04 y; ILDC 362 . . . . . . . . . . . . . . . . . . . . . . . 1058

Belgium Energies nouvelles et environnement v Agence spatiale européenne, Civ Bruxelles (4th Chamber), 1 December 2005, Journal des Tribunaux (2006), 171 . . . . . . . . .1066 Lutchmaya v General Secretariat of the ACP Group, Appeal decision, 4 March 2003, Journal des Tribunaux (2003), 684; ILDC 1363 (BE 2003); General Secretariat of the ACP Group v Lutchmaya, Final appeal judgment, 21 December 2009, ILDC 1573 (BE 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1066 Siedler v Western European Union, Brussels Labour Court of Appeal (4th Chamber), 17 September 2003, Journal des Tribunaux 2004, 617, ILDC 53 (BE 2003) . . . .1065, 1102

xlii   table of cases

Canada Abousfian Abdelrazik v Minister of Foreign Affairs and the Attorney General of Canada, Reasons for Judgment and Judgment, 2009 FC 580, Ontario, June 4, 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

France Banque africaine de développement v M.A. Degboe, Cour de Cassation, Chambre sociale, 25 January 2005, 04-​41012, 132 Journal du droit international (2005) 1142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1065 Chemidlin v Bureau international des Poids et Mesures, Tribunal Civil of Versailles, 27 July 1945, 12 Ann Dig (1943–​5), 281 . . . . . . . . . . . . . . . . . . . .1064 International Institute of Refrigeration v Elkaim, Court of Appeal of Paris (21st Chamber), 7 February 1984, 77 ILR (1988), 498–​506; Cour de Cassation, 1. ch. civ, 8 November 1988, 35 AFDI (1989), 875 . . . . . . . . . . . . . . . . . . 1064, 1065 UNESCO v Boulois, Tribunal de grande instance de Paris, 20 October 1997, Rev Arb. (1997) 575; Cour d’Appel Paris (14e Ch. A), 19 June 1998 . . . . . . . . . . . 1065

Germany Application of Wunsche Handelsgesellschaft, Federal Constitutional Court, In Re, 22 October 1986, [1987] 3 CMLR 225 (Solange II) . . . . . . . . . . . . . . . . . 1063 B et al v EPO, Federal Constitutional Court, Second Chamber, 3 July 2006, 2 BvR 1458/​03 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1064 D v Decision of the EPO Disciplinary Board, Federal Constitutional Court, Second Chamber, 28 November 2005, 2 BvR 1751/​03 . . . . . . . . . . . . . . . . . . .1064 Hetzel v EUROCONTROL, Federal Constitutional Court, Second Chamber, 10 November 1981, BVerfG 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1064 Internationale HandelsgesellschaftmbH v Einfuhr-​und Vorratstelle fur Getreide und Futtermittel, Federal Constitutional Court, 29 May 1974, [1974] 2 CMLR 540 (Solange I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1063

Israel Papa Coli Ben Dista Saar Case, District Court of Haifa, May 10, 1979 (1979) UNJY 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1033

Italy Drago v International Plant Genetic Resources Institute (2007) Giustizia civile Massimario 2, ILDC 827 (IT 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1066

table of cases   xliii European University Institute v Piette (2000) RDIPP 472 (Court of Cassation, 18 March 1999, No. 149) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1066 Food and Agriculture Organization of the United Nations v Colagrossi, Corte di Cassazione, 18 May 1992, No. 5942, 101 ILR 386 . . . . . . . . . . . . . . . . . . . . 1059 Food and Agriculture Organization of the United Nations v Istituto Nazionale di Previdenze per i Dirigenti di Aziende Industriali (INPDAI), Corte di Cassazione, 18 October 1982, Case No. 5399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1059 Paola Pistelli v European University Institute, ILDC 297 (IT 2005) . . . . . . . . . . . 1066

Kenya Mohamud Mohamed Dashi and 8 Others, In Re [2009] eKLR, Mombasa HC, Misc. Application 434 of 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

Netherlands Mothers of Srebrenica v Netherlands and United Nations, Final appeal judgment, 12 April 2012, LJN: BW1999; ILDC 1760 (NL 2012) . . . . . . . . . . . . . . . . . . . . 1067 Mustafic v The Netherlands, Case No. 265618 HA, District Court of the Hague, (10 September 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031, 1032 State of the Netherlands v H Nuhanovic, Case No. 12/​03329, Supreme Court of the Netherlands (6 September 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1032 X v State Secretary for Finance, Supreme Court (Netherlands) (16 January 2009) . . . 1050

Switzerland Arab Organization for Industrialization, Arab British Helicopter Company and Arab Republic of Egypt v Westland Helicopters Ltd, United Arab Emirates, Kingdom of Saudi Arabia and State of Qatar, Federal Supreme Court (First Civil Court), 19 July 1988, 80 ILR 652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038 Consortium X. v Swiss Federal Government (Conseil federal), Swiss Federal Supreme Court, 1st Civil Law Chamber, 2 July 2004, partly published as ATF 130 I 312, ILDC 344 (CH 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1066 NML Capital Ltd v BIZ, Swiss Federal Tribunal, BGE 136 III 379, 12 July 2010 . . . . . . 56 ZM v Arab League, Swiss Federal Supreme Court, 4 C.518/​1996, unpublished judgment of 25 January 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1066

United Kingdom Entico Corporation Ltd v United Nations Educational Scientific and Cultural Association (UNESCO) [2008] EWHC 531 (Comm) . . . . . . . . . . . . . . . . . . . 1067

xliv   table of cases JH Rayner v Dept of Trade, House of Lords, 26 October 1989, 81 ILR 704 . . . . . . . . 1038 Maclaine Watson v Dept of Trade, Millet J, High Court, Chancery Division, 13 May 1987, 77 ILR 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038

United States Alfred Dunhill of London v Republic of Cuba, 425 US 682 (1976) . . . . . . . . . . . . . 1059 Atkinson v Inter-​American Development Bank, 156 F 3d 1335, 1341 (DC Cir 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1060 Broadbent v OAS, 481 F Supp 907 (DDC 1978), 628 F 2d 27 (DC Cir 1980) . . . . . . . . 1054 De Luca v United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan, et al., US District Court SDNY, 10 January 1994, 841 F Supp 531 (SDNY 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1060 Dupree Associates, Inc. v Organization of American States and the General Secretariat of the Organization of American States, US District Court DC, 31 May 1977, 22 June 1977, No. 76-​2335 (memorandum orders); 63 ILR 92 . . . . . . .1060 Mendaro v The World Bank, 717 F 2d 610, 615 (DC Cir 1983) . . . . . . . . . . . . . . . . 1057 Morgan v IBRD, US District Court DC, 13 September 1990, 752 F Supp 492 (DDC 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1060 OSS Nokalva v European Space Agency, 617 F 3d 756 (3d Cir 2010) . . . . . . . . . . . .1060 Tuck v Pan American Health Organization, US District Court DC, 17 November 1980, No. 80-​1546 (DDC 1980); US Court of Appeals DC Cir, 13 November 1981; 668 F 2d 547 (DC Cir 1981) . . . . . . . . . . . . . . . . . . . . . . 1060

Table of Instruments

Agreements Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, 5 February 1992 . . . . . . . . . . . . . . . . . . . . 1012 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012 Agreement between the Governments of the State of Eritrea and the Federal Democratic Republic of Ethiopia, signed in Algiers, 12 December 2000 . . . . . . . . 891 Arts 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 891 Agreement between the International Criminal Court and the United Nations, 4 October 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1075 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, 16 January 2002, 2178 UNTS 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289, 291 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Agreement between the United Nations and the International Bank for Reconstruction and Development, signed on 15 April 1948, entered into force, 15 November 1947, 16 UNTS 346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 829 Art 30(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 829 Agreement between the United Nations and the International Monetary Fund, approved by the General Assembly of the United Nations on 15 November 1947 and by the Board of Governors of the International Monetary Fund on 17 September 1947, entered into force, 15 November 1947, 16 UNTS 328 . . . . . . . 829, 956 Art XII(4)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 829 Art XXIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, 22 January 2007, 2461 UNTS 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 2(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291

xlvi   table of instruments Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution Under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, 6 June 2003, 2329 UNTS 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290, 293, 294, 296 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, 26 June 1947, US–​U N, 11 UNTS 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052 Agreement between the WHO and the Pan American Sanitary Organization, 12 June 1949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 Agreement concerning the Relationship between the United Nations and the Organisation for the Prohibition of Chemical Weapons, 17 October 2000 . . . . . . 1075 Agreement establishing the Asian Development Bank, signed on 4 December 1965, entered into force, 22 August 1966, 571 UNTS 123 . . . . . . . . 825, 956 Art 34(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 Art 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 Agreement establishing the Caribbean Court of Justice, 23 July 2002 . . . . . . . 1013, 1014 Art XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1014 Agreement establishing the European Bank for Reconstruction and Development, signed at Paris, 29 May 1990, entered into force, 28 March 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 Art 30(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 Agreement establishing the International Organization of Vine and Wine, signed in Paris, 3 April 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Agreement establishing the World Trade Organization, signed on 15 April 1994, entered into force, 1 January 1995, 33 ILM (1994) 13 . . . . . . . . . . . . . . . . . . . . 953 Art XV(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Agreement for the Leasing of Space Segment Capacity between the International Telecommunications Satellite Organization (INTELSAT) and the United Nations Organization, signed and entered into force, 16 August 1984, 1365 UNTS 307 . . . . 1010 Art XVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010 Agreement on Co-​operation and Relationship between the United Nations and the International Tribunal for the Law of the Sea, signed and entered into force, 18 December 1997, 2000 UNTS 467 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658 Agreement on Co-​operation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 Agreement on the Privileges and Immunities of the Association of Southeast Asian Nations, signed at Cha-​am Hua Hin, Thailand, 25 October 2009 . . . . . . . . 832 Art 4(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 832 Agreement on the Privileges and Immunities of the Organization of American States (OAS), signed on 15 May 1949, entered into force, 4 June 1951, 1438 UNTS 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1052, 1056 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 Agreement regarding the Headquarters of the Food and Agriculture Organization (FAO), 31 October 1950, 1409 UNTS 521 . . . . . . . . . . . 1052, 1053, 1056 Art VIII, s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056

table of instruments    xlvii Agreement relating to the Implementation of Part XI of the UN Convention on the Law of the Sea, 10 December 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Annex, s 1(14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Articles of Agreement of the International Bank for Reconstruction and Development, signed and entered into force, 27 December 1945, 2 UNTS 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267, 825, 973, 1057, 1079 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 973 Art V(3), (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 Art VII(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057 Articles of Agreement of the International Monetary Fund, signed and entered into force, 27 December 1945, 2 UNTS 39 . . . . . . . . . . . . . 39, 378, 565, 825, 907, 932, 973 Art IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 Art XII(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825 Art XII(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 825, 973 Art XXVI(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art XXVIII(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Headquarters Agreement between the Government of the United Kingdom and the International Tin Council, London, 9 February 1972, 834 UNTS 287 . . . . . 1053, 1056 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 North American Agreement on Environmental Cooperation, 1 January 1994 . . . 441, 442 North American Free Trade Agreement (NAFTA), entered into force, 1 January 1994, 32 ILM 289 and 605 (1993) . . . . . . . . . . . . . . . . . 23, 66, 172, 362, 363, 440–​2, 483, 600, 890 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 Chap 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440, 441, 444 Operating Agreement of the Intersputnik International Organization of Space Communication, signed 4 November 2002, entered into force, 4 February 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010 Relationship Agreement between the United Nations and the International Criminal Court, Part III, October 4, 2004, 2283 UNTS 196 . . . . . . . . . . . . . . . 292

Conventions and Treaties African Charter on Human and People’s Rights (ACHPR), adopted in Nairobi, Kenya on 27 June 1981; entered into force, 21 October 1986 . . . . . . . . . . . . . . . . . . . . . . . . . 259, 273, 274, 277, 283, 499, 513 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .513

xlviii   table of instruments African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), signed 22 October 2009, entered into force, 6 December 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . 326, 335 American Convention on Human Rights, adopted in San Jose, Costa Rica, 22 November 1969; entered into force, 18 July 1978 . . . . . . . . . . 270, 271, 274, 499, 513, 587, 601, 887, 897 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601 Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897 Antarctic Treaty, adopted 1 December 1959, entered into force, 23 June 1961, 402 UNTS 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440 Arab Charter on Human Rights, adopted 15 September 1994 . . . . . . . . . . . . . 274, 275 Boundary Waters Treaty between Canada and the United States, Washington, 11 January 1909, 36 Stat 2448 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442, 651 Cartagena Protocol on Biosafety, 16 October 2010, 2226 UNTS 208 . . . . . . . . . . . . 439 Charter of the Arab League, signed at Cairo, 22 March 1945 . . . . 824, 833, 965, 966, 1079 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824, 1079 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 833 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 833 Charter of the Association of Southeast Asian Nations (ASEAN Charter), signed at Singapore, 20 November 2007, entered into force, 15 December 2008 . . . . . . . . . . . . . . . . . . . . . . . . . 824, 827, 829, 904, 956, 1077 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824, 827, 829 Art 12(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art 30(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Art 51(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 Charter of the Financial Stability Board, adopted at Los Cabos on 19 June 2012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372, 374, 378, 944 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Charter of the Organization of American States, signed on 30 April 1948, entered into force, 13 December 1951, 119 UNTS 3 . . . . 269, 270, 274, 778, 824, 830, 832, 835, 906, 1050, 1077 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Art 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824, 830, 835 Art 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 835 Art 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 832 Art 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Art 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 835

table of instruments    xlix Charter of the Organisation of Islamic Cooperation, signed at Dakar, 14 March 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824, 832, 850 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Art 17(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 832 Charter of the Shanghai Cooperation Organization, 7 June 2002 . . . . . . . . . . . . . 953 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Charter of the United Nations, signed on 26 June 1945, San Francisco, entered into force, 24 October 1945, 1 UNTS XVI . . . . . 37, 39, 48, 68, 117, 124, 136, 148, 193, 232, 257, 260–​2, 265, 269, 274, 280, 308, 407, 508, 511, 512, 518, 560, 561, 563, 567, 604, 608, 618, 629, 630, 632, 634–​6, 640, 645, 647, 654, 692, 735, 764–​8, 772, 815, 817, 823, 828, 829, 831–​3, 845, 861, 868, 870, 882, 890, 893, 905, 915, 917, 949, 956, 957, 963, 964, 968, 972, 973, 984, 1008, 1017, 1049, 1067, 1076, 1077, 1086, 1102, 1150, 1154 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407, 635 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255, 257, 261, 1019 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 618, 634, 636 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 618 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 618 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 976 Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634, 647 Art 2(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 630–​2, 636 Art 2(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624 Art 2(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Art 2(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508, 512, 514, 624, 645, 1019 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963 Art 3(1), (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 965, 968, 971 Art 4(1), (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964, 965 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 975, 979, 980 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981, 982 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 892, 1077 Chap IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256, 973 Arts 10–​14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 647, 765 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 815 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232, 765, 815 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 638, 763, 765, 815 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255, 256, 765, 915, 916 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017 Art 17(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .915 Art 17(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905, 976, 1023 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 973 Art 18(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915, 969, 980 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906, 907, 976, 977 Art 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077

l   table of instruments Chaps V–​VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 Chap V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 650 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 227, 605, 636, 1008 Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017 Art 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1019 Art 25 . . . . . . . . . . . . . . . . . . . . 44, 48, 562, 567, 578, 605, 618, 619, 818, 977, 1008 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 817, 973 Art 27(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977 Chap VI . . . . . . . . . . . . . . . . . . . . 193, 194, 196, 198, 200, 205, 206, 634, 647, 861 Art 33(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658 Art 35(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634, 648 Art 37(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 647 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648 Chap VII . . . . . . . . . . 37, 43, 80, 118, 119, 193, 194, 196, 200, 202–​4, 206, 209, 217, 218, 228, 255, 256, 286, 288, 289, 326, 528, 568, 604, 629, 631, 635, 637, 638, 648, 709, 843, 844, 861, 890, 1067 Arts 39–​42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 568, 571, 604, 605, 618 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286, 287, 562, 569, 604–​6, 618 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605, 648 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624, 977 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 977 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 630, 631, 635 Chap VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640, 709 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640 Art 52(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649 Art 52(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 640 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 641 Chap IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255, 257, 261, 732 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255, 257 Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407, 692, 693 Art 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 817 Chap X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255, 256, 561, 817 Art 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561, 693, 847 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655 Art 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255, 256 Art 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979, 1130, 1187

table of instruments    li Art 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 Art 87(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Art 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654, 883, 956, 1015 Art 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654 Art 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654, 896 Art 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655 Art 96(a), (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1017 Art 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648, 823, 845 Art 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 845 Art 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648, 832, 834, 837, 845 Art 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256, 835, 842, 1077 Art 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 831, 1077, 1079 Art 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 568, 1008, 1067 Art 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1049 Art 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052, 1058, 1086 Art 105(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049 Art 105(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 835, 1051 Art 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963 Comprehensive Test Ban Treaty (CTBT), signed 10 September 1996, 35 ILM 1439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234, 243, 245, 589 Constitution and Convention of the International Telecommunication Union (with Annexes and Optional Protocol), signed on 22 December 1992, entered into force, 1 July 1994, 1825 UNTS 331 . . . . . . . . . . . . . . . . . . . . 34, 824, 830, 904 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 830 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art 8(2)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Art 28(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Constitution of the Food and Agriculture Organization of the United Nations, signed and entered into force, 16 October 1945, 145 BSP 910 . . . . . 34, 147, 705, 907, 948, 967, 983, 1077, 1079 Art I(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 967 Art II(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 967 Art VIII(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079 Art VIII(2), (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art XI(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Art XIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Constitution of the International Criminal Police Organization (Interpol), signed at Vienna, 1956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824, 829, 830 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824, 829, 830 Constitution of the International Labour Organization and Instrument for the Amendment of the said Constitution, adopted by the International Labour Conference on 9 October 1946, entered into force, 20 April 1948, 15 UNTS 35 . . . . . 34, 266, 474, 475, 477, 480, 578, 661, 811, 824, 907, 983, 1016, 1077, 1079 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480 Art 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824

lii   table of instruments Art 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079 Art 9(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art 13(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art 19(5)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578 Art 19(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578 Arts 26–​34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .266, 661 Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016 Constitution of the United Nations Educational, Scientific and Cultural Organization, signed on 16 November 1945, entered into force, 4 November 1946, 4 UNTS 275 . . . . . . . . . . . . . . . 34, 572, 810, 816, 907, 964, 973, 981–​3, 1016, 1077–​9 Art II(2), (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 964 Art II(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981 Art II(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 982 Art II(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Art IV(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Art IV(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981 Art IV(8)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art V(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810, 816 Art V(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 973 Art VI(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077, 1079 Art VI(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Art XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016 Constitution of the United Nations Industrial Development Organization, adopted by the United Nations Conference on the Establishment of the United Nations Industrial Development Organization as a Specialized Agency on 8 April 1979, entered into force, 21 June 1985, 1401 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . 905 Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905 Constitution of the Universal Postal Union, signed on 10 July 1964, entered into force, 1 January 1966, 611 UNTS 62 . . . . . . . . . . . . . . . . . . . . . . . . . . .655, 904 Art 21(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655 Constitution of the World Health Organization, adopted on 22 July 1946, entered into force, 7 April 1948, 14 UNTS 185 . . . . . . . 34, 147, 452–​4, 456, 459, 775, 810, 812, 816, 818, 907, 910, 914, 949, 1016, 1049, 1077, 1079 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 Art 2(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456 Art 2(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Art 2(o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456 Art 2(s)–​(u) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456

table of instruments    liii Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457, 571, 775 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457, 571 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453, 810 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812 Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454, 818 Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079 Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Chap XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 914 Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Art 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 816 Art 67(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1049 Art 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016 Constitutive Act of the African Union, adopted in 2000 at the Lome Summit (Togo), entered into force, 2001 . . . . . . . . . .529, 649, 824, 907, 966, 968, 980 Art 4(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 649 Art 4(m), (p) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Art 9(1)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980 Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966 Art 29(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 968 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529, 980 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on 10 December 1984, entered into force, 26 June 1987, 1465 UNTS 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 266, 272, 341 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 Convention concerning Discrimination (Employment and Occupation) (No. 111), 15 June 1960, 362 UNTS 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Convention concerning Equality of Treatment for National and Foreign Workers as Regards Workmen’s Compensation for Accidents (ILO), adopted 5 June 1925, entered into force, 8 September 1926 . . . . . . . . . . . . . . . . 592 Convention concerning Forced or Compulsory Labor (No. 28), June 28, 1930, 39 UNTS 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Convention concerning Peaceful Orientation of Public Instruction (1936) . . . . . . . . 252 Convention concerning the Abolition of Forced Labor (No. 105), June 25, 1957, S. Treaty Doc. No. 88-​11, 320 UNTS 291 . . . . . . . . . . . . . . . . . . . . . . . . . . 253

liv   table of instruments Convention concerning the Protection of the World Cultural and Natural Heritage, adopted in Paris, 16 November 1972; entered into force, 17 December 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565, 573, 779, 780 Convention establishing the Status of Naturalized Citizens Who Again Take up Residence in the Country of Origin, signed 13 August 1906 . . . . . . . . . . . . . 252 Convention establishing the World Intellectual Property Organization (WIPO Convention), signed at Stockholm on 14 July 1967, entered into force, 26 April 1970, 828 UNTS 3, as amended on 28 September 1979 . . . . 909, 983, 1077, 1079 Art 9(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077, 1079 Art 9(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Convention for the establishment of a European Space Agency, signed on 30 May 1975, entered into force, 30 October 1980, 1297 UNTS 161 . . . . . . . . . . . 1056 Annex I, Art IV(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 Convention for the Maintenance, Preservation and Reestablishment of Peace, signed at Buenos Aires December 23, 1936 . . . . . . . . . . . . . . . . . . . . . . . . . 252 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), signed on 4 November 1950, entered into force, 3 September 1953, 213 UNTS 221 . . . . . . . . . . . . . .44, 55, 271, 272, 275, 276, 278, 499, 588, 887, 888, 895, 897, 1002, 1015, 1041, 1042, 1044, 1062, 1102 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272, 275 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 55, 1041, 1063, 1067 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062, 1065 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 275 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898, 899 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Art 32(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897 Protocol 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513, 1042 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .513 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention), signed 23 September 1971, entered into force, 26 January 1973, 974 UNTS 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568, 1017 Convention of the World Meteorological Organization, adopted by the Washington Conference on 11 October 1947, as amended . . . . . . . . . . . . . . 963 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 963 Convention on Access to Information, Public Participation in Decision-​Making and Access to Justice in Environmental Matters (Aarhus Convention), adopted June 28, 1998; entered into force, October 30, 2001, 2161 UNTS 447 . . . . . . . . . 48, 49, 440, 1128 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

table of instruments    lv Convention on Asylum, signed at Havana, February 20, 1928, entered into force, 21 May 1929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Convention on Biological Diversity, adopted 5 June 1992, entered into force, 29 December 1993, 1760 UNTS 79 . . . . . . . . . . . . . . . . . . . 82, 428, 439, 440, 667 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), signed 25 February 1991, entered into force, 10 September 1997, 1989 UNTS 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 Convention on Extradition, signed at Montevideo 26 December 1933 . . . . . . . . . . 252 Convention on Freedom of Association and Protection of the Right to Organize (No. 98), July 9, 1948, 68 UNTS 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Convention on Human Rights and Biomedicine, adopted 4 April 1997, entered into force, 1 December 1999, ETS 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 Convention on International Civil Aviation (Chicago Convention), signed on 7 December 1944, entered into force, 4 April 1947, 15 UNTS 295 . . . . . 572, 659, 811, 812, 818, 824, 910, 981, 1016 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Arts 37, 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Art 50(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Art 50(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .811 Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812 Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 818 Art 54(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Art 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981 Art 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659, 1016 Art 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 Art 93bis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 981, 982 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), adopted in Washington, 3 March 1973, entered into force, 7 January 1975, 993 UNTS 243 . . . . . . . . . . . . . . . . . . . . . . . . . 81, 181, 779, 780 Convention on Long-​Range Transboundary Air Pollution (LRTAP Convention), signed 13 November 1979, entered into force, 16 March 1983, 1302 UNTS 217 . . . 429, 438, 440, 443 Convention on Persistent Organic Pollutants (POPs Convention), adopted on 22 May 2001, entered into force, 17 May 2004, 2256 UNTS 119 . . . . . . . . . . . 81, 439 Convention on Political Asylum, signed at Montevideo, December 26, 1933, entered into force, 28 March 1935 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Convention on Private International Law, signed at Havana 20 February 1928 . . . . . 252 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (CCW), adopted in Geneva, 10 October 1980, entered into force, 2 December 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 503 Convention on the Inter-​Governmental Maritime Consultative Organization (IMCO Convention), signed on 6 March 1948, entered into force, 17 March 1958, 289 UNTS 3, as amended by IMCO Resolution A.358(IX) on 14 November 1975 (changing the name of the Organization to International Maritime Organization, IMO Convention) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 811, 907, 910, 983 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .811

lvi   table of instruments Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 Art 73(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Convention on the International Maritime Satellite Organization (INMARSAT), signed at London on 3 September 1976, entered into force, 16 July 1979 . . . . . . . . 1010 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010 Convention on the Nationality of Women, signed at Montevideo 26 December 1933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Convention on the Organisation for Economic Co-​operation and Development (OECD), signed at Paris, 14 December 1960 . . . . . . . . . . . . . . . . 824 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Convention on the Prevention and Punishment of Genocide, adopted 9 December 1948; entered into force, 12 January 1951, 78 UNTS 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257, 293, 308, 311, 656 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, signed in London, 13 November 1972, entered into force, 30 August 1975, 1046 UNTS 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 Convention on the Privileges and Immunities of the Organization of African Unity, signed at Accra, 25 October 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 832 Art VI(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 832 Convention on the Privileges and Immunities of the Specialized Agencies, approved by the General Assembly of the United Nations on 21 November 1947, entered into force, 2 December 1948, 33 UNTS 261 . . . . . . . . . . . . . 56, 831, 835, 1052, 1056, 1067 Art III, s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 Art V, s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 831, 835 Art VII, s 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Convention on the Privileges and Immunities of the United Nations (the General Convention), adopted 13 February 1946, 1 UNTS 15 . . . . . . . 1050–​2, 1055, 1056, 1058, 1062 Art II, s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051, 1056 Art II, s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Art II, s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Art II, s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Art II, s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Art II, s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Art II, s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Art III, s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Art IV, s 11(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Art V, s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Art V, s 18(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1051 Art V, s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Art VI, s 22(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1051 Art VIII, s 29(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1062 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC), adopted 10 April 1972; entered into force, 26 March 1975 . . . . . . . . . 233, 234, 239, 244

table of instruments    lvii Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC), opened for signature on 13 January 1993, entered into force, 29 April 1997, 1974 UNTS 317 . . . . . 233, 234, 239, 244, 248, 296, 780, 810, 820 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810 Arts 34–​36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 820 Convention on the Prohibition of the Use, Stockpiling, Production, Transfer of Anti-​Personnel Mines and on Their Destruction, adopted in Ottawa, 18 September 1997; entered into force, 1 March 1999, 2056 UNTS 211 . . . . . . . . . . 14 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted 20 October 2005, entered into force, 19 March 2007, 2440 UNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted in New York 10 June 1958, entered into force, 7 June 1959, 330 UNTS 38 . . . 183 Convention on the Rights and Duties of States, signed at Montevideo, 26 December 1933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Convention on the Rights of the Child (CRC), adopted by the UN General Assembly, New York, 20 November 1989; entered into force, 2 September 1990, 1577 UNTS 3 . . . . 275 Convention on the Safety of United Nations and Associated Personnel, adopted by the General Assembly of the United Nations on 9 December 1994, entered into force, 15 January 1999, 2051 UNTS 363 . . . . . . . . . . . . . . . . . . . . . . . . 295 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID), adopted 18 March 1965, entered into force, 14 October 1966, 575 UNTS 159 . . . . . . . . . . . . . . . . . . . 660, 661, 884, 890, 895, 897, 899, 901 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897 Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 901 Art 25(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 660 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Art 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895 Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 896 Convention on the Transboundary Effects of Industrial Accidents (Helsinki Convention), signed 17 March 1992, entered into force, 17 January 2000, 1936 UNTS 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 Convention relating to the Status of Refugees, signed in Geneva 28 July 1951; entered into force, 2 April 1954, 189 UNTS 137 . . . . . . . . . . . . . 315, 325, 327, 328, 332, 340, 344, 978 Convention relative to the Rights of Aliens, signed in Mexico City, 1902 . . . . . . . . . 252 Council of Europe, Additional Protocol to the Convention on Human Rights and Biomedicine, Concerning Biomedical Research, 25 January 2005, CETS 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460 Council of Europe, Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin, 24 January 2002, CETS 186 . . . . . . . . . . . . . . . . . . . . . . 460 Council of Europe, Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Genetic Testing for Health Purposes, 27 November 2008, CETS 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460

lviii   table of instruments Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, 4 April 1997, CETS 164 . . . . . . . 460 Council of Europe, Convention on the Counterfeiting of Medical Products and Similar Crimes Involving Threats to Public Health, 28 October 2011, CETS 211 . . . 460 Council of Europe, Convention on the Elaboration of a European Pharmacopeia, 22 July 1964, CETS 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460 Council of Europe, European Agreement on Mutual Assistance in the matter of Special Medical Treatments and Climatic Facilities, 14 May 1962, CETS 38 . . . . . 460 Council of Europe, European Social Charter, 18 October 1961, CETS 35 . . . . . . 272, 460 Council of Europe, Protocol to the Convention on the Elaboration of a European Pharmacopeia, 16 November 1989, CETS 134 . . . . . . . . . . . . . . . . . . . . . . . 460 Covenant of the League of Nations, signed on 28 June 1919, 225 CTS 195, 2 LNOJ (1920) . . . . . 102–​4, 626–​8, 631, 646, 653, 692, 761, 763, 826, 841, 1049, 1079, 1087 Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 626 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 761 Art 3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762, 826, 841 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Art 7(4), (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1049 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 626, 631 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627 Arts 12–​15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .646, 653 Art 16(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .626, 627 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Art 23(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 692 Draft Articles on the Responsibility of International Organizations (DARIO), adopted 3 June 2011, Geneva, 1155 UNTS 331 . . . . . . . . 33, 52, 807, 948, 950, 1007, 1027, 1028, 1030, 1031, 1033, 1034, 1040, 1045, 1047 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948, 950, 1007 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Art 2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Art 2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 807 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029 Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1030, 1033 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031, 1033 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035 Art 10(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1035 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1034 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708, 1040 Arts 15, 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1040 Art 17(a), (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1040

table of instruments    lix Chap V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036 Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036 Art 22(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1036 Art 30(a), (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046 Art 40(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1047 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043 Art 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1045 Art 52(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1037 Art 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1027 Art 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1040, 1042 Art 61(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1038 Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted 10 August 2001, Supplement No. 10 (A/​56/​10) . . . . . 627, 630, 708, 710, 895, 945, 999, 1000–​1004, 1027, 1039, 1040 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708, 1000, 1004 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1003 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 999, 1000, 1002, 1003 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1003 Arts 14–​19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 708 Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039, 1040 Pt 1, Chap IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707, 1039 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1001, 1004, 1039 Pt 2, Chap IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 630 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 630 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 627 Arts 58–​60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039 Pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1039 Framework Convention for the Protection of National Minorities, adopted 1 February 1995, entered into force, 1 February 1998, ETS 157 . . . . . . . . . . . . . . 272 General Act (Pacific Settlement of International Disputes), Geneva, September 26, 1928, 93 LNTS 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 646 Art 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 646 General Agreement on Privileges and Immunities of the Council of Europe, signed on 2 September 1949, ETS No. 2, 250 UNTS 14 . . . . . . . . . . . . . . .1052, 1056 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted in Geneva, 12 August 1949; entered into force, 21 October 1950 . . . . . . . . . . . . . . . . . 295, 308 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295

lx   table of instruments Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted in Geneva, 12 August 1949; entered into force, 21 October 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . .295, 308 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted in Geneva, 12 August 1949; entered into force, 21 October 1950 . . . . . 295, 308 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Geneva Convention relative to the Treatment of Prisoners of War, adopted in Geneva, 12 August 1949; entered into force, 21 October 1950 . . . . . . 295, 308, 587, 588 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and Bacteriological Methods of Warfare, adopted in Geneva, 17 June 1925 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 Hague Convention for the Pacific Settlement of International Disputes, signed on 18 October 1907, entered into force, 26 January 1910, UKTS 6 . . . . . . . 646, 650, 652 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 646 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 650 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted in The Hague, 14 May 1954; entered into force, 7 August 1956 . . . 365 Hague Convention with respect to the Laws and Customs of War on Land, signed on 29 July 1899, entered into force, 4 September 1900, 32 Stat 1779 . . . 233, 652, 653, 662 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 652 Inter-​American Convention on Forced Disappearance of Persons, adopted 6 September 1994; entered into force, 28 March 1996 . . . . . . . . . . . . . . . . 270, 274 Inter-​American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, adopted 7 June 1999, entered into force, 14 September 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270, 274 Inter-​American Convention on the Granting of Civil Rights to Women, signed at Bogota, 2 May 1948, PAUTS 1923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Inter-​American Convention on the Granting of Political Rights to Women, signed at Bogota, 2 May 1948, PAUTS 1923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Inter-​American Convention on the Prevention, Punishment, and Eradication of Violence against Women, June 9, 1994, 27 UST 3301, 33 ILM 1534 . . . . . . . . 270, 274 Inter-​American Convention to Prevent and Punish Torture, December 9, 1985, OASTS No. 67, 25 ILM 519 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270, 273 International Cocoa Agreement 2010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 International Coffee Agreement 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . 906, 956 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 956 International Convention for the Prevention of Pollution from Ships (MARPOL), signed 17 February 1973, entered into force, 2 October 1983 . . . . . . . 430, 431, 439, 443 International Convention for the Prevention of Pollution of the Sea by Oil, adopted on 4 May 1954, entered into force, 26 July 1958, 327 UNTS 3 . . . . . . . 585, 590 International Convention for the Regulation of Whaling (Whaling Convention), 2 December 1946, 161 UNTS 361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440

table of instruments    lxi International Convention for the Suppression of Acts of Nuclear Terrorism, adopted in New York, 13 April 2005, entered into force, 7 July 2007 . . . . . . . . . . 246 International Convention on the Elimination of all Forms of Racial Discrimination, adopted by the General Assembly of the United Nations on 21 December 1965, entered into force, 4 January 1969, 660 UNTS 195 . . . . . . . . . . . . . . . . . . 257, 266 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, adopted 18 December 1971, entered into force, 16 October 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . 779, 780 International Convention on the Protection of the Rights of All Migrant Workers and their Families, signed in New York 18 December 1990, entered into force, 1 July 2003, 2220 UNTS 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 Art 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted 30 November 1973, entered into force, 18 July 1976, 1015 UNTS 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586 Art VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586 Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586 International Covenant on Civil and Political Rights (ICCPR), adopted by the General Assembly of the United Nations on 19 December 1966, entered into force, 23 March 1976, 999 UNTS 171 . . . . . . 117, 251, 257, 263, 266, 274–​6, 341, 499, 512, 513, 529, 531, 532, 1062 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .251 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1062 Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 41(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the UN General Assembly, New York, 16 December 1966; entered into force, 3 January 1976, 993 UNTS 3 . . . . . . . . . . . . . 257, 274, 275, 460, 499, 572, 1083 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460 International Telecommunication Regulations 1988 . . . . . . . . . . . . . . . 538, 553, 554 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538 Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted at the Third Session of the Conference of the Parties to the 1992 United Nations Framework Convention on Climate Change on 11 December 1997, entered into force, 16 February 2005, 2303 UNTS 162 . . . 77, 435, 439, 665, 719, 871 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (ECCC) for the Prosecution of Crimes Committed during the period of Kampuchea, as amended 27 October 2004 . . . . . . . . . . . . . 289, 290, 293, 294, 296 Art 3new . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294

lxii   table of instruments Art 43new . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 44new(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 Minimata Convention on Mercury, adopted 10 October 2013, entered into force, 2 October 1983, 1340 UNTS 184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Model Protocol Additional to the Agreement(s) Between State(s) and the International Atomic Energy Agency for the Application of Safeguards, 1 September 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239, 240, 242 Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), 16 September 1987, in force, 1 January 1989, 1522 UNTS 29 . . . . . . . . . . 438, 439, 443 North Atlantic Treaty (Washington Treaty), concluded 4 April 1949, 34 UNTS 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed 17 December 1997, entered into force, 14 February 1999, 2187 UNTS 90 . . . . . . . . . . . . . . . . 217, 1078 Optional Protocol to the International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force, 23 March 1976 . . . . . . . . . . 266, 267 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 Protocol Additional to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, 17 November 1988, OASTS No. 69, 28 ILM 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270, 273, 453 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted in Geneva on 8 June 1977 (1977 Additional Protocol I) . . . . . . . . . . . . . . . . . 308, 651 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-​International Armed Conflicts, similarly adopted in Geneva on 8 June 1977 (1977 Additional Protocol II) . . . . . . . . . . . . 308 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the Abolition of the Death Penalty, 28 April 1983, ETS No. 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Protocol of Buenos Aires, 27 February 1967, OASTS No. 1, TIAS No. 6847, 721 UNTS 324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269–​71, 778 Protocol of Cartagena de Indias, 5 December 1985, OASTS No. 66, 119 UNTS 3, 25 ILM 529 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .270, 778 Protocol of Managua, 10 June 1993, OEA/​Ser A/​2 Add 3, 33 ILM 1009 . . . . . . . . . . 270 Protocol of the Court of Justice of the African Union, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, 11 July 2003 . . . . . . 1013 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Art 28(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Protocol of Washington, December 14, 1992, OEA/​Ser A/​2 Add 3, 33 ILM 1005 . . . . . 270 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), 4 October 1991, entered into force, 14 January 1998, 30 ILM (1991) 1455 . . . . . . . . 440 Protocol on Pollutant Release and Transfer Registers to the Aarhus Convention (PRTR Protocol), Kiev, 21 May 2003, entered into force, 8 October 2009 . . . . . . . 440 Protocol on the Privileges and Immunities of the European Patent Organisation, signed on 5 October 1973, entered into force 7 October 1977, 1065 UNTS 500 . . .1056, 1057

table of instruments    lxiii Art 3(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1057 Protocol on the Tribunal in the Southern African Development Community (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Arts 17, 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Protocol relating to the Status of Refugees, signed 31 January 1967, entered into force, 4 October 1967, 606 UNTS 267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 328 Protocol to Eliminate Illicit Trade in Tobacco Products, adopted on 12 November 2012, Decision FCTC/​COP5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456, 457 Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990, OASTS No. 73 . . . . . . . . . . . . . . . . . . . . . . . 258, 270, 274 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, 1046 UNTS 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 Revised Convention for Rhine Navigation, signed at Mannheim on 17 October 1868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the Abolition of the Death Penalty, 11 July 1991, 1642 UNTS 414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 Single European Act, adopted 17 February 1986, entered into force, 1 July 1987, [1987] 2 CMLR 741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 789 Statute for the International Criminal Tribunal for Rwanda (ICTR), adopted on 8 November 1994 by UNSC Resolution 955, as amended on 26 March 2004 by UNSC Resolution 1534, 2178 UNTS 145 . . . . . . . . . . . . . . . . . 288, 294, 295, 887 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 Statute of the Administrative Tribunal of the International Labour Organization (ILOAT), adopted by the International Labour Conference on 9 October 1946 . . . . . . . . . . . . . . . . . . . . . . . . 1087–​9, 1095, 1097, 1099–​1101 Art II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1088 Art II(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art II(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1088 Art III(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1094 Art III(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095 Art III(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art VI(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1099 Art VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1099 Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art X(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087, 1091 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1088

lxiv   table of instruments Statute of the Administrative Tribunal of the International Monetary Fund (IMFAT), adopted 13 January 1994 . . . . . . . . . . . . . . . . . .1094, 1096–​8, 1100, 1101 Art II(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art VII(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094 Art VII(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art VII(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1096 Art VII(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art VII(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1096 Art IX(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art X(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100, 1101 Art XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art XIII(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1099 Art XIV(1)–​(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099 Art XVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1098 Art XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1098 Statute of the Administrative Tribunal of the United Nations, adopted 24 November 1949 . . . . . . . . . . . . . . . . . . 1087–​9, 1092, 1093, 1095–​1100 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1098 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1096 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1088, 1095 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096 Art 3(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096 Art 3(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art 3(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1096 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095 Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art 10(1), (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art 10(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1099 Art 10(7), (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1092 Art 11(1)–​(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1098 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089 Statute of the Administrative Tribunal of the World Bank, adopted by the Board of Governors on 30 April 1980 and amended on 31 July 2001 and 18 June 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267, 1094–​7 Art XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1098–​1101 Art II(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art II(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art II(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art IV(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1094, 1096

table of instruments    lxv Art IV(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1096 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art V(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096 Art VI(1), (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099, 1101 Art XII(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099 Art XIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1098 Statute of the Central American Court of Justice, adopted 13 December 1991 . . . . . . 1012 Art 22(b), (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012 Statute of the Council of Europe, signed on 5 May 1949, entered into force, 3 August 1949, 87 UNTS 103 . . . . . . . . . . . . . . . . . . . . . . . . . 271, 272, 278, 1050 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271, 272 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Art 40(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Statute of the Court of Justice of the European Union (CJEU) . . . . . . . . . . . . . . 1098 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1098 Annex 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1098 Statute of the Dispute Tribunal of the United Nations (UNDT), adopted 24 December 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095–​1101 Art 2(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1097 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1096 Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095 Art 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096 Art 4(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096 Art 4(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art 4(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1096 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095 Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1100 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art 10(5)–​(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099 Art 10(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art 11(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1099 Art 11(4), (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1101 Art 12(1)–​(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1098 Statute of the European Union Civil Service Tribunal (EUCST) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092, 1094, 1095, 1098 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1098 Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1094 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095 Art 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1098 Statute of the Inter-​American Commission on Human Rights, signed on 1 October 1979, entered into force, 1 November 1979 . . . . . . . . . . . . . . . . . . . 271 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

lxvi   table of instruments Statute of the International Atomic Energy Agency, signed on 26 October 1956, entered into force, 29 July 1957, 276 UNTS 3 . . . . . . . . . . 239, 571, 824, 829, 909, 1016 Art III(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 Art VII(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824, 829 Art XII(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239, 241 Art XIV(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Art XIV(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910 Art XVII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016 Statute of the International Court of Justice, signed on 26 June 1945, entered into force, 24 October 1945 . . . . . . . . 232, 256, 567, 569, 634, 654, 656, 885, 893, 895, 898, 945, 1043, 1044, 1082 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898, 899 Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 898 Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044 Art 34(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654, 1082 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 634, 885 Art 36(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654 Art 36(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1043 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566, 567, 569, 573, 580, 893 Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894 Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654 Art 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 893 Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 894 Art 55(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656 Art 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895 Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 895 Statute of the International Criminal Court (Rome Statute), signed on 17 July 1998, entered into force, 1 July 2002, 2187 UNTS 90 . . . . .259, 286, 292, 293, 295, 296, 298, 568, 779, 780, 886, 890, 891, 899, 900, 915, 917, 953, 1016, 1024, 1077, 1079 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 891 Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 891 Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Art 7(1)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 8(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 8(2)(b)(vii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 8(2)(b)(xvii–xix) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art 8(2)(e)(xiii–​x v) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art 8(2)(e)(xxvi) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 8(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Art 11(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 915 Art 11(7)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .915

table of instruments    lxvii Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298 Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300, 301 Art 27(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Art 27(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 Art 34(1)–​(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 899 Art 44(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art 44(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079 Art 87(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Art 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Art 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1024 Art 127(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1024 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), adopted on 25 May 1993 by UNSC Resolution 827, as amended on 7 July 2009 by UNSC Resolution 1877 . . . . . . . . . . . . . . . . . . . . . . . 286, 287, 293, 886, 889, 917 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 889 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Art 13bis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Art 14(1), (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Art 16(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288, 917 Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287 Statute of the International Renewable Energy Agency (IRENA), signed in Bonn, 26 January 2009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Art XIX(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 953 Statute of the International Tribunal of the Law of the Sea, signed on 10 December 1982, entered into force, 16 November 1994 . . . . . . . . . . . . . .897, 898 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897–​9 Art 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 897 Statute of the Organization of the Petroleum Exporting Countries (OPEC), adopted in January 1961 in Caracas, Venezuela . . . . . . . . . . . . . . . . . . . . . . 904 Art 37(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 Statute of the Special Court for Sierra Leone (SCSL), adopted 16 January 2002, entered into force, 12 April 2002, 2178 UNTS 145 . . . . . . . . . 288, 291, 294–​6, 298–​300 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288 Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296 Art 7(1), (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299 Statute of the Special Tribunal for Lebanon (STL), UN SC Res. 1757, 20 May 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291, 293, 296 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291, 296

lxviii   table of instruments Statute of the World Tourism Organization, adopted on 27 September 1970, entered into force, 2 January 1975, 985 UNTS 339 . . . . . . . . . . . . . . . . . . 990, 991 Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990 Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991 Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 991 Treaty banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, also known as the Partial Test Ban Treaty (PTBT), signed 5 August 1963, entered into force, 10 October 1963, 480 UNTS 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234, 236, 237, 949, 961 Treaty concerning the Formation of a General Postal Union (Convention of Bern), 9 October 1874 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 646, 659, 760 Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 646, 659 Treaty creating the Court of Justice of the Cartagena Agreement, 28 May 1979 . . . . . 1012 Arts 17–​19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012 Treaty establishing a Common Market between the Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay (MERCOSUR), signed 26 March 1991, entered into force, 29 November 1991 . . . . . 945 Treaty establishing a Constitution for Europe 2004 . . . . . . . . . . . . . . . . . . . . 944 Arts 1–​8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 944 Treaty establishing the Court of Justice for the Common Market for Eastern and Southern Africa (COMESA) 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Treaty establishing the North Atlantic Treaty Organization (NATO), signed in Washington, DC, April 1949, concluded 4 April 1949, 34 UNTS 243 . . . . . . . . 946 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 Arts 9–​13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 946 Treaty for the Establishment of the East African Community, 30 November 1999 (as amended on 14 December 2006 and 20 August 2007) . . . . . . . . . . . . . . . . 1013 Arts 24–​26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Treaty for the Extradition of Criminals and for Protection against Anarchism, signed at Mexico City, 28 January 1902 . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Treaty of Amsterdam, amending the Treaty of the European Union, the Treaties establishing the European Communities and certain related acts, signed on 2 October 1997, entered into force, 1 May 1999 . . . . . . . . . . . . . . . . . . . . . . . 35 Treaty of Berlin, signed 13 July 1878 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, December 13, 2007, Official Journal of the European Union, Notice No. 2007/​C 306/​01 . . . . . . . 704, 797, 799, 944, 945, 1187 Treaty of Nice, amending the Treaty of the European Union, the Treaties establishing the European Communities and certain related acts, signed 26 February 2001, entered into force, 1 February 2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 798 Treaty of the Economic Community of West African States (ECOWAS), Lagos, 28 May 1975, revised 24 July 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012 Art 3(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013 Treaty of Versailles, signed on 28 June 1918, entered into force, 10 January 1920, 7 LNTS 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214, 405, 477

table of instruments    lxix Treaty of Westphalia 1848 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 840 Treaty on European Union (Maastricht Treaty), signed 7 February 1992, entered into force, 1 November 1993 . . . . . . . . . . . . . . . . . . . . . . . 789, 825, 944 Treaty on European Union (Consolidated), Official Journal of the EU (26 October 2012), C 326/​13, (TEU) . . . . . . . . . . . . 613, 704, 944, 947, 966, 1008, 1128 Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1044 Art 15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620 Art 16(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620 Art 17(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809 Art 17(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 812, 825 Art 19(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010 Title IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1128 Art 21(2)(b), (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613, 615, 618, 620 Title V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613, 614 Chaps 1, 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613, 614 Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947 Art 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 966, 968 Art 50(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 983 Art 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567 Art 275 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Art 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1008 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, signed 27 January 1967, entered into force, 10 October 1967, 610 UNTS 205 . . . . . . 234, 236, 237, 571, 766 Treaty on the Functioning of the European Union (TFEU), signed on 13 December 2007, 2012/​C 326/​01 . . . . . . . . 52, 161, 166, 513, 567, 613, 620, 704, 818, 944, 945, 947, 966, 1011, 1077, 1079 Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .513 Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Title IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613 Art 45(3)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 818 Art 106(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 818 Art 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613, 614 Art 228(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Art 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567 Art 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Art 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Art 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52, 819, 1011 Art 263(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Art 267 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Art 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077, 1098 Art 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011 Art 273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1011

lxx   table of instruments Art 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079 Art 340(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1028 Treaty on the Non-​Proliferation of Nuclear Weapons, (NPT) signed 1 July 1968, entered into force, 5 March 1970, 729 UNTS 161 . . . . . 234–​42, 244, 245, 247, 248, 598, 599, 665, 766, 873 Art I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Art II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 Art IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238, 245 Art V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242, 245 Art VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238, 245 Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Treaty Revising the Treaty Establishing the Benelux Economic Union, signed 3 February 1958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 United Nations Charter of Economic Rights and Duties of States, adopted 12 December 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117 United Nations Convention against the Recruitment, Use, Financing and Training of Mercenaries, adopted in New York, 4 December 1989, 2163 UNTS 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 United Nations Convention Against Corruption (UNCAC), adopted 31 October 2003, entered into force, 14 December 2005, 2349 UNTS 41 . . . . . . . . . . . . 225, 780 United Nations Convention against Transnational Organized Crime (UNTOC), adopted 15 November 2000, entered into force, 29 September 2003, 2225 UNTS 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224, 225 United Nations Convention on Psychotropic Substances, adopted 21 February 1971, entered into force, 16 August 1976, 1019 UNTS 175 . . . . . . . . . . . . . . . . . .215 United Nations Convention on the Law of the Sea (UNCLOS), adopted by the Third United Nations Conference on the Law of the Sea on 10 December 1982, entered into force, 16 November 1994, 1833 UNTS 3 . . . . . . . . . . 78, 81, 118, 658, 766, 773, 862, 888, 890, 909 Art 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 909 Pt XV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658 Art 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658 Art 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658 Annexes VII, VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 658 United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/​or Desertification, particularly in Africa (UNCCD) adopted 17 June 1994, entered into force, 26 December 1996, 1954 UNTS 3 . . . . . . . 82 United Nations Declaration of Action on a New International Economic Order, 1 May 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117 United Nations Declaration on Permanent Sovereignty over Natural Resources, 14 December 1962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 United Nations Declaration on the Right to Development, 4 December 1986 . . . . . . .117 United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670

table of instruments    lxxi United Nations Economic Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Helsinki, 18 March 1992, entered into force, 6 October 1996, 1936 UNTS 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429 United Nations Framework Convention on Climate Change, adopted by the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change on 9 May 1992, entered into force, 21 March 1994, 1771 UNTS 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 82, 436–​9, 667, 743, 973 United Nations Single Convention on Narcotic Drugs, adopted 30 March 1961, entered into force, 13 December 1964, 520 UNTS 204 . . . . . . . . . . . . . . . . . . .215 Universal Declaration of Human Rights (UDHR), adopted in Paris 10 December 1948 . . . . . . . . . 117, 269, 270, 274, 308, 499, 500, 509, 512, 567, 982, 1062 Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1062 Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Art 23(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1082 Vienna Convention for the Protection of the Ozone Layer, signed 22 March 1985, entered into force, 22 September 1988, 1513 UNTS 323 . . . . . . . . . . . . . . . .438, 439 Vienna Convention on Consular Relations, signed on 24 April 1963, entered into force, 19 March 1967, 596 UNTS 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Vienna Convention on Diplomatic Relations (VCDR), signed on 18 April 1961, entered into force, 24 April 1964, 500 UNTS 95 . . . . . . . . . . . . . . . . . . . . . . 766 Vienna Convention on the Law of Treaties (VCLT), signed on 23 May 1969, entered into force, 27 January 1980, 1155 UNTS 331 . . . . . . . . 78, 257, 362, 430, 567, 630, 766, 945, 949, 952, 954, 959 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 949, 954 Art 20(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 952, 953 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567 Arts 31–​33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 958 Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Art 31(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Art 31(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Art 31(3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 959 Art 31(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362 Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 630, 952 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLT II), signed on 21 March 1986 (not yet in force), UN-​Doc. A/​CONF.129/​15 . . . . . . . 48, 945 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Art 2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Art 2(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 945 Art 31(3) lit.c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 WHO Framework Convention on Tobacco Control (FCTC), adopted on 21 May 2003, 2302 UNTS 166 . . . . . . . . . . . . . . . . . . . . . . . . .456, 457, 707, 775

lxxii   table of instruments

Statements and Declarations Canada-​Denmark-​Finland-​Iceland-​Norway-​Russian Federation-​Sweden-​United States: Joint Communiqué and Declaration on the Establishment of the Arctic Council, International Legal Materials 35/​6 (November, 1996): 1382–​90 . . . . . . . . 434 Rio Declaration on Environment and Development, International Legal Materials 31/​4 (July, 1992): 874–​80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427, 1128 Stockholm Declaration on the Human Environment, International Legal Materials 11/​6 (November, 1972): 1416–​69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427

United Nations Resolutions Economic and Social Council UN ECOSOC Res. 2/​11 (June 21, 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . 256, 262 UN ECOSOC Res. 728F (July 30, 1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 UN ECOSOC Res. 1196 (May 16, 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .815 UN ECOSOC Res. 1235 (June 6, 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 UN ECOSOC Res. 1296 (May 23, 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 986 UN ECOSOC Res. 1503 (May 27, 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 UN ECOSOC Res. 1949 (May 18, 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 706 UN ECOSOC Res. 1996/​31 (July 25, 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 51, 979 UN ECOSOC Res. 2000/​3 (June 16, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 264

General Assembly UNGA Res. 11 (I) (January 24, 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 826, 828 UNGA Res. 14 (I)A (February 13, 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 UNGA Res. 103 (I), (November 19, 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 UNGA Res. 44 (I) (December 8, 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . 261, 262 UNGA Res. 56 (I) (December 11, 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 96 (I) (December 11, 1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 UNGA Res. 197 (III) (December 8, 1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . 965 UNGA Res. 217A (III) (December 10, 1948) . . . . . . . . . . . . . . . . . . . . 259, 269, 567 UNGA Res. 285 (III) (April 25, 1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 351 (IV) (November 24, 1949) . . . . . . . . . . . . . . . . . . . . . . . . . .1089 UNGA Res. 377A (V) (November 3, 1950) . . . . . . . . . . . . . . . . . . . . . 638, 815, 1018

table of instruments    lxxiii UNGA Res. 396 (V) (December 14, 1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . 974 UNGA Res. 429 (V) (December 14, 1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . 978 UNGA Res. 492 (V) (November 1, 1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . 829 UNGA Res. 590 (VI) (February 2, 1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079 UNGA Res. 616 (VII) (December 5, 1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 678 (VII) (December 21, 1952) . . . . . . . . . . . . . . . . . . . . . . . . . .1089 UNGA Res. 721 (VIII) (December 8, 1953) . . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 820 (IX) (December 14, 1954) . . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 917 (X) (December 6, 1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 956 (X) (November 3, 1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1089 UNGA Res. 1016 (XI) (January 30, 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 1178 (XII) (November 26, 1957) . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 1248 (XII) (October 30, 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 1375 (XIII) (November 17, 1959) . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 1514 (XV) (December 14, 1960) . . . . . . . . . . . . . . . . . . . . . . . 570, 771 UNGA Res. 1598 (XIV) (April 15, 1961) . . . . . . . . . . . . . . . . . . . . . . . . . .262, 982 UNGA Res. 1654 (XVI) (November 27, 1961) . . . . . . . . . . . . . . . . . . . . . . . . . 263 UNGA Res. 1663 (XV) (November 28, 1961) . . . . . . . . . . . . . . . . . . . . . . . . . 262 UNGA Res. 1665 (XVI) (December 4, 1961) . . . . . . . . . . . . . . . . . . . . . . . 237, 982 UNGA Res. 1722 (XVI) (February 23, 1962) . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNGA Res. 1761 (XVII) (November 6, 1962) . . . . . . . . . . . . . . . . . . . . . . .262, 982 UNGA Res. 1803 (XVII) (December 14, 1962) . . . . . . . . . . . . . . . . . . . . . . . . 570 UNGA Res. 1962 (XVIII) (December 13, 1963) . . . . . . . . . . . . . . . . . . . . . . . . 571 UNGA Res. 1991A (XVIII) (December 17, 1963) . . . . . . . . . . . . . . . . . . . . . . . 973 UNGA Res. 2029 (XX) (November 22, 1965) . . . . . . . . . . . . . . . . . . . . . . . . . 698 UNGA Res. 2131 (XX) (December 21, 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . 570 UNGA Res. 2200 (XXI) (December 16, 1966) . . . . . . . . . . . . . . . . . . . . . 266, 267 UNGA Res. 2529 (XXIV) (December 5, 1969) . . . . . . . . . . . . . . . . . . . . . 989, 990 UNGA Res. 2625 (XXV) (October 24, 1970) . . . . . . . . . . . . . . . . . . . . . . . . . 570 UNGA Res. 2626 (XXV) (October 24, 1970) . . . . . . . . . . . . . . . . . . . . . . . . . 735 UNGA Res. 2758 (XXVI) (October 25, 1971) . . . . . . . . . . . . . . . . . . . . . . 969, 974 UNGA Res. 284 (XXVI) (December 20, 1971) . . . . . . . . . . . . . . . . . . . . . . . . 973 UNGA Res. 3201/​3202 (S-​VI) (May 1, 1974) . . . . . . . . . . . . . . . . . . . . . . . . 735, 1113 UNGA Res. 3208 (XXIX) (October 11, 1974) . . . . . . . . . . . . . . . . . . . . . . . . . 706 UNGA Res. 3281 (XXIX) (December 12, 1974) . . . . . . . . . . . . . . . . . . . . . . . . 735 UNGA Res. 3314 (XXIX) (December 14, 1974) . . . . . . . . . . . . . . . . . . . . . . . . 570 UNGA Res. 3324 (XXIX) (December 16, 1974) . . . . . . . . . . . . . . . . . . . . . . . . 975 UNGA Res. 3357 (XXIX) (December 18, 1974) . . . . . . . . . . . . . . . . . . . . . . . . 1075 UNGA Res. 32/​197 (December 19, 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693 UNGA Res. 41/​213 (December 19, 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .915 UNGA Res. 44/​128 (December 15, 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 UNGA Res. 45/​121 (December 14, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568 UNGA Res. 45/​150 (February 22, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 UNGA Res. 45/​151 (February 22, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 UNGA Res. 45/​188 (December 21, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736 UNGA Res. 46/​166 (December 19, 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 736 UNGA Res. 46/​237 (May 22, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971

lxxiv   table of instruments UNGA Res. 46/​238 (May 22, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971 UNGA Res. 46/​236 (May 22, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971 UNGA Res. 47/​225 (April 8, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971 UNGA Res. 47/​1 (September 22, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971 UNGA Res. 47/​121 (December 18, 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 638 UNGA Res. 48/​141 (December 20, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256 UNGA Res. 50/​54 (December 11, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1092 UNGA Res. 50/​106 (December 20, 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 736 UNGA Res. 51/​241 (July 31, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 827 UNGA Res. 52/​250 (July 7, 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 969 UNGA Res. 55/​2 (September 8, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 523, 702 UNGA Res. 55/​25 (November 15, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 225, 906 UNGA Res. 56/​76 (January 24, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749 UNGA Res. 57/​228 (May 22, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 UNGA Res. 58/​4 (October 31, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 UNGA Res. 58/​129 (February 19, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749 UNGA Res. 58/​269 (December 23, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . .915 UNGA Res. 58/​314 (July 1, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978 UNGA Res. 59/​283 (April 13, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1093 UNGA Res. 60/​1 (October 24, 2005) . . . . . . . . . . . . . . . . . . . . . . 511, 515, 632, 633 UNGA Res. 60/​164 (December 16, 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 UNGA Res. 60/​251 (April 3, 2006) . . . . . . . . . . . . . . . . . . . . 256, 259, 265, 266, 980 UNGA Res. 60/​264 (July 12, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972 UNGA Res. 60/​286 (October 9, 2006) . . . . . . . . . . . . . . . . . . . . . . . 287, 827, 828 UNGA Res. 61/​34 (December 4, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 902 UNGA Res. 61/​261 (April 4, 2007) . . . . . . . . . . . . . . . . . . . . . . . . 1090, 1091, 1093 UNGA Res. 61/​297 (September 13, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 UNGA Res. 62/​211 (December 19, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749 UNGA Res. 62/​228 (December 22, 2007) . . . . . . . . . . . . . . . . . . . . 1091, 1093, 1095 UNGA Res. 63/​253 (December 24, 2008) . . . . . . . . . . . . . . . . . . . . 1093, 1095, 1097 UNGA Res. 63/​301 (June 30, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 974 UNGA Res. 63/​308 (September 14, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . 201, 834 UNGA Res. 64/​223 (March 25, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 749 UNGA Res. 65/​251 (December 24, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095 UNGA Res. 65/​265 (March 1, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 980 UNGA Res. 65/​276 (May 3, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 706 UNGA Res. 65/​308 (July 14, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972 UNGA Res. 66/​100 (December 9, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707 UNGA Res. 66/​106 (December 9, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . .1096 UNGA Res. 66/​223 (December 22, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 749 UNGA Res. 66/​237 (December 24, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1095 UNGA Res. 67/​19 (November 29, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978 UNGA Res. 66/​253 (February 21, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 UNGA Res. 67/​19 (December 4, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 970 UNGA Res. 67/​207 (December 21, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978 UNGA Res. 67/​226 (December 21, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 680 UNGA Res. 67/​290 (July 9, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979

table of instruments    lxxv UNGA Res. 68/​167 (December 18, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 UNGA Res. 68/​248 (December 27, 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 904 UNGA Res. 68/​279 (June 30, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 978 UNGA Res. 68/​262 (March 27, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 UNGA Res. 68/​272 (May 19, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 UNGA Res. 68/​301 (July 17, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524 UNGA Res. 69/​44 (December 29, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 UNGA Res. 69/​321 (September 11, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 UNGA Res. 70/​1 (September 25, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 524 UNGA Res. 70/​2 (October 12, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907 UNGA Res. 70/​168 (December 17, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 UNGA Res. 70/​245 (December 23, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 905 UNGA Res. 70/​246 (December 23, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 906 UNGA Res. 70/​306 (August 7, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .517

Human Rights Council UN HRC Res. 9/​9 (September 18, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 UN HRC Res. 20/​8 (July 16, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

Security Council UNSC Res. 232 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .604, 606–​8 UNSC Res. 253 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604 UNSC Res. 418 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241, 604, 606–​8 UNSC Res. 661 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 562, 604, 606–​8, 636 UNSC Res. 678 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 UNSC Res. 687 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 UNSC Res. 713 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 607, 1017 UNSC Res. 731 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 UNSC Res. 733 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 607, 608 UNSC Res. 748 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 562, 568, 606, 607 UNSC Res. 757 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 608 UNSC Res. 777 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 971 UNSC Res. 780 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 UNSC Res. 788 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608 UNSC Res. 808 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286, 813, 889 UNSC Res. 820 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 608 UNSC Res. 827 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 287, 563, 813 UNSC Res. 841 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .606, 833 UNSC Res. 864 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 607 UNSC Res. 883 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 UNSC Res. 918 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 607 UNSC Res. 940 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528

lxxvi   table of instruments UNSC Res. 948 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 UNSC Res. 955 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 288, 563 UNSC Res. 1031 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1016 UNSC Res. 1044 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 UNSC Res. 1054 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 606–​8 UNSC Res. 1070 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 UNSC Res. 1132 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 607 UNSC Res. 1160 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607 UNSC Res. 1172 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1192 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 UNSC Res. 1214 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 UNSC Res. 1244 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009, 1032 UNSC Res. 1261 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1265 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1267 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 219, 562, 606–​8, 610 UNSC Res. 1270 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 UNSC Res. 1272 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009 UNSC Res. 1296 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1298 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606 UNSC Res. 1314 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1315 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288 UNSC Res. 1325 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128, 201 UNSC Res. 1333 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 UNSC Res. 1343 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606 UNSC Res. 1368 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 632 UNSC Res. 1373 (2001) . . . . . . . . . . . . 43, 119, 219, 221, 222, 246, 563, 568, 569, 632, 1008 UNSC Res. 1379 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1422 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569 UNSC Res. 1441 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 UNSC Res. 1459 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 UNSC Res. 1460 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1493 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .606–​8 UNSC Res. 1521 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606 UNSC Res. 1539 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1540 (2004) . . . . . . . . . . . . . . . . . . . . . 43, 243, 244, 246, 247, 563, 1008 UNSC Res. 1556 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607, 608 UNSC Res. 1572 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 607 UNSC Res. 1612 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1615 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 UNSC Res. 1636 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606, 607 UNSC Res. 1647 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1672 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1009 UNSC Res. 1673 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1674 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1691 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972 UNSC Res. 1696 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1713 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607

table of instruments    lxxvii UNSC Res. 1718 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246, 606 UNSC Res. 1730 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 610 UNSC Res. 1737 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246, 606, 607 UNSC Res. 1738 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1747 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1757 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 UNSC Res. 1803 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1810 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1816 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 UNSC Res. 1820 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128, 201 UNSC Res. 1829 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217 UNSC Res. 1835 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1846 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230, 563 UNSC Res. 1851 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 UNSC Res. 1876 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217 UNSC Res. 1882 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1885 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217 UNSC Res. 1887 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241, 246 UNSC Res. 1888 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 UNSC Res. 1889 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128, 201 UNSC Res. 1890 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217 UNSC Res. 1892 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217 UNSC Res. 1894 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1897 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 UNSC Res. 1904 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 221, 1022 UNSC Res. 1918 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 UNSC Res. 1929 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1952 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 UNSC Res. 1960 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 UNSC Res. 1970 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 UNSC Res. 1973 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 871, 880 UNSC Res. 1977 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1984 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 1988 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605, 610 UNSC Res. 1989 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 610 UNSC Res. 1907 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 UNSC Res. 1996 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 UNSC Res. 1999 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 972 UNSC Res. 2015 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230, 231 UNSC Res. 2023 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 UNSC Res. 2036 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 UNSC Res. 2040 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525 UNSC Res. 2049 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 2055 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 UNSC Res. 2077 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .231 UNSC Res. 2098 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 637 UNSC Res. 2118 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648, 1008

lxxviii   table of instruments UNSC Res. 2127 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 UNSC Res. 2140 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 UNSC Res. 2155 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 UNSC Res. 2206 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 UNSC Res. 2243 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 UNSC Res. 2253 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

WTO Legal Texts Marrakesh Agreement Establishing the World Trade Organization 1994 (WTO Charter), 15 April 1994, 1869 UNTS 401 . . . . . 347, 353–​7, 359, 600, 657, 705, 706, 816, 824, 915, 956, 957, 1023, 1050, 1077, 1079 Art VI(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 824 Art VI(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1079 Art VI(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1077 Art VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1023 Art VII(1), (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .915 Art VIII(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1050 Art IX:1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 816 Art IX:2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359, 956 Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 705 Art XI(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 967 General Agreement on Tariffs and Trade (GATT) . . . . . . . 117, 347, 349, 350, 353, 354, 405, 409, 432, 483, 600, 705, 957 Art I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357 Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Art XVIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 Art XX(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460 Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 350, 351, 352, 432, 460 Art 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352 Art 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352 Agreement on Technical Barriers to Trade (TBT) . . . . . . . . . . . . 171, 175, 350, 352, 460 Annex 1A—​Multilateral Agreements on Trade in Goods . . . . . . . . . . . . . . . . . . 957 Annex 1B—​General Agreement on Trade in Services (GATS) . . . . . . . . . 358, 460, 957 Annex 1C—​Agreement on Trade-​Related Intellectual Property Rights (TRIPS) . . . . . . . . . . . . . . . . . . . . . . . 66, 79, 135, 352, 354, 356, 449, 460 Annex 2—​Dispute Settlement Understanding (DSU) . . . . . . . . . 360, 361, 444, 657, 658 Art 2.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359

table of instruments    lxxix Annex 3—​Trade Policy Review Mechanism (TPRM) . . . . . . . . . . . . .358, 590, 597, 598 Annex 4(a)—​Agreement on Trade in Civil Aircraft (CA) . . . . . . . . . . . . . . . . . . 358 Annex 4(b)—​Agreement on Government Procurement (GPA) . . . . . . . . . . . . . . 358

National and Regional Legislation Austria Federal Act of 14 December 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053

Europe Council Regulation (EEC) No. 990/​93 of 26 April 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro), OJ 1993 L 102/​14 . . . . . . . . . . . . . . . . . . . . . . . . 1015 Regulation (EC) No. 1049/​2001 of the European Parliament and of the Council of May 30, 2001 Regarding Public Access to Documents, OJ 2001 No. L145/​43, May 31, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

United Kingdom International Organisations Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1053

United States of America Foreign Corrupt Practices Act 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 Foreign Sovereign Immunities Act 1976 . . . . . . . . . . . . . . . . . . . . . . . .1056, 1059 International Organizations Immunities Act 1945 . . . . . . . . . . . . . 993, 1053, 1056–​60 Title I, s 2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1056 s 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 993 Nuclear Non-​Proliferation Act 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . 235, 242 Restatement (Third) of the Foreign Relations Law of the United States (1986) . . . . . 1054

List of Abbreviations

ACABQ Advisory Committee on Administrative and Budgetary Questions ACC Administrative Committee on Coordination ADB Asian Development Bank AfCHPR African Court of Human and Peoples’ Rights AfDB African Development Bank AI Amnesty International AMC Advance Market Commitment AML anti-​money-​laundering AOI Arab Organization for Industrialization AP Additional Protocol APRICOT Asia Pacific Regional Internet Conference on Operational Technologies ASA Administrative Services Agreement ASEAN Association of Southeast Asian Nations ASP Assembly of State Parties to the Statute of the ICC AU African Union AUP acceptable use policy

BCSD BIS BITs BRICS BWC

Business Council for Sustainable Development Bank for International Settlements bilateral investment treaties Brazil, Russia, India, China, and South Africa Biological Weapons Convention

CARE Cooperative for Assistance and Relief Everywhere CCJ Caribbean Court of Justice CEB Chief Executives Board for Coordination CEC Commission for Environmental Cooperation CERD Convention on the Elimination of All Forms of Racial Discrimination CERN European Organization for Nuclear Research CFSP Common Foreign and Security Policy CGIAR Consultative Group on International Agricultural Research CGPCS Contact Group on Piracy off the Coast of Somalia CI Consumer International CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CJEU Court of Justice of the European Union CoE Council of Europe COMESA Common Market for Eastern and Southern Africa

lxxxii   list of abbreviations

CSCE Conference for Security and Cooperation in Europe CSD Commission on Sustainable Development CSO civil society organization CSR corporate social responsibility CTBT Comprehensive Nuclear-Test-​Ban Treaty CU customs union CWC Chemical Weapons Convention



DAC DARIO DDA DELC DCIP DGI DNS DPKO DPRK DRC DSB DSU



EC ECCC ECE ECHR

Development Cooperation Directorate Draft Articles on the Responsibility of International Organizations Doha Development Agenda Division of Environmental Law and Conventions deliberative citizens’ involvement projects Data Gaps Initiative domain name system Department of Peacekeeping Operations Democratic People’s Republic of Korea Democratic Republic of the Congo Dispute Settlement Body Dispute Settlement Understanding

European Community Extraordinary Chambers in the Courts of Cambodia Economic Commission for Europe European Convention for the Protection of Human Rights and Fundamental Freedoms ECJ European Court of Justice ECLAC Economic Commission for Africa and that for Latin America and the Caribbean ECOMOG Economic Community of West African States Monitoring Group ECOSOC Economic and Social Council ECOSOCC Economic, Social and Cultural Council of the African Union ECOWAS Economic Community of West African States ECtHR European Court of Human Rights EEA European Economic Area EEC European Economic Community EFTA European Free Trade Agreement EMU Economic and Monetary Union ENCD Eighteen Nation Committee on Disarmament EP European Parliament ESA European Space Agency ESG environmental, social, and governance ESM European Stability Mechanism EU European Union EUCST European Union Civil Service Tribunal EULEX European Union Rule of Law Mission in Kosovo EWE Early Warning Exercise

list of abbreviations    lxxxiii

FAO FARDC FATF FCTC FRY FSAP FSB FSC FSF FSIA FTA

Food and Agricultural Organization Armed Forces of the Democratic Republic of the Congo Financial Action Task Force Framework Convention on Tobacco Control Federal Republic of Yugoslavia Financial Sector Assessment Program Financial Stability Board Forestry Stewardship Council Financial Stability Forum Foreign Sovereign Immunities Act free-​trade area



GA GAL GATT GAVI GCTF GEF GFATM GFSR GNI

General Assembly global administrative law General Agreement on Tariffs and Trade Global Alliance for Vaccines and Immunization Global Counterterrorism Forum Global Environment Facility Global Fund to Fight AIDS, Tuberculosis, and Malaria Global Financial Stability Report Global Network Initiative



HCPIL HLCM HLCP HLP HRRP HST

Hague Conference on Private International Law High-​Level Committee on Management High-​Level Committee on Programs High-​Level Panel on Threats, Challenges and Change Human Rights Review Panel hegemony stability theory

IAEA IAIS IASB IASC IBRD ICA ICANN ICAO ICC ICC-​ BASIS ICComm ICCPR ICDRA ICESCR ICH

ICISS

International Atomic Energy Agency International Association of Insurance Supervisors International Accounting Standards Board Inter-​Agency Standing Committee International Bank for Reconstruction and Development international commercial arbitration Internet Corporation for Assigned Names and Numbers International Civil Aviation Organization International Criminal Court International Chamber of Commerce Business Action to Support the Information Society International Chamber of Commerce International Covenant on Civil and Political Rights International Conference of Drug Regulatory Authorities International Covenant on Economic, Social and Cultural Rights International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use International Commission on Intervention and State Sovereignty

lxxxiv   list of abbreviations ICJ International Court of Justice ICNND International Commission on Nuclear Non-​Proliferation and Disarmament ICPC International Criminal Police Commission ICRC International Committee of the Red Cross ICSID International Centre for Settlement of Investment Disputes ICT information and communication technology ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IDA International Development Association IDB Inter-​American Development Bank IDP internally displaced person IDRC International Development Research Centre IEC International Electro-​Technical Commission IEO international economic organization IETF Internet Engineering Task Force IFA international financial architecture IFAD International Fund for Agricultural Development IFC International Finance Corporation IFI international financial institution IGC intergovernmental conference IGF Internet Governance Forum IGO intergovernmental organization IHL international humanitarian law IHR International Health Regulations IL international law ILA International Law Association ILC International Law Commission ILO International Labour Organization ILOAT Administrative Tribunal of the International Labour Organization IMF International Monetary Fund IMO International Maritime Organization INGO international non-​governmental organization IO international organization IOE International Office of Epizootics IOIA International Organizations Immunities Act IOM International Organization for Migration IOSCO International Organization of Securities Commissions IP Internet Protocol IPCC Intergovernmental Panel on Climate Change IPE international political economy IPPC International Plant Protection Convention IR international relations ISO International Organization for Standardization ISP Internet Service Provider ITC International Tin Council ITLOS International Tribunal for the Law of the Sea ITO International Trade Organization

list of abbreviations    lxxxv

ITRs ITU IXs IUOTO

International Telecommunication Regulations International Telecommunication Union internet exchange points International Union of Official Travel Organizations

KFOR Kosovo Force (NATO) LDC least developed countries LRTAP Long-​Range Transboundary Air Pollution

MAP MDG Mercosur MFN MICT MIGA MIOS MONUC MONUSCO

Membership Action Plan Millennium Development Goal Mercado Común del Sur most-​favored nation Mechanism for International Criminal Tribunals Multilateral Investment Guarantee Agency mainstream international organization scholarship UN Mission in the Democratic Republic of the Congo UN Organization Stabilization Mission in the Democratic Republic of the Congo MoUs Memoranda of Understanding MSU Mediation Support Unit MTCR Missile Technology Control Regime



NAFTA NANOG NATO NEPAD NGO NIEO NOGs NPT NSA NSF NSG NSS NTB NWS



OAS OAU OCA OCHA ODA ODIHR OECD OIC

North American Free Trade Agreement North American Network Operators Group North Atlantic Treaty Organization New Partnership for Africa’s Development nongovernmental organization New International Economic Order network operator groups Non-​Proliferation Treaty National Security Agency National Science Foundation Nuclear Suppliers Group Nuclear Security Summit nontariff barriers nuclear weapons state Organization of American States Organization of African Unity optimal currency area Office for the Coordination of Humanitarian Affairs Official Development Assistance Office for Democratic Institutions and Human Rights Organisation for Economic Co-​operation and Development Organisation of Islamic Cooperation

lxxxvi   list of abbreviations ONUC OPCW OPEC OSCE

Opération des Nations Unies au Congo Organisation for the Prohibition of Chemical Weapons Organization of the Petroleum Exporting Countries Organization for Security and Co-​operation in Europe

PACE PAHO PBC PCA PCIJ PIR PMSC POC POPs PPPs PRI PSI PSMU PTBT

Parliamentary Assembly of the Council of Europe  Pan American Health Organization Peacebuilding Commission Permanent Court of Arbitration Permanent Court of International Justice Public Interest Registry private military and security company protection of civilians Persistent Organic Pollutants public–​private partnerships Principles for Responsible Investment Proliferation Security Initiative Peace, Security and Mediation Unit Partial Test Ban Treaty

R2P RCT RD RDB RFC RIA RIRs ROSC

Responsibility to Protect Randomized Control Trial rational design Regional Development Bank request for comments regional integration agreement Regional Internet Registries Reports on the Observance of Standards and Codes

SADC SARPs SC SCF SCO SCSL SDG SEATO SEEA SFRY SNO SOFA SPS SSB STL

Southern African Development Community Standards and Recommended Practices Security Council Save the Children Fund Shanghai Cooperation Organization Special Court for Sierra Leone Sustainable Development Goal Southeast Asia Treaty Organization System of Environmental-​Economic Accounting Socialist Federal Republic of Yugoslavia supranational organization Status of Forces Agreement Sanitary and Phytosanitary Measures standard-​setting bodies Special Tribunal for Lebanon

TBT Technical Barriers to Trade TCC transnational capitalist class

list of abbreviations    lxxxvii

TCP/​IP TEU TFEU TNC TNDC TPRM TRIPS TWAIL

UDHR UN UNAdT UNAT UNCAC U NCAPAHI UNCC UNCED U NCITRAL UNCLOS UNCTAD UNCTC UNDG UNDP UNDT UNEP UNESCO UNGA UNHCR UNICEF UNIDO UNJSPF UNMIK UNODC UNRRA UNSC UNSIC UNTOC UPU USCIB

Transmission Control Protocol/​Internet Protocol Treaty on European Union Treaty on the Functioning of the European Union transnational corporation Ten Nation Committee on Disarmament Trade Policy Review Mechanism Trade-​Related Intellectual Property Rights Third World Approaches to International Law Universal Declaration of Human Rights United Nations UN Administrative Tribunal UN Appeals Tribunal UN Convention Against Corruption UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza UN Compensation Commission UN Conference on Environment and Development UN Commission on International Trade Law UN Convention on the Law of the Sea UN Conference on Trade and Development UN Commission on Transnational Corporations UN Development Group UN Development Programme UN Dispute Tribunal UN Environment Programme UN Educational, Scientific and Cultural Organization UN General Assembly UN High Commissioner for Refugees United Nations Children’s Fund UN Industrial Development Organization UN Joint Staff Pension Fund UN Mission in Kosovo UN Office on Drugs and Crime UN Relief and Rehabilitation Administration UN Security Council UN System Contributions and Requirements: Strategic Approach UN Convention against Transnational Organized Crime Universal Postal Union US Council for International Business

WB World Bank WBAT World Bank Administrative Tribunal WCC World Council of Churches WCIT World Conference on International Telecommunications WEO World Economic Outlook WFP World Food Programme

lxxxviii   list of abbreviations WFTO WGIG WHA WHO WIPO WMD WMO WOAH WSIS WSSCC WTO

World Fair Trade Organization Working Group on Internet Governance World Health Assembly World Health Organization World Intellectual Property Organization weapons of mass destruction World Meteorological Organization World Organization for Animal Health World Summit on the Information Society Water Supply and Sanitation Collaborative Council World Trade Organization

List of Contributors

Helge Årsheim is Post-​Doctoral Research Fellow with the “Good Protestant, Bad Religion? Formatting Religion in Modern Society” project (2014–​18) at the Faculty of Theology at the University of Oslo. Previously, he was a PhD Fellow at the same institution, defending the dissertation “Lost in Translation? Religion-​Making at Four UN Human Rights Committees, 1993–2013” in 2015. Timm Betz is Assistant Professor in the Department of Political Science at Texas A&M University. Previously, he was a Rackham Predoctoral Fellow at the University of Michigan. Niels Blokker is Professor of International Institutional Law (Schermers Chair) at the Grotius Centre for International Legal Studies, Law School, Leiden University. Laurence Boisson de Chazournes is Professor of International Law and International Organization at the University of Geneva. She is an adviser to various international organizations (UN, ILO, WHO) and governments, and has held international assignments as counsel before the International Court of Justice and as arbitrator in, inter alia, investment and international arbitration. Inken von Borzyskowski is Assistant Professor of Political Science at Florida State University. Previously, she was Postdoctoral Fellow at the Free University Berlin. She received her PhD from the University of Wisconsin-​Madison. Gian Luca Burci is Adjunct Professor of International Law at the Graduate Institute of International and Development Studies, Geneva, and Senior Fellow of its Global Health Centre. Between 2005 and 2016, Mr. Burci was Legal Counsel of the World Health Organization. Prior to joining WHO, Mr. Burci served in the Office of the Legal Counsel of the UN. He held visiting professor positions at various universities, including the Fletcher School of Law and Diplomacy, Tufts University, and the Georgetown University Law Center. Andrew Cassels is a Senior Fellow in the Global Health Centre at the Graduate Institute of International and Development Studies and formerly the Director of Strategy in the Office of the Director-​General of the World Health Organization. Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also editor of the Asian Journal of International Law and Secretary-​General

xc   list of contributors of the Asian Society of International Law. Educated in Melbourne, Beijing, Amsterdam, and Oxford, Professor Chesterman’s teaching experience includes periods at Melbourne, Oxford, Southampton, Columbia, and Sciences Po. From 2006 until 2011, he was Global Professor and Director of the New York University School of Law Singapore Programme. B. S. Chimni is Professor of International Law, School of International Studies, Jawaharlal Nehru University. He has served as Vice Chancellor of the West Bengal National University of Juridical Sciences. He has been a visiting professor at Brown University and the University of Tokyo. He has also held visiting positions at Harvard, Cambridge, and York. He is an associate member of the Institut de Droit International. James Cockayne is Head of Office at the UN for United Nations University. Previously, he was Co-​Director of the Centre for Global Counterterrorism Cooperation, Senior Fellow at the International Peace Institute, and Principal Legal Officer in the Transnational Crime Unit of the Australian Attorney-​General’s Department. Jacob Katz Cogan is the Judge Joseph P. Kinneary Professor of Law at the University of Cincinnati College of Law. He was previously an attorney-​adviser in the Office of the Legal Adviser at the US Department of State. Jean-​Marc Coicaud is Professor of Law and Global Affairs, and Director of the Division of Global Affairs, Rutgers University. He is also a Global Ethics Fellow with the Carnegie Council for Ethics in International Affairs. Prior to joining Rutgers University, Professor Coicaud worked for the UN, including as a member of the speechwriting team of the UN Secretary-​General. He is author of books and articles in political theory, international law, and international relations. John R. Crook, an independent arbitrator, teaches international arbitration at George Washington University Law School. Previously, he was a Commissioner on the Eritrea-​Ethiopia Claims Commission, General Counsel of the Multinational Force and Observers, and served for three decades in the Office of the Legal Adviser at the US Department of State. He is past vice-​president of the American Society of International Law and a member of the Board of Editors of the American Journal of International Law. Anjali Dayal is Assistant Professor of International Relations at Fordham University. She received her PhD in international relations from Georgetown University’s Department of Government in 2015. Klaus Dingwerth is Assistant Professor of Political Theory of Global Governance at the School of Economics and Political Science, University of St. Gallen and a nonresidential Fellow of the Global Public Policy Institute in Berlin. Previously, he was a Research Fellow at the Potsdam Institute for Climate Impact Research in Potsdam and an Assistant Professor of Political Science at the University of Bremen.

list of contributors    xci Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law. He has served as a Visiting Professor at Harvard Law School and the Woodrow Wilson School at Princeton University, and as a Visiting Fellow at the University of Cambridge. Before joining the Temple faculty, Professor Dunoff clerked for a federal court judge and practiced law in Washington, DC, where he specialized in the representation of developing state governments. Jeremy Farrall is a Fellow at the Asia-​Pacific College of Diplomacy in the Coral Bell School of Asia Pacific Affairs at the Australian National University. He is also Adjunct Associate Professor at the University of Tasmania Faculty of Law. His books include United Nations Sanctions and the Rule of Law (Cambridge University Press, 2007), Sanctions, Accountability and Governance in a Globalised World (Cambridge University Press, 2009) and Strengthening the Rule of Law through the UN Security Council (Routledge, 2016). Chiara Giorgetti is Associate Professor of Law at the University of Richmond School of Law, where she also serves as Faculty Director, LLM Program. Previously, she was an Associate in the International Arbitration Group, White & Case in Washington, DC and Lalive in Geneva. She clerked at the International Court of Justice and worked for several years at the UN. She is a graduate of Bologna University and holds a JSD and LLM from Yale Law School. Madeleine Herren is a full Professor of Modern History and Director of the Institute for European Global Studies at the University of Basel. Previously, she co-​directed, as full Professor of History, the Cluster of Excellence “Asia and Europe in a Global Context” at Heidelberg University. Lise Morjé Howard is Associate Professor of Government at Georgetown University. Previously, she served as Senior Fellow at the US Institution of Peace, and Founding Director of the MA Program in Conflict Resolution at Georgetown University. She is the author of the award-​winning book UN Peacekeeping in Civil Wars (Cambridge University Press, 2008). Bjørn Høyland is Professor of Political Science at the University of Oslo. Having earned his PhD at the London School of Economics and Political Science, he was ESRC Postdoctoral Fellow at the University College London before moving to Oslo. Ian Hurd is Associate Professor of Political Science at Northwestern University where he is also the Director of the International Studies Program. He is the author of several books on the UN and international politics including After Anarchy: Legitimacy and Power in the UN Security Council (Princeton University Press, 2007)  and International Organizations:  Politics, Law, Practice, 2nd ed. (Cambridge University Press, 2014). He has been a Visiting Fellow at the Woodrow

xcii   list of contributors Wilson School at Princeton University, the WZB Berlin Social Sciences Center, Sciences Po, EHESS, the American Bar Foundation, and other institutions. Ian Johnstone is Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts University. In 2013–​15, he served as Academic Dean. He is also a Senior Fellow at the Center for International Cooperation, New York University. Prior to joining Fletcher, he was a political officer in the Executive Office of the Secretary-​ General of the UN. He is the author of The Power of Deliberation: International Law, Politics and Organizations (Oxford University Press, 2011) and the co-​author with Simon Chesterman and David M. Malone of Law and Practice of the United Nations, 2nd ed. (Oxford University Press, 2016). Margaret P. Karns is Professor Emerita of Political Science at the University of Dayton and Visiting Professor in the Department of Conflict Resolution, Global Governance, and Human Security at the University of Massachusetts-​Boston. She is co-​author with Karen A. Mingst and Kendall W. Stiles of International Organizations: The Politics and Processes of Global Governance, 3rd ed. (Lynne Rienner Publishers, 2015) and with Karen A. Mingst and Alynna Lyon of The United Nations in the 21st Century, 5th ed. (Westview Press, 2017). Georg Kell is the Executive Director of the UN Global Compact. Mr. Kell started his career as a Research Fellow in engineering at the Fraunhofer Institute for Production Technology and Innovation in Berlin. He joined the UN in 1987 and has led the organization’s private sector engagement, through the Global Compact and its related initiatives on investment and business education, the Principles for Responsible Investment and the Principles for Responsible Management Education. Jan Klabbers is currently Academy Professor (Martti Ahtisaari Chair) at the University of Helsinki, on leave from his regular position as Professor of International Law at that same university. Previously, he taught at the University of Amsterdam. Pierre Klein is Professor of International Law and Deputy Director of the Center of International Law, Université libre de Bruxelles. He co-​authored with Philippe Sands the 5th and 6th editions of Bowett’s Law of International Institutions (Sweet & Maxwell, 2001 and 2009). Mathias Koenig-​Archibugi is Associate Professor of Global Politics at the London School of Economics and Political Science. Barbara Koremenos is Associate Professor of Political Science at the University of Michigan. Professor Koremenos focuses on how international law can be structured to make international cooperation most successful. She won a National Science Foundation CAREER Award for her interdisciplinary research and has published in both political science and law journals. She recently published The Continent of International Law (Cambridge University Press, 2016).

list of contributors    xciii Brian Langille is Professor of Law at the University of Toronto and has been Visiting Professor at the International Institute for Labour Studies (ILO, Geneva), the Graduate Institute for International and Development Studies, the University of Geneva, the European University Institute in Florence, the Centre for Transnational Legal Studies in London, and the Universitat Pompeu Fabra, Barcelona. He was also, in 2011, the Innis Christie Visiting Professor in Labour and Employment Law at Dalhousie University, in 2012 a Fellow of the Institute for Advanced Studies in Nantes, France, in 2013 a Senior Fellow at Melbourne Law School, and in 2015 a Visiting Professor at the Hebrew University of Jerusalem. David Le Blanc is an economist in the Division for Sustainable Development in the UN Secretariat in New York. Previously, he worked for the World Bank, as a researcher in CREST-​Paris, and at the French National Institute of Statistics. Peter L. Lindseth is Olimpiad S. Ioffe Professor of International and Comparative Law and Director of International Programs at the University of Connecticut School of Law. He has previously visited at the American Academy in Berlin, Columbia Law School, the European University Institute, Princeton University, and Yale Law School, among other institutions. His recent books include Power and Legitimacy: Reconciling Europe and the Nation-​State (Oxford University Press, 2010) and, with Susan Rose-​Ackerman, Comparative Administrative Law (Elgar, 2010). Gil Loescher is Visiting Professor at the Refugee Studies Centre, University of Oxford and Professor Emeritus at the University of Notre Dame. He is the author, co-​author, and co-​editor of numerous books on refugee policy including most recently UNHCR: The Politics and Practice of Refugee Protection, 2nd ed. (Routledge, 2012) and The Oxford Handbook of Refugee and Forced Migration Studies (Oxford University Press, 2014). David M. Malone, a past Canadian Ambassador to the UN, is Rector of the United Nations University and Under-​Secretary-​General of the UN. He has published extensively on the UN Security Council, particularly on its decision-​making, and also on development, the law and practice of the UN, Indian and US foreign policy, and diplomatic history. Stephen Mathias is Assistant Secretary-​General for Legal Affairs at the UN. Previously, he was an Assistant Legal Adviser in the Office of the Legal Adviser at the US Department of State and the General Counsel of the Multinational Force and Observers. Walter Mattli is Professor of International Political Economy in the Department of Politics and International Relations at the University of Oxford and a Fellow of St. John’s College at Oxford. He joined Oxford in 2004 and previously taught at Columbia University. He has been a visiting Fellow at the Wissenschaftskolleg in Berlin, the American Academy in Berlin, Princeton University, and other institutions.

xciv   list of contributors Rohinton P. Medhora is President of the Centre for International Governance Innovation, a nonpartisan think-​ tank located in Waterloo, Ontario, Canada. Previously, he was Vice President, Programs at Canada’s International Development Research Centre, a research funder, and on the faculty of the Department of Economics at the University of Toronto. He serves on the Boards of the Institute for New Economic Thinking and the Partnership for African Social and Governance Research. Manuela Moschella is Associate Professor in International Political Economy at the Scuola Normale Superiore di Pisa and Senior Fellow at the Centre for International Governance Innovation. Previously, she was Assistant Professor at the University of Turin, Nino Andreatta Fellow at the University of Bologna, and Postdoctoral Fellow at the University of Trento. Milton Mueller is Professor at the Georgia Institute of Technology School of Public Policy. His research focuses on rights, institutions, and global governance in communication and information industries. He is the author of two seminal books on Internet governance, Ruling the Root (MIT Press, 2002) and Networks and States (MIT Press, 2010). In 1998–​2015, he was Professor at the Syracuse University School of Information Studies. Mueller received his PhD from the University of Pennsylvania’s Annenberg School in 1989. Patrizia Nanz is Scientific Director of the Institute for Advanced Sustainability Studies (IASS) Potsdam and Professor of Transformative Sustainability Studies at the University Potsdam as well as Chair of the European Institute for Public Participation (EIPP). Since 2002 she holds a professorship in Political Theory at the University Bremen. Previously, she was head of the research area “Culture of Participation” at the Institute for Advanced Study in the Humanities (KWI Essen), Senior Researcher at the Centre for the Study of Democracy at the University of Westminster and the Max Planck Institute for Research on Common Goods, as well as Fellow at the Institute for Advanced Study/ Wissenschaftskolleg zu Berlin and the Department of Political Science at the Massachusetts Institute of Technology. Stephen C. Nelson is Assistant Professor of Political Science at Northwestern University. Jed Odermatt is Max Weber Fellow at the European University Institute. Anne Peters is Director at the Max Planck Institute for Comparative Public Law and International Law and a Professor at Heidelberg University, Freie Universität Berlin, and the University of Basel. She has been a member of the European Commission for Democracy through Law (Venice Commission) for Germany (2011–​15) and served as the President of the European Society of International Law (2010–​12). Born in Berlin in 1964, Professor Peters studied in Wurzburg, Lausanne, Freiburg, and Harvard. Jon Pevehouse is Professor of Political Science at the University of Wisconsin.

list of contributors    xcv Touko Piiparinen is an Adjunct Professor at the University of Helsinki and a diplomat at the Ministry for Foreign Affairs of Finland. He has previously worked as a Research Fellow at the Finnish Institute of International Affairs and at the Centre of Excellence in Global Governance Research, Helsinki. August Reinisch is Professor of International and European Law at the University of Vienna. He also serves as Head of its Section of International Law and International Relations and as Director of its LLM program in International Legal Studies. Dan Sarooshi is Professor of Public International Law at the University of Oxford and a practicing Barrister at Essex Court Chambers, London. David J. Scheffer is the Mayer Brown/​Robert A.  Helman Professor of Law and Director of the Center for International Human Rights at Northwestern Pritzker School of Law. Since January 2012 he also has been the UN Secretary-​General’s Special Expert on UN Assistance to the Khmer Rouge Trials. Previously, he was US Ambassador at Large for War Crimes Issues (1997–​2001). He authored award-​ winning All the Missing Souls:  A  Personal History of the War Crimes Tribunals (Princeton University Press, 2012). Frank Schimmelfennig is Professor of European Politics at the ETH Zurich Center for Comparative and International Studies. Jan Aart Scholte is Faculty Professor in Peace and Development at the University of Gothenburg. Previously, he has held positions at the Universities of Warwick and Sussex, as well as the Institute of Social Studies, The Hague. His research covers globalization, governing global spaces, civil society in global politics, and global democracy. Projects have included “Civil Society and Global Finance,” “Building Global Democracy,” and “Structured Polycentrism in the Global Internet.” Dinah Shelton is the emeritus Manatt/​Ahn Professor of International Law at the George Washington University Law School. She was previously director of the doctoral program in human rights law at Notre Dame Law School. In 2010–​14 she was a member of the Inter-​American Commission on Human Rights, serving as its president in 2011. She is the author of three prize-​winning books and numerous articles in the field of international law and is an honorary member of the Board of Editors of the American Journal of International Law. Waheguru Pal Singh Sidhu is Non-​Resident Senior Fellow for Foreign Policy at the Brookings Institution. He is also a non-​resident Senior Fellow at the Center on International Cooperation, New York University. Previously, he was Vice President of Programs at the East West Institute. Michael Snyder most recently served as a Policy Analyst at the International Peace Institute. He has also worked at or consulted for several organizations, including World Learning, Freedom House, and the Center on International Cooperation,

xcvi   list of contributors New York University. Previously, he interned in the Electoral Assistance Division of the UN Department of Political Affairs. He obtained his Master of Arts in Law and Diplomacy from the Fletcher School of Law and Diplomacy, Tufts University. Jonas Tallberg is Professor of Political Science at Stockholm University. Ramesh Thakur is Professor in the Crawford School of Public Policy, Australian National University and editor-​in-​chief of Global Governance. Previously, he was Senior Vice-​Rector of the United Nations University and UN Assistant Secretary-​ General, a Commissioner on the International Commission on Intervention and State Sovereignty and a co-​author of its report The Responsibility to Protect, Principal Writer of Kofi Annan’s second UN reform report in 2002, and Foundation Director of the Balsillie School of International Affairs, Waterloo, Canada. Joel P. Trachtman is Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts University. Recent books include The Future of International Law:  Global Government (Cambridge University Press, 2013); The International Law of Economic Migration: Toward the Fourth Freedom (Upjohn Institute, 2009); Ruling the World:  Constitutionalism, International Law, and Global Governance (Cambridge University Press, 2009); and The Economic Structure of International Law (Harvard University Press, 2008). Stadler Trengove is Senior Legal Officer, Office of the Legal Counsel, UN. His work at the UN has been in the area of peacekeeping, international tribunals, and constitutional and procedural questions as they relate to the principal and subsidiary organs of the UN. Mr. Trengove is a graduate of the University of Stellenbosch and the University of Oxford. Santiago Villalpando is the Chief of the Treaty Section, UN Office of Legal Affairs (OLA). Previously, he served as Registrar of the UN Dispute Tribunal in New York, and worked at the OLA Codification Division, the International Court of Justice, and the International Criminal Tribunal for the former Yugoslavia. He is Adjunct Professor at the New  York University School of Law and has taught in several universities, including Geneva and Leiden. A national of Argentina, he holds an Italian law degree and a PhD in International Law from the Graduate Institute of International and Development Studies. Catherine Weaver is Associate Professor at the LBJ School of Public Affairs and Co-​Director of Innovations for Peace and Development at the University of Texas at Austin. Previously, she was Assistant Professor at the University of Kansas and Research Fellow at the Brookings Institution. Thomas G. Weiss is Presidential Professor of Political Science at the Graduate Center of the City University of New York, Director Emeritus of the Ralph Bunche Institute for International Studies, and Research Professor at SOAS, University of London.

list of contributors    xcvii He was President (2009–​10) of the International Studies Association and recipient of its “IO Distinguished Scholar Award 2016.” He was also Research Director of the International Commission on Intervention and State Sovereignty. Marc Weller is Professor of International Law and International Constitutional Studies at the University of Cambridge and was the Director of the Lauterpacht Centre for International Law. He also served as Senior Mediation Expert in the UN Secretariat and as legal advisor in a range of international peace negotiations. He is the editor of The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2015). Ramses A. Wessel is Professor of International and European Law and Governance at the University of Twente in the Netherlands. Previously, he held positions at the Universities of Utrecht and Groningen. He is editor and founder of the International Organizations Law Review and has published widely on international organizations and on the relation between international and EU law. Nigel D. White is Professor of Public International Law and Head of the Law School at the University of Nottingham. Previously, he was Professor of International Law and Dean of the Law Faculty at the University of Sheffield. David A. Wirth is Professor of Law at Boston College Law School. Previously, he served as Attorney-​Adviser for Oceans and International Environmental and Scientific Affairs in the Office of the Legal Adviser at the US Department of State, Senior Attorney and Co-​Director of the International Program at the Washington, DC office of the Natural Resources Defense Council, and law clerk to Judge William H. Timbers of US Court of Appeals for the Second Circuit. Jan Wouters is Full Professor of International Law and the Law of International Organizations at the University of Leuven and Director of the Leuven Centre for Global Governance Studies, University of Leuven. Dominik Zaum is a Research Dean and Professor of Governance, Conflict, and Security at the University of Reading. He was a Senior Research Fellow at the UK Department for International Development and Rose Research Fellow in International Relations at Lady Margaret Hall, University of Oxford.

 

Part I

INTRODUCTION

 

 

chapter 1

INTERNATIONAL ORGANIZATIONS IN WORLD POLITICS Jon Pevehouse Inken von Borzyskowski

The first international organization in the post-​Napoleonic era was formed after the Congress of Vienna in 1816—​the Central Commission for the Navigation of the Rhine. Since 1816, the number of international organizations in world politics has greatly expanded. As of 2013, the Union of International Associations cataloged 1,172 international organizations (IOs) functioning around the globe.1 These organizations work in nearly every substantive area of international politics: trade, security, finance, environment, development, human rights, science, and culture. Clearly, international organizations pervade international life. Perhaps because of this pervasiveness, the field of international relations has developed a myriad of approaches to studying IOs. Theories and empirical studies have used numerous theoretical traditions in an attempt to understand IOs, including realist, liberal, Marxist, and constructivist approaches. Empirical studies range from single-​IO studies to large-​N quantitative investigations. Despite significant  This includes organizations that are emanations, i.e. not independent from another “parent” organization. 1

 

4    international organizations in world politics research on IOs, however, there are still many unresolved questions regarding their formation, operation, and efficacy. The purpose of this chapter is to give a broad overview of international organizations in world politics, highlighting some important research areas, while suggesting future avenues for progress. We take a somewhat narrow view in defining the category of “international organizations.” We define IOs as formal organizations, with a permanent secretariat, and three or more member states. Somewhat minimized in our review is the broader concept of international regimes. While this omission is not meant as a judgment on the value of the study of regimes, the choice to minimize their discussion is to allow a focus on more formalized organizations. However, because a significant period of theorization on IOs was dominated by regime theory, a discussion of regimes is inevitable here.2 The approach of the chapter is to follow the logical progression of the life cycle of a state’s interaction with an IO: what explains the decision to form IOs; what form do the IOs take once a decision is made to create one; which issues are taken to IOs/​ which IOs are joined if they already exist; how do they operate; and do they achieve their stated goals. Although the chapter is not able to cover every strand of work on IOs, this life-​cycle approach to IOs helps elucidate many of the puzzles concerning IOs, while allowing us to suggest how the answers to the puzzles potentially interact with one another.3

The Demand for IOs: What Drives IO Formation? The study of what drives IO creation became systematic and routinized in the post-​ World War II era. The attempt to generalize from the creation of the United Nations 2  This definition also precludes an extensive discussion of the English school of international relations—​that an international society can emerge where states are bound by a set of mutually constituted set of rules. See Hedley Bull, The Anarchical Society:  A  Study of Order in World Politics (New York: Columbia University Press, 1977). 3   Numerous other reviews of the IO literature exist, including Andreas Hasenclever, Peter Mayer, and Volker Rittberger, Theories of International Regimes (Cambridge:  Cambridge University Press, 1997); Beth A. Simmons and Lisa L. Martin, “International Organizations and Institutions,” in Handbook of International Relations, ed. W. Carlsnaes, T. Risse, and B. A. Simmons (London: Sage, 2002), ch. 10; Peter J. Katzenstein, Robert Owen Keohane, and Stephen D. Krasner, Exploration and Contestation in the Study of World Politics (Cambridge, MA: MIT Press, 1999); Lisa L. Martin and Beth A. Simmons, “Theories and Empirical Studies of International Institutions,” International Organization 52 (1998): 729–​57.

 

the demand for ios: what drives io formation?    5 (UN), its attendant organizations, and more importantly, the European Coal and Steel Community, moved forward with the adaptation of functionalist ideas.4 IOs were argued to serve a functional purpose: minimize nationalism and attachment to territory, which had for centuries served as the basis for political conflict. The functionalist project could be a top-​down process (as it was for Mitrany) or a bottom-​ up process, where IOs formed to facilitate citizen interaction on a large scale (as conceived of by Karl Deutsch and his associates5). Functionalism, which had developed as an anti-​statist project in the interwar period, incorporated the behavior of sovereign governments. Rather than replacing territorially based states, the process of integration through organizations would take place with states designing cooperation in technical areas. Neofunctionalism arose after World War II and dominated the 1960s and early 1970s discussion of the creation of IOs. It built on early functionalist ideas and added the concept of spillover of cooperation from one realm to another: organizations grew from efforts to overcome political conflicts through the integration of technical tasks.6 One need to look no further than the post-​War development of the UN specialized agencies to see functionalism at work—​issues of broad importance were addressed through the creation of institutions which began as technically oriented on issues ranging from nuclear energy (the International Atomic Energy Agency), to health (the World Health Organization), and development (the UN Commission on Trade and Development).7 Several regions attempted to replicate the European experience, and research on IOs focused heavily on those efforts—​and later on their attendant failures.8 It was these failures of regional integration and European difficulties in ­deepening integration, however, that gave rise to a new generation of studies of how

4   David Mitrany, The Progress of International Government (New Haven, CT:  Yale University Press, 1933). 5   Karl W. Deutsch et al., Political Community and the North Atlantic Area (Princeton, NJ: Princeton University Press, 1957). 6   Ernst B. Haas, Beyond the Nation-​State: Functionalism and International Organization (Stanford, CA: Stanford University Press, 1964). 7   On this interpretation, see Robert I. Mclaren, “Mitranian Functionalism: Possible or Impossible?,” Review of International Studies 11/​2 (1985): 139–​52; Robert W. Cox et al., The Anatomy of Influence: Decision Making in International Organizations (New Haven and London: Yale University Press, 1973). 8  Philippe C. Schmitter, “Three Neo-​ Functional Hypotheses about International Integration,” International Organization 23/​1 (1969): 161–​6; Joseph S. Nye, “Comparing Common Markets: A Revised Neo-​Functionalist Model,” International Organization 24/​4 (1970): 796–​835; Ernst B. Haas, The Obsolescence of Regional Integration Theory (Berkeley, CA: Institute of International Studies, 1975). Scholars continue to use neofunctionalism to explain various subregional organizations, especially in Africa. See Søren Dosenrode, “Crisis and Regional Integration: A Federalist and Neo-​Functionalist Perspective,” in Regions and Crises: New Challenges for Contemporary Regionalism, ed. Lorenzo Fioramonti (London: Palgrave Macmillan, 2012); Malebakeng Forere, “Is Discussion of the ‘United States of Africa’ Premature? Analysis of ECOWAS and SADC Integration Efforts,” Journal of African Law 56/​1 (2012): 29–​54.

 

6    international organizations in world politics and why IOs formed. It brought back a strong realist-​oriented take on IOs that sought to explain why so many IOs had failed to achieve their aims. One key strand of this literature was developed around the concept of hegemony. Borrowed from economic historian Charles Kindleberger,9 some realist-​oriented scholars of IOs took Kindelberger’s conclusion concerning the Great Depression (a lack of global leadership led to a decline in international cooperation) and applied it to international regimes: strong states were needed to create international cooperation. In the absence of those strong states, international cooperation and the organizations that guided that cooperation would inevitably decline.10 Later iterations of what was labeled Hegemony Stability Theory (HST) held that the hegemon created regimes and organizations (such as the General Agreement on Tariffs and Trade (GATT), the World Bank, or the International Monetary Fund (IMF)) to facilitate leadership.11 In this model, hegemons created the supply of IOs which smaller states would subscribe to, and in this way hegemons could make their rule more efficient, thus saving resources to forestall their inevitable decline.12 A more critical (Marxist) version of the same idea is proffered by Robert Cox, who argues that the IOs created by the victors of the social conflicts of the nineteenth century (including, but not limited to, the international financial institutions) abet strong states’ rule over other states in the international system.13 These views differ sharply from that of Ikenberry, who claims that strong states create international institutions to bind themselves, signaling “strategic restraint” to reduce fear in smaller states.14 The creation of IOs, in all of these accounts, is based on underlying power asymmetries in world politics, serving the interests of the powerful either in a benevolent or malevolent fashion.15 Another strand of work that rose in response to the seeming failure of regional integration, gridlock at the UN, and halting progress of deepening European integration was regime theory. Regimes, for many theorists, were intervening variables between state preferences and outcomes. They were not designed by states to solve a particular problem at hand, but rather emerged as “rules, norms, principles, and decision-​making

  Charles Kindleberger, “Bretton Woods Reappraised,” International Organization 5 (1951): 32–​47.   Stephen D. Krasner, “State Power and the Structure of International Trade,” World Politics 28 (1976): 317–​47. 11   See especially Robert Gilpin, War and Change in World Politics (Cambridge: Cambridge University Press, 1981). 12   In a variant of this idea, identified by Snidal, small states simply rely on other states (either a hegemon or a privileged group) to form international agreements, free riding on the efforts of stronger states to provide order. Duncan Snidal, “Coordination versus Prisoners’ Dilemma:  Implications for International Cooperation and Regimes,” American Political Science Review 79 (1985): 923–​42. 13   Robert W. Cox, “Social Forces, States and World Orders: Beyond International Relations Theory,” Millennium—​Journal of International Studies 10/​2 (1981): 126–​55. 14   G. John Ikenberry, After Victory: Institutions Strategic Restraint and the Rebuilding of Order After Major Wars (Princeton, NJ: Princeton University Press, 2001). 15   Snidal, “Coordination versus Prisoners’ Dilemma:  Implications for International Cooperation and Regimes.” 9

10

 

the demand for ios: what drives io formation?    7 procedures” that would create or focus expectations about behavior.16 This was an explicit move away from formal organizations as the central topic of study. While regime theory and HST grew to dominate discussions of IO formation, Robert Keohane’s After Hegemony introduced an entirely new take on the foundation and function of IOs. Keohane simultaneously sought to criticize HST and theorize explicitly about the demand for IOs. First, Keohane argued that HST only explained the supply of IOs and regimes, and even then, did so inadequately when one examined varying issue areas.17 Moreover, HST could not explain why regimes were more abundant (and growing) at a time when the global hegemon was waning. Second, Keohane moved to bring back the demand side perspective from functionalist days. Drawing on theories of transaction cost economics and neofunctionalism, Keohane argued that states create institutions because they have common interests in cooperation to achieve mutual gains.18 Yet, because states are rational egoists, they cannot achieve these gains without institutions to guide cooperation. Thus, there is a demand for regimes that allows states to achieve gains that they otherwise could not. In After Hegemony, for example, Keohane argues that the foundation of the International Energy Agency reduced transaction costs and information asymmetries after the 1973 oil crisis to facilitate cooperation on energy issues. Interestingly, what all theorists had in common in their moves to regime theory, HST, and (what others would label for Keohane) neoliberal institutionalism was the use of the systemic level of analysis. Gone were differentiated states (except in the crudest of classifications) and domestic politics. This was a pronounced break from the prior generation of scholarship, which examined citizen demand or domestic political debates about national interests. In the 1990s and 2000s, an explicit move to reconsider domestic politics in the creation of IOs emerged. Building on the two-​level games work of Putnam,19 scholars began to examine how domestic preferences could drive states to form IOs for domestic reasons rather than primarily for internationally driven reasons. In this vein, Moravcsik argues that international organizations can help certain types of states solve domestic credible commitment problems.20 Specifically, joining IOs can be driven by the need for states to credibly commit to particular policies domestically. Forming international agreements allows states to benefit from external

 Stephen D. Krasner, “Structural Causes and Regime Consequences:  Regimes as Intervening Variables,” International Organization 36/​2 (1982): 185–​205. 17   Robert O. Keohane, “The Demand for International Regimes,” International Organization 36/​2 (1982): 326. 18  Robert O. Keohane, After Hegemony:  Power and Discord in International Politics (Princeton, NJ: Princeton University Press, 1984). 19   Robert Putnam, “Diplomacy and Domestic Politics: The Logic of Two-​Level Games,” International Organization 42 (1988): 427–​60. 20   Andrew Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe,” International Organization 54 (2000): 217–​52. 16

 

8    international organizations in world politics monitoring, delegating compliance verification to third-​party actors. Similarly, Pevehouse examined how domestic actors can use IOs to lock-​in democratic reforms,21 while Mansfield and Pevehouse suggest that the rise in IO memberships occurs in the wake of transitions to democracy.22 In both cases, IOs serve to help leaders commit to policies favored by particular domestic coalitions of actors. In essence, these papers all suggest opening up the concept of “the demand for IOs,” and focus on not only the international demand for IOs, but also the domestic demand. Notably, much of the literature on domestic politics and IOs shies away from questions of organization formation, assuming that IOs exist which can meet the requirements of domestic actors. We return to the discussion of domestic politics and IOs later in the chapter when we discuss which IOs states choose to join or conduct policy through.

Designing IOs: Once IOs Are the Solution—​How Are They Built? Once states decide to create an IO, design questions arise. Scholars have begun to focus on explaining variation in institutional features, such as membership size and heterogeneity, voting rules, issue linkage, time horizons, and monitoring and enforcement capacity—​issues critical to an organization’s effectiveness and chances of survival.

Rational Design Early efforts to explain variation in IO design focused primarily on variation in formalization as a result of the nature of the cooperation problem and the need for flexibility among states.23 Other scholars concentrated on the legal aspects of IO creation and institutionalization.24  Jon C. Pevehouse, “With a Little Help from My Friends? Regional Organizations and the Consolidation of Democracy,” American Journal of Political Science 46 (2002): 611–​26. 22   Edward D. Mansfield and Jon C. Pevehouse, “Democratization and International Organizations,” International Organization 60 (2006): 137–​67. 23   Snidal, “Coordination versus Prisoners’ Dilemma: Implications for International Cooperation and Regimes”; Lisa Martin, “Interests, Power, and Multilateralism,” International Organization 46 (1992): 765–​92; Charles Lipson, “Why Are Some International Agreements Informal?,” International Organization 45 (1991): 495–​538. 24   Judith Goldstein et al., “Introduction: Legalization and World Politics,” International Organization 54 (2000): 385–​99. 21

 

designing ios   9 In 2001, a group of scholars took a new approach to this issue. Building on the assumption that states are rational actors who use IOs to further their own goals, the rational design school argues that states design institutions intentionally. In other words, IOs are “negotiated responses to the problems which actors face.”25 By focusing on five design features (membership, issue scope, centralization, control, and flexibility), the rational design literature proposes that variation in institutional design can be explained by the nature of the problem (distribution or enforcement), actors (number and asymmetry), and the level of uncertainty faced by states (about others’ behavior and preferences, or the state of the world).26 A number of statistical and case studies have been conducted to test these conjectures, with mixed results.27 While this research has enhanced our understanding of design outcomes, one important but underexplored area concerns the dynamics of the bargaining process,28 and especially the role that power and politics play when design is “in motion.”29 Other questions also remain unexplored. For example, one would expect states to wield less power in the design of emanations or “second-​order IOs,”30 but this question has not been sufficiently addressed.31 In addition, we have little systematic knowledge about what drives variation in IO tasks/​mandates, even though hypotheses have been suggested.32

Delegation While the rational design literature explored member state control over IOs as a feature, it did not delve into which functions member states delegate to IOs or how states control IOs once delegation has occurred.33 These aspects of rational design have spurred a separate strand of research. Taking inspiration from domestic and   Barbara Koremenos, Charles Lipson, and Duncan Snidal, “The Rational Design of International Institutions,” International Organization 55 (2001): 761–​99. 26   Koremenos, Lipson, and Snidal, “The Rational Design of International Institutions.” 27   Recently, the rational design perspective has expanded its focus from mainly IOs to international institutions more broadly. Barbara Koremenos, “The Continent of International Law,” Journal of Conflict Resolution 57/​4 (2013): 653–​81. 28   Alexander Thompson, “Rational Design in Motion:  Uncertainty and Flexibility in the Global Climate Regime,” European Journal of International Relations 16 (2010): 269–​96. 29  Michael N. Barnett and Raymond Duvall, “Power in International Politics,” International Organization 59 (2005): 39–​75. 30  Cheryl Shanks, Harold K. Jacobson, and Jeffrey H. Kaplan, “Inertia and Change in the Constellation of International Governmental Organizations, 1981–​1992,” International Organization 50 (1996): 593–​627. 31   Although see Tana Johnson, “Institutional Design and Bureaucrats’ Impact on Political Control,” Journal of Politics 75 (2013): 183–​97. 32   Martin, “Interests, Power, and Multilateralism.” 33  Mark A. Pollack, “Delegation, Agency, and Agenda Setting in the European Community,” International Organization 51 (1997): 99–​134. 25

 

10    international organizations in world politics comparative political analysis,34 the delegation literature focuses on the principal–​ agent relationship, where member state governments (the collective principal) hire an IO (agent) to perform some function(s). Such delegation, in theory, reduces transaction costs and generates gains from specialization.35 In the delegation literature, the characteristics and preferences of the principal as well as the dynamics of the principal–​agent relationship determine the design of IOs. This research found, for example, that preference heterogeneity among principals and the need for reliable information produce fewer ex ante controls and thus greater IO autonomy.36 States have delegated functions to a host of IOs because of informational or distributional concerns.37 For example, in the case of informational demand, states have delegated authority for monitoring behavior in the realm of nuclear testing (Comprehensive Nuclear-​Test-​Ban Treaty Organization) and nuclear safety (International Atomic Energy Agency). For distributional concerns, states have endowed IOs with the authority for dispute resolution in trade matters (World Trade Organization: WTO) as well as territorial issues (International Court of Justice). Further, states have delegated authority due to high costs of noncoordination, for instance to the World Health Organization and the International Telecommunication Union. Delegation scholarship has explored new ground by highlighting problems after the initial design stage, once powers have been transferred and IO autonomy has been established. Besides general agency losses, there is a trade-​off between gains from specialization and agency slack in the form of shirking and slippage.38 This is especially true for international courts, such as the European Court of Justice (ECJ), which were often intentionally endowed with more autonomy.39 Again,   Matthew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked:  Police Patrols versus Fire Alarms,” American Journal of Political Science 28 (1984):  165–​79; Roland Vaubel and Thomas D. Willett (eds.), The Political Economy of International Organizations: A Public-​Choice Approach (Boulder, CO: Westview Press, 1991). 35  Kenneth W. Abbott and Duncan Snidal, “Why States Act through Formal International Organizations,” Journal of Conflict Resolution 42 (1998): 3–​32; Darren G. Hawkins et al., Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006). 36   Daniel L. Nielson and Michael J. Tierney, “Delegation to International Organizations:  Agency Theory and World Bank Environmental Reform,” International Organization 57 (2003):  241–​76; Alexander Thompson, “Coercion through IOs:  The Security Council and the Logic of Information Transmission,” International Organization 60 (2006): 1–​34. 37   Lisa L. Martin, “Distribution, Information, and Delegation to International Organizations: The Case of IMF Conditionality,” in Delegation and Agency in International Organizations, ed. Darren Hawkins et al. (New York: Cambridge University Press, 2006), 140–​64. 38   Hawkins et al., Delegation and Agency in International Organizations. 39   Karen J. Alter, “Who Are the Masters of the Treaty? European Governments and the European Court of Justice,” International Organization 52 (1998):  121–​ 47; Karen J. Alter, “Delegation to International Courts and the Limits of Recontracting Political Power,” in Delegation and Agency in International Organizations, ed. Hawkins et al. (Cambridge: Cambridge University Press, 2006), 312–​28; Alec Stone Sweet, “The European Court of Justice and the Judicialization of EU Governance,” Living Reviews in EU Governance 5/​2 (2010): 1–​50. 34

 

designing ios   11 preference heterogeneity within the collective principal can make post hoc control mechanisms—​such as IO reform or recontracting—​quite difficult.40

Constructivist Approaches Constructivist approaches criticize the functionalist and rationalist logics of design and delegation research and instead propose that IO design follows other logics not reducible to material or efficiency interests. For example, Wendt argues that instead of strictly maximizing payoffs (logic of consequences), states may also choose on the basis of what is normatively appropriate (logic of appropriateness).41 Specifically, Wendt argues that the rationalist design project ignores questions involving the knowledge of what values to pursue in design—​this requires a deeper investigation of normative concerns in the design stage.42 To take one example, while functionalism cannot explain the timing of states’ adoption of science bureaucracies, Finnemore finds that this development was prompted by new UN Educational, Scientific and Cultural Organization (UNESCO) norms.43 The design of UNESCO policies was meant to maximize the spread of particular ideas because they were normatively valued. Thus, constructivist approaches can also be seen as a deeper explanation of IO features, by exploring the preconditions for rational design. These prerequisites include how states come to identify issues as problems requiring collective action in the first place, the timing of IO design, and how some functional design options may be off the table because they are normatively unattractive. In the first category, Adler and Haas argue that “before choices involving cooperation can be made, circumstances must be assessed and interests identified.”44 In this sense, constructivist approaches ask questions about conditions prior to negotiating the design of IOs. Within the constructivist approach, sociological institutionalism reverses the focus on state agency to explore the impact of institutions on state agents acting within them. These scholars argue that institutions can constitute and shape states’ preferences and identities.45 In the security realm, early work by Deutsch and associates

40   Nielson and Tierney, “Delegation to International Organizations:  Agency Theory and World Bank Environmental Reform.” 41   Alexander Wendt, “Driving with the Rearview Mirror: On the Rational Science of Institutional Design,” International Organization 56 (2001): 1019–​49. 42  Ibid. 43  Martha Finnemore, “International Organizations as Teachers of Norms:  The United Nations Educational, Scientific, and Cultural Organization and Science Policy,” International Organization 47 (1993): 565–​97. 44   Emanuel Adler and Peter M. Haas, “Conclusion: Epistemic Communities, World Order, and the Creation of a Reflective Research Program,” International Organization 46 (1992): 367–​90. 45  Martha Finnemore, National Interests in International Society (Ithaca, NY:  Cornell University Press, 1996); Martha Finnemore, “Norms, Culture, and World Politics:  Insights from Sociology's

 

12    international organizations in world politics found that successful international integration was mainly achieved through a “sense of community” among the populace rather than functional integration of government tasks.46 Later work by Adler and Barnett documented how the Organization for Security and Co-​operation in Europe (OSCE) shaped states’ collective identity.47

Regionalism Geography, or the region of cooperating states, is another important factor for the design of IOs. The majority of IOs today are regional rather than universal in membership, and those regional intergovernmental organizations (IGOs) display a wide variety of design features. Acharya and Johnston examine regional variation in institutional design beyond large Western organizations by integrating functionalist and sociological approaches.48 This research highlights the importance of cultural, domestic, and geopolitical characteristics for the degree of IO autonomy, legalization, decision-​making, and sovereignty rules. For example, shared external threats can yield more intrusive regional institutions, such as the Association of Southeast Asian Nation’s (ASEAN’s) Free Trade Area49 whereas low external threats combined with weak domestic leaders can result in the opposite. In the twentieth century, concerns over domestic regime survival in some regions have impeded attempts at weakening state sovereignty and have thus resulted in less IO autonomy in Africa and the Arab world than in Europe.50 This regionalism volume also provided support for earlier rational design conjectures, such as that uncertainty about the state of the world yields higher flexibility.51 Institutionalism,” International Organization 50 (1996): 325–​47; Alexandra Gheciu, “Security Institutions as Agents of Socialization? NATO and the ‘New Europe’,” International Organization 59 (2005): 973–​1012.   Deutsch et al., Political Community and the North Atlantic Area.  Emmanuel Adler and Michael Barnett (eds.), Security Communities (Cambridge University Press, 1998). 48   Amitav Acharya and Alastair Iain Johnston (eds.), Crafting Cooperation: Regional International Institutions in Comparative Perspective (Cambridge: Cambridge University Press, 2007). 49   Yuen Foong Khong and Helen E.  S. Nesadurai, “Hanging Together, Institutional Design and Cooperation in Southeast Asia: The Cases of AFTA and the ARF,” in Crafting Cooperation: Regional International Institutions in Global Politics, ed. A. Acharya and A. I. Johnston (New York: Cambridge University Press, 2007), 32–​82. 50  Jeffrey Herbst, “Crafting regional cooperation in Africa,” in Crafting Cooperation:  Regional International Institutions in Global Politics, ed. A. Acharya and A. I. Johnston (New  York:  Cambridge University Press, 2007), 129–​44; Michael Barnett and Etel Solingen, “Designed to Fail or Failure of Design? The Origins and Legacy of the Arab League,” in Crafting Cooperation: Regional International Institutions in Global Politics, ed. A. Acharya and A. I. Johnston (New York: Cambridge University Press, 2007), 180–​220. 51   Frank Schimmelfennig, “Functional Form, Identity-​Driven Cooperation:  Institutional Designs and Effects in Post-​Cold War NATO,” in Crafting Cooperation: Regional International Institutions in Global Politics, ed. A. Acharya and A. I. Johnston (New  York:  Cambridge University Press, 2007), 145–​79. 46 47

 

designing ios   13 A related literature has evaluated efforts to adopt IO designs for other regional integration projects. This research focuses primarily on the (attempted) diffusion of certain features of the European Union (EU) as templates for the African Union, ASEAN, and Mercosur.52 When institutional arrangements are adopted in new regions, it is often a result of both supply through EU promotion and demand by regional member states and nonstate stakeholders.53 Regionalism research also highlights how IOs can “fail” despite the existence of self-​interested benefits in cooperation. It underscores the importance of shared identity or culture for the decision between multilateral IOs and bilateral agreements. The absence of a NATO-​equivalent in Asia, for example, can be explained by a combination of power, lack of perceived external threats, and lack of US identification with the region.54 Mutual identity—​based on shared democracy, religion, and ethnicity—​has shaped a more egalitarian, multilateral union with Europe (North Atlantic Treaty Organization: NATO) as compared with Asia (Southeast Asia Treaty Organization: SEATO).

Redesign Once IOs are designed, shifts in global politics or internal developments can lead to institutional change in the form of renegotiation, replacement, repurposing, or death. For example, for the turbulent decade between 1981 and 1992, about a third of the world’s 1,063 IOs and emanations from 1981 died or were reabsorbed by their parent bodies.55 International relations (IR) scholarship has taken a variety of approaches to address the question of institutional change. Indeed, part of Keohane’s original impetus for theorizing regimes was to explain changes in and across them—​something hegemonic stability theory was unable to do given the slow-​moving nature of hegemony. One enduring division in current literature is 52   Mary Farrell, “From EU Model to External Policy? Promoting Regional Integration in the Rest of the World,” in Making History: European Integration and Institutional Change at Fifty, ed. S. Meunier and K. R. McNamara (Oxford: Oxford University Press, 2007), 299–​315; Philomena Murray and Edward Moxon-​Browne, “The European Union as a Template for Regional Integration? The Case of ASEAN and its Committee of Permanent Representatives,” Journal of Common Market Studies 51 (2013): 522–​37; Clarissa Dri, “Limits of the Institutional Mimesis of the European Union: The Case of the Mercosur Parliament,” Latin American Policy 1 (2010): 52–​74. 53   Tanja Börzel and Thomas Risse, “The Rise of (Inter-​) Regionalism: The EU as a Model of Regional Integration,” paper presented at the Annual Convention of the American Political Science Association, Toronto, Canada, September 2009; Ulrike Lorenz-​Carland Martin Rempe, Mapping Agency: Comparing Regionalisms in Africa (Burlington, VT: Ashgate, 2013). 54   Christopher Hemmer and Peter J. Katzenstein, “Why Is There No NATO in Asia? Collective Identity, Regionalism, and the Origins of Multilateralism,” International Organization 56 (2002): 575–​607. 55  Shanks, Jacobson, and Kaplan, “Inertia and Change in the Constellation of International Governmental Organizations, 1981–1992.”

 

14    international organizations in world politics whether these changes are driven by state interests or by actors within IOs themselves (e.g., bureaucrats). Unfortunately, largely because much of the scholarship on IOs moved away from the study of actual organizations, scant attention has been paid to how organizations change after they are formed. Nevertheless, several smaller bodies of literature on institutional change have emerged in recent years. One set argues that when IOs grow beyond their original purpose or become suboptimal solutions, member states may decide to renegotiate the scope of their international cooperation. A  prominent example of ­renegotiation is the GATT, which evolved into the WTO after seven years of bargaining. This renegotiation extended not only the scope of the organization, but added a new, centralized dispute resolution mechanism which aims at increasing members’ compliance with their obligations and changing the penalties associated with noncompliance.56 Instead of renegotiation, however, member states may also replace a defunct IO with a new organization that better reflects the current state of world ­politics in terms of political will. Two examples of this dynamic are the UN replacing the League of Nations and the Ottawa Convention replacing the Convention on Certain Conventional Weapons. Cottrell argues that decisions to renegotiate rather than replace IOs are explained by legitimacy and problem ­definition:  where contestation over the functioning of an existing institution leads to a redefinition of a problem, states will likely replace the institution (as opposed to redesign it).57 Several IOs have undergone changes in their mandate or purpose. For example, some predicted that NATO would wither away with the end of the Cold War because the threat constituting its purpose had faded away.58 Instead, it broadened its membership beyond the former “iron curtain.”59 NATO also expanded its scope from an alliance for self-​defense to a cooperative security arrangement, m ­ anaging conflict between its members and at its geographic periphery.60 The IMF and

56  Judith Goldstein and Lisa L. Martin, “Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note,” International Organization 54 (2000): 603–​32; Warren F. Schwartz and Alan O. Sykes, “The Economic Structure of Renegotiation and Dispute Resolution in the World Trade Organization,” Journal of Legal Studies 31 (2002): 179–​204. 57  M. Patrick Cottrell, “Legitimacy and Institutional Replacement:  The Convention on Certain Conventional Weapons and the Emergence of the Mine Ban Treaty,” International Organization 63 (2009): 217–​48. 58   John J. Mearsheimer, “Back to the Future: Instability in Europe after the Cold War,” International Security 15 (1990): 5–​56. 59  Robert B. McCalla, “NATO’s Persistence after the Cold War,” International Organization 50 (1996): 445–​75. 60   John S. Duffield, “NATO’s Functions after the Cold War,” Political Science Quarterly 109 (1994): 763–​ 87; Celeste Wallander, “Institutional Assets and Adaptability: NATO after the Cold War,” International Organization 54 (2000): 705–​35; Jef Huysmans, “Shape-​Shifting NATO: Humanitarian Action and the Kosovo Refugee Crisis,” Review of International Studies 28 (2002): 599–​618.

 

designing ios   15 the World Bank are also good examples of repurposing. After the reconstruction of Europe following World War II, the World Bank shifted its focus to financing development projects in other parts of the world.61 After the collapse of the Bretton Woods system in 1971, the IMF expanded its goals from reducing currency devaluations to providing development aid to poor countries with balance of payment issues. IR research has also examined the viability of IGOs in terms of their durability and death. While the overall number of IOs has been steadily growing, death is not rare.62 Changes in international conflict, cooperation, and in the balance of power have direct implications for the viability of IOs. Changes in international conflict are associated with higher mortality rates of IOs, as in the run-​up to both World Wars,63 during the decline of the United States as a hegemon after 1970, and at the end of the Cold War.64 Still, despite these empirical studies of organizational death, few studies have theorized the mechanisms by which states choose to shut down IOs. In addition to world politics, some scholars have examined the importance of domestic politics and headquarter location for the survival of IOs. Regions with poorer and politically polarized countries (Africa, Middle East) experienced more IO death than other regions (Europe and Asia).65 In addition, the location of the institution’s headquarters matters by directly driving the availability of human capital for the institution’s staff. If an institution’s secretariat does not attract talented staff, it is more likely to die.66 This research also highlights the zone between life and death, where “zombie” IOs maintain some activities but suffer from budget and personnel problems and often fall short of their ambitions.

  Martha Finnemore, “Redefining Development at the World Bank,” in International Development and the Social Sciences, ed. Frederick Cooper and Randall Packard (Berkeley: University of California Press, 1998), 203–​27. 62   Jon Pevehouse, Timothy Nordstrom, and Kevin Warnke, “The Correlates of War 2 International Governmental Organizations Data Version 2.0,” Conflict Management and Peace Science 21 (2004): 101–​19. 63   Craig N. Murphy, International Organizations and Industrial Change: Global Governance since 1850 (New York: Oxford University Press, 1994); Michael Wallace and J. David Singer, “International Governmental Organization in the Global System, 1815–​1964,” International Organization 24 (1970): 239–​87; Richard Cupitt, Rodney Whitlock, and Lynn Williams Whitlock, “The (Im)Mortality of International Governmental Organizations,” International Interactions 21 (1996): 389–​404. 64  Cupitt, Whitlock, and Whitlock, “The (Im)Mortality of International Governmental Organizations”; Shanks, Jacobson, and Kaplan, “Inertia and Change in the Constellation of International Governmental Organizations, 1981–​1992.” 65  Shanks, Jacobson, and Kaplan, “Inertia and Change in the Constellation of International Governmental Organizations, 1981–​1992.” 66  Julia Gray, “Life, Death, or Zombies? The Endurance of Inefficient Regional Economic Organizations,” Working Paper, University of Pennsylvania (2013). 61

 

16    international organizations in world politics

Deciding which IOs to Join or Act Through Most early theories of IOs discuss their foundation:  why do states form international organizations? Of course, the decision to join an IO is presumably different than the decision to form an IO, even if some of the factors behind these decisions are related. The literature reviewed here largely assumes there are extant IOs available to join.

Traditional Theories Most power-​based (e.g., hegemonic stability theory) and interest-​based (e.g., neofunctionalism) theories purport to describe why institutions are formed. Yet, within the insights of some of these writings, one can also deduce why states might move to join existing IOs.67 Presumably, many of the logics of transaction costs, assisting collective action, providing information, and making credible commitments apply equally to states forming and joining IOs. It is worth noting, however, that much of the early scholarship (and even some recent scholarship) on IOs presumes that small states will be willing to join these institutions when formed by larger powers since the larger powers will provide collective goods and small powers can benefit from free-​riding on their efforts.68 There is little sense that states that are not present at the creation may have variation in demand for IOs, either in terms of the number, form, or purpose of these institutions. A unique power-​based perspective on the question of joining is given by Lloyd Gruber, who argues that weaker states are essentially forced to join institutions with more powerful members because the latter possess what he labels “go it alone power.”69 That is, strong states can unilaterally change the status quo, with or without the assistance or approval of weaker states. Thus, the latter must join IOs so as not to be left behind by the march of international cooperation—​according to Gruber—whether the agreements are beneficial or not. Our main argument with respect to this group of theories is that the choice to form an IO or join an IO was largely treated as the same question for many years. It 67   We borrow the description of theories as interest-​, power-​, or knowledge-​based from Hasenclever, Mayer, and Rittberger, Theories of International Regimes. 68   Snidal, “Coordination versus Prisoners’ Dilemma: Implications for International Cooperation and Regimes.” 69  Lloyd Gruber, Ruling the World:  Power Politics and the Rise of Supranational Institutions (Princeton, NJ: Princeton University Press, 2000).

 

deciding which ios to join or act through    17 still largely is. Yet the costs of forming an IO versus joining an existing one are quite different; just as, in the security realm, starting, joining, or continuing a war are very different decisions. Our theories should be clearer on which decision (forming versus joining) they purport to explain. The other way to conceptualize the question of joining is to focus on the organizational side: when do IOs expand? Here, the IO is taken as the unit of analysis. This presumes some independent power of IOs (or at least some aggregation of preferences among member states) and analyzes the conditions under which IOs will decide to admit new members.70 Mansfield and Pevehouse examine regional trade organizations and find that they tend to expand at similar times (as if in competition for members) and when there is a relatively uniform (economic) size distribution among the existing members.71 Clearly, more work should be done examining decisions to expand: such analyses force the scholar to take institutions as bureaucratic bodies and theorize about the politics within and between them (see later in this chapter).

Domestic Politics Tremendous work has emerged in the last two decades linking domestic politics to decisions regarding IOs. Much of this work focuses on the ability of IOs to provide information to or tie the hands of domestic actors. Underlying the first process is an IO’s ability to collate information from a wide variety of members, but more importantly to be entrusted to aggregate this information in an unbiased manner. The foundation of the second process is an IO’s ability to solve the collective action problem in order to punish states that deviate from their commitments. Work in both security studies and international political economy (IPE) has used the information-​providing functions of IOs to build arguments around when states will join or use IOs to achieve particular goals. In the security realm, it has been argued that IOs provide legitimacy for proposed policies due to the nature of their operations. For example, resolutions issued by the UN General Assembly are often seen as legitimate due to its near universal membership and the one-​state-​one-​vote system. More importantly, the UN Security Council can legitimize the use of force  See also George Downs, David Rocke, and Peter Barsoom, “Managing the Evolution of Multilateralism,” International Organization 52 (1998): 397–​419; Walter Mattli, The Logic of Regional Integration: Europe and Beyond (Cambridge: Cambridge University Press, 1999); Robert Pahre, “Wider and Deeper: The Links between Expansion and Integration in the European Union,” in Towards a New Europe: Stops and Starts in Regional Integration, ed. G. Schneider, P. A. Weitsman, and T. Bernauer (Westport, CT: Praeger Publishers, 1995), 111–​36. 71   Edward D. Mansfield and Jon C. Pevehouse, “The Expansion of Preferential Trading Arrangements,” International Studies Quarterly 57 (2013): 592–​604. 70

 

18    international organizations in world politics because the underlying rulemaking is perceived as legitimate.72 The Council represents the international community through the heterogeneity of its fifteen members in terms of state power, geography, and interests, as well as through its long history and delegated powers from the UN’s member states as a whole. By issuing a resolution, the Council can provide information about the coercing leader’s benign intention or limited ambitions73 and the likely policy consequences.74 As some of these studies suggest, UN Security Council approval can both inform domestic publics and legitimize the use of force or other punitive actions. Similarly, IPE scholars contend that the information asymmetry between leaders and voters can be ameliorated through IOs. Mansfield, Milner, and Rosendorff argue that state leaders need a viable mechanism to signal their competence in economic matters to their electorate.75 Joining international economic organizations provides information to the populace: should a leader engage in rent-​seeking behavior, the organization would presumably move to punish the leader for bad behavior. As a result, democratic states join international economic organizations to provide information about their type (honest versus rent-​seeking) to their domestic populace. A related argument is made in the realm of the IMF, where some note that leaders may use IOs for the opposite purpose: to scapegoat unpopular policies.76 In addition, changes in domestic political institutions can also give rise to incentives to join or utilize institutions. Specifically, Hafner-​Burton, Mansfield, and Pevehouse show that, consistent with Moravcsik, newly democratized states are more willing to join human rights institutions (IOs and treaties) than are long-​standing democracies or authoritarian states.77 Perhaps more importantly, they show that new democracies are more willing to join IOs that impose higher

72   Ian Hurd, “Legitimacy and Authority in International Politics,” International Organization 53 (1999): 379–​408. 73  Thompson, “Coercion through IOs:  The Security Council and the Logic of Information Transmission”; Sonying Fang, “The Informational Role of International Institutions and Domestic Politics,” American Journal of Political Science 52 (2008): 304–​21. 74  Terrence Chapman, “International Security Institutions, Domestic Politics, and Institutional Legitimacy,” Journal of Conflict Resolution 51 (2007): 134–​166; Terrence Chapman, “Audience Beliefs and International Organization Legitimacy,” International Organization 63 (2009):  733–​ 64; Erik Voeten, “The Political Origins of the UN Security Council’s Ability to Legitimize the Use of Force,” International Organization 59 (2005): 527–​57. 75   Edward D. Mansfield, Helen V. Milner, and B. Peter Rosendorff, “Why Democracies Cooperate More:  Electoral Control and International Trade Agreements,” International Organization 56 (2002): 477–​513. 76  Karen L. Remmer, “The Politics of Economic Stabilization:  IMF Standby Programs in Latin America, 1954–​1984,” Comparative Politics 19 (1986):  1–​24; James Raymond Vreeland, The IMF and Economic Development (New  York:  Cambridge University Press, 2003); see also Roland Vaubel, “A Public Choice Approach to International Organization,” Public Choice 51 (1986): 39–​57. 77  Emilie M. Hafner-​Burton, Edward D. Mansfield, and Jon C.W. Pevehouse, “Human Rights Institutions, Sovereignty Costs and Democratization,” British Journal of Political Science 45/​1 (2015): 1–​27; Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe.”

 

deciding which ios to join or act through    19 “sovereignty costs,”—​that is, are more intrusive to domestic political actors. They argue that these costs both serve as a costly signal to domestic and international audiences as well as a binding legal commitment to uphold human rights. With regards to the mechanism of credible, binding commitments, it has been shown that similarity of regime type has a strong effect on alliances. In particular, while there remains some debate about the exact nature of the relationship, several scholars have found democracies are more likely to ally (especially creating more formal defense pacts) with one another.78 Gaubatz shows that democracies tend to stay in alliances with one another for longer periods of time.79 Leeds, Mattes, and Vogel argue that domestic political coalitions influence the nature of alliance behavior for dictatorships, but not democracies.80 As these alliance findings suggest, preference heterogeneity at the domestic level can serve as a block to acting through IOs more generally. In the realm of trade agreements, Mansfield, Milner, and Pevehouse have shown that the presence of institutionally empowered veto players can decrease the likelihood of agreements and the depth of agreements that do emerge.81 Minnich has shown empirically that the existence of more domestic veto players also limits commitments to international organizations.82 Clearly there is variation on the need to make binding commitments through IOs, but ironically, the field has now settled on theoretically indeterminate arguments:  democracies, because of regular turnover, can benefit from these commitments, but so can dictatorships, who have poor reputations for keeping commitments.

Forum-​Shopping A recent innovation in research on the question of joining IOs involves the concept of forum-​shopping. Given a menu of forums for states to achieve their goals, what 78   Brian Lai and Dan Reiter, “Democracy, Political Similarity, and International Alliances, 1816–​ 1992,” Journal of Conflict Resolution 44 (2000):  203–​27; although see Douglas M. Gibler and Scott Wolford, “Alliances, then Democracy: An Examination of the Relationship between Regime Type and Alliance Formation,” Journal of Conflict Resolution 50 (2006): 129–​53. 79  Kurt Taylor Gaubatz, “Democratic States and Commitment in International Relations,” International Organization 50 (1996): 109–​39. 80  Brett Ashley Leeds, Michaela Mattes, and Jeremy S. Vogel, “Interests, Institutions, and the Reliability of International Commitments,” American Journal of Political Science 53 (2009): 461–​76. 81  Edward D. Mansfield, Helen V. Milner, and Jon C. Pevehouse, “Vetoing Co-​operation:  The Impact of Veto Players on Preferential Trading Arrangements,” British Journal of Political Science 37 (2007): 403–​32; Edward D. Mansfield, Helen V. Milner, and Jon C. Pevehouse, “Democracy, Veto Players and the Depth of Regional Integration,” World Economy 31 (2008): 67–​96. 82  Daniel J. Minnich, “Veto Players, Electoral Incentives and International Commitments:  The Impact of Domestic Institutions on Intergovernmental Organization Membership,” European Journal of Political Research 44 (2005): 295–​325.

 

20    international organizations in world politics determines the choice of forum? In the past decade, more scholarship has emerged on this question. In the trade realm, Busch shows that states will choose the forum that not only will result in an outcome most favorable to them, but also will set the most significant precedent, so that states can use similar strategies in the future with regard to other members of the agreement.83 Alter and Meunier identify regime complexity as a key source of variation in state behavior with regard to which IOs states use to accomplish their goals.84 They argue, and a number of empirical studies using their framework confirm, that overlapping institutions lead to issues of implementation (e.g., rule ambiguity and legal fragmentation), allow for cross-​institutional political strategies such as forum-​ shopping, and produce competition effects which can lead to a lack of institutional innovation.85 Relatedly, in the area of international human rights institutions, Helfer documents a growing number of instances where individuals raise identical claims in front of different courts, suggesting strategic behavior on the part of individual litigants.86 Despite the important work done by Alter, Meunier, Busch, and others, far more theoretical and empirical work is needed to consider the factors that drive states to join or use IOs rather than form them.87 Indeed, the processes may be highly related and some of the workhorse theories of IO formation (neofunctionalism, regime theory, etc.) may easily adapt to decisions to join. But given that states now have a large menu of IOs to join, each with distinct rules and members, it is likely that calculations about membership are fundamentally different for IO originators from IO joiners.

Operating IOs From the rise of neofunctionalism until the 1990s, the majority of IO scholarship focused on questions of creation, treating the resulting organizations as black boxes. This clearly followed from the systemic emphasis in IR theory at the time. 83  Marc L. Busch, “Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade,” International Organization 61 (2007): 735–​61. 84   Karen J. Alter and Sophie Meunier, “The Politics of International Regime Complexity,” Perspectives on Politics 7 (2009): 13–​24. 85  Ibid. 86   Laurence R. Helfer, “Forum Shopping for Human Rights,” University of Pennsylvania Law Review 148/​2 (1999): 285–​400. 87   Daniel W. Drezner, “The Power and Peril of International Regime Complexity,” Perspectives on Politics 7 (2009): 65–​70.

 

operating ios   21 As Kratochwil and Ruggie showed nearly thirty years ago, research in the journal International Organization moved significantly away from the study of formal organizations and their operation to more general studies of IOs.88 A review of the pages of International Organization today would likely show that little has changed. Yet, if IOs have agency, this makes them independent actors on the world stage, and the preferences of the IO itself (or the actors who run it) must be taken into account to explain outcomes. If IO preferences matter, we require a model of how those preferences come to be, whose preferences within the organizations matter, and how they are exercised in everyday IO activities. In this section, we briefly review new work that examines the operation of international ­organizations where the dependent variables considered are the behaviors within the organizations.

Bureaucratic Politics Despite the popularity of organizational theory in economics and sociology,89 relatively few IR scholars have used these theories to understand the functioning of IOs. An important exception to this rule are Barnett and Finnemore, who argue that IOs can fall victim to bureaucratic politics by implementing one-​size-​fits-​all approaches without considering context, becoming subject to intraorganizational clashes, and becoming insulated from states.90 This can give rise to IO autonomy and power independent of the states that created the organization. When IO behavior goes as far as to undermine its own mission, it has been labeled as dysfunctional and as demonstrating “pathologies.”91 These risks are especially high for larger organizations such as the UN. In addition, a number of scholars have shown that bureaucrats can, due to a variety of mechanisms, transform their own institutions, quite apart from state interests.92

  Friedrich V. Kratochwil and John G. Ruggie, “International Organization: A State of the Art on an Art of the State,” International Organization 40 (1986): 753–​76. 89   For example, Richard M. Cyert and James G. March, A Behavioral Theory of the Firm (Englewood Cliffs, NJ: Prentice Hall, 1963). 90   Michael N. Barnett and Martha Finnemore, “The Politics, Power, and Pathologies of International Organizations,” International Organization 53 (1999):  699–​ 732; Michael N. Barnett and Martha Finnemore, Rules for the World:  International Organizations in Global Politics (Ithaca, NY:  Cornell University Press, 2004). 91   Barnett and Finnemore, “The Politics, Power, and Pathologies of International Organizations.” 92  Michael Barnett and Liv Coleman, “Designing Police:  Interpol and the Study of Change in International Organizations,” International Studies Quarterly 49 (2005): 593–​620; Catherine Weaver, Hypocrisy Trap: The World Bank and the Poverty of Reform (Princeton, NJ: Princeton University Press, 2008); Hurd, “Legitimacy and Authority in International Politics.” 88

 

22    international organizations in world politics Combining issues of the bureaucratic operation of IOs and design questions, Johnson and Urpelainen have argued that it is essential to understand the preferences and behavior of bureaucrats when considering the design of emanations—​ IOs created by other IOs.93 Specifically, they show that bureaucrats can design new IOs independently of the founding states even if it is known that bureaucrats’ preferences are not close to those of their state masters. Johnson shows through a new data set of emanations that more insulation of bureaucrats gives them a freer hand in designing new institutions.94 Other studies, however, suggest that preferences of key actors and staff within organizations can be directly shaped by member states—​a position held by Stone regarding the IMF.95 Stone argues that there is little independence of the IMF staff with regards to lending in Africa: they largely work at the behest of their large state donors, lacking independence. Copelovitch has reached a similar conclusion but through the use of a common agency model—​IMF staff are highly responsive to member states that are highly exposed creditors.96 Yet, Copelovitch shows that the IMF staff do play some role in determining the nature of IMF lending.

Intergovernmentalism In contrast to the idea that bureaucratic interests are key to understanding the ­operation of IOs, intergovernmentalist theories argue that IO operation hinges strongly on cooperation from member state governments—​or “obstinate” nation-​ states—​which can obstruct cooperation by pursuing their national interests.97 The primary examples of intergovernmentalism in the EU are its Empty Chair Crisis in 1965 and long unresolved negotiations toward a common foreign and security policy. For such a sensitive “high politics” issue, integration is much harder to achieve than in traditional “low politics” areas like economics. Thus integration is driven by domestic preferences to delegate certain issues to the EU in the first place98 as well as the 93  Johnson, “Institutional Design and Bureaucrats’ Impact on Political Control”; Tana Johnson and Johannes Urpelainen, “International Bureaucrats and the Formation of Intergovernmental Organizations:  Institutional Design Discretion Sweetens the Pot,” International Organization 68 (2013): 177–​209. 94   Johnson, “Institutional Design and Bureaucrats’ Impact on Political Control.” 95   Randall Stone, “The Political Economy of IMF Lending in Africa,” American Political Science Review 98 (2004): 577–​91. 96   Mark Copelovitch, The International Monetary Fund in the Global Economy: Banks, Bonds, and Bailouts (Cambridge:  Cambridge University Press, 2010); Mark Copelovitch, “Master or Servant? Common Agency and the Political Economy of IMF Lending,” International Studies Quarterly 54 (2010): 49–​77. 97   Stanley Hoffmann, “Obstinate or Obsolete? The Fate of the Nation-​State and the Case of Western Europe,” Daedalus 95 (1966): 862–​915. 98   Pollack, “Delegation, Agency, and Agenda Setting in the European Community.”

 

operating ios   23 relative bargaining power of member states and their ability to leverage issue linkage and side payments.99 Regional hegemons, such as Germany in the EU and the United States in NAFTA, can also facilitate institutional operations by solving coordination problems.100 Among EU institutions, the Council of Ministers and the European Council most clearly embody intergovernmentalism because they directly ­represent national governments whose support is critical for passing legislation.101 Other examples of intergovernmentalist institutions are Mercosur as well as the WTO. Interestingly, the pendulum on questions of IO operations has swung away from states. It now appears that scholars consistently look for (and find) limits to state power in many IOs. It is as yet unclear, however, whether this bureaucratic power is a result of design, the indifference of states, agency slack, or some combination of all three. Moreover, per the intergovernmentalist crowd, it is not clear that if push comes to shove, states cannot reassert control over organizations. A case like the European financial crisis should be a hard test for those arguing for the limited power of states.

NGOs Finally, increasing numbers of scholars are also examining how nongovernmental organizations (NGOs) or, more broadly, transnational actors influence the o ­ peration of IOs.102 There is wide variation among IOs regarding the access granted to NGO actors and this variation is the source of a growing body of research.103 Access is a key variable to consider given the assumption that the reason NGOs desire access to these IOs is to alter policies from the status quo.104

 Andrew Moravcsik, The Choice for Europe:  Social Purpose and State Power from Messina to Maastricht (Ithaca: Cornell University Press, 1998). 100   McCalla, “NATO’s Persistence after the Cold War.” 101   George Tsebelis and Geoffrey Garrett, “The Institutional Foundations of Intergovernmentalism and Supranationalism in the European Union,” International Organization 55 (2001): 357–​90. 102   Thomas Risse, “Transnational Actors and World Politics,” in Handbook of International Relations, ed. Walter Carlsnaes, Thomas Risse, and Beth A. Simmons (London: Sage, 2002), 255–​74. 103  Felicity A. Vabulas, “Consultative and Observer Status of NGOs in Intergovernmental Organizations,” in Routledge Handbook of International Organization, ed. B. Reinalda (London: Routledge, 2013), ch. 14; Jonas Tallberg et al., “Explaining the Transnational Design of International Organizations,” International Organization 68 (2014), 741–​74; Kal Raustiala, “States, NGOs, and International Environmental Institutions,” International Studies Quarterly 41 (1997): 719–​90. 104   Peter Willetts, Non-​Governmental Organizations in World Politics:  The Construction of Global Governance (London and New  York:  Routledge, 2011); Jan Aart Scholte (ed.), Building Global Democracy? Civil Society and Accountable Global Governance (Cambridge:  Cambridge University Press, 2011). 99

 

24    international organizations in world politics NGOs can attempt to influence the politics of IOs in a variety of ways.105 One is through an information mechanism whereby IO bureaucrats (and potential states) are informed of citizens’ preferences through NGOs.106 Of course, IOs themselves may tap NGOs for information and expertise as well, especially in particular issue areas or to help with monitoring.107 Another mechanism whereby NGOs can change outcomes is through influencing the design of IOs or their emanations.108 Research on IGO–​NGO partnerships in matters of global governance on a host of issues is expanding rapidly. Recently, Jessica Green has argued that nonstate actors have played a key role in global environmental governance through the delegation of authority from traditional state rulemakers.109 We would join with Tallberg and associates, however, in a cautionary note: like the beginnings of many projects, the quest for discovering patterns of when NGOs matter has begun with finding episodes of when NGOs matter.110 Far more additional work remains to be done concerning how NGOs matter, the conditions under which NGOs matter, and the limits placed on them by IOs or member states.

Outcomes The question of whether IOs achieve their intended goals has been the most hotly debated topic concerning international institutions. The issue has received much attention in the last decade, although previous generations of scholars focused on this important question as well.111 Unlike World War II-​era scholars, more recent 105   Thomas Weiss and Leon Gordenker (eds.), NGOs, the UN, and Global Governance (Boulder, CO: Lynne Rienner Publishers, 1996). 106   Kathryn Sikkink, “Transnational Advocacy Networks and the Social Construction of Legal Rules,” in Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy, ed. Y. Dezalay and B. G. Garth (Ann Arbor, MI: University of Michigan Press, 2002), 37–​64; Jens Steffek and Patrizia Nanz, “Emergent Patterns of Civil Society Participation in Global and European Governance,” in Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit?, ed. Jens Steffek, Claudia Kissling, and Patrizia Nanz (Basingstoke: Palgrave, 2008), 1–​30. 107  Vabulas, “Consultative and Observer Status of NGOs in Intergovernmental Organizations”; Ronald B. Mitchell, “Sources of Transparency:  Information Systems in International Regimes,” International Studies Quarterly 42 (1998): 109–​30. 108  Tallberg et  al., “Explaining the Transnational Design of International Organizations”; Johnson and Urpelainen, “International Bureaucrats and the Formation of Intergovernmental Organizations: Institutional Design Discretion Sweetens the Pot.” 109   Jessica Green, Rethinking Private Authority: Agents and Entrepreneurs in Global Environmental Governance (Princeton, NJ: Princeton University Press, 2014). 110   Tallberg et al., “Explaining the Transnational Design of International Organizations.” 111   See Hoffman, “Obstinate or Obsolete? The Fate of the Nation-​State and the Case of Western Europe”; E. H. Carr. The Twenty Years’ Crisis (London, 1939); Klaus Knorr, “The Bretton Woods institutions in Transition,” International Organization 2 (1948): 19–​38.

 

outcomes   25 studies contend that most states comply with their international treaties most of the time.112 However, the causes of (non-​) compliance and its remedies are contested issues. Scholars have tended to fall into either of two camps.113 The managerial school maintains that compliance with treaties is generally a safe assumption and any noncompliance is a result of capacity issues.114 The enforcement school, on the other hand, argues that states select those institutions that require little policy adjustment from current behavior, leading to strategic self-​selection (“screening”) of members into treaties, resulting in shallow cooperation.115 Because Dunoff (see Chapter  3 of this volume) covers much of this debate on compliance as an outcome, we proceed with our review of this area assuming that IOs have some influence on state behavior. The question remains: which areas and which behaviors? The first section addresses the former through the lens of domestic politics, while the second section examines effects in the security and trade realm. The final section examines what we call side effects or unintended consequences.

Effects on Domestic Politics Much research has explored the effect of IOs on state behavior, examining the conditions under which, and mechanisms through which, IOs can induce policy change at the domestic level (convergence/​divergence). This scholarship has focused on several issue areas and has revealed the importance of externalities to state behavior, IO design, and domestic politics.116 Here we review a few topics where recent scholarship has expanded in this field, often labeled as the “second-​ image reversed.”117

 Louis Henkin, How Nations Behave (New  York:  Praeger, 1979); Abram Chayes and Antonia Handler Chayes, “On Compliance,” International Organization 47 (1993): 175–​205. 113   Note that some scholars question the utility of the concept of “compliance” as an outcome in political science research. See Lisa Martin, “Against Compliance,” in International Law and International Relations:  Synthesizing Insights from Interdisciplinary Scholarship, ed. J. L. Dunoff and M. Pollack (New York: Cambridge University Press, 2013), 591–​610. 114   Chayes and Chayes, “On Compliance.” 115   George Downs, David Rocke, and Peter Barsoom, “Is the Good News about Compliance Good News about Cooperation?,” International Organization 50 (1996): 379–​406; Jana von Stein, “Do Treaties Constrain or Screen? Selection Bias and Treaty Compliance,” American Political Science Review 99 (2005): 611–​22. 116   Liliana Botcheva and Lisa L. Martin, “Institutional Effects on State Behavior: Convergence and Divergence,” International Studies Quarterly 45 (2001):  1–​26; Martin and Simmons, “Theories and Empirical Studies of International Institutions.” 117   Peter Gourevitch, “The Second Image Reversed: The International Sources of Domestic Politics,” International Organization 32 (1978): 881–​912. 112

 

26    international organizations in world politics Of particular interest to human rights scholars is the effect of the UN on states’ human rights performance. However, empirical evaluation of the effect of UN ­treaties on states’ compliance with human rights standards has produced mixed results. Some scholars have found that UN treaties have zero or even a negative effect on human rights, primarily due to the UN’s lack of enforcement mechanism.118 Other scholars have demonstrated that human rights treaties exert a positive effect on states’ behavior in the aggregate,119 although less so in the case of torture.120 Still others conclude that the effect of the UN is conditional on issue linkage,121 the specific rights in question,122 as well as on a country’s regime type and existing respect for human rights.123 Finally, some claim that human rights norms just take longer to manifest themselves through moral persuasion.124 Scholarship on the effect of IOs on democratization has largely focused on the EU, though other regional organizations have also been considered. Many studies find that IOs can support democratization efforts in candidacy states through material inducements like membership conditionality125 and by being a vehicle for states’ credible commitment to democratic reform.126 In addition to potential 118   Oona Hathaway, “Do Human Rights Treaties Make a Difference?,” Yale Law Journal 111 (2002): 1935–​2042; Emilie Hafner-​Burton and Kiyoteru Tsutsui, “Human Rights in a Globalizing World: The Paradox of Empty Promises,” American Journal of Sociology 110 (2005): 1373–​411. 119  Beth A. Simmons, Mobilizing for Human Rights:  International Law in Domestic Politics (Cambridge:  Cambridge University Press, 2009); Christopher J. Fariss, “The Changing Standard of Accountability and the Positive Relationship between Human Rights Treaty Ratification and Compliance,” British Journal of Political Science (forthcoming). 120   Hathaway, “Do Human Rights Treaties Make a Difference?”; Eric Neumayer, “Do International Human Rights Treaties Improve Respect for Human Rights?,” Journal of Conflict Resolution 49 (2005): 925–​53; James R. Vreeland, “Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture,” International Organization 62 (2008): 65–​101. 121   Emilie Hafner-​Burton, “Trading Human Rights: How Preferential Trade Agreements Influence Government Repression,” International Organization 59 (2005):  593–​629; Daniel C. Thomas, The Helsinki Effect:  International Norms, Human Rights, and the Demise of Communism (Princeton, NJ: Princeton University Press, 2001). 122   Yonatan Lupu, “Best Evidence:  The Role of Information in Domestic Judicial Enforcement of International Human Rights Agreements,” International Organization 67 (2013): 469–​503. 123  Andrew Moravcsik, “Explaining International Human Rights Regimes:  Liberal Theory and Western Europe,” European Journal of International Relations 1 (1995): 157–​89; Simmons, Mobilizing for Human Rights: International Law in Domestic Politics; Hathaway, “Do Human Rights Treaties Make a Difference?”; Neumayer, “Do International Human Rights Treaties Improve Respect for Human Rights?”; Vreeland, “Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture.” 124  Thomas Risse, Stephen Ropp, and Kathryn Sikkink, From Commitment to Compliance:  The Persistent Power of Human Rights (Cambridge: Cambridge University Press, 2013). 125   Judith Kelley, “International Actors on the Domestic Scene:  Membership Conditionality and Socialization by International Institutions,” International Organization 58 (2004):  425–​57; Special Issue: Beyond Conditionality: International Institutions in Postcommunist Europe after Enlargement, Journal of European Public Policy (2008). 126   Pevehouse, “With a Little Help from My Friends? Regional Organizations and the Consolidation of Democracy”; Jon C. Pevehouse, “Democratization, Credible Commitments, and Joining International

 

outcomes   27 member states, some scholars examine the EU’s effect on democratization beyond its borders.127 There is also growing evidence that a variety of IOs can have positive effects on the quality of elections, specifically reducing fraud, by monitoring a state’s compliance with international electoral standards.128 Scholarship on multilateral foreign aid is vast and provides quite mixed assessments about the effect of such aid on development. Most of the recent literature on foreign aid examines the effect of official development assistance, which includes contributions from the World Bank, the IMF, and other multilateral organizations such as development banks. Only a handful of efforts examine the effect of the World Bank or IMF per se.129 For example, some scholars find that IMF programs have perverse effects, hurting economic growth and increasing income inequality.130 While there is consensus that the IMF helped states with balance of payment problems, it often remains unclear whether this positive effect is due to high state compliance with IMF regulations or the IMF loan itself.131 This field is rich in opportunities for future research to examine the effect and mechanisms by which specific IO policies impact development, especially as new data on multilateral lending have become available. Thanks to these and other data, a growing number of studies now examine the politics of multilateral development-​assistance efforts and their outcomes on development, the environment, and conflict.132 Organizations,” in Locating the Proper Authorities, ed. D. W. Drezner (Ann Arbor:  University of Michigan Press, 2003), 25–​48; Moravcsik, “The Origins of Human Rights Regimes:  Democratic Delegation in Postwar Europe.”   Richard Youngs, The European Union and the Promotion of Democracy: Europe’s Mediterranean and Asian Policies (Oxford: Oxford University Press, 2002). 128   Susan Hyde, The Pseudo-​Democrat’s Dilemma: Why Election Monitoring Became an International Norm (Ithaca, NY:  Cornell University Press, 2011); Judith Kelley, Monitoring Democracy:  When International Election Observation Works, and Why It Often Fails (Princeton, NJ: Princeton University Press, 2012); Daniela Donno, Defending Democratic Norms:  International Actors and the Politics of Electoral Misconduct (New York: Oxford University Press, 2013). 129   James Raymond Vreeland, The International Monetary Fund (London: Routledge, 2007); David de Ferranti, “The World Bank and the Middle-​Income Countries,” in Rescuing the World Bank, ed. N. Birdsall (Washington, DC: Center for Global Development, 2006), 133–​51; Todd J. Moss, African Development: Making Sense of the Issues and Actors (Boulder, CO: Lynne Rienner, 2007). 130   Adam Przeworski and James Raymond Vreeland, “The Effect of IMF Programs on Economic Growth,” Journal of Development Economics 62 (2000):  385–​421; Vreeland, The IMF and Economic Development. 131   Manuel Pastor, The International Monetary Fund and Latin America: Economic Stabilization and Class Conflict (Boulder, CO: Westview Press, 1987); Tony Killick, Moazzam Malik, and Marcus Manuel, “What Can We Know About the Effects of IMF Programmes?,” The World Economy 15 (1992): 575–​ 98; Mohsin S. Khan, “The Macroeconomic Effects of Fund-​Supported Adjustment Programs,” Staff Papers—​International Monetary Fund 37 (1990): 195–​231; Patrick Conway, “IMF Lending Programs: Participation and Impact,” Journal of Development Economics 45 (1994): 365–​91. 132   Mona M. Lyne, Daniel L. Nielson, and Michael J. Tierney, “Controlling Coalitions: Social Lending at the Multilateral Development Banks,” Review of International Organizations 4 (2009): 407–​33; Richard Nielsen et al., “Foreign Aid Shocks as a Cause of Violent Armed Conflict,” American Journal of Political Science 55/​2 (2011): 219–​32. Robert L. Hicks et al., Greening Aid? Understanding the Environmental 127

 

28    international organizations in world politics

Effects on International Security and Trade In contrast to human rights, the material externalities of state behavior are high in the realms of security and trade. As suggested by Keohane and Martin, in ­collaboration games IOs can aid monitoring and enforcement (e.g., through reciprocity or inducements), which reduces the short-​term gains from defection and thus helps states capture the long-​term gains of cooperation.133 In coordination games with distributional conflicts,134 several prominent ­scholars have argued that IOs can provide a focal point for and information about compliance of partner states135 as well as policy intentions and potential policy outcomes.136 For example, research has found that NATO can reduce conflict among its members by increasing trust137 and also alleviate external conflicts through humanitarian interventions.138 Similarly, as a neutral body within the UN system, the International Atomic Energy Agency has promoted information-​ sharing about the development of chemical, biological, and nuclear weapons through inspections, and has provided technical assistance to peaceful nuclear programs.139 Impact of Development Assistance (Oxford: Oxford University Press, 2008); Inken von Borzyskowski, “Resisting Democracy Assistance: Who Seeks and Receives Technical Election Assistance?,” Review of International Organizations 11 (2016): 247–​82.  Keohane, After Hegemony: Power and Discord in International Politics; Martin, “Interests, Power, and Multilateralism.” 134   Stephen D. Krasner, “Global Communications and National Power: Life on the Pareto Frontier,” World Politics 43 (1991): 336–​66. 135  Arthur A. Stein, Why Nations Cooperate (Ithaca:  Cornell University Press, 1990); Kenneth W. Abbott, “Trust but Verify:  The Production of Information in Arms Control Treaties and Other International Agreements,” Cornell International Law Journal 26 (1993):  1–​58; Mitchell, “Sources of Transparency: Information Systems in International Regimes”; Geoffrey Garrett and Barry Weingast, “Ideas, Interests, and Institutions:  Constructing the European Community's Internal Market,” in Ideas and Foreign Policy: Beliefs, Institutions, and Political Change, ed. J. Goldstein and R. O. Keohane (Ithaca, NY: Cornell University Press, 1993), 173–​206; Clifford J. Carrubba, “Courts and Compliance in International Regulatory Regimes,” Journal of Politics 67 (2005): 669–​89. 136  James D. Fearon, “Signaling Foreign Policy Interests:  Tying Hands versus Sinking Costs,” Journal of Conflict Resolution 41 (1997):  68–​90; Andrew Kydd, “Trust, Reassurance and Cooperation,” International Organization 54/​2 (2000): 325–​57. Terrence Chapman and Dan Reiter, “The UN Security Council and the Rally ‘Round-​the-​Flag Effect’”, Journal of Conflict Resolution 48 (2004):  886–​909; Thompson, “Coercion through IOs:  The Security Council and the Logic of Information Transmission.” 137  Celeste A. Wallander and Robert O. Keohane, “Risk, Threat, and Security Institutions,” in Imperfect Unions: Security Institutions over Time and Space, ed. H. Haftendorn, R. O. Keohane, and C. A. Wallander (Oxford: Oxford University Press, 1999), 21–​47; Wallander, “Institutional Assets and Adaptability: NATO after the Cold War”; Andrew Kydd, “Trust Building, Trust Breaking: The Dilemma of NATO Enlargement,” International Organization 55 (2001): 801–​28. 138   Hurd, “Legitimacy and Authority in International Politics.” 139   Wade L. Huntley, “Rebels Without a Cause: North Korea, Iran and the NPT,” International Affairs 82 (2006): 723–​42. 133

 

outcomes   29 Similar examples exist outside the security field. Many scholars have examined the success of the WTO in promoting international trade, despite the IO’s lack of a centralized enforcement mechanism. Scholarship has focused on the way the WTO incentivizes the reduction of barriers to trade through reciprocity and nondiscrimination in trade policy.140 The WTO also provides information about state behavior (noncompliance), offers a dispute settlement mechanism,141 and reduces export volatility.142 More recently, scholars have disaggregated the WTO’s effect on states’ trade by looking at specific sectors,143 states’ attributes,144 and aspects of WTO accession.145 Comparatively less scholarly attention in IPE has been paid to regional economic organizations, such as ASEAN, Mercosur, and the Economic Community of West African States (ECOWAS). Existing studies suggest that regional IOs’ effect on trade varies widely, that it may be conditional on military alliances,146 and that trade levels and IO design may be endogenous.147 Other studies have focused on nontrade outcomes, showing that these regional arrangements can increase foreign direct investment148 and lower military conflict.149 140   Kyle Bagwell and Robert Staiger, “Multilateral Trade Negotiations, Bilateral Opportunism and the Rules of GATT/​WTO,” Journal of International Economics 67/​2 (2005): 268–​94. Judith Goldstein, Douglas Rivers, and Michael Tomz, “Institutions in International Relations: Understanding the Effects of the GATT and the WTO on World Trade,” International Organization 61 (2007): 37–​67. 141  Giovanni Maggi, “The Role of Multilateral Institutions in International Trade Cooperation,” American Economic Review 89 (1999):  190–​214; B. Peter Rosendorff, “Stability and Rigidity:  Politics and Design of the WTO’s Dispute Settlement Procedure,” American Political Science Review 99 (2005): 389–​400. 142  Edward D. Mansfield and Eric Reinhardt, “International Institutions and the Volatility of International Trade,” International Organization 62 (2008): 621–​52. 143   Arvind Subramanian and Shang-​Jin Wei, “The WTO Promotes Trade, Strongly but Unevenly,” Journal of International Economics 72 (2007): 151–​75. 144   Joanne Gowa, “Institutions and Outcomes: The GATT/​WTO and Postwar Trade,” Working Paper, Princeton University (2009); Joanne S. Gowa, and Soo Yeon Kim, “An Exclusive Country Club: The Effects of the GATT on Trade, 1950–​94,” World Politics 57 (2005): 453–​78. 145  Todd L. Allee and Jamie E. Scalera, “The Divergent Effects of Joining International Organizations:  Trade Gains and the Rigors of WTO Accession,” International Organization 66 (2012): 243–​76. 146   Edward D. Mansfield and Rachel Bronson, “Alliances, Preferential Trading Arrangements, and International Trade,” American Political Science Review 91 (1997): 94–​107. 147   Yoram Haftel, “Commerce and Institutions: Trade, Scope, and the Design of Regional Economic Organizations,” Review of International Organizations 8 (2013):  389–​414. A  large literature on trade outcomes for regional arrangements exists in economics, where the key question revolves around trade diversion versus trade creation. For an introduction to this literature as it applies to political science, see Edward Mansfield and Helen Milner, “The New Wave of Regionalism,” International Organization 53/​3 (1999): 589–​627. 148   Tim Büthe and Helen V. Milner, “The Politics of Foreign Direct Investment into Developing Countries: Increasing FDI through International Trade Agreements?,” American Journal of Political Science 52 (2008): 741–​62. 149  Edward D. Mansfield and Jon C. Pevehouse, “Trade Blocs, Trade Flows, and International Conflict,” International Organization 54 (2000): 775–​808.

 

30    international organizations in world politics

Side-​Effects: Unintended Consequences Finally, a growing number of scholars are now examining the unintended consequences of IO behavior. Partly as a result of the functionalist motivation, most ­scholarship on the effects of IOs has examined whether the organization fulfills its stated goals. While this research has enhanced our understanding of anticipated effects, it overlooks the unanticipated and unintended consequences of cooperation.150 Some early research did address unanticipated (surprising) and potentially costly side-​effects of ECJ power.151 More recent studies have turned to unintended consequences. Some of these unintended consequences are positive, such as the role of preferential trade agreements in enforcing human rights,152 judicial activism in international courts,153 and UN Security Council membership’s indirect effect on aid flows.154 However, other unintended effects are negative. These include the effect of World Bank and IMF structural adjustment programs on human rights and civil strife;155 the effect of IO election monitoring on governance and risks of violence;156 the effect of peacekeeping on both violence and sex tourism;157 and the effect of the WTO’s dispute settlement mechanism on the success of developing countries in the settlement process.158 150   Martin and Simmons, “Theories and Empirical Studies of International Institutions”; Barnett and Finnemore, “The Politics, Power, and Pathologies of International Organizations.” 151   Anne-​Marie Burley and Walter Mattli, “Europe Before the Court:  A  Political Theory of Legal Integration,” International Organization 47 (1993): 41–​76. 152   Hafner-​Burton, “Trading Human Rights: How Preferential Trade Agreements Influence Government Repression.” 153   Alter, “Who Are the Masters of the Treaty? European Governments and the European Court of Justice.” 154   Axel Dreher, Jan-​Egbert Sturm, and James Raymond Vreeland, “Does Membership on the UN Security Council Influence IMF Decisions? Evidence from Panel Data,” CESIFO Working Paper No. 1808 (2006); Axel Dreher, Jan-​Egbert Sturm, and James Raymond Vreeland, “Development Aid and International Politics: Does Membership on the UN Security Council Influence World Bank Decisions?,” Journal of Development Economics 88 (2009): 1–​18; Ilyana Kuziemko and Eric Werker, “How Much Is a Seat on the Security Council Worth? Foreign Aid and Bribery at the United Nations,” Journal of Political Economy 114 (2006): 905–​30. 155   M. Rodwan Abouharb and David L. Cingranelli, “The Human Rights Effects of World Bank Structural Adjustment, 1981–​2000,” International Studies Quarterly 50 (2006): 233–​62; Caroline A. Hartzell, Matthew Hoddie, and Molly Bauer, “Economic Liberalization via IMF Structural Adjustment: Sowing the Seeds of Civil War?,” International Organization 64 (2010): 339–​56. 156   Alberto Simpser and Daniela Donno, “Can International Election Monitoring Harm Governance?,” Journal of Politics 74 (2012): 501–​ 13. Inken von Borzyskowski, “The Risks of Election Monitoring: International Condemnation and Post-​Election Violence,” Working Paper, Florida State University (2016). 157   Lisa Hultman, “Keeping Peace or Spurring Violence? Unintended Effects of Peace Operations on Violence against Civilians,” Civil Wars 12/​1–​2 (2010): 29–​46; Kathleen M. Jennings, “Unintended Consequences of Intimacy:  Political Economies of Peacekeeping and Sex Tourism,” International Peacekeeping 17/​2 (2010): 229–​43. 158   Marc L. Busch and Eric Reinhardt, “Developing Countries and General Agreement on Tariffs and Trade/​World Trade Organization Dispute Settlement,” Journal of World Trade 37 (2003): 719–​35; Gregory

 

conclusion   31

Conclusion The subject of international organizations and world politics continues to involve discussions of the central issues in the field of international relations. The subject involves questions of how states confront issues including trade, finance, the environment, human rights, foreign aid, and security. As data on these issues has continued to proliferate, as growing numbers of scholars investigate IOs, and as theoretical refinements continue to mark the field, the subject will remain at the center of IR. This chapter has attempted to outline some of the debates and issues in this field. While we have attempted to cover many literatures, we inevitably made choices about what to include. Even in this limited review, we identified many areas where extant work has only scratched the surface of how IOs matter in world politics. Unfortunately, until quite recently, the IR field spent far too much time on the arcane debate over whether IOs mattered or were epiphenomenal to international outcomes. Even if IOs do not exert a strong influence on state behavior, we must still account for why most states belong to many hundreds of these organizations. This suggests that, at a minimum, we must couch questions about IO efficacy in terms of the conditions under which they matter or do not, rather than a wholesale rejection of their worth. To make progress on this question of conditions, there are still several avenues of research that we believe must be pursued, three of which we flagged in our review. First, the field must continue to embrace treating organizations as organizations. While the move away from this was certainly understandable many years ago (there were few efforts to create generalizable theory from single-​organization studies), to truly understand the nature of decisions regarding delegation, bureaucratic ­politics, (re)design, and questions of intersubjective problem definition, one must delve within particular organizations. Yet, scholars must be mindful that studies of particular organizations must be generalizable. Second, and related, those scholars who do have a particular institutional focus tend to select one of a very few big organizations. Studies of the GATT/​WTO, IMF, World Bank, EU, and UN far outnumber studies of other organizations. While these are the key organizations in international relations, our theories of IOs may be unduly informed by these five organizations rather than the other 1,000-​plus in operation. This limited focus also leaves out the various informal organizations that influence world politics.159 And while this should not be taken as a call to arms to Shaffer, Michelle Ratton Sanchez, and Barbara Rosenberg, “Winning at the WTO: The Development of a Trade Policy Community within Brazil,” Working Paper No. 14, Area de Relaciones Internacionales FLACSO/​Argentina (2008). 159   Felicity A. Vabulas and Duncan Snidal, “Informal Intergovernmental Organizations (IIGOs) and the Spectrum of Intergovernmental Arrangements,” Review of International Organizations 8 (2013): 193–​220.

 

32    international organizations in world politics study the African Groundnut Council, if the ultimate goal is to understand when, why, and how IOs matter for international relations, there are certainly lessons to be drawn from numerous other organizations. Third, numerous new data sets are becoming available to researchers. Whether it is data on membership, emanations,160 multilateral aid projects,161 NGOs and their relations with IOs,162 or informal organizations,163 researchers can now answer numerous questions through large-​N studies. Yet, it should not be forgotten (as with any data set) that the theory that inspired data collection influences the questions that can be asked. Some data will be more or less appropriate for any particular researcher’s questions. And, as with all observational data, traditional concerns of causal inference must be addressed. Finally, in presenting our view of the field as a chronological view of the stages of state decisions concerning IOs, we wish to emphasize that each stage is not independent. Indeed, the core analytical difficulty in the study of IOs is that if one anticipates answers to the last questions concerning IO efficacy, it can influence decisions on all previous questions, including whether to form the institutions at all and strategic interactions between states and IOs.164 This is the true theoretical and empirical challenge of determining when, why, and how IOs matter for international relations—​if states and leaders can anticipate outcomes, this will inform their choices as to cooperation, design, forum choice, and monitoring of IO behavior. This assumes, however, that leaders look down the game tree and can do so in an informed manner. As constructivist and critical theorists have long held, such calculations may give too much credit to leaders and assume too much about the role of the logic of consequences. Yet, even for those who relax strong assumptions about rationality, the interdependence of decisions about means and ends is consequential. The study of international organizations will continue to be fertile ground for many of the key ideas in the study of international politics. Through continued theoretical and empirical progress, scholars can continue to shed light on some of the key questions involving conflict and cooperation in the world.

  Johnson, “Institutional Design and Bureaucrats’ Impact on Political Control.”   Michael J. Tierney et  al., “More Dollars than Sense:  Refining our Knowledge of Development Finance Using AidData,” World Development 39 (2011): 1891–​906. 162   Tallberg et al., “Explaining the Transnational Design of International Organizations.” 163   Vabulas and Snidal, “Informal Intergovernmental Organizations (IIGOs) and the Spectrum of Intergovernmental Arrangements.” 164  von Borzyskowski, “Resisting Democracy Assistance: Who Seeks and Receives Technical Election Assistance?” 160 161

 

chapter 2

INTERNATIONAL ORGANIZATIONS AND INTERNATIONAL LAW Anne Peters

This chapter seeks to give an overview of the state of the art of legal thought about international organizations1 as legal entities in a legal environment. International organizations are legal communities in a threefold sense: they are created by law, they use law as a means of governance, and they should be governed by the rule of law. Accordingly, international law constitutes, enables, and constrains international organizations. I  will show that (with some simplification) legal scholarship until the 1990s was primarily concerned with the constituting and enabling function of the law (thus securing the effectiveness of international organizations), while the more recent legal concern is the constraining function of the law (thus improving the accountability of international organizations). In the procedural law of organizations, a triad of accountability procedures has been built: transparency, participation, and access to information.

  From the perspective of international law, an “international organization” is best understood as “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality.” (Art. 2[1]‌Draft Articles on the Responsibility of International Organisations [“DARIO 2011”], Annex to GA Res. 66/​100, December 9, 2011). 1

 

34    international organizations and international law

The Effectiveness of International Organizations The effective and efficient operations of international organizations are secured by international law. The first wave of constitutionalism and legal functionalism underscored the role of law as a constitutor and enabler of international organizations.

Law as a Constitutor: Constitutionalism 1.0 The doyen of the discipline of the law of international organizations, Henry Schermers, recalls that he first considered, as a title for his seminal book, “International Constitutional Law,” but then chose, upon consultation with his colleagues, the title “International Institutional Law.”2 Constitutionalism of the first generation understood the international organizations’ founding documents3 to be Janus-​faced, i.e. “constitutional treaties” or “treaty-​constitutions.”4 The International Court of Justice (ICJ) described these documents’ hybridity as follows: “From a formal standpoint, the constituent instruments of international organizations are multilateral treaties … But the constituent instruments of international ­organizations are also treaties of a particular type.”5 The aborted “Treaty Establishing a Constitution for Europe” of 2004 had captured the hybridity in its official name.6 With regard to the EU, the constitutive role of the law was most effectively shaped and employed by the European Court of Justice (ECJ). This court was the first driver of the EU’s “constitutionalization.” The court reclaimed the authority to determine in a central fashion the direct effect of European Community (EC)—​later European Union (EU)-​law (van Gend & Loos)7 and, in Costa v ENEL,8 established the supremacy of European law   Henry Schermers, “The Birth and Development of International Institutional Law,” International Organizations Law Review 1 (2004): 5−8, 6. 3   They are often officially called “constitution.” See “Constitution of the United Nations Educational, Scientific and Cultural Organization” of November 16, 1945 (UNTS 4, No. 52); “Constitution of the World Health Organization” of July 22, 1946 (UNTS 14, No. 221); “Constitution of the International Labour Organization” of October 9, 1946 (UNTS 38, No. 583); “Constitution of the Food and Agricultural Organization of the United Nations” of October 16, 1946 (UNYB 1946–​47, 693); “Constitution of the International Telecommunication Union” of December 22, 1992 (UNTS 1825, No. I-​31251). 4   Anne Peters, “Das Gründungsdokument internationaler Organisationen als Verfassungsvertrag,” Zeitschrift für öffentliches Recht 68 (2013): 1–​57. 5  ICJ, Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66, para. 19. 6   Treaty of October 29, 2004, OJ 2004 C 310/​1. It was rejected by the populations of France and the Netherlands and never entered into force. 7   ECJ, case C-​26/​62, Van Gend & Loos v Administratie der Belastingen, February 5, 1963, ECR 1963, 1, 12. 8   ECJ, case C-​6/​64, Costa v ENEL, ECR 1964, 587, 593. 2

 

the effectiveness of international organizations    35 over the law of the member states (including over member states’ constitutions).9 In the 1980s and 1990s, EU scholars began to acknowledge these seminal judgments as “constitutional moments,”10 and discussed the role of the ECJ as a constitution-​ maker. In the following, the ECJ frequently used the constitutional vocabulary to protect and expand its judicial powers.11 The accompanying debate related to the qualification of the successively amended founding documents as a constitution. One concept to describe the whole was the “Verbundverfassung” or “multilevel constitution.”12

Law as an Enabler: Functionalism, and Constitutionalism Continued The second overarching legal paradigm on international organizations, legal functionalism,13 also primarily sought to allow international organizations to work more effectively.14 The basic idea is that the raison d’ être of international organizations is the fulfillment of specific tasks (functions), which have become necessary to tackle problems which concern more than one state. Typical statements by the 9   ECJ, case 11/​70, Internationale Handelsgesellschaft v Einfuhr-​und Vorratsstelle für Getreide und Futtermittel, ECR XVI (1970–​1), 1125, para. 3. 10   Eric Stein, “Lawyers, Judges and the Making of a Transnational Constitution,” American Journal of International Law 75 (1981): 1–​27. 11   ECJ, case 294/​83, Parti Ecologiste “Les Verts” v European Parliament, ECR 1986, 1339, para. 23; ECJ, Opinion 1/​91 of December 14, 1991 delivered pursuant to the second subparagraph of Article 228(1) of the Treaty—​Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area [“EEA I”], ECR 1991, I-​06079, para. 21; ECJ, Opinion 2/​94 of March 28, 1996, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECR 1996, I-​01759, paras. 34–​5; ECJ, Opinion 2/​13 of the Court (Full Court) December 18, 2014—​ Accession to the ECHR, para. 158. 12  Ingolf Pernice, “Multilevel Constitutionalism and the Treaty of Amsterdam:  European Constitution-​Making Revisited?,” Common Market Law Review 36 (1999):  703–​50; Anne Peters, Elemente einer Theorie der Verfassung Europas (Berlin: Duncker & Humblot, 2001). 13   Michel Virally’s seminal piece (Michel Virally, “La Notion de fonction dans la théorie de l’ organisation internationale,” in Mélanges offerts à Charles Rousseau:  La communauté international, ed. A. Pedone (Paris: Pedone, 1974), 277–​300) comes closest to a “manifesto of [legal] functionalism” (Jan Klabbers, “The EJIL Foreword:  The Transformation of International Organizations Law,” European Journal of International Law 26 (2015):  22, n 66). The legal paradigm of functionalism cannot be neatly separated from the international relations theories of functionalism as launched by David Mitrany (David Mitrany, A Working Peace System (London:  The Royal Institute of International Affairs, 1943) and developed further by Ernest B. Haas and others (Ernest B. Haas, Beyond the Nation State: Functionalism and International Organization (Stanford: Stanford University Press, 1964)). 14   Likewise, the seminal ICJ-​case on international organizations used the law (with the implied powers doctrine) as an enabler. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174, especially 182.

 

36    international organizations and international law authors of the most important textbooks on international organizations may serve as an illustration: Blokker writes that “our book … is inspired by the need for international cooperation and by the conviction that the sovereign State is no longer able to deal with a growing list of cross-​border issues alone.”15 According to Klein and Sands, “the role and powers of international organizations are constantly expanding, and institutional transformation is underway. As globalization proceeds apace, the need for international organizations to encompass an even broad range of activities, and to expand their functions in order to do so, is increasing.”16 It is this (real or perceived) “necessity” which justifies and authorizes the activities of the organization. From this perspective, international organizations are justified because they pursue a global public interest. They are “public collectives” (“collectivités publiques”).17 Although the functionalist paradigm also viewed the functions as constituting a limit on the organizations’ activity, it seems fair to say that the enabling role of the law stood in the foreground. In the seminal piece by Michael Virally, this was accentuated by the idea that the international organizations were not only “enabled”, but also “obliged” to deliver their functions.18 The empowerment of organizations through legal functionalism was additionally sought by highlighting the “technical” and thus ostensibly “unpolitical” nature of the organizations’ activities. Purely “functional” cooperation has been seen as an alternative strategy to the politicized path which is often associated with an (unwanted) world government.19 The emphasis on functions shielded the organizations against reproaches of encroachment on state sovereignty20 and thus strengthened them. Another empowering element of the theory was the idea of a spillover, the belief that the functional cooperation and integration would ultimately further and guarantee peace. Inis Claude classically stated that “the mission of functionalism is to make peace possible by organizing particular layers of human social life in

  Niels Blokker, “Comparing Apples and Oranges? Reinventing the Wheel? Schermers’ Book and Challenges for the Future of International Institutional Law,” International Organizations Law Review 5 (2008): 202. 16  Pierre Klein and Philippe Sands, “(Re)Writing a Handbook on the Law of International Organizations: Options and Challenges,” International Organizations Law Review 5 (2008): 221. 17  Evelyne Lagrange, “La Catégorie ‘organisation internationale’,” in Droit des Organisations Internationales, ed. Evelyne Lagrange and Marc Sorel (Paris: LGDJ, 2013), 64 and 67. 18  Virally, “Organisation internationale,” 291:  The “finalité fonctionnelle” fulfills a “triple fonction”: “habilitation”, “obligation”, and “mesure.” 19   René-​Jean Dupuy, “L’ Organisation internationale et l’expression de la volonté générale,” Revue Générale de Droit International Public 61 (1957): 527−79, 563, 574: “démo-​technocratie”; “les organes techniques ne se développent pas à côté du pouvoir mais à la place de celui.” 20  See the references to the older literature in Anne Peters and Simone Peter, “International Organizations: Between Technocracy and Democracy,” in The Oxford Handbook of the History of International Law, ed. Bardo Fassbender and Anne Peters (Oxford: Oxford University Press, 2012), 182–​6 and 193–​6. 15

 

the effectiveness of international organizations    37 accordance with their particular requirements, breaking down the artificialities of the zoning arrangements associated with the principle of sovereignty.”21 Finally, functionalist reasoning continues to imbue the law on organizational immunities by which organizations are shielded from domestic law suits. For example, the European Court of Human Rights (ECtHR) upheld the jurisdictional immunities of the United Nations (UN) in the Srebrenica case with the argument that since operations established by United Nations Security Council resolutions under Chapter VII of the United Nations Charter are fundamental to the mission of the United Nations to secure international peace and security, the Convention cannot be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the United Nations. To bring such operations within the scope of domestic jurisdiction would be to allow individual States, through their courts, to interfere with the fulfillment of the key mission of the United Nations in this field, including with the effective conduct of its operations.22

The enabling role of the international law of immunities comes out clearly in this reasoning. Constitutionalism 1.0. has sided with functionalism in this regard. Besides “constituting” organizations, constitutionalist reasoning has been employed to keep the organizations’ members in check. This has been most visible for the World Trade Organization (WTO). Although the Appellate Body once stressed the “contractual” (as opposed to any “constitutional”) character of the WTO Agreement,23 WTO scholarship engaged with constitutionalism.24 First, the judicialization of the dispute settlement mechanisms and the use of “constitutional” balancing techniques were regarded as the marker of a constitutionalization of the WTO.25 Second, the WTO’s function as a constrainer of protectionist measures adopted by members whose parliaments and executives are excessively lobbied by rent-​seeking societal groups was highlighted.26 Recognition of both features tends to legitimize and strengthen the WTO as an organization vis-​à-​vis its members.  Inis Lothair Claude, Swords into Plowshares:  The Problems and Progress of International Organization (New York: Random House, 1956), 378. Cf. also Mitrany, A Working Peace System, 6: The “working peace system” as opposed to a “protected peace” should “overlay political divisions with a spreading web of international activities and agencies, in which and through which the interests and life of all the nations would be gradually integrated.” 22   ECtHR, third section decision, No. 65542/​12, Stichting Mothers of Srebrenica and Others v the Netherlands, June 11, 2013, para. 154 (emphasis added). 23  AB, Japan—​Taxes on Alcoholic Beverages, October 4, 1996, WT/​DS8/​AB/​R, WT/​DS10/​AB/​R, WT/​DS11/​AB/​R, 15. 24  Jeffrey Dunoff, “Constitutional Conceits:  The WTO’s ‘Constitution’ and the Discipline of International Law,” European Journal of International Law 17 (2006): 647–​75. 25   Deborah Z. Cass, “The Constitutionalization of International Trade Law: Judicial Norm-​Generation as the Engine of Constitutionalization,” European Journal of International Law 13 (2001): 39–​77. 26   See Ernst-​Ulrich Petersmann, “Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice,” Journal of International Economic Law 10 (2007): 529–​51. 21

 

38    international organizations and international law

Effectiveness Problems and Reform Debates In the post-​1989 legal landscape, a need was felt to adapt international organizations to a new political, military, economic, and legal surrounding, and to respond to new demands on their effectiveness and legitimacy.27 Effectiveness deficits stem not only from waste or mismanagement, but also from legal design. The best-​known example is the blocage of the UN Security Council (UNSC) through use (and abuse) of the veto power by one of its five permanent members (P 5), thereby preventing the Council from exercising its “primary responsibility for the maintenance of international peace and security” (Art. 24 UN Charter).28 Another recent and worrisome phenomenon is the sidestepping of an entire organization by other instruments. For example, the WTO is currently being overtaken by hundreds of bilateral and regional trade agreements. This is not only a potential source of ineffectiveness of the WTO but also engenders losses of the legitimacy that resides in multilateralism. Substantive reports proposed reforms of the UN (notably of the UNSC and its responses to new threats29 and on peacekeeping)30 of the WTO,31 and of the Organization for Security and Co-​operation in Europe (OSCE).32 These reports have engendered relatively meagre practical results. A major reason of stagnation is the difficulty in formally amending the founding documents of the organizations which would require unanimity. For example, the Bretton Woods institutions have been confronted with the critique of inadequate representation of the global south, especially BRICS countries (i.e., Brazil, Russia, India, China and South Africa), and their failure to react to the financial crises since 2007. The crucial International Monetary Fund (IMF) quotas and governance reform (foreseeing the redistribution of voting shares in favor of rising economies and the transformation of the executive board into 27   Effectiveness and legitimacy are linked, because the normative and social legitimacy of international organizations flows on the one hand from input (from the member states which are themselves—​ for the better or worse—​conceived as the a priori receptacles of legitimacy), and from output (from the effective and efficient performance of the organization’s tasks). 28   See for a critique UN GA Res. 66/​253, “The Situation in the Syrian Arab Republic B,” of August 3, 2012, “deploring the failure of the Security Council” to take enforcement action in Syria (Preamble and para. 9). 29   “A More Secure World: Our Shared Responsibility,” Report of the High-​level Panel on Threats, Challenges and Change, December 2, 2004 (UN Doc. A759/​565); “In Larger Freedom:  Towards Development, Security and Human Rights for All,” Report of the Secretary-​General, March 21, 2005 (UN Doc. A/​59/​2005). 30   UN, SG Letter, “Report of the Panel on United Nations Peace Operations,” August 21, 2000 (UN Doc. A/​55/​305-​S/​2000/​809) (the “Brahimi Report”); Secretary-​General Letter, “A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations,” March 25, 2005 (UN Doc. A/​59/​7 10) (the “Zeid Report”). 31   Peter Sutherland et  al., The Future of the WTO:  Addressing Institutional Challenges in the New Millennium (Geneva: World Trade Organization, 2004). 32   OSCE, “Common Purpose—​Towards a More Effective OSCE,” Final Report and Recommendations of the Panel of Eminent Persons on Strengthening the Effectiveness of the OSCE, June 27, 2005.

 

the effectiveness of international organizations    39 an all-​elected board)33 was in 2015 approved by the United States,34 which has a blocking vote.35 A related reform is the IMF’s 2015 decision to include renminbi in the basket of currencies that make up the Special Drawing Right.36 It remains to be seen whether China and other emerging economies will be satisfied with these measures, or will choose to pursue their interest through new financial institutions. Likewise, the initiative to improve the UNSC working methods by a group of small states37 was blocked with the argument that this would have implications for Charter amendment.38 Since 2013, a group of twenty-​one states, the “Accountability, Coherence, and Transparency group,” seeks to pursue the same objectives without formal amendments. In practice, evolution and adaptation of organizations have occurred through the dynamic interpretation of the founding documents, through institutional practice (of the member states and/​or of the organization’s organs themselves), and through secondary law such as rules of procedure. Hence the only reforms realized within the UN, namely the abolishment of the Human Rights Commission, the establishment of the Human Rights Council in 2006, and the creation of the UN Appeals Tribunal for employment disputes were those that could be realized without a formal amendment of the UN Charter. A prominent example of informal evolution of an organization is the North Atlantic Treaty Organization. Since at least 1999, the organization has regularly adopted new “strategic concepts” which have sometimes been criticized as veiled treaty amendments sidestepping the domestic (notably parliamentary) procedures for approving a formal amendment.39 In legal terms, such changes may be qualified either as informal amendments, as overlaying customary law, or as acquiescence by the member states. But they may also be simply breaches of the founding document and thus unlawful. The fine line between legitimate and lawful evolution and unlawful mission creep may not be easy to draw.

  See IMF, Press Release No. 10/​477, December 16, 2010.   Sec. 9002 Public Law No. 114-​113. 35   For the quota reform to take effect, the amendment to the Articles providing for an all-​elected Executive Board must be first approved. According to Art. XXVIII(a) of the Articles of Agreement, for the reform of the Executive Board to enter into force, acceptance by three-​fifths of the Fund’s 188 members having 85 percent of the Fund’s total voting power is required. Because the US has (prior to the reform) 16.75 percent of total votes in the IMF, US approval of the amendment was required for both reforms to come into force. 36   See IMF, Press Release No. 15/​540, November 30, 2015. 37   Draft Res. A/​66 L.42/​Rev.1 in the General Assembly “Enhancing the Accountability, Transparency and Effectiveness of the Security Council.” 38   The opinion given by the legal service is not public. The initiative was withdrawn from the General Assembly agenda on May 16, 2012. 39   The German parliament therefore complained of a violation of its constitutional competences before the German Constitutional Court (BVerfGE 104, 151 (November 22, 2001))—​without success. 33

34

 

40    international organizations and international law

New Public Management, Public–​Private Partnerships, and Privatization International organizations have further sought to improve internal and external effectiveness through new public management,40 public–​private partnerships,41 and outright privatization. Regular reports of the UN Secretary-​ General give numerous examples for partnerships between business actors and UN sub-​organizations or programs.42 Important policy areas for public–​private partnerships are refugee management (involving the UN High Commissioner for Refugees)43 and public health (involving the WHO).44 Examples of “hybrid” public–​private bodies are the Word Anti-​ Doping Agency45 and the Global Water Partnership.46 Privatization47 in a larger sense is the recourse to the forms of private law. For example, the Bank for International Settlements is a stock corporation under Swiss law; its members are not states but central banks. It has nevertheless been qualified as an international organization.48 The European Financial Stability Facility is incorporated in Luxembourg as a public limited liability company (“societé anonyme”) under the law of Luxembourg.49 Privatization in the proper sense has so far only occurred with organizations of satellite telecommunication:  The previously intergovernmental organizations INTELSAT, EUTELSAT, and INMARSAT were dissolved around the turn of the twentieth century, and their activities are since then run by private business enterprises.

40   The main case is the World Health Organization (WHO), also the World Intellectual Property Organization and the International Trade Organization. See Laurance R. Geri, “New Public Management and the Reform of International Organizations,” International Review of Administrative Sciences 67 (2001): 445–​60. 41   A “Global Compact LEAD Task Force on United Nations-​Business Partnerships” was created in 2011. 42  Most recently GA, “Enhanced Cooperation between the UN and All Relevant Partners, in Particular the Private Sector”, Report of the Secretary-​General (UN Doc. A/​68/​326), August 15, 2013. 43   See High Commissioner for Refugees, “Partenariat: Un manuel pour la gestion des opérations pour les partenaires du HRC” (2004). 44   See, for example, the Joint United Nations Program on HIV/​AIDS and the “m-​Health” partnership between the International Telecommunication Union, the WHO, and the private sector. 45  Lorenzo Casini, “Global Hybrid Public–​ Private Bodies:  The World Anti-​ Doping Agency (WADA),” International Organizations Law Review 6 (2009): 421–​46. 46   “Global Water Partnership,” http://​www.gwp.org/​. 47   See Régis Bismuth, “La Privatization des organisations internationales,” in Droit des Organisations Internationales, ed. Evelyne Lagrange and Jean-​Marc Sorel (Paris: LGDJ, 2013), 192–​8. 48   Partial Award on the lawfulness of the recall of the privately held shares on January 8, 2001 and the applicable standards for the valuation of the shares, of November 22, 2002, paras. 104–​18, in Bank for International Settlement Arbitration Awards, ed. Permanent Court of Arbitration (The Hague, 2003), 19−126. 49   Founded June 7, 2010.

 

the accountability of international organizations    41 The integration of the private (commercial) sector into policymaking by international organizations, notably the UN, and the “privatization of UN mechanisms” have been a “quiet revolution … largely off the radar of legal scholarship”.50 The price of more flexibility and more effectiveness-​orientation of novel formats may well be losses in terms of accountability: the principle of legality risks being undermined, and the attribution of competences and responsibilities risks might become blurred. It has now been realized that the conflicting objectives of more effective action and impact-​orientation must be balanced against securing a sufficient degree of accountability.

The Accountability of International Organizations: Law as a Constrainer The focus of contemporary legal thought on international organizations has shifted from constituting and enabling organizations to constraining them. The reasons seem to be both the real increase of power and intrusiveness of the organizations and changes in perception.51

Legitimacy Crisis and Lack of Accountability International organizations are no longer seen as the good guys of global governance which produce global public goods that states alone cannot furnish. Instead, there is a “growing awareness of the internal pathologies and ideological biases of the most dominant international institutions.”52   Barbara K. Woodward, Global Civil Society in International Law-​Making and Global Governance (Leiden: Martinus Nijhoff, 2010), 401–​2. 51  Jan Klabbers, “The Changing Image of International Organizations,” in The Legitimacy of International Organizations, ed. Jean-​Marc Coicaud and Veijo Heiskanen (Tokyo:  United Nations University Press, 2001), 221−55. Klein and Sands, “(Re)Writing a Handbook on the Law of International Organizations,” 221:  “The tremendous increase of powers of international organizations, … has not been matched by a parallel development of mechanisms of control and accountability, including in relation to individuals.” See for an overview over criticism and challenges José Alvarez, “International Organizations: Then and Now,” American Journal of International Law 100 (2006): 324−47. 52   Richard Collins and Nigel White, “Moving Beyond the Autonomy–​Accountability Dichotomy: Reflections on Institutional Independence in the International Legal Order,” International Organizations Law Review 7 (2010): 1−8, 2. 50

 

42    international organizations and international law For example, the International Criminal Court (ICC) has been reproached for being a neocolonial instrument. Rwanda said in the UNSC: “It is unfortunate that the ICC will continue to lose face and credibility in the world as long as it continues to be used as a tool for the big Powers against the developing nations.”53 The refusal of various African states to surrender the Sudanese President Al Bashir to the ICC was justified by the African Union by denouncing “ill-​considered, self-​ serving decisions of the ICC” and “double standards that become evident from the investigations, prosecutions and decisions by the ICC relating to situations in Africa.”54 Against the background of the “crisis” of international organizations,55 the new buzzword is “accountability.”56 The functionalist paradigm has proven incapable of accommodating this concern, because it focuses exclusively on the relationship between the organization and its member states (the “shareholders”). Functionalism is thus inherently unsuited to take note of the interests of affected outsiders (“stakeholders”), notably of natural persons (citizens of member and of nonmember states).57 Also, the focus on functions and therewith on the organizations’ goals and objectives tends to lend acceptance to the idea that the ends justify the means. There is little or no room for the rule of law, for checks and balances, and for legal constraints.58 Taken together, both features of functionalism result in the theory’s neglect of accountability of the organization, especially as far as external stakeholders are concerned. This neglect has triggered the rise of a renewed constitutionalism and of global administrative law.

  UNSC, 7060th Meeting “Peace and Security in Africa,” November 15, 2013 (UN Doc. S/​PV.7060), 11; see also the statement of Kenya, 14. 54   African Union, Press Release No. 002/​2012 “On the decision of the PTC I of the ICC pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to comply with the cooperation requests issued by the court with respect to the arrest and surrender of President Omar Hassan Al Bashir of the Republic of Sudan” of January 9, 2012, 3. 55  See for a nuanced picture Gabrielle Marceau, “IGOs in Crisis? Or New Opportunities to Demonstrate Responsibility?,” International Organizations Law Review 8 (2011): 1−13. 56   “Accountability” is best defined as “a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences.” (Mark Bovens, “Analysing and Assessing Accountability:  A  Conceptual Framework,” European Law Journal 13 (2007): 447−68, 450). 57   Klabbers, “The EJIL Foreword,” 10, has aptly called this the “blind spot” of functionalism. 58   Cf. Mitrany, A Working Peace System, 44:  “Authority would derive from the performance of a common task and would be conditioned by it, and not from the possession of a separate ‘right’.” Ibid., 55: “Promissory Covenants and Charters may remain a headstone to unfulfilled good intentions, but the functional way is action in itself, and therefore an inescapable test of where we stand and how far we are willing to go in building up a new international society.” 53

 

the accountability of international organizations    43

Constitutionalism 2.0 and Global Administrative Law Constitutionalism 2.0. is no longer focused on the constitutive and enabling function of constitutional law, but rather on its constraining and checking function. With regard to the WTO, for example, constitutionalism now focuses on the need for the WTO-​regime to integrate nontrade concerns, including the protection of human rights, labor rights, environmental concerns, and animal welfare.59 In the UN, the Security Council is in the center of attention.60 The activation of the Council’s legal authority to impose binding measures after 1991 triggered the demand for controlling the Council’s powers. In this context, the topos of constitutional bounds emerged with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) by the Security Council. In a section of the Tadić jurisdiction decision entitled “Question of constitutionality,” the Appeals Chamber examined whether Chapter VII, notably Article 39 of the UN Charter, could form a legal basis of the tribunal. It emphasized that the UNSC is subject to the principle of legality, and is not a purely political organ. It is not legibus solutus.61 In contrast, the Special Tribunal for Lebanon insisted that UNSC decisions under Chapter VII are “the sole and exclusive prerogative” of the Council, and are “essentially political in nature, and as such not amenable to judicial review.”62 Whichever view one follows, it remains true that constitutional limits of UNSC action are barely enforceable; in any case, no judicial action is available against the Council as such. Furthermore, the Council’s quasi lawmaking resolutions on financing terrorism (Res. 1373) and on weapons of mass destruction (Res. 1540) provoked the question whether that body possessed not only “police”-​powers but also lawmaking competences. That issue triggered a debate on the separation of powers within the organization—​a constitutionalist institution which ultimately seeks to contain power, too. The most intense debate on constraining and checking the UNSC was triggered by the targeted sanctions imposed indirectly by the Council on terror suspects and politically exposed persons by ordering member states to freeze their assets and prohibit them from traveling. These sanctions risk infringing procedural fundamental rights of targeted persons, depriving them of judicial review. The policy, which was actually devised to avoid the large-​scale human rights problems posed by sanctions 59   Thomas Cottier, “Limits to International Trade: The Constitutional Challenge,” in International Law in Ferment: A New Vision for Theory and Practice, Proceedings of the 94th Annual Meeting, ed. The American Society of International Law (Washington DC: ASIL, April 5–​8, 2000), 220−2, 221. 60   Bardo Fassbender, The United Nations Charter as the Constitution of the International Community (Leiden: Martinus Nijhoff, 2009). 61   ICTY, case No IT-​94-​1-​AR72, Prosecutor v Duško Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber of October 2, 1995, paras. 26–​8. 62   Special Tribunal for Lebanon, The Prosecutor v Salim Jamil Ayyash, Mustafa Amine Badreddine, Hussein Hassan Oneissi, Assad Hassan Sabra (STL-​11-​01/​PT/​AC/​AR90.1), Decision on the Defence Appeals against the Trial Chamber’s Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, October 24, 2012, para. 52.

 

44    international organizations and international law against entire states, gave rise to a constitutional confrontation between the UN and European institutions. In Kadi, the ECJ insisted on upholding its regional constitutional human rights standard protecting targeted persons.63 The ECtHR on two occasions found that Switzerland, in implementing targeted sanctions, violated its obligations arising from the European Convention on Human Rights (ECHR).64 In result, UN member states remain caught between the obligation to carry out UNSC decisions under Article 25 of the UN Charter and the obligation to respect international or regional human rights guarantees. The third paradigm besides functionalism and constitutionalism, which is global administrative law (GAL),65 has likewise been triggered by the perception of an accountability deficit in the exercise of power by international organizations. These are only one type of “global administration.”66 The scope of GAL is thus broader than the traditional law of international organizations to the extent that it covers both international and national, both public and private law, both hard (“formal”) and soft (“informal”) norms, and all bodies operating with reference to these norms.67 Although proponents agree that “administrative law … is everywhere concerned with the double task of empowering public authorities and controlling the bureaucratic behavior,”68 the second aspect, the constraining function of the law, constitutes the core of GAL as a normative project, with help of the concept of accountability.69 63   ECJ, cases C-​420/​05P and C-​415/​05P, Kadi and Al Barakaat, judgment of the Court (Grand Chamber), ECR 2008 I-​06351, especially paras. 281–​2, 316, 326. 64   ECtHR (Grand Chamber), Nada v Switzerland, No. 10593/​08, September 12, 2012, especially paras. 169–​7: violation of Art. 8 ECHR; ECtHR, Al-​Dulimi and Montana Management, Inc. v Switzerland, No. 5809/​08, Grand Chamber judgment of 21 June 2016: the Swiss Federal Tribunal’s refusal to scrutinize the merits of Al-​Dulimi’s complaint (with a view to Art. 103 UN Charter) had undermined the very essence of Art. 6 ECHR. 65   Benedict Kingsbury, Nico Krisch, and Richard Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68 (2005): 15−61; Sabino Cassese, “Administrative Law without the State? The Challenge of Global Regulation,” New  York University Journal of International Law and Politics 37 (2005): 663–​94. See also Clémentine Bories (ed.), Un Droit administratif global? (Paris:  Pedone, 2012); “Symposium:  Through the Lens of Time:  Global Administrative Law after 10 Years,” International Journal of Constitutional Law 13 (2015): 463−506. 66   From the perspective of GAL, the “global administrative” space is further populated by hybrid public–​private organizations and private bodies exercising public functions, by transgovernmental and transnational networks, and by “hybrid, multi-​level, or informal global regulatory regimes”, with all types possibly combined and overlapping (Lorenzo Casini, “Beyond Drip-​Painting? Ten years of GAL and the Emergence of a Global Administration,” International Journal of Constitutional Law 13 (2015): 473−7, 475). 67   The proponents of the related “international public law-​approach” however concentrate on “public” law (Armin von Bogdandy, Matthias Goldmann, and Ingo Venzke, From Public International to International Public Law (forthcoming)). 68   Giulio Napolitano, “Going Global, Turning Back National: Towards a Cosmopolitan Administrative Law?,” International Journal of Constitutional Law 13 (2015):  482−5, 485 (emphasis added). See also Eberhard Schmidt-​Aßmann, “Die Herausforderung der Verwaltungsrechtswissenschaft durch die Internationalisierung der Verwaltungsbeziehungen,” Der Staat 45 (2006): 315−38, 342 (“dual task”). 69   See Cassese, “Administrative Law without the State?,” 688; Ludovic Hennebel, “Penser le droit administratif global,” in Un Droit administratif global, ed. Clémentine Bories (Paris:  Pedone, 2012),

 

the accountability of international organizations    45 A  main research question concerns “institutional design issues as to how such mechanisms should be designed in order to ensure accountability without unduly compromising efficacy.”70 The paradigm of GAL is sometimes seen as competing with global constitutionalism, especially when portrayed as being bottom-​up, empirically grounded, more fine-​tuned, and politically neutral—​in contradistinction to global constitutional law.71 The better view is however that contemporary global administrative law and global constitutional law complement each other and share the same normative ambition and a similar liberal assumption of the priority of individual self-​ determination which has to be reconciled with the global public interest but not subdued by it.72 In particular, the allegation of a “technical” and “neutral” character of the administrative law approach seems to be as misleading as this allegation had been with regard to functionalism, by simply veiling the political aspects of global law and decision-​making. Global constitutionalism may have the merit of making it more explicit that all governance arrangements carry with them political aspects, and also that political decisions are indeed necessary. This is especially salient in times of heightened political tension worldwide.

Accountability to Whom? An important question is to whom the organizations are and should be accountable. A different way of posing the same question is to identify the “subjects” of a given organization’s legal order, the rightful “principals” of the organization, or to speak of its “stakeholders.” The traditional position is that organizations are exclusively accountable to their member states which in turn represent their people. Put differently, the “subjects” of the organization’s legal order are the member states; they are—​in a principal–​agent paradigm—​the “principals.” A WTO panel expressed the idea by saying that “the GATT/​WTO did not create a new legal order the subjects of which comprise both contracting parties or members and their nationals.”73 The traditional view does not negate the principle that—​ ultimately—​ the ­organizations should serve human needs and interests. However, individuals are 79; Richard B. Stewart, “The Normative Dimensions and Performance of Global Administrative Law,” International Journal of Constitutional Law 13 (2015): 500; Casini, “Beyond Drip-​Painting?,” 474.   Kingsbury, Krisch, and Stewart, “The Emergence of Global Administrative Law,” 18.   See, e.g., Stewart, “The Normative Dimensions and Performance of Global Administrative Law,” 506. 72   Mario Savino, “What if Global Administrative Law Is a Normative Project?,” International Journal of Constitutional Law 13 (2015): 492−8. 73   WTO Panel, US—​Section 301–​310 of the Trade Act of 1974, WT/​DS152/​R (January 27, 2000), not appealed, para. 7.72. 70 71

 

46    international organizations and international law assumed to be entirely and properly “mediated” by their states in international organizations. The problem is that this “mediation” does not convey accountability. As far as democratic accountability to natural persons is concerned, three deficits stand out: First, there is no chain of election and recall running from citizens through their governments to the state delegates which will take the political decisions in the various forums of the organizations. Second, many member states of international organizations do not allow for free elections of their governors, and cannot claim to act for their citizens in a democratic sense. Finally, the actions and omissions of many international organizations regularly produce externalities (military, economic, or financial consequences) for persons who are not citizens of member states and thus not represented by them. For these reasons, it is impossible to qualify the governance of international organizations—​as exercised now—​as democratically accountable to natural persons. The judicial accountability of the organizations to natural persons is minimal as well. The openings for individuals to institute judicial or administrative-​type complaints against organizations whose actions or omissions affects their lives are extremely scarce (see “Access to Justice,” later in this chapter). The necessity for natural persons to ask their nation state for action against the organization renders the individuals hostage to considerations of high politics and often leaves them without redress. On the premise that the ultimate principals of international organizations are indeed human beings, the insight that the funneling of accountability through the member states does not function very well leads to the quest for additional accountability forums which can be accessed by aggrieved individuals independently from member states.74 In the law as it stands, this quest for a direct accountability to individuals has been unequivocally accepted only by the EU. The ECJ in its seminal judgment Van Gend & Loos stated that the “subjects” of the Community legal order “comprise not only member states but also their nationals.”75 This legal construct could and should be extended to other organizations. Along this line, scholarship has demanded that “the exclusive link with member states must be broken, in that international organizations have many constituencies, all of which can make justifiable demands concerning both the everyday guidance and its accountability.”76 A host of questions remain about the design of accountability schemes, and about the delimitation of the circle of “stakeholders,” notably beyond the citizens or residents of a given organization’s member states.

74   Anne Peters, “The Constitutionalisation of International Organisations,” in Europe’s Constitutional Mosaic, ed. Neil Walker, Jo Shaw, and Stephen Tierney (Oxford: Hart, 2011): 264−6. 75   ECJ, case 26/​62, Van Gend & Loos, ECR 1963, 3 under II.B. The Court recently repeated that statement with a view to fending off the protocol on accession of the EU to the ECHR (ECJ, Opinion 2/​13 of the Court (Full Court) December 18, 2014—​Accession to the ECHR, para. 157). 76   Klabbers, “The EJIL Foreword,” 81.

 

the accountability of international organizations    47

Against which Standards? Accountability means to hold an actor to account against a benchmark. From a legal perspective, this benchmark is the law. The recognition that international organizations are governed by the rule of law and therefore bound by law is thus an important step toward strengthening their accountability. In the 2012 Declaration of the high-​level meeting of the UN General Assembly (GA) on the rule of law at the national and international levels, the Heads of State and Government solemnly recognized that “the rule of law applies … to international organizations, including the United Nations and its principal organs, and that respect for and promotion of the rule of law and justice should guide all of their activities and accord predictability and legitimacy to their actions.”77 The Tadić Tribunal highlighted this, too, with regard to the UNSC.78 The next question is which law binds international organizations and poses material legal limits on their action. It is clear that international organizations are “bound by any obligations incumbent upon them under general rules of international law,” as the ICJ put it.79 But it remains an open question which rules exactly and when they are “incumbent upon them.” Schermers and Blokker opine that international organizations are “in principle” bound by customary international law, unless the concrete rule is not “suitable” for application to international organizations.80 It must therefore always be examined which norms are “suitable.” This is particularly important with regard to human rights norms. Traditionally, human rights had been addressed only to states as obligors, while international organizations did not constitute a threat to human rights. This changed with the UNSC’s comprehensive economic sanctions against Iraq (1991–​2003) which affected notably social rights of the Iraqi population.81 Once an empowered organization risks infringing human rights, and in line with the idea that international organizations should also be accountable to natural persons (see “Accountability to Whom?,” earlier in this chapter), the question arises whether and how an organization or its organs should be made to respect human rights, too. Because international organizations are not parties to the relevant treaties, they are not formally bound by them. As far as independent customary human rights law is concerned, it is not clear whether and which obligations (to respect, fulfill,   Declaration of the high-​level meeting of the General Assembly on the rule of law at the national and international levels, A/​RES/​67/​1 of September 24, 2012, para. 2. 78  ICTY, Tadić, paras. 26–​8. 79  ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, ICJ Reports 1980, 73, para. 37. 80  Henry G. Schermers and Niels M. Blokker, International Institutional Law, 5th ed. (Dordrecht: Martinus Nijhoff, 2011), § 1579. 81   Frédéric Mégret and Florian Hoffmann, “The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibility,” Human Rights Quarterly 23 (2003): 314−42. 77

 

48    international organizations and international law or protect some or all human rights) have been extended to (which?) organizations as additional duty-​holders through practice and legal opinion. Even if direct (customary) human rights obligations of international organizations are denied, it is meanwhile generally acknowledged that the organizations’ founding documents must be interpreted so as to take into account human rights (Art. 31(3) lit. c) of the Vienna Convention on the Law of Treaties). An evolution of the law in the direction of human rights obligations of international organizations is most welcome as an appropriate response to their increased potential to curtail human dignity and liberty.82

Through which Procedures? The Procedural Triad The law of international organizations has begun to shape out a triad of international procedure, consisting in access to information (transparency), participation, and access to justice. In international environmental law, these three procedural elements have been imposed not only on states (by the Aarhus Convention of 1998)83 but—​what matters for our context—​also on international organizations by the Almaty Guidelines of 2005.84 Starting from there, there is arguably a customary rule that “in environmental matters” all international organizations (including bodies, forums, and conferences) must be transparent, must allow for participation of members of the public, and grant access to justice. I submit that this triad, having the merit of already being anchored in international law as it stands, can from this point of departure be realistically and appropriately further fleshed out as a more general procedural framework for implementing and improving the accountability of international organizations. This is in line with

82   Société française pour le droit international, La Soumission des organisations internationales aux normes internationales relatives aux droits de l’ homme (Paris: Pedone, 2009); Jan Wouters et al. (eds.), Accountability for Human Rights Violations by International Organisations (Cambridge:  Intersentia, 2010); Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Accountability of International Organisations for Human Rights Violations, Report by José Maria Beneyto, Doc. 13370, December 17, 2013; for the UN, see Anne Peters, “Art. 25,” in A Commentary to the Charter of the United Nations, ed. Bruno Simma et al., 2nd ed. (Oxford: Oxford University Press, 2012), 787−854, paras 109–​23. 83   Aarhus Convention:  Convention on Access to Information, Public Participation in Decision-​ Making and Access to Justice in Environmental Matters (adopted June 28, 1998, entered into force October 30, 2001) 2161 UNTS 447. 84  UN Economic Commission for Europe, Report of the 2nd Meeting of the Parties to the Convention on Access to Decision-​Making and Access to Justice in Environmental Matters held in Almaty, Kazakhstan, May 25–​7, 2005, decision II/​4 entitled Promoting the Application of the Principles of the Aarhus Convention in International Forums, ECE/​MP.PP/​200572/​Add.5, June 20, 2005.

 

the accountability of international organizations    49 various scholarly approaches,85 ranging from global administrative law86 over the International Law Association’s (ILA) report of 2004 on the accountability of international organizations,87 to the nongovernmental organization (NGO) project “One World Trust” which examines the accountability not only of international organizations but also of NGOs and business actors against transversal “dimensions”, including transparency, participation, and complaints handling.88

Access to Information/​Transparency Access to information (the term used in the Aarhus Convention) is roughly synonymous with transparency. A scheme or culture of access to information/​transparency means that relevant information (on law and politics) is available or accessible.89 With regard to the governance activities of international organizations, the objects of transparency (i.e., what is and should be made transparent) are the institutions, the procedures, the meetings, and documents. Depending on the objects, we might speak of the documentary, decision-​making, and operational transparency of a given organization.90 Transparency is a conditio sine qua non both for critique of an organization and for an informed consent to its activities. Both member states and outsiders, including affected individuals, will only be able to assess the quality of the operations of an international organization and its impact on themselves if they possess sufficient information on those operations. Transparency thereby safeguards member state sovereignty and functions as a surrogate for the lack of democratic and judicial accountability in international organizations: “[T]‌he less directly accountable 85  Thomas D. Zweifel, International Organizations and Democracy:  Accountability, Politics, and Power (Boulder:  Lynne Rienner, 2006) identifies seven “indicators of democracy”:  appointment, participation, transparency, reason-​giving, overrule, monitoring, and independence (especially 25). Applying them, only two of the international organizations examined by the author have a positive “democracy score”: the EU and the ICC (176–​7). 86   Kingsbury, Krisch, and Stewart, “The Emergence of Global Administrative Law,” 37–​9, identify as relevant principles transparency, participation, and review; similarly Cassese, “Administrative Law without the State?,” 690–​1. 87   International Law Association, First Report on the Accountability of International Organizations, Report of the 71st Conference held in Berlin, August 16–​21, 2004. The report recommended, inter alia, transparency and access to information, “participatory decision-​making processes,” and “supervision and control.” It proposed additional principles such as constitutionality, institutional balance, stating reasons, procedural regularity, and impartiality. 88   Robert Lloyd, Shana Warren, and Michael Hammer, One World Trust, 2008 Global Accountability Report, http://​www.oneworldtrust.org. 89   Cf. Art. 4(1) of the Aarhus Convention (see n. 83). The related concept of “publicity” denotes the fact that such information is actually accessed. 90   Luis Hinojosa Martínez, “Transparency in International Financial Institutions,” in Transparency in International Law, ed. Andrea Bianchi and Anne Peters (Cambridge: Cambridge University Press, 2013), 77–​111, especially 80.

 

50    international organizations and international law a governmental agency is to the public, the more important it is that its actions be open and transparent.”91 While transparency is to some extent only an ersatz tool, it is a necessary one, because it replaces, in a global and pluralistic political space, the unattainable certitude and conviction about the “right” international law and policy through a procedural device allowing everyone to form his own opinion on matters of governance by international organizations. Overall, while transparency policies may sometimes be useless or even counterproductive, they more often seem to be “a reasonable initial step”92 toward improving the accountability of international organizations. It is therefore laudable that more organizations grant access to their documents to outsiders under certain conditions.93 Another type of transparency concerns personnel matters. For example, the UN General Assembly recently set in motion a novel process of selection of the Secretary-​General which “shall be guided by the principles of transparency and inclusiveness.”94 The various moves toward transparent procedures and access to information might give rise to an international legal principle of transparency in the law of international organizations, possibly in the sense that the refusal to release documents requires a justification.95

Participation As an element of accountability, the concept of “participation” relates to civil society organizations or NGOs96 which formulate and defend specific public interests (albeit without being legitimized through formal elections and rarely controlled by formal accountability mechanisms). In a different line of thought (the New Haven school), the concept of “participant” denotes a status transcending the traditional dichotomy of subjects and objects of international law. Qualifying NGOs as “participants” in the international legal process points notably to their role in the ­elaboration of “secondary” hard and soft law in forms of decisions, rules, or programs.97   Joseph Stiglitz, “On Liberty, the Right to Know, and Public Discourse: The Role of Transparency in Public Life,” in Globalizing Rights, The Oxford Amnesty Lectures 1999, ed. Matthew J. Gibney (Oxford: Oxford University Press, 1999), 155. 92   Cf. Virginia Haufler, “Disclosure as Governance: The Extractive Industry Transparency Initiative and Resource Management in the Developing World,” Global Environmental Politics 10 (2010): 53−73, 70. 93   See, e.g., the World Bank Policy on Access to Information, July 1, 2010; Regulation (EC) No. 1049/​2001 of the European Parliament and of the Council of May 30, 2001 Regarding Public Access to Documents, OJ 2001 No. L145/​43, May 31, 2001. 94   GA Res. 69/​321 “Revitalization of the work of the General Assembly,” September 11, 2015, para. 34; Joint letter of the Presidents of the General Assembly and the Security Council to all Member States to invite candidates, 15 Dec 2015. 95   Anne Peters, “Towards Transparency as a Global Norm,” in Transparency in International Law, ed. Andrea Bianchi and Anne Peters (Cambridge: Cambridge University Press, 2013), 583–​6. 96   NGOs lack a generally accepted definition in international law. See for a characterization Council of Europe 2002, “Fundamental Principles on the Status of Non-​governmental Organisations in Europe and Explanatory Memorandum,” November 13, 2002. 97   See Woodward, Global Civil Society, 253–​334, diagnosing “declining opportunities for NGO influence within the UN system” (ibid., 401). In contrast, the enforcement of international law, by means of 91

 

the accountability of international organizations    51 Increasing involvement of NGOs, and their accommodation and promotion by new accreditation schemes and new rules of procedure in organizations and conferences (mainly during the reform era of 1990–​2005)98 rendered the idea of NGO “observation” obsolete. It has now become usual to speak of a “participatory status,” such as in the new Council of Europe rules,99 or of “cooperative” or “official working relations” with the civil society organizations, as foreseen in the Organization of American States (OAS).100 This paradigm change did not in itself add new rights or privileges for NGOs, but (only) implied a shift in the working method toward an enhanced dialogue, and toward a certain reliance on self-​policing of NGOs.101 Short of a customary right to or a general principle of participation,102 NGOs may today rely on a legitimate expectation of participation, which can, for practical reasons, materialize only through some form of prior screening and admission, often called “accreditation” by the organizations (and by bodies such as Conferences of the Parties (COPs) and committees). Importantly, the WTO103 and the UN as a whole do not even possess a general accreditation scheme, a lacuna which makes NGO participation in those organizations more ad hoc-​ish and limited. Within the UN, NGOs can be accredited to the Economic and Social Council (ECOSOC),104 whose accreditation procedure has been a model for numerous international judicial or arbitral proceedings, by international compliance bodies (treaty monitoring and verification) normally serves to control states, not international organizations. The participation of NGOs in such proceedings (especially in the area of international human rights and environmental law) through the conferral of a locus standi (or the power to trigger noncompliance proceedings), the admission of an actio popularis, of NGO amicus curiae briefs, shadow reports by NGOs to treaty bodies, and other means for feeding information into compliance control mechanisms will therefore not be dealt with here. 98   See, besides the mentioned organizations: World Bank, Consultation with civil society organizations, general guidelines for world bank staff (2000); WHO, Policy for relations with nongovernmental organizations, Report by the Director-General, April 14, 2003, A56/​46; African Union (AU), Statute of the Economic, Social and Cultural Council of the African Union (ECOSOCC), approved by the Assembly, Decision on ECOSOCC of July 8–​9, 2004, Assembly/​AU/​Dec.48(III) Rev.1. 99   Council of Europe, Participatory Status for International Non-​Governmental Organizations with the Council of Europe, Res. (2003) 8, November 19, 2003, adopted by the Committee of Ministers at the 861st Meeting of the Ministers’ Deputies. 100   Permanent Council of the Organization of American States, Review of the Rules of Procedure for Civil Society Participation with the OAS, March 31, 2004, CP/​CISC-​106/​04. 101  Emanuele Rebasti, “Beyond Consultative Status:  Which Legal Framework for an Enhanced Interaction between NGOs and Intergovernmental Organizations?,” in NGOs in International Law:  Efficiency and Flexibility, ed. Pierre-​Marie Dupuy and Luisa Vierucci (Northampton:  Edward Elgar, 2008), 21−70, 59. 102   Steve Charnovitz, “Nongovernmental Organizations and International Law,” American Journal of International Law 100 (2006): 348–​72; Alan Boyle and Christine Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007), 57; ILA, Second Report of the Committee, “Non-​State Actors in International Law: Lawmaking and Participation Rights” (2012). 103  See for the WTO the Guidelines for arrangements on relations with Nongovernmental Organizations, WT/​L/​162, Decision of July 18, 1996; Pieter van den Bossche, “NGO Involvement in the WTO: A Comparative Perspective,” Journal of International Economic Law 11 (2008): 717–​49. 104   See ECOSOC 1996, Res. 1996/​31—​Consultative Relationship between the United Nations and Non-​Governmental Organisations (UN Doc. A/​RES/​1996/​31), 49th Plenary Meeting of July 25, 1996.

 

52    international organizations and international law other international bodies. NGO involvement with the Security Council105 remains selective, but seems to have become prevalent with the General Assembly.106 The current procedural provisions on NGO participation typically comprise the following elements:  NGOs must receive prior notification of meetings and agenda items, they must be automatically and continuously admitted to meetings, they have the option to distribute documents, and they are allowed to speak upon explicit permission.107 In any case, all procedural elements only give a voice and no vote to (accredited) NGOs in the lawmaking and law-​applying proceedings of international organizations. By raising their voice, NGOs can contribute to holding international organizations to account.

Access to Justice A core element of accountability is legal responsibility for internationally wrongful acts. The International Law Commission’s 2011 Draft Articles on the Responsibility of International Organizations (DARIO)108 provide a framework for this, although they are more a progressive development than codification of extant customary law, and are not binding as such. It is an open question to what extent the Articles will be relied on in practice. In order to generate real accountability, the international responsibility of international organizations (which comprises, e.g., the obligation to cease and not to repeat an unlawful behavior, and the obligation to make reparation for the injury including material and moral damages) needs to be identified and implemented. This task normally falls on courts and tribunals. Access to justice is therefore an important building block for securing accountability. Again, the question is who should get such access. As far as states are concerned, normally no international court is available to them for suing an organization of which they are a member (the EU is the exception).109 This scheme manifests the 105   Since 1992, the UNSC admits NGO input in informal meetings of Council members under the so-​called Arria formula. 106   The UN GA Res. 70/​1: “Transforming Our World: The 2030 Agenda for Sustainable Development” of September 25, 2015 was elaborated with NGO and stakeholder input through all stages since 2012 (Rio+20), beginning with the “Open Working Group on Sustainable Development Goals.” Civil society organizations could contribute to the sustainable development goals in “thematic clusters”; a “stakeholder preparatory forum for the post-​2015 development agenda negotiations” was held on January 16, 2015. The summit itself (in September 2015) encompassed “interactive dialogues” (basically intergovernmental but with stakeholder participation), “informal interactive hearings” with stakeholders, and an NGO key-​note speaker in the plenary (cf. UN GA Res. 69/​44 of December 29, 2014, containing the blueprint for the summit of September 2015). 107   Anne Peters, “Membership in the Global Constitutional Community,” in The Constitutionalization of International Law, ed. Jan Klabbers, Anne Peters, and Geir Ulfstein (Oxford:  Oxford University Press, 2009/​2011), 154−262, 225–​7 with further references. 108   See n. 1. 109   Art. 263 of the Treaty on the Functioning of the European Union (TFEU): an annulment action can be instituted by member states.

 

the accountability of international organizations    53 view that the members, the “masters” of the organization, can ab initio control “their” organization by other means and do not need judicial protection against it. But access to justice is crucially important for outsiders, notably natural persons. Here we face a legal gap. Outside the EU, no international courts before which individuals, beyond staff for labor issues, could institute judicial proceedings against international organizations or their organs exist.110 In some other organizations, only much weaker complaint mechanisms, short of judicial remedies, have recently been offered to natural persons or groups. The Word Bank established an inspection panel in 1993.111 Groups of two or more complainants who believe their rights are violated by projects funded by the World Bank may request an inspection. The Inspection Panel then examines whether the Bank has failed to follow its operational policies and relevant agreements with respect to the design, appraisal, and/​or implementation of a project financed by the Bank and thus has had a material adverse effect on the rights or interests of the complainants. Furthermore, two different institutions exist to monitor compliance with human rights standards by the two principal international actors in Kosovo. First, the UN Mission in Kosovo (UNMIK) is monitored by the UNMIK Human Rights Advisory Panel112 which began its work in 2007.113 Second, the European Union Rule of Law Mission in Kosovo (EULEX) is reviewed by the Human Rights Review Panel (HRRP) in Pristina (operational since 2010).114 The benchmark for review to be applied by HRRP (its “accountability concept”) is not fully clear. It forms part of EULEX’s Operational Plan.115 But the relevant EU Council Joint Action states that EULEX Kosovo shall “ensure that all its activities respect international standards concerning human rights and gender mainstreaming.”116   See, for a quite limited jurisdiction of the ECJ for complaints by other actors than member states, Art. 263(4) TFEU. 111  International Bank for Reconstruction and Development and International Development Association: Res. No. IBRD 93-​10; Res. No. IDA 93-​6, “The World Bank Inspection Panel” of September 22, 1993; Updated Operating Procedures, April 2014, http://​ewebapps.worldbank.org/​apps/​ip/​Pages/​ Panel-​Operating-​Procedures-​Update.aspx. 112   http://​www.unmikonline.org/​hrap. 113   The legal basis for the Human Rights Advisory Panel is UNMIK Regulation No. 2006/​12 on the Establishment of the Human Rights Advisory Panel of March 23, 2006, amended by UNMIK Regulation No. 2007/​3 Amending UNMIK Regulation No. 2006/​12 on the Establishment of the Human Rights Review Panel of January 12, 2007. Also relevant are the Administrative Direction No. 2009/​1 Implementing UNMIK Regulation No. 2006/​12 on the Establishment of the Human Rights Advisory Panel of October 17, 2009 (based on Art. 19 of Regulation No. 2006/​12), and the Rules of Procedure of the Human Rights Advisory Panel (adopted by the Panel on February 5, 2008 and revised several times). See European Commission for Democracy through Law (Venice Commission) of the Council of Europe, Opinion on the Existing Mechanisms to Review the Compatibility with Human Rights Standards of Acts by UNMIK and EULEX in Kosovo, No. 545/​2009, adopted at its 85th Plenary Session on December 17–​18, 2010, CDL-​AD(2010)051. 114   The Rules of Procedure were adopted on June 9, 2010. 115   See Annual Report Human Rights Review Panel 2014, 8, n. 1. 116   Art. 3(i) of the Council Joint Action 2008/​124/​CFSP on the European Union Rule of Law Mission in Kosovo of February 4, 2008. 110

 

54    international organizations and international law Against the UNSC, individuals affected by targeted sanctions (but only in the 1267-​regime, not for targeted sanctions under other resolutions of the UNSC) can turn to the Office of the Ombudsperson, which took up work in 2010.117 In 2011, the mandate of the Ombudsperson was expanded. In particular, the Ombudsperson may now make a recommendation on a delisting decision, from which the members of the Sanctions Committee may deviate only by consensus; otherwise, the recommendation becomes binding after sixty days or a shorter period.118 The Ombudsperson procedure for delisting is defined in Annex II of the Working Guidelines of the sanctions committee (latest version of 2013), including time periods.119 It is controversial whether this procedure is tantamount to a “de facto judicial review” and meets the demands of due process.120 The situation is better for employees of the organizations.121 Internal complaint mechanisms in form of administrative tribunals have been improved in the past decade.122 But overall, accountability through access to justice against international organizations remains deficient. Notably the new rules on the international responsibility of organizations lack teeth in the absence of third-​party dispute settlement and enforcement mechanisms against the organizations.

Restriction of Organizational Immunities Given the scarcity of international forums to pass judgment on violations of international law by international organizations, should not national courts and tribunals step in? Traditional international law has basically prevented this through the institution of jurisdictional immunity, on the reasoning that domestic law suits risk disturbing the functioning of the organizations.123 Meanwhile it is increasingly  UNSC Res. 1904 (2009), paras. 20–​ 7. In 2010, the Secretary-​ General appointed the first Ombudsperson. 118  UNSC Res. 1989 (2011). The latest resolution is UNSC Res. 2253 (2015) which extended the Ombudsperson’s mandate until December 2019 (para. 54). 119   Security Council Committee pursuant to Resolutions 1267 (1999) and 1989 (2011) concerning al-​Qaeda and associated individuals and entities, Guidelines of the Committee for the Conduct of its Work (adopted on November 7, 2002, as amended numerous times, last on April 15, 2013). Important points have been revised in 2011. 120   See Watson Institute for International Studies and The Graduate Institute Geneva (ed.), Due Process and Targeted Sanctions: An Update of the “Watson Report” by Sue Eckert and Thomas J. Biersteker (Providence: Watson Institute, 2012) with a positive assessment (quote on 24). 121   See for an important case concerning the Director-General Bustani of the Organization for the Prohibition of Chemical Weapons, Administrative Tribunal of the International Labour Organization (ILOAT) judgment no. 2232 of July 16, 2003, 59th Session, especially consideration 16. 122   The IMF established an Administrative Tribunal in 1994; an EU Civil Service Tribunal was established in 2005; the UN Administrative Tribunal was transformed into a two-​tiered system with a UN Appeals Tribunal in 2009. 123   See text with n. 2. 117

 

the accountability of international organizations    55 acknowledged that too broad immunities might unduly shield the organizations (and member states hiding behind them) from being held properly to account for unlawful conduct.124 Two strategies for improving accountability are especially relevant. First, the organizational immunity could be narrowed (e.g., to acta imperii, or by a functional necessity test or the like) and/​or made subject to balancing against countervailing interests. The main objection against this strategy is that organizations are anyway only entitled to perform specific functions, so that their range of activities is already limited, and hence deserves and needs full protection. A related point is that, because the immunity of a concrete international organization flows not from customary law but (only) from international treaty law (normally from the founding document, headquarters agreement, or a convention on immunities), its extent varies according to the concrete instruments. Only some texts refer to “functions.” Where the relevant instruments grant “absolute” immunity, it seems difficult to discard or narrow this immunity with the help of restrictive interpretations alone without a formal amendment of the governing instrument. The second strategy to improve the accountability of organizations would be to tie the conferral of jurisdictional immunity to the existence of an internal alternative means of dispute settlement within the organization itself. For the ECtHR, “a material factor in determining whether granting [an organization] immunity from [domestic] jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention,” notably the right of access to a tribunal, as guaranteed by Article 6 ECHR.125 This requirement has been widely received in national courts’ decisions on immunity, has sparked the development of internal settlement ­mechanisms in organizations, and has thus improved the accountability of international organizations.126 However, the requirement has in recent practice not been applied as a strict quid pro quo for immunity, or as a conditio sine qua non for qualifying the restriction of the human right of access to a tribunal as being proportionate. Quite to the contrary, the ECtHR granted immunity to the UN against complaints before Dutch courts which sought to hold the organization accountable for failure to protect Bosnian men and boys against Serb murderers in Srebrenica—​despite

  See Anne Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (Leiden: Brill Nijhoff, 2015), “Part Five:  Immunities of International Organisations” (285–​354); see also the special issue of International Organizations Law Review 10 (2013):  255–​626; August Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (Oxford:  Oxford University Press, 2013). 125  ECtHR, Beer and Regan v Germany, App. No. 28934/​95; and Waite and Kennedy v Germany, App. No. 26083/​94, February 18, 1999, para. 68. 126   Thore Neumann and Anne Peters, “Beer and Regan v Germany,” in Judicial Decisions on the Law of International Organizations, ed. Cedric Ryngaert et al. (Oxford: Oxford University Press, 2016), 392–​405. 124

 

56    international organizations and international law the fact that the UN had not made provision for “modes of settlement” as suggested by Article VIII sec. 29 of the Convention on the Privileges and Immunities of the UN.127 Or, to give another example, the Swiss Federal Court granted immunity from execution to the Bank for International Settlements (BIS), although the BIS did not provide for any internal dispute settlement in that case.128 Overall, the immunities of international organizations constitute a major ­obstacle for realizing legal accountability through judicial means. Because domestic judgments risk impeding the work of the organization and inevitably apply the relevant international law in an uneven and uncoordinated fashion, domestic institutions should serve as an accountability forum only as a last resort (ultima ratio), and only with the objective of inciting organizations to close the accountability gap themselves. In the end, organizations are well advised to waive their immunity or to offer internal settlement in order to garner the public support they need.

Democratic Lawmaking by International Organizations? Accountability may be realized through law-​and decision-​making by majority vote, and through the appointment and recall of the holders of high governing positions by the governed themselves. In the national context, one would summarize the ­relevant procedures under the heading of democracy. On a more abstract level, the features of alternativity and reversibility have been highlighted as constituent features of a democratic law, and lawmaking by international organizations has been examined against this benchmark.129 Obviously, neither the selection of governors nor the determination of the legal action taken by international organizations currently happens in a way which would satisfy high standards of democracy.130 During the reform era of the 1990s and the first years of the new millennium, two strategies for the democratization of international organizations have been advocated: first, empowering parliamentary assemblies in international organizations and, second, liaising with national parliaments.  ECtHR, Stichting Mothers case, paras. 139–​65.   Swiss Federal Tribunal, BGE 136 III 379 of July 12, 2010—​NML Capital Ltd v BIZ, especially E. 4.3.–​4.5. Article 23 of the Headquarters Agreement obliges the BIS to take the necessary steps to ensure the satisfactory settlement, but this clause does not apply to immunity from enforcement regarding assets confided to the Bank (Art. 4(4)). 129   Isabelle Ley, “Opposition in International Law: Alternativity and Revisibility as Elements of a Legitimacy Concept for Public International Law,” Leiden Journal of International Law 28 (2015): 717–​ 42; Antje von Ungern-​Sternberg, Demokratie und Völkerrecht (Heidelberg: Springer, 2016), ch. 7 III. 130  Anne Peters, “Dual Democracy,” in The Constitutionalization of International Law, ed. Jan Klabbers, Anne Peters, and Geir Ulfstein (Oxford: Oxford University Press, 2009), 263–​341. 127

128

 

the accountability of international organizations    57

Parliamentary Assemblies in International Organizations Parliaments are rare in international organizations.131 Notably important universal organizations such as the UN, the WTO, and the Bretton Woods institutions lack an institution which would represent the member states’ parliaments or citizens. The two exceptions are the International Labour Organization, where employers’ and workers’ organizations participate, on an equal footing with governments and with a vote, in the elaboration of conventions and recommendations (“tripartism”), and the EU with its relatively strong European Parliament. The assemblies of other international organizations, such as the Parliamentary Assembly of the Council of Europe (PACE) of the Council of Europe (CoE),132 are not comparable to state parliaments, because their members are not directly elected by citizens, they do not have lawmaking and budgetary powers, and they do not elect the organizations’ quasi-​“executive” branch. The quest for establishing new parliamentary assemblies in international organizations such as the WTO133 or the UN (a “world parliament” or “peoples’ assembly”)134 in order to strengthen those organizations’ democratic credentials currently has no political prospects of success; it remains a “pious wish.”135 Overall, the parliamentarization of international organizations does not seem to lead the way to democratic accountability.

Liaising with National Parliaments A more moderate strategy which pays respect to the principle of subsidiarity is to involve national parliaments or their members with international organizations. One might question whether this “statist” track of democratization of international organizations is reconcilable with the organizations’ aspiration for universality. After all, many of the member states do not have well-​functioning parliaments. However, the democratization of states (on the national level) is an acknowledged objective of international law, and a settled UN policy. There is no contradiction

131   Stefan Marschall, Transnationale Repräsentation in Parlamentarischen Versammlungen (Baden-​ Baden: Nomos, 2005). 132   But see for the successful performance of the accountability functions of critique and control by the PACE which extends beyond the CoE: Isabelle Ley, “Opposition institutionalisieren: Alternativität und Reversibilität als Elemente eines völkerrechtlichen Legitimationskonzepts,” Der Staat 53 (2014): 227–​62, 247–​53. 133   See Gregory Shaffer, “Parliamentary Oversight of WTO-​Rulemaking? The Political, Normative, and Practical Contexts,” Journal of International Economic Law 7 (2004): 629–​54. 134   See the Campaign for the Establishment of a UN Parliamentary Assembly, http://​en.unpacampaign. org/​index.php. In scholarship, Richard Falk and Andrew Strauss, “Toward Global Parliament,” Foreign Affairs 80 (2001): 212–​20. 135   Laurence Dubin and Marie-​Clotilde Runavot, “Représentativité, efficacité, légitimité: des organisations internationales en crise?,” in Droit des Organisations Internationales, ed. Evelyne Lagrange and Marc Sorel (Paris: LGDJ, 2013), 77–​103, 90.

 

58    international organizations and international law between bringing national parliaments into international organizations and serving an international membership. With regard to the UN, notably the Cardoso Report of 2004136 had—​upon the invitation of the UN Secretary-​General—​recommended a four-​pronged strategy which focused on national parliaments.137 But its proposals were rejected by the General Assembly which instead emphasized the intergovernmental nature of the UN.138 Since then, very modest progress has been made. The UN cooperates with national parliaments through the Inter-​Parliamentary Union which is in turn an international organization of national parliaments.139 A General Assembly resolution entitled “Interaction between the UN, National Parliaments and the Inter-​ Parliamentary Union”140 inter alia “welcomes the practice of including legislators as members of national delegations to major United Nations meetings and events,”141 invites member states to take into consideration “facilitating a parliamentary component to major United Nations conferences,”142 and “encourages the United Nations (...) to develop closer cooperation with the United Nations and parliaments at the national level.”143

Conclusions: Effectiveness and Accountability in Tune It has been shown that legal thought on international organizations, notably constitutionalism, has shifted its focus from constituting and enabling organizations to constraining them. Remarkably, domestic constitutionalism (relating to states) has roughly taken the inverse trajectory. Nineteenth-​century constitutionalism in Continental Europe mainly sought to constrain states, while contemporary constitutionalism often

136   UN, “We the Peoples: Civil Society, the United Nations and Global Governance, Report of the Panel of Eminent Persons on United Nations–​Civil Society Relations” (the Cardoso Report), UN Doc. A/​58/​817 (June 11, 2004), proposals 13–​18 and Part VI, “Engaging with elected representatives” (paras. 101–​52, also in summary 10 and 19–​20). 137   Part VI, “Engaging with elected representatives,” para. 102. 138  General Assembly Plenary Debates of October 4–​ 5, 2004 (Press Releases GA/​ 10268 and GA/​10270). 139   See the Cooperation Agreement between the UN and the Inter-​Parliamentary Union of 2016. 140 141 142   UN GA Res. 70/298 of July 25, 2016.   Ibid., para. 7.   Ibid., para. 8. 143   Ibid., para. 14. The identical objectives had already been formulated in UN GA Res. 68/272 of May 19, 2014.

 

conclusions   59 underscores the empowering function of (state) constitutions.144 The follow-​up question (briefly touched upon earlier under “Democratic Lawmaking by International Organizations?”) is whether democracy really requires to empower states and to constrain international organizations, or whether democracy could also be realized in and through the organizations. The threefold role of the law as analyzed in this chapter (law as a constitutor of international organizations, law as an empowerer, and law as a constrainer) does not deny the limits of the law. For example, the legal means at the disposal of the ICC do not allow it to enforce the duties of cooperation incumbent on its member states. Or, the UN’s task of peacekeeping cannot be realized without member states sending troops, and currently suffers from a deployment gap. Obviously, the performance and success of international organizations depends on additional factors of governance (besides law), such as political will, funding, and integrity. Against the background of global and regional financial crises, negative repercussions of globalization, the rise of non-​Western states, and heightened nationalism, the current legal key challenge for international organizations is to operate effectively and legitimately in a complex and multilayered legal space. This requires them to address and reduce the current accountability gap. Domestic institutions, notably courts, should in principle step in here, but only if and as long as the proper international accountability measures are lacking. Increased accountability (toward states and individuals both inside and outside the organization) at first glance seems to obstruct the work of the organizations. However, it will ultimately strengthen them by contributing to their social legitimacy (acceptance).145 Because organizations lack a proper territorial or military power base, they are inherently dependent on cooperation with states (member states and third states). But states cannot be forced to cooperate with, finance, and staff the organizations. They will do so only to the extent that they perceive the given organization as satisfying their (national, shared, or “globalized”) interests and ideals. Well-​functioning accountability mechanisms within an organization will feed this perception and thereby secure state support. This will allow the organization to function better. Thereby, accountability in the long run improves not only the organizations’ legitimacy but also their effectiveness.146

144   This view is prevalent in the English tradition and motivated by concerns for democracy (see, e.g., Jeremy Waldron, “Constitutionalism: A Sceptical View,” Hart Lecture 2010). 145   Kristina Daugirdas, “Reputation and the Responsibility of International Organizations,” European Journal of International Law 25 (2014): 991–​1018. 146   Cf. Collins and White, “Moving beyond the Autonomy–​Accountability Dichotomy,” 8, referring to the ILOAT Bustani case.

 

chapter 3

THE LAW AND POLITICS OF INTERNATIONAL ORGANIZATIONS Jeffrey L. Dunoff

International organizations inhabit a dynamic space at the intersection of international law and international politics. Today hundreds of these bodies—​ intergovernmental entities established by international treaty and governed by international law—​populate the international landscape, addressing issues of war and peace, economics, environment, and virtually every other field of human endeavor, including many once considered to be exclusively matters of domestic law such as education and health. In short, as international relations have become increasingly institutionalized, international organizations have become key actors in the evolving architecture of global governance. Given their significance, international organizations (IOs) have been subject to sustained study by international lawyers and international relations scholars. An impressive body of research from both disciplines has enriched our understandings of the creation and operations of IOs, how IOs promote compliance with legal norms, and the various ways that they influence lawmaking processes and outcomes. Despite important advances, however, we still have much to learn about processes of change in IOs, how to measure and improve IO effectiveness, and why the turn to institutionalization has sputtered in recent years.

 

theory   61 It is not possible in this brief essay to review comprehensively the legal and social science literatures on the law and politics of international organizations. Instead my more modest goal is to describe the contours of the international law (IL) and international relations (IR) scholarship on IOs, as well as some of its key characteristics and debates. To do so, this chapter proceeds in three parts. The first part briefly surveys the major theoretical approaches to the creation and functions of international organizations found in the IL and IR literatures. The second part analyzes the most important conceptual debates that have occupied IO scholars in recent years, including debates over the autonomy, accountability, and legitimacy of international organizations. The third part explores a cluster of policy dilemmas, including the political implications of institutional fragmentation, how to manage IO interactions, and, finally, why IOs increasingly seem unable to effectively address matters of pressing international concern. A  brief conclusion follows.

Theory This section introduces leading theoretical approaches to questions such as why IOs are formed and what purposes they serve. These approaches are differentiated principally by the variables they emphasize and the causal mechanisms assumed to drive state behavior. However, these approaches are not necessarily mutually exclusive and much research on IOs draws from more than one theoretical tradition. Given space constraints, the paragraphs that follow serve only to delineate general orientations. A fuller treatment would require a more extensive discussion of vastly more complex and nuanced positions, many of which do not fit neatly into the simple typology set out below.

Realism While realism comes in many varieties, most realist approaches to international relations share a handful of core commitments, including that (i) states are the central actors in an anarchic international environment; (ii) states are endowed with interests that are often conflictual; and (iii) each state has material power capabilities that shape the substance and structure of international law and organizations. Given these assumptions, many realists minimize the

 

62    law and politics of international organizations importance of IOs, reasoning that “international institutions are shaped and limited by the states that found and sustain them and have little independent effect.”1 For this and other reasons, realism is “the theory that international lawyers love to hate.”2 But realist approaches are not invariably dismissive of IOs. For example, one strand of realist thought advanced a “hegemonic stability theory” (HST) that purports to explain the success of certain IOs. Building on insights regarding the provision of collective goods, HST argues that dominant powers will provide the “public good” of international regimes in particular issue areas; hence Britain and, thereafter, the United States assumed the political costs of creating and maintaining liberal international trade regimes during the mid nineteenth and mid twentieth centuries. Hegemonic states undertake this effort because the benefits they enjoy from the legal regime exceed the costs of creating it; weaker states likewise benefit as they share the benefits of the regime but bear none of the costs of its provision.3 More broadly, nothing in realist commitments implies that IOs are necessarily weak; rather realism suggests that “whether institutions have strong or weak effects depends on what states intend.”4 Core realist claims that the incidence and structure of IOs reflect power distributions in the international system, and that IOs can generate outcomes that are Pareto improving but still skewed distributively toward powerful states, yield important insights into the nature and structure of a densely institutionalized international domain. Legal scholars from diverse scholarly traditions, ranging from the New Haven school to critical approaches, have drawn on realist insights about the role of power to analyze developments in a variety of IOs, ranging from the World Trade Organization (WTO) to the United Nations (UN) to international financial institutions.5 Despite its undoubted utility, realism sheds little light on the origins of the interests thought to drive state behavior and does little to predict or explain important shifts in the structure of the international system (i.e., the rise and fall of the Arab Spring or the collapse of the Soviet bloc) or to account for the ways that IOs impact state interests and behavior.6 Moreover, realism has difficulty explaining why, if IOs

1   e.g., Kenneth N. Waltz, “Structural Realism after the Cold War,” International Security 25 (2000): 5–​41. 2   Richard H. Steinberg, “Wanted—​Dead or Alive: Realism in International Law,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 146–​72, 146. 3   Later, HST would be critiqued on both empirical and theoretical grounds. See generally Duncan Snidal, “The Limits of Hegemonic Stability Theory,” International Organization 39 (1985): 579–​614. 4   Waltz, “Structural Realism after the Cold War.” 5   For an overview, see Richard H. Steinberg and Jonathan M. Zasloff, “Power and International Law,” American Journal of International Law 100 (2006): 64–​87. 6   Steinberg, “Wanted—​Dead or Alive: Realism in International Law.”

 

theory   63 have little independent effect, states spend substantial time and resources to create and maintain them.

Functionalism Functionalism provides a compelling rationale for states to create and maintain IOs. Its basic premise is that states create IOs to solve cooperation problems that cannot be resolved as well unilaterally or via decentralized solutions. Many functionalist writings draw on game theoretic insights to argue that IOs help states overcome collective action problems by reducing transaction costs, providing information, facilitating issue linkages, increasing transparency, and lengthening the shadow of future.7 In 1989, Ken Abbott introduced these insights to international law scholars,8 triggering a substantial literature that used functionalist and, later, economic analyses to explain scores of international legal norms and institutions.9 The Rational Design (RD) project is an important extension of functionalist approaches. RD views the elements of IO design as rational responses to the underlying cooperation problems that states seek to solve. Early contributions to this literature developed systematic accounts of five design features (membership, scope, centralization, control, and flexibility) in light of recurrent cooperation problems states face, such as information problems, distribution problems, enforcement problems, etc.10 Roughly contemporaneously, IL writings drew on similar insights to explore the systemic trade-​offs that exist among different features of international agreements, with particular attention to the diverse levels of institutionalization found in different international agreements.11 The dependent variables in early RD work were quite broad; “centralization” included a wide range of discrete executive, legislative, and judicial functions, and “flexibility” covered reservations, duration, escape, and exit clauses. More recent extensions of this research project disaggregate categories such as centralization

  See, e.g., Robert Keohane, After Hegemony: Cooperation and Discord in World Political Economy (Princeton:  Princeton University Press, 1984); Stephen D. Krasner (ed.), International Regimes (Ithaca: Cornell University Press, 1983). 8   Kenneth W. Abbott, “Modern International Relations Theory:  A  Prospectus for International Lawyers,” Yale Journal of International Law 14 (1989): 335–​411. 9   See, e.g., Jeffrey L. Dunoff and Joel P. Trachtman, “The Law and Economics of International Law,” Yale Journal of International Law 24 (1999): 1–​59; Joel P. Trachtman, The Economic Structure of International Law (Cambridge, MA: Harvard University Press, 2008). 10   Barbara Koremenos, Charles Lipson, and Duncan Snidal, “The Rational Design of International Institutions,” International Organization 55 (2001): 761–​99. 11  Kal Raustiala, “Form and Substance in International Agreements,” American Journal of International Law 99 (2005): 581–​614; Andrew T. Guzman, “The Design of International Agreements,” European Journal of International Law 16 (2005): 579–​612. 7

 

64    law and politics of international organizations and flexibility in useful ways.12 Legal analysis can suggest important refinements to this work, in particular toward analysis of design features that RD either overlooks or unhelpfully aggregates. For example, where RD focuses on “dispute resolution,” lawyers might foreground more finely tuned design elements—​such as compulsory vs. noncompulsory jurisdiction, available remedies, whether private parties can initiate proceedings, the length and terms of judicial appointment—​that states carefully negotiate. These and other significant features of IO design have not, to date, been part of the RD project, but represent a potential research agenda for future RD work.13

Constructivism Constructivists provide a fundamentally different account of the “state interests” that drive realist and functionalist accounts of international organizations. Constructivists reject the claim that state interests exist prior to social interaction; rather interest and identity are a product of social interaction.14 As IOs provide focal points for state interactions, a large body of constructivist writings explores how IOs help to construct both issue areas and state interests. For example, constructivist writings detail how the World Bank helped redefine the concept of “development,”15 how the Organization for Security and Co-​operation in Europe helped reconceptualize the idea of a “security community,”16 and how the Organisation for Economic Co-​operation and Development (OECD) helped invent the concept of trade in services (a particularly impressive feat given that services were long thought to be inherently incapable of being traded across national borders).17 12  Barbara Koremenos, “If Only Half of International Agreements Have Dispute Resolution Provisions, Which Half Needs Explaining?,” Journal of Legal Studies 36 (2007):  189–​212; Laurence R. Helfer, “Flexibility in International Agreements,” in Interdisciplinary Perspectives on International Law and International Relations:  The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 175–​96. 13  Jeffrey L.  Dunoff and Mark A.  Pollack, “What Can International Relations Learn from International Law?,” Working Paper, Temple University Legal Studies Research Paper No. 2012-​14, 2013 (available on SSRN). 14  For excellent introductions to constructivist thought, see, e.g., Ian Hurd, “Constructivism,” in The Oxford Handbook of International Relations, ed. Duncan Snidal and Christian Reus-​Smit (Oxford: Oxford University Press, 2008), 298–​316; Alexander Wendt, “Anarchy is what states make of it: the social construction of power politics,” International Organization 46 (1992): 391–​425. 15  See, e.g., Martha Finnemore, “Redefining Development at the World Bank,” in International Development and the Social Sciences, ed. Frederick Cooper and Randall Packard (Berkeley: University of California Press, 1998), 203–​27. 16  Emanuel Adler and Michael Barnett (eds.), Security Communities (New  York:  Cambridge University Press, 1998). 17  William Drake and Kalypso Nicolaidis, “Ideas, Interests, and Institutionalization:  ‘Trade in Services’ and the Uruguay Round,” International Organization 46 (1992): 37–​100.

 

theory   65 Early constructivist writings illuminated the macrofoundations of state behavior and identity but were less successful in explaining the microprocesses of how actors receive, internalize, and act upon norms. To address these shortcomings, scholars have explored whether and how IOs contribute to policy diffusion,18 promote state acculturation to international legal norms,19 and persuade states to comply with legal rules.20 An international legal process school complements these approaches by highlighting how those who seek compliance with international legal norms can trigger interactions intended to yield legal interpretations that, in turn, are internalized by states and other actors.21 More recently, constructivist scholars have utilized a “communities of practice” approach. “Communities of practice” refers not only to “intersubjective social structures that constitute the normative and epistemic ground for action,” but also to the actual practices of individuals “who—​working via network channels, across national borders, across organizational divides, and in the halls of government—​ affect political, economic, and social events.”22 Brunnée and Toope utilize this approach in their theory of “international interactional law.” They claim that legal texts are merely the start, rather than the conclusion, of legal dialogue, and that IOs help to foster the density of continuous interactions that are necessary to make, remake, or unmake international law.23

Liberalism Liberal approaches open up the “black box” of the state to foreground the roles of individuals and social groups, and their relative power in society, as drivers of state policy. Liberalism’s central insight is that states are embedded in domestic and international civil society, which shapes the underlying preferences upon which state policy is based. Thus “state” foreign policies represent the interests of a subset 18  Martha Finnemore, “International Organizations as Teachers of Norms:  The United Nations Educational, Scientific, and Cultural Organization and Science Policy,” International Organization 47 (1993): 565–​97. 19  Ryan Goodman and Derek Jinks, “How to Influence States:  Socialization and International Human Rights Law,” Duke Law Journal 54 (2004): 621–​703. 20   Steven R. Ratner, “Persuading to Comply: On the Deployment and Avoidance of Legal Argumentation,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 568–​90. 21   e.g., Harold Hongju Koh, “Transnational Legal Process,” Nebraska Law Review 75 (1996): 181–​207. 22   Emanuel Adler and Vincent Pouliot, “International Practices: Introduction and Framework,” in International Practices, ed. Emanuel Adler and Vincent Pouliot (Cambridge: Cambridge University Press, 2011), 3–​35. 23  Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law: An Interactional Account (New York: Cambridge University Press, 2010). On the IR side, a provocative application of the communities of practice approach to international law can be found in Friedrich Kratochwil, The Status of Law in World Society: Meditations on the Role and Rule of Law (Cambridge: Cambridge University Press, 2014).

 

66    law and politics of international organizations of domestic political actors, and interstate behavior is driven primarily by patterns of state preferences, not state power.24 Moravcsik uses the nature and evolution of the international trade regime to illustrate liberal approaches.25 Over time, shifts in comparative advantage and intra-​industry trade generate strong variations in social preferences. In industrial trade, strong producer interests in developed states generally benefit from trade ­liberalization, and these interests successfully lobbied their governments to advocate for significant liberalization. In contrast, a lack of international competitiveness by agricultural interests in, for example, the United States, the European Union (EU), and Japan, has meant that powerful interests in these states often oppose liberalization, and international rules in this sector permit much greater amounts of protectionism. More recently, intellectual property owners in the United States and the EU, dissatisfied with status quo approaches to international intellectual property lawmaking at the World Intellectual Property Organization, successfully lobbied their governments to include internationally enforceable intellectual property norms in the trade system, eventually resulting in the WTO’s Agreement on Trade-​ Related Aspects of Intellectual Property Rights (TRIPs Agreement).26 Liberal approaches invite focus not simply on how domestic interest groups shape international rules and institutions, but also on how those rules and institutions, in turn, are used to shape domestic policy. For example, domestic political actors can use membership in international organizations to “lock in” long-​term reform goals; thus some argue that the Mexican government joined the North American Free Trade Agreement and the Chinese government joined the WTO, in part to advance domestic reform proposals and make policy reversals more difficult. Liberal approaches likewise shed light on state decisions to join human rights treaties. For example, in examining the origins of the European human rights system, Moravcsik argues that potentially unstable democracies are more likely than established democratic nations or dictatorships to join binding human rights treaties, as doing so can enhance their credibility and stability against nondemocratic political threats.27 Liberal approaches present important challenges to international legal theory and doctrine, which typically do not take the nature of regime-​type or domestic preferences into account. Legal scholars may find liberal perspectives to be fruitful when analyzing IOs that are intended to link with or impact domestic politics 24   Andrew Moravcsik, “Liberal Theories of International Law,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 83–​118. See also Andrew Moravcsik, “The New Liberalism,” in The Oxford Handbook of International Relations, ed. Christian Reus-​Smit and Duncan Snidal (Oxford: Oxford University Press, 2008), 234–​54. 25   Moravcsik, “Liberal Theories of International Law.” 26  e.g., Laurence R. Helfer, “Regime Shifting, the TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking,” Yale Journal of International Law 29 (2004): 1–​83. 27   Andrew Moravcsik, “The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe,” International Organization 54 (2000): 217–​52.

 

conceptual issues   67 or institutions. Thus, liberal approaches can inform debates over the design and effectiveness of human rights systems, how domestic constituencies can enhance compliance with IO rules and decisions,28 and whether and how IO membership impacts the quality of domestic democracy.29 *** IR’s disciplinary history reveals that conceptualizing the field in terms of competing theoretical traditions runs the risk of sparking a gladiatorial and unproductive “isms-​ war.” Aware of this risk, recent scholarship on IOs employs a pragmatic and eclectic approach to problem-​driven research and draws insights from different traditions, as appropriate.30 For example, Johnstone analyzes IO lawmaking through alternative lenses offered by different theoretical traditions,31 and Koremenos and Betz use a pragmatic “toolkit” approach to analyze the design of the dispute resolution systems found across different IOs.32 Underlying debates over “the end of theory,”33 however, are important—​and largely unexplored—​questions regarding the type of knowledge the discipline ought to pursue and how such knowledge is best attained.

Conceptual Issues This section explores three of the most prominent conceptual issues IO scholars have addressed in recent years, namely the distinct—​though intersecting—​issues of autonomy, accountability, and legitimacy. 28  For a good overview of the literature, see Joel P. Trachtman, “Open Economy Law,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 544–​67. 29  Robert O. Keohane, Stephen Macedo, and Andrew Moravcsik, “Democracy-​ Enhancing Multilateralism,” International Organization 63 (2009): 1–​31. 30   Jeffrey L. Dunoff and Mark A. Pollack, “Reviewing Two Decades of IL/​IR Scholarship: What We’ve Learned, What’s Next,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 626–​61; Peter J. Katzenstein and Rudra Sil, “Eclectic Theorizing in the Study of International Relations,” in The Oxford Handbook of International Relations, ed. Christian Reus-​Smit and Duncan Snidal (Oxford: Oxford University Press, 2008), 109–​30. 31   Ian Johnstone, “Law-​Making by International Organizations: Perspectives from IL/​IR Theory,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 266–​92. 32  Barbara Koremenos and Timm Betz, “The Design of Dispute Settlement Procedures in International Agreements,” in Interdisciplinary Perspectives on International Law and International Relations:  The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New  York:  Cambridge University Press, 2013), 371–​93. 33   Colin Wight, Lene Hansen, and Tim Dunne (eds.), “Special Issue:  The End of International Relations Theory?,” European Journal of International Relations 19 (2013): 405–​665.

 

68    law and politics of international organizations

Autonomy Much IR theory views IOs as reflecting the overlapping interests of, and power dynamics among, member states. As a result, IOs are understood as fora for interstate policy cooperation (or competition). In recent years, however, a substantial literature argues that IOs routinely act in ways unanticipated by their founding documents and not formally authorized by their members. These claims, in turn, have sparked theoretical debates over the extent to which IOs can usefully be considered autonomous actors. Although the issue was not always free from doubt, international legal doctrine has long recognized IO autonomy, at least in the sense of independent legal personality. The landmark 1949 advisory opinion of the International Court of Justice (ICJ) in the Reparations case found that the UN possessed international legal personality and could bring a legal claim on its own behalf, notwithstanding the UN Charter’s silence on both issues. The Court reasoned that “[u]‌nder international law, the [UN] must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as essential to the performance of its duties.”34 In adopting this functionalist logic, the Court: structured the entire modern discourse on the limits of powers of international organizations … It recognized not only the notion of implied powers for entities, unchaining the institution from the literal text of its constituent instrument. It also acknowledged that these organizations were evolving creations, capable of expanding their rights and duties and living their international life to the fullest.35

IR scholarship did not foreground IO autonomy until later, as traditional realist approaches that view IOs as reflections of state interests leave little room for IO independence. Rationalist approaches, on the other hand, emphasize that states have substantial interests in conferring some measure of autonomy on IOs, as doing so enables states to make credible commitments that enhance international cooperation. More particularly, a degree of autonomy permits IOs to act as neutral ­mediators or in a judicial or quasi-​judicial capacity, such as the WTO’s Appellate Body and International Centre for Settlement of Investment Disputes arbitral tribunals; as focal points for information and action in cases of natural or man-​made disasters, such as the International Atomic Energy Agency’s role after the Fukushima accident; and as sources of authoritative data on controversial or contentious issues, such as the Intergovernmental Panel on Climate Change’s influential scientific assessments of climate change and a September 2013 UN report on the use of chemical weapons in Syria. 34   Reparation for Injuries Suffered in the Service of the United Nations, 1949 ICJ 174 (Advisory Opinion of April 11). 35  David J. Bederman, “The Souls of International Organizations:  Legal Personality and the Lighthouse at Cape Spartel,” Virginia Journal of International Law 36 (1996): 275–​377.

 

conceptual issues   69 In addition, constructivists and others have detailed how IO officials can influence negotiation agendas and act as epistemic communities that develop and transmit new ideas about international governance. For example, IR scholars have debated how and when the UN Secretary-​General can act as a “norm entrepreneur,”36 and lawyers have contributed important case studies on the ways that international officials shape agendas and impact international outcomes, such as Hudec’s classic study of the General Agreement on Tariffs and Trade (GATT) Secretariat’s role in the reform of dispute resolution processes.37 Finally, as noted below, scholars from both disciplines have explored the ways in which large IOs can use knowledge and expertise, as well as their capacity for organized behavior, to influence state behavior. One common theoretical approach to analyzing IO autonomy has been principal–​agent (PA) theory. This approach usefully directs attention to a recurrent set of problems that exist in PA relationships, as the interests of the principal and those of the agent can diverge in predictable ways.38 PA theory also identifies a number of strategies that (state) principals might use to control their (IO) agents, such as detailed treaty provisions, screening and selection of IO officials, reporting requirements, budgetary controls, and sanctions. PA approaches have fruitfully been applied to describe the historical and functional patterns of delegation to EU institutions,39 the processes and causal mechanisms of institutional reform at the World Bank,40 the motivations that lead states to create international tribunals,41 and, subsequently, to variations among delegations to IOs more generally.42 36   Ian Johnstone, “The Secretary-​General as Norm Entrepreneur,” in Secretary or General? The UN Secretary-​General in World Politics, ed. Simon Chesterman (New York: Cambridge University Press, 2007), 123–​38. 37   Robert E. Hudec, “The Role of the GATT Secretariat in the Evolution of the WTO Dispute Settlement Procedure,” in The Uruguay Round and Beyond:  Essays in Honour of Arthur Dunkel, ed. Jagdish Bhagwati and Mathias Hirsch (Berlin: Springer-​Verlag, 1998), 101–​20. 38   See, e.g., Darren G. Hawkins et al. (eds.), Delegation and Agency in International Organizations (New York: Cambridge University Press, 2006). 39   See, e.g., Mark A. Pollack, The Engines of European Integration: Delegation, Agency and Agenda Setting in the European Union (New York: Oxford University Press, 2003). 40   Daniel L. Nielson and Michael J. Tierney, “Delegation to International Organizations:  Agency Theory and World Bank Environmental Reform,” International Organization 57 (2003): 241–​76. 41   As to whether international courts are more usefully considered to be “agents” or “trustees,” compare Manfred Elsig and Mark A. Pollack, “Agents, Trustees, and International Courts: The Politics of Judicial Appointment at the World Trade Organization,” European Journal of International Relations 20 (2012): 391–​415; Karen J. Alter, “Agents or Trustees? International Courts in their Political Context,” European Journal of International Relations 14 (2008): 33–​63. For thoughtful reflections from legal scholars on how states can control international tribunals, see Jacob Katz Cogan, “Competition and Control in International Adjudication,” Virginia Journal of International Law 48 (2008): 411–​49; Laurence R. Helfer, “Why States Create International Tribunals: A Theory of Constrained Independence,” in International Conflict Resolution, ed. Stefan Voigt, Max Albert, and Dieter Schmidtchen (Tubingen: Mohr Siebeck, 2006), 255–​76. 42   Hawkins et al. (eds.), Delegation and Agency in International Organizations.

 

70    law and politics of international organizations The legal literature distinguishes among different ways that states can confer powers on IOs, including agency, delegation, and transfer,43 but has generally focused on the concept of “delegation.”44 This analytic focus, in turn, has triggered lively debates over whether delegations to IOs impair or enhance state sovereignty,45 the different types of delegation that exist,46 and even whether much delegation occurs in the first place.47 Significantly, the debates that animate the literature in both disciplines view IO autonomy, and delegations to IOs, largely through the lens of state interests. But these state-​centric approaches risk introducing at least two distortions. First, they presuppose that states and IOs are locked into a competition where specific powers are allocated to either the domestic or international level,48 in much the same way that national and sub-​national governments are sometimes understood to compete for authority. But seeing only a zero-​sum antagonism between states and IOs elides the extent to which participation in IOs can enhance state authority and the ways in which IO autonomy can shield states from accountability. More importantly, conceptualizing IO competence as simply a result of powers transferred by states provides an incomplete and potentially misleading analysis of IO powers. As Alvarez notes: It is contestable whether … those present at the creation of particular IOs thought that they were establishing organizational agents or vessels for the delegation or transfer of their own powers. Those who established the United Nations or the IMF would appear to have consciously devised institutions with a capacity to take action—​and to devise forms of lawmaking—​unique to these representatives of the international community. IOs, on this view, are capable of taking legal action because they are organs of the collective and, because of this feature, enjoy powers that only they can exercise. They are not the product of any one state’s delegation or transfer of power, and their powers are not those of those “sovereigns” as these are traditionally understood. And even if that was not the original intent, IOs have since deployed considerable implied lawmaking powers not capable of being exercised by traditional state sovereigns.49 43   Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers (New  York: Oxford University Press, 2005). 44   See, e.g., Curtis A. Bradley and Judith G. Kelley, “The Concept of International Delegation,” Law & Contemporary Problems 71 (2008): 1–​36. 45   e.g. Oona Hathaway, “International Delegation and State Sovereignty,” Law and Contemporary Problems 71 (2008): 115–​49. 46  See, e.g., Ian Johnstone, “Law-​ Making by International Organizations,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 266–​92 (surveying different definitions of ­delegation and suggesting that the concept of delegation may be overly reductive). 47   Andrew T. Guzman and Jennifer Landsidle, “The Myth of International Delegation,” California Law Review 96 (2008): 1693–​724. 48   Jan Klabbers, An Introduction to International Institutional Law (New York: Cambridge University Press, 2002), 336 (conceiving states and IOs as caught in a zero-​sum conflict “is the one thought that dominates the field”). 49   Jose Alvarez, review of International Organizations and Their Exercise of Sovereign Powers, by Dan Sarooshi. American Journal of International Law 101 (2007): 674–​9.

 

conceptual issues   71 The insight that an IO can be greater than the sum of its constituent parts suggests an alternative—​and underdeveloped—​approach to IO autonomy that begins with IO, rather than state, interests. IO preferences can result from an organization’s social context and internal culture, which produce “a set of collectively held prescriptions about the right way to think and act.”50 Barnett and Finnemore pursue this line of analysis in their treatment of IOs as bureaucracies that exercise particular institutional forms of social authority that follow their own internal logic. They use this approach to analyze how, for example, the International Monetary Fund (IMF) used technical advice and conditionality programs to become deeply involved in domestic economies in ways that its founders rejected, and how the UN High Commissioner for Refugees (UNHCR) over time greatly expanded both the categories of people it assists and the types of assistance it can provide.51 Historically, many leading international lawyers viewed autonomous IOs as essential to securing the rule of law in international affairs. However, as IOs began to exercise increasing powers, critics argued that IO policy choices and agendas were not necessarily as normatively desirable as international lawyers traditionally supposed. Recognition of the ambiguities and tensions associated with IO autonomy have led to increasing pressures for accountability with respect to the exercise of IO legal and political power, a topic to which we now turn.

Accountability As suggested above, calls for IO accountability follow from the enhanced exercise of power and authority by IOs. A number of high-​profile incidents, ranging from the oil-​for-​food scandal in Iraq to the role of UN peacekeepers in triggering a cholera outbreak in Haiti, have intensified these demands, which now come from states, nonstate actors impacted by IO activities, and other IOs. Given the substantial institutional and structural differences between international and domestic systems, accountability mechanisms on the international plane are quite different from their national-​level analogues; these emerging practices have prompted a rethinking of the concept, aims, and forms of accountability. International legal scholarship has traditionally approached accountability via the doctrines of state responsibility and state liability. A  large literature, discussed in several chapters in Part VIII of this volume, explores the conceptual and practical difficulties of extending these doctrines to IOs. Rather than revisit those   Jeffrey Legro, “Which Norms Matter? Revisiting the Failure of Internationalism,” International Organizations 51 (2007): 31–​63; see also Alastair Iain Johnston, “Treating International Institutions as Social Environments,” International Studies Quarterly 45 (2001): 487–​515. 51   Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in World Politics (Ithaca: Cornell University Press, 2004). 50

 

72    law and politics of international organizations debates here, I seek to supplement those discussions by identifying some alternative approaches to accountability that have recently emerged in the literature. International law provides no definition of “accountability”; both IL and IR scholars have employed a notion of accountability that “implies that some actors have the right to hold other actors to a set of standards, to judge whether they have fulfilled their responsibilities in light of these standards, and to impose sanctions if they determine that these responsibilities have not been met.”52 Accountability ­mechanisms thus operate after the fact: reviewing, judging, and sanctioning IO actions.53 Keohane and Grant broadly distinguish between two different models of accountability:  a “delegation” and a “participation” model, which differ fundamentally in the identity of the actors entitled to hold accountable those who wield power. In the ­delegation model, performance is evaluated by those delegating powers to the IOs; in the participation model, it is judged by those who are affected by IO actions. These different models have implications for the design of accountability mechanisms. Consider, for example, the World Bank and IMF. From the perspective of the delegation model, the international financial institutions are properly accountable to the major financial powers that created and fund them. The competing participation model argues that accountability should run to the populations of states impacted by World Bank or IMF programs. In practice, effective accountability mechanisms contain elements of both models, and IOs are now measured and ranked in terms of their transparency, participation, evaluation of operations, and quality of complaint and response mechanisms.54 In legal scholarship, an influential approach to IO accountability is found in the “global administrative law” (GAL) literature. The central insight of GAL scholars is that much contemporary global governance takes the form of regulation and administration, and GAL writings examine: [the] legal mechanisms, principles and practices, along with supporting social understandings, that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring that these bodies meet adequate standards of transparency, consultation, participation, rationality and legality, and by providing effective review of the rules and decisions these bodies make.55

  Robert O. Keohane and Ruth Grant, “Accountability and Abuses of Power in World Politics,” American Political Science Review 99 (2005):  29–​43, 29. See also Allen Buchanan and Robert O. Keohane, “The Legitimacy of Global Governance Institutions,” Ethics and International Affairs 20 (2006): 405–​37 (accountability mechanisms must facilitate principled, factually informed deliberation over revising the terms of accountability). 53   Keohane and Grant, “Accountability and Abuses of Power.” Of course, they can exert effects ex ante, as the anticipation of review and potential sanctions may deter certain actions from occurring in the first place. 54   Perhaps the best-​known report on IO accountability is that of the nongovernmental ­organization One World Trust. See Robert Lloyd, Shana Warren, and Michael Hammer, The 2008 Global Accountability Report (London: One World Trust, 2008). 55   Nico Krisch and Benedict Kingsbury, “Introduction: Global Governance and Global Administrative Law in the International Legal Order,” European Journal of International Law 17 (2006): 1–​13. 52

 

conceptual issues   73 GAL highlights what might be called “intra-​regime accountability,” or mechanisms designed to ensure that the various components of IOs perform their appointed roles and conform to the IO’s internal law. Accountability mechanisms that have been explored through a GAL lens include the World Bank’s Inspection Panel,56 evolving administrative mechanisms related to UN sanctions lists,57 and the use of notice and comment processes by the Basel Committee on Banking Supervision.58 In addition, IR and IL scholars have devoted significant attention to the role of courts as accountability mechanisms, with particular focus on the political dynamics and doctrinal developments that enabled the European Court of Justice (ECJ) to review acts of other EU organs for conformity with EU law (giving rise, in turn, to questions whether the ECJ is accountable), and the normative desirability of having the ICJ or other courts review acts by the Security Council.59 Another strand in the literature explores whether judicial review of IO acts by domestic courts can contribute to securing the accountability of international organizations.60 While accountability is desirable for its own sake, it is often understood as a ­critical element of the legitimacy of international organizations. Legitimacy is thoroughly analyzed in Dominic Zaum’s contribution to this volume. However, given its prominence, legitimacy deserves mention in any survey of conceptual issues prominent in recent IO scholarship, and a brief discussion follows.

Legitimacy Historically, questions concerning the legitimacy of IOs did not receive sustained scholarly attention. But as IOs have expanded their powers and reach, and as claims of state “consent” to IO decisions and rules seem ever more attenuated, questions of legitimacy have come to the fore.61 Key questions in these debates include the conceptual issue of what the term legitimacy means, the normative issue of which criteria mark an IO as legitimate, the descriptive issue of which standard(s) different 56   Daniel D. Bradlow, “The Reform of the Governance of the IFIs: A Critical Assessment,” The World Bank Legal Review 3 (2012): 37–​58. 57   Ian Johnstone, “Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit,” American Journal of International Law 102 (2008): 275–​308. 58   Michael Barr and Geoffrey Miller, “Global Administrative Law: The View from Basel,” European Journal of International Law 17 (2006): 15–​46. 59  e.g., José Alvarez, “Judging the Security Council,” American Journal of International Law 90 (1996):  1–​39; Gráinne de Búrca, “The European Court of Justice and the International Legal Order After Kadi,” Harvard International Law Journal 50 (2010): 1–​49. 60   e.g., August Reinisch, Challenging Acts of International Organizations Before National Courts (Oxford: Oxford University Press, 2010). 61  See, e.g., Ian Hurd, Legitimacy and Power in the United Nations Security Council (Princeton: Princeton University Press, 2007); Rüdiger Wolfrum and Voker Röben (eds.), Legitimacy in International Law (Berlin: Springer, 2008).

 

74    law and politics of international organizations actors use in assessing the legitimacy of IOs, and the causal issue of what explains why some IOs are accepted as legitimate while others are not.62 As a conceptual matter, legitimacy is often understood as related to the justification and acceptance of political authority.63 Thus, a legitimate institution or leader has a right to exercise authority (or govern); an illegitimate one does not. Legitimacy thus fundamentally differs from two other bases of influence: persuasion and power.64 Rational persuasion convinces based on the merits of a decision. Legitimacy also differs from compulsion, even though both may produce compliance. Unlike compulsion, legitimacy has a normative quality: a legitimate institution is “morally justified in attempting to govern.”65 The IL and IR literatures distinguish between the sociological and normative dimensions of legitimacy. An institution has sociological legitimacy “when it is widely believed to have the right to rule”:66 when its decisions are accepted not out of compulsion or self-​interest but because actors accept the institution’s right to rule.67 Normative legitimacy, in contrast, rests on the justifications or rationales offered in support of an institution’s right to rule. It reflects the “worthiness of a political order to be recognized.”68 Early normative work questioning the legitimacy of IOs, including prominently the EU and WTO, focused on their “democratic deficit.”69 However, more recent writings move away from democracy as a touchstone for IO legitimacy—​in part because many believe that the conditions for global democracy are impossible to realize under any realistically foreseeable set of conditions, and in part because IO authority is less than that of domestic governments, and therefore requires a less robust normative justification.

62  Daniel Bodansky, “Legitimacy in International Law and International Relations,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013), 321–​41. This section of the chapter draws heavily upon Bodansky’s excellent overview of the relevant literature. 63   David Beetham, The Legitimation of Power (Basingstoke: Macmillan, 1991). 64   Bodansky, “Legitimacy in International Law and International Relations.” An important body of literature questions whether legitimacy can or should be sharply distinguished from persuasion, in so far as both rest upon justificatory efforts to ground political authority. See, e.g., Ian Johnstone, The Power of Deliberation: International Law, Politics and Organizations (New York: Oxford University Press, 2011); Ian Clark, Legitimacy in International Society (Oxford: Oxford University Press, 2005). 65   Allen Buchanan, “The Legitimacy of International Law,” in The Philosophy of International Law, ed. John Tasioulas and Samantha Besson (Oxford: Oxford University Press, 2010), 79–​96, 85. 66   Allen Buchanan and Robert O. Keohane, “The Legitimacy of Global Governance Institutions,” Ethics & International Affairs 20 (2006): 405–​37, 405. 67   Ian Hurd, “Legitimacy and Authority in International Politics,” International Organization 53 (1999): 379–​408. 68  Jürgen Habermas, Communication and the Evolution of Society, trans. Thomas McCarthy (Boston: Beacon Press, 1979), 178. 69   Eric Stein, “International Integration and Democracy: No Love at First Sight,” American Journal of International Law 95 (2001): 489–​534. An influential critique of the “democracy deficit” literature

 

conceptual issues   75 Scholars have identified a wide array of procedural and substantive factors that arguably contribute to normative legitimacy. IR writings often classify these factors in terms of whether they contribute to input-​ or output-​based legitimacy.70 Input-​ based approaches view IO legitimacy as deriving from the procedures IOs follow in reaching decisions. Output-​based legitimacy looks at results: does the IO solve the problems it was designed to solve? Are its outcomes equitable and rights-​respecting? International lawyers supplement these approaches with theories that often focus more on the legitimacy of rules and rule systems than on that of organizations. For example, Franck argued that the legitimacy of international law rests on four properties of legal rules: determinacy (clarity of content), symbolic validation (including ritual and pedigree), consistency, and adherence (conformity with the legal system’s procedural norms about rule creation).71 More recently, Brunnée and Toope developed a theory of legal legitimacy influenced by Fuller’s notion of the “internal morality of the law,” requiring features such as generality, public promulgation, prospectivity, intelligibility, consistency, stability, and congruence with official action. 72 As Bodansky notes, much of the scholarship in both disciplines seems to assume a single or universal criteria against which IO legitimacy can be measured. But the diverse goals and functions of IOs invite consideration of whether a general theory of IO legitimacy is available.73 Indeed, going forward, “political scientists and international lawyers may … need to take a more differentiated, contextual approach in studying [the] normative legitimacy [of international organizations].”74 To be sure, some eminent international lawyers have resisted the emphasis on legitimacy, focusing on the term’s semantic ambiguity and its supposed tendency to displace legal discourse.75 Whatever the force of these critiques, international lawyers would ignore debates over IO legitimacy at their peril. Legitimacy continues to occupy a central position in our understanding and evaluation of governance institutions. The concept also offers a powerful rhetorical frame for debates over whether particular IOs deserve our support. Thus, questions about legitimacy will continue to be at the heart of popular and scholarly debates over IOs. is found in Andrew Moravcsik, “Is There a ‘Democratic Deficit’ in World Politics? A Framework for Analysis,” Government and Opposition 39 (2004): 336–​63. 70   Fritz W. Scharpf, Governing in Europe:  Effective and Democratic? (Oxford:  Oxford University Press, 1999). 71   Thomas M. Franck, The Power of Legitimacy among Nations (New  York:  Oxford University Press, 1990). 72   Brunnée and Toope, Legitimacy and Legality in International Law. 73   See, e.g., Monica Hlavac, “A Developmental Approach to the Legitimacy of Global Governance Institutions,” in Coercion and the State, ed. David A. Reidy and Walter J. Riker (New York: Springer, 2008), 203–​23. 74   Bodansky, “Legitimacy in International Law and International Relations,” 332. 75   See, e.g., Martti Koskenniemi, “Miserable Comforters: International Relations as the New Natural Law,” European Journal of International Law 15 (2009): 395–​422; James Crawford, “The Problems of Legitimacy-​Speak,” ASIL Proceedings 98 (2004): 271–3.

 

76    law and politics of international organizations

Policy Dilemmas This section examines policy dilemmas that have preoccupied IO scholars in recent years as well as some that will become more salient in the near future. All relate to the dramatic postwar proliferation of IOs that serves as the springboard for many of the chapters in this volume. This proliferation is sometimes celebrated as a concrete manifestation of the increasing legalization of international affairs. But proliferation is also potentially problematic. The jurisdictional ambits of different IOs increasingly overlap and, at times clash. Different—​and potentially conflicting—​legal rules emanating from different IOs invite forum shopping and undermine legal certainty. These dangers are magnified by the realities that IOs generally have nonhierarchical relationships with each other and that international law has few rules that address normative and institutional conflicts. For these reasons, the related issues of proliferation, overlap, and fragmentation pose a variety of practical and policy challenges. This section begins with an exploration of the political implications of the institutional fragmentation of the current international legal order. In short, does a densely institutionalized order produce distinctive politics and, if so, who benefits? The second issue to be addressed is how IO interactions in a highly fragmented order can best be managed. A more abstract version of this question asks whether the traditional focus on conflicting treaty norms and inconsistent judicial decisions adequately captures the way international regimes interact, and whether more fruitful conceptualizations are available. The final issue to be explored is the growing gap between the need for global solutions to pressing global issues and the apparently eroding ability of IOs to fill that need. Across a range of issues of international concern—​prominently including the environment, the economy, and security—​international bodies have in recent years been stymied by deep and seemingly intractable disagreement. The question that arises is why institutionalized international cooperation appears to be breaking down at precisely the moment it is most needed.

The Political Implications of Fragmentation International lawyers have long recognized the institutional and doctrinal fragmentation that marks the international legal system.76 However, diplomatic and scholarly concerns over fragmentation did not become prominent until a series of 76   In 1953, Jenks wrote that “the conflict of lawmaking treaties … must be accepted as being in certain circumstances an inevitable incident of growth [of international law].” C. Wilfred Jenks, “The Conflict of Law-​Making Treaties,” British Yearbook of International Law 30 (1953): 401–​53.

 

policy dilemmas   77 high-​visibility cases—​including a European Court of Human Rights decision on the effect of territorial reservations that diverged from the ICJ’s treatment of the issue, and an International Criminal Tribunal for the former Yugoslavia (ICTY) decision on state responsibility that rejected ICJ jurisprudence on the issue—​underscored the inconsistencies and uncertainties that can flow from proliferation and fragmentation. The ICJ’s President Judge encapsulated these concerns when he declared that “[t]‌he proliferation of international courts may jeopardize the unity of international law and, as a consequence, its role in inter-​State relations.”77 Scholars were quick to jump into the fray.78 Political scientists had long been interested in regime complexity, and now turned their attention to explaining why institutional overlap and fragmentation were not evenly distributed across issue areas. At one end of a continuum are “fully integrated institutions that impose regulation through comprehensive, hierarchical rules,”79 for example, the trade regime centered upon the GATT/​WTO (at least until the recent proliferation of preferential trade agreements). At the other pole are “highly fragmented collections of institutions with no identifiable core,” such as the international investment regime, with its over 2,500 separate bilateral investment treaties and no centralized treaty or institution. In the middle are “regime complexes” that are characterized by “connections between the specific and relatively narrow regimes but the absence of an overall architecture or hierarchy that structures the whole set.”80 A good example is the climate-​change regime, which has important multilateral bodies and t­reaties, such as the Intergovernmental Panel on Climate Change, the UN Framework Convention on Climate Change and Kyoto Protocol, but also includes increasing numbers of bilateral and regional arrangements, as well as climate programs at a number of other IOs, such as the World Bank. Keohane and Victor theorize that three factors help determine the level of integration of particular legal regimes. The first is the distribution of interests; when powerful actors share common interests, they will seek an integrated institution with no rivals. A  second factor is uncertainty; when the costs and benefits of ­cooperation are uncertain, states will favor smaller, club-​like entities over large integrated institutions. The third factor is linkage. Linkage between issues can enable trade-​offs that enhance cooperation. When linkage is difficult, fragmentation is more likely.81 Although states often devote substantial diplomatic effort to creating 77   Speech by H. E. Judge Gilbert Guillaume, President of the International Court of Justice, to the General Assembly of the United Nations, October 30, 2001. 78  For a comprehensive literature review, see Kal Raustiala, “Institutional Proliferation and the International Legal Order,” in Interdisciplinary Perspectives on International Law and International Relations:  The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New  York:  Cambridge University Press, 2013), 293–​320. 79   Robert O. Keohane and David G. Victor, “The Regime Complex for Climate Change,” Perspectives on Politics 9 (2011): 7–​23. 80 81  Ibid.  Ibid.

 

78    law and politics of international organizations fully integrated regimes, Keohane and Victor note that loosely coupled sets of narrow regimes—​that is, regime complexes—​offer the advantages of flexibility across issues and adaptability over time, and hence may be more effective in addressing certain types of international problems. International lawyers have been less concerned with divergent levels of institutional fragmentation across different issue areas than with fragmentation’s normative and doctrinal implications. In response to the concerns that fragmentation threatens legal certainty, a number of legal scholars claim that fragmentation’s dangers have been exaggerated. Some lawyers view fragmentation and proliferation as a desirable market-​like response to diversity that is preferable to more centralized and hierarchical alternatives. For example, Charney declared that he was “not troubled by the multiplicity of dispute settlement systems,” because: hierarchy and coherence are laudable goals for any legal system, including international law, but at the moment they are impossible goals. The benefits of the alternative, multiple forums, are worth the possible adverse consequences that may contribute to less coherence. The risk is low and the potential benefits to the peaceful settlement of international disputes is high.82

Related arguments, also sounding in market rhetoric, view proliferation positively. Thus, some argue that proliferation permits a healthy “competition” among international tribunals that will ensure that they act within their assigned mandates.83 Others suggest that aggrieved parties, such as human rights victims, benefit from being able to file claims in one of several available fora, at least in a context where no global body exists that can reliably be counted on to interpret and apply the law. Others claim that, whatever fragmentation’s potential dangers, traditional legal doctrine provides tools sufficient to address any difficulties. For example, an influential International Law Commission Study Group report argued that the Vienna Convention on the Law of Treaties and general international legal doctrine contains several rules that promote harmonization and manage conflicts, including norms governing conflicts between special and general rules, between prior and subsequent rules, between rules that operate on different hierarchical levels, and norms directing the rules be interpreted in light of the general system of international law.84 Crawford and Neville adopt a similar approach, and argue that, to date, international tribunals have generally managed to use interpretative techniques 82  Jonathan I. Charney, “The Implications of Expanding International Dispute Settlement Systems:  The 1982 Convention on the Law of the Sea,” American Journal of International Law 90 (1996): 69–​75. 83   Cogan, “Competition and Control in International Adjudication.” 84   Study Group of the ILC, “Fragmentation of International Law:  Difficulties Arising From the Diversification and Expansion of International Law,” A/​CN.4/​L682 (April 13, 2006).

 

policy dilemmas   79 that minimize the dangers associated with rule conflicts.85 However, others have sharply questioned whether international courts possess the doctrinal tools or the normative authority to resolve conflicts between rules originating in different international legal regimes.86 Finally, both IL and IR scholars have addressed who benefits from proliferation and fragmentation.87 Much of the analysis centers on the fact that proliferation creates the possibility of forum shopping, and for states even to exit one institution for another. In an early contribution to this literature, Helfer detailed how the expansion of intellectual property rights in the WTO’s TRIPs agreement prompted developing states to raise their concerns over intellectual property protections in a variety of international venues, including the World Health Organization (WHO), Food and Agricultural Organization (FAO) and UN Commission on Human Rights.88 Helfer argues that developing states consciously pursued a strategy of “regime shifting”—​moving substantive issues from the agenda of one IO to that of another—​in order to challenge, undermine and, ultimately, revise TRIPs norms. Subsequent studies argue that more powerful states will more commonly benefit from institutional fragmentation.89 For example, given their greater resources and bureaucratic capacity, powerful states will have greater ability to exit—​or threaten to exit—​any given venue in the event its interests are not satisfied. Weaker states will generally not enjoy the same leverage.90 Paradoxically, then, a very densely institutionalized international legal order may provide great powers as much freedom of movement as an anarchical order.91 More broadly, fragmentation benefits powerful actors in a more general sense as it threatens “the fundamental ability of the international order to remain—​or become—​a rule-​based system that constrains the strong as well as the weak.”92 In short, greater degrees of fragmentation imply greater ambiguity about the content of relevant rules, which hampers efforts to use law to restrain powerful actors.

85   James Crawford and Penelope Nevill, “Relations between International Courts and Tribunals: The ‘Regime Problem’,” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret Young (Cambridge: Cambridge University Press, 2012), 235–​60. 86   Jeffrey L. Dunoff, “A New Approach to Regime Interaction,” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret Young (Cambridge: Cambridge University Press, 2012), 136–​74. 87   For a review of the literature, see Raustiala, “Institutional Proliferation and the International Legal Order.” 88   Helfer, “Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking.” 89  Eyal Benvenisti and George Downs, “The Empire’s New Clothes: Political Economy and the Fragmentation of International Law,” Stanford Law Review 60 (2007): 595–​631; Daniel Drezner, “The Power and Peril of International Regime Complexity,” Perspectives on Politics 7 (2009): 65–​70. 90   Benvenisti and Downs, “The Empire’s New Clothes.” 91 92   Raustiala, “Institutional Proliferation and the International Legal Order.”   Ibid., 314.

 

80    law and politics of international organizations The recognition that a densely institutionalized order benefits stronger states suggests that fragmentation may not be an accidental or path-​dependent response to increasing interdependence. Benvenisti and Downs argue that: a fragmented system’s piecemeal character suggests an absence of design and obscures the role of intentionality. As a result, it is often considered to be solely the accidental byproduct of historical events and broad social forces. This has helped obscure the fact that fragmentation is in part the result of a calculated strategy by powerful states to create a legal order that both closely reflects their interests and that only they have the capacity to alter.93

As Raustiala notes, this argument suggests a deeply ironic coda to the exercise of postwar institution-​building. After World War II, the United States created a distinctive type of international order. Although the United States was the dominant state, the postwar IOs it helped found served not only the United States, but also a broader range of interests. Moreover, because of its formal and law-​based nature, this order imposed some constraints upon even the most powerful states. As Ikenberry famously explains, “The United States sought to take advantage of the postwar juncture to lock in a set of institutions that would serve its interests well into the future, and, in return, offered … to restrain and commit itself by operating within an array of postwar economic, political, and security institutions.”94 But, if Benvenisti and Downs are correct about fragmentation being a conscious strategy pursued by powerful states, then the United States today may have shifted tactics. Raustiala suggests that, instead of devoting diplomatic energies to building multilateral institutions, the United States may now be pursuing a strategy of proliferation and fragmentation that has the effect of weakening IO restraints—​thereby creating greater latitude for the United States to pursue whatever policies it desires.95

Mismanaging—​and Misunderstanding— ​Regime Interaction The policy challenges posed by proliferation and fragmentation are much broader and deeper than suggested by the standard debates in this area. As noted above, the literature has approached proliferation as presenting problems of rule conflict and coordination. The scholarly focus on high-​profile litigations involving the intersection of legal regimes—​such as the Tadic or Kadi cases96—​leads to a conceptualization   Benvenisti and Downs, “The Empire’s New Clothes,” 597–​8.   G. John Ikenberry, After Victory (Princeton, NJ: Princeton University Press, 2001), 164. 95   Raustiala, “Institutional Proliferation and the International Legal Order.” 96   In its Tadic decision, the ICTY Appeals Chamber rejected a test for the attribution of state responsibility that the ICJ developed in its Nicaragua decision and articulated an alternative test. In Kadi, the ECJ found that the guarantee of fundamental rights under the EU treaties could not be trumped by a binding obligation arising under the Security Council’s Chapter VII powers. 93

94

 

policy dilemmas   81 of regime interaction in terms of discrete transactions or disputes. This “transactional” model of regime interaction has exercised immense direct and indirect influence on efforts to understand regime interactions. However, the “transactional” model is highly misleading. The overwhelming majority of regime interactions—​and the most significant interactions—​do not arise out of discrete transactions, and do not give rise to high-​profile litigation. Rather, most of the regime interaction resulting from proliferation occurs in ongoing relationships among actors from different regimes that take place far outside international courthouses. For ease of exposition, we might label these “relational” interactions97 as “regulatory,” “operational,” and “conceptual” interactions. Regulatory interactions include a wide range of regulatory and administrative decisions and management that involve more than one IO. One controversial example involves efforts to ban the pesticide DDT. During negotiations over the Convention on Persistent Organic Pollutants (POPs Convention), a broad coalition of environmental groups lobbied to ban use of DDT. Many developing states and public health advocates opposed this effort, arguing that DDT was highly effective against malaria, a disease that imposes significant costs in developing states, and that no feasible alternative was available. The WHO played an active role in the negotiations and argued that a ban was premature. This position prevailed; the treaty restricts but does not ban use of DDT. More importantly, the treaty expressly contemplates an ongoing series of interactions between actors from the WHO and the POPs Convention. The treaty provides that parties can only use DDT in accordance with WHO guidelines; hence changes generated by one IO, the WHO, will automatically produce regulatory changes in another international regulatory regime. In addition, the treaty provides that every three years treaty parties will consult with the WHO to determine whether there is still a need to permit the use of DDT. Other examples abound. A  number of IOs—​ including the WHO, OECD, FAO, International Labour Organization (ILO), UN Environment Programme (UNEP) and others—​created the Inter-​Organization for the Sound Management of Chemicals, which has created a globally harmonized system for the classification and labeling of chemicals. The ILO, the International Maritime Organization and the Basel Secretariat were centrally involved in efforts to negotiate a treaty addressing the issue of ship scrapping. Actors from the WTO, UN Convention on the Law of the Sea, the FAO, Convention on International Trade in Endangered Species, and regional fisheries management organizations have engaged in a continuing and iterative exchange designed to reduce fisheries subsidies.98 97   In drawing a conceptual distinction between “transactional” and “relational” interactions, I draw upon and extend insights found in Daryl Levinson, “Framing Transactions in Constitutional Law,” Yale Law Journal 111 (2002): 1311–​90; Ian Macneil, Contracts: Exchange Transactions and Relations, 2nd ed. (New York: Foundation Press, 1978). 98   Margaret Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (Cambridge: Cambridge University Press, 2011).

 

82    law and politics of international organizations As these examples suggest, IOs frequently engage in ongoing, collaborative interactions that can be understood as forms of regulatory and administrative lawmaking. To date, however, this frequently productive and often underappreciated form of international lawmaking by IOs has been virtually ignored by scholars. Moreover, IOs also increasingly engage in operational interactions. Perhaps the best known example is UNAIDS, a joint venture of ten ‘co-​sponsors’ constituting a broad array of IOs, including the UNHCR, the UN Children’s Fund, the ILO, the UN Development Programme (UNDP), the UN Educational, Scientific and Cultural Organization, the WHO, and the World Bank. These IOs coordinate their operational activities in addressing the HIV/​AIDS problem to minimize duplication and maximize the efficient and effective use of international resources. In the environmental area, the Global Environment Facility was started as a partnership among the World Bank, UNEP and UNDP to fund efforts to fulfill global environmental objectives. It has been restructured over the years, and now not only includes more partners, but also works closely with the secretariats of a number of treaty bodies, including the Convention on Biological Diversity, the UN Framework Convention on Climate Change, UN Convention to Combat Desertification, and the Mercury Convention. In the economic area, the “Aid for Trade” program provides technical assistance to developing states to help them develop trade strategies, negotiate more effectively, and implement WTO commitments. Developing states can access funds for these purposes through the Enhanced Integrated Framework, a partnership among the WTO, World Bank, UNDP, UN Conference on Trade and Development, International Trade Centre, IMF, and the UN Industrial Development Organization. And in the humanitarian area, the UNHCR and the UN Relief Works Agency have collaborated on ­operational relief for Palestinian refugees in ways that arguably extend beyond their mandates. In each of these areas—​and many others—​IOs work together in ways that not only impact operations on the ground, but in many cases that make policy and generate new norms. Finally, IOs work together not only to produce rules and standards, but to produce knowledge. As noted above, scholars have already explored how IOs create social knowledge, such as when the World Bank redefines the meaning of “development,” or the UNHCR changes our understanding of the term “refugee.” Increasingly, IOs engage in collaborative undertakings designed to advance and change our understandings of salient policy areas. Notably, these conceptual interactions are not intended to create new rules or resolve particular disputes. Instead, they operate at a higher level of generality, and often reflect efforts to reconceptualize difficult or controversial policy domains. Thus, they are designed to offer new ways of understanding our world, as a precursor to acting in the world. By way of example, review of several recent initiatives involving the WTO provides a sense of how widespread this form of IO interaction is.

 

policy dilemmas   83 One of the most intellectually ambitious projects is the “Made in the World” initiative, which centers around a joint OECD–​WTO trade database. This initiative seeks to create new statistical frameworks and accounting systems to measure world trade. At one level, this is a technical exercise in data gathering and analysis of interest to statisticians and economists at these two IOs, and few others. But beneath the technocratic surface, this initiative aims to substantially revise our understanding of international trade—​and potentially to transform international trade politics.99 Enthusiasm for new trade liberalization initiatives in the United States and the EU—​the traditional drivers of global trade policy—​has cooled considerably in recent years. In the United States, in particular, concerns have grown over trade’s impact on domestic employment and on large and growing trade imbalances, particularly with emerging markets such as China. Recognizing that persistent reports of large trade imbalances have sapped public support for trade liberalization efforts, the WTO has embarked on a sustained effort to reconceptualize trade flows. As the WTO’s Director-General explained: As recently as 30  years ago, products were assembled in one country, using inputs from that same country. Measuring trades was thus easy. 2011 is very different. Manufacturing is driven by global supply chains, while most imports should be stamped “made globally” not “made in China”, or similar … With trade imbalances causing friction between leading economies, the measures we use can gravely exacerbate geopolitical tensions at a time when cooperation is more vital than ever.100

The new model substantially redefines bilateral trade flows. In the words of the WTO’s Director-General, “such politically relevant imbalances like the US trade deficit with respect to China are reduced by more than 30%” under the new model.101 Moreover, the new statistical model emphasizes the role of high value-​added services in global value chains; in so doing it underscores where developed states enjoy a comparative advantage and “where trade has created jobs for them.”102 Clearly, whatever its other merits, the new model is intended to change understandings of international trade’s impact in developed states, such as the US, that have traditionally been the engines driving trade liberalization. As the Director-General ­summarizes, the point of the exercise is that “better statistics today will contribute to better policies tomorrow.” The WTO has engaged in similar conceptual interactions designed to produce “better policies tomorrow” with other IOs as well. For example, in 2009, the WTO

99  Jeffrey L. Dunoff, “China’s Role in the Evolving Global Order:  Reflections on Ten Years of Membership in the World Trade Organization,” (Chinese) Journal of International Economic Law 18 (2012). 100   Pascal Lamy, “‘Made in China’ Tells Us Little about Global Trade,” Financial Times, January 24, 2011. 101   Pascal Lamy, “Better Statistics Today Will Contribute to Better Policies Tomorrow” (speech presented at OECD, Paris, January 16, 2013), https://​www.wto.org/​english/​news_​e/​sppl_​e/​sppl261_​e.htm. 102  Ibid.

 

84    law and politics of international organizations and UNEP jointly published a report addressing the linkages between trade and climate change. Issued at a critical time in negotiations over a post-​Kyoto climate treaty, the joint WTO/​UNEP report challenges the conventional wisdom that efforts to liberalize trade are in considerable tension with efforts to combat climate change. The report argues that trade liberalization can have a positive effect on greenhouse gas emissions by, inter alia, accelerating the transfer of clean technologies. The report also discusses, at length, two controversial pricing mechanisms that can be used to control greenhouse gas emissions:  taxes and emissions trading systems. Like the joint undertaking between the WTO and OECD, the joint WTO/​UNEP report does not purport to generate new rules or dispense policy advice. Rather it is designed to introduce new concepts and to shift the debate over the relationship between trade and climate change; in the report’s own words, its “aim is to promote greater understanding of [the interaction between trade and climate change ­policies] and to assist policymakers in this complex policy area.”103 The purpose of these relational interactions differs fundamentally from the purposes of transactional interactions. Unlike the litigations that are the focus of the fragmentation scholarship, the conceptual interactions between the WTO and other IOs are not intended to settle jurisdictional boundaries, to identify conflicts of law principles, or to privilege or subordinate one norm or another. There is much more going on here than forum shopping or regime shifting; these conceptual interactions are intended to shape the narrative, or the social meaning, of international trade or of climate change. Despite the importance—​and ubiquity—​of these IO interactions, to date they have largely escaped scholarly notice.104 However, they represent a productive area for future research.

Institutional Gridlock The postwar institutional order that is the focus of this volume can claim many important successes. While the UN obviously has not eliminated global conflict, it has facilitated the settlement of many regional conflicts, played a central role in the decolonization process, and greatly elevated the prominence of human rights in international legal and political discourse. IOs at the center of functional regimes have also overseen significant achievements: the GATT/​WTO and Bretton Woods institutions have spearheaded an enormous expansion of the global economy that has helped to lift millions out of poverty, the WHO was instrumental in virtually  UNEP and WTO, “Trade and Climate Change,” (2009), http://​www.wto.org/​english/​res_​e/​ booksp_​e/​trade_​climate_​change_​e.pdf. 104   For rare exceptions, see Jeffrey L. Dunoff, “Mapping a Hidden World of International Regulatory Cooperation,” Law and Contemporary Problems 78 (2015): 267–​99 (forthcoming); Laurence Boisson de Chazournes, “Relations with Other International Organizations,” in this volume. 103

 

policy dilemmas   85 eliminating polio and smallpox and reducing infant mortality, and the UNHCR has assisted over 30 million refugees fleeing war, persecution, and famine. Finally, technically oriented IOs, like the International Civil Aviation Organization and International Telecommunications Union, help make the conveniences of modern life possible. Nevertheless, the pace of formalized international cooperation in general, and of institutionalization in particular, has slowed considerably in recent years. Perhaps more importantly, several of the most important IOs seem to have entered a state of gridlock and, perhaps, decline. To mention just a few prominent examples, multilateral efforts to address global climate change, perhaps the planet’s most pressing challenge, have proven largely unsuccessful to date; the current round of global trade talks, launched in 2001, have long been stalemated and seem unlikely to make substantial progress anytime soon; and the international response to the global financial crisis was not centered in an IO, but rather in the relatively informal and ad hoc Group of 20, which lacks an administrative structure and functional bureaucracy. These and related developments have caused some to ask whether the age of international organizations has started to ebb, and, relatedly, why global ­cooperation seems to be failing just when it is needed most.105 Scholars have advanced a number of theories to explain the current stasis in IOs. One prominent explanation highlights a lack of global leadership. The claim is that the United States lacks the resources or will to continue as the primary provider of global public goods; Europe has been preoccupied with the Eurozone crisis and, more recently, the refugee crisis; Japan is fully occupied with severe domestic ­political and economic problems; and emerging powers are too focused on domestic growth to assume leadership positions.106 In the “G-​zero” world, no state or group of states is willing to step forward to create or maintain the public good of an institutionalized international order. A more subtle version of this claim emphasizes the growing multipolarity of international relations. This approach foregrounds an international landscape in which power is diffusing and politics diversifying.107 The trade regime provides a representative example: at its inception, the GATT consisted of twenty-​three members, mostly European; today’s WTO consists of 162 members representing a wide variety of economic and political systems. Indeed, today’s WTO includes at least four distinct 105   For a sampling of scholarship that asks—​and attempts to answer—​these questions, see, e.g., Thomas Hale, David Held, and Kevin Young, Gridlock: Why Global Cooperation is Failing When We Need It Most (Cambridge: Polity Press, 2013); David Victor, Global Warming Gridlock (Cambridge: Cambridge University Press, 2011); Amrita Narlikar, Deadlock in Multilateral Negotiations (Cambridge: Cambridge University Press, 2010). 106   Ian Bremmer, Every Nation for Itself:  Winners and Losers in a G-​Zero World (New  York: Penguin, 2012). 107   Charles A. Kupchan, No One’s World:  The West, the Rising Rest, and the Coming Global Turn (New York: Oxford University Press, 2012).

 

86    law and politics of international organizations groups of states: the old OECD states; a group of powerful ‘emerging economies’ that aggressively pursue their interests at the WTO, such as China, India, Brazil, Korea, Mexico, Argentina, and a handful of others; the other developing states; and the least developed states. Each of the four groups has its own trade interests and agenda. The wide diversity of interests renders reaching any agreement—​let alone one that substantially advances global interests—​increasingly difficult. Similar patterns of multipolarity characterize other policy domains. During the Cold War, the US and the USSR dominated the security realm. Today, an increasingly broad range of states and nonstate actors (including terrorists, pirates, cyber-​hackers, and others) are key players on security issues. Similarly, the areas of environment and investment are marked by sharp and persistent North–​South conflict, where no particular actor or region can impose its will. In short, IOs are increasingly embedded in a world marked by numerous power centers and without a political center of gravity. Another strand of the literature emphasizes that IOs’ institutional structures, such as voting and membership rules, undermine their ability to respond to changing political and economic realities. The most well known example is the UN Security Council. The original granting of permanent membership and veto power to China, France, the Soviet Union, the United Kingdom, and the United States reflected the postwar global distribution of power.108 However, the P5 system seems increasingly outmoded as power relations have evolved over time and as other states, including Japan, Germany, and India, have risen to prominence. Despite a variety of reform initiatives, efforts to restructure Security Council membership—​which require the approval of the P5—​have repeatedly stalled. The Council’s “sticky” structure virtually assures stalemate on almost all issues that affect P5 interests and resistance to the emergence and influence of new powers.109 More importantly, the Security Council’s lack of representativeness in an increasingly multipolar world threatens to undermine its legitimacy and effectiveness. Nevertheless, it seems virtually impossible to substantially reform this system, as doing so requires the assent of the P5. The WTO provides another example. Whatever the merits of a consensus-​based decision-​making system when the GATT consisted of twenty-​three like-​minded, market economy states, today this rule gives each of its 162 members effective veto power. As a result, legislative efforts have effectively ground to a halt, producing at least two pernicious consequences. First, states seek to resolve through the WTO’s powerful dispute settlement system contentious issues that they are unable to resolve through negotiation. Whether the dispute system is well designed to resolve these highly politicized issues, or to resist the political pressures that inevitably accompany these issues, remain open questions.110 Perhaps more importantly, gridlock in   Hale, Held, and Young, Gridlock.   109 Ibid.   Jeffrey L. Dunoff, “The Death of the Trade Regime,” European Journal of International Law 10 (1999): 733–​62. 108 110

 

policy dilemmas   87 Geneva has encouraged a proliferation of regional and bilateral trade agreements. The dramatic increase in these agreements, in turn, likely produces less economic growth, imposes greater restrictions on developing state policy space, and contributes to the fragmentation discussed above. To be sure, not all IOs have been totally resistant to structural reform, as changes to voting rules at the IMF and World Bank illustrate. However, in general, IO structures have not kept pace with changes to the global order. As Hale, Held and Young colorfully note, “existing institutions are not just sticky, they have become stuck.”111 Finally, the challenges IOs confront today are substantially more difficult than those faced previously. Again, trade provides a good example. For decades, trade officials bargained almost exclusively over mutual tariff reductions. These ­negotiations would impact specific industries and firms, of course, but were generally of low political salience. Today, trade officials negotiate over a wide range of high-​salience issues, ranging across intellectual property, food safety, services trade, and environmental protection. These issues reach much more deeply into the domestic domain, are substantially more politicized, and do not easily lend themselves to the quantifiable trade-​offs associated with tariff reductions. For all of these reasons, states and other international actors are experimenting with other forms of governance, including networks, public–​private partnerships, informal groupings, regional frameworks, and a variety of cross-​institutional collaborations.112 These alternatives can be useful, but have their limits. More importantly, given the scale and scope of current and looming global challenges, these alternative efforts are unlikely to permanently displace rules-​based, inclusive multilateral institutions. As a result, it will be necessary to revitalize international organizations to generate enhanced and more effective international cooperation. Ironically, many of the “causes” of stalemate and stagnation flow from previous IO successes. Growing multipolarity reflects, in part, the system’s success in generating and sharing economic prosperity across a range of states, and the increasing prominence of a wide range of states in international affairs, and IOs confront harder problems today not only because easier problems have already been addressed, but also because IOs have enabled deeper forms of interdependence. Thus, as Hale, Held, and Young note, many of the problems that afflict IOs today are “second order” issues that reflect not simply difficulties in international cooperation, but a cycle of self-​reinforcing interdependence that IOs have made possible in the first place.113 Whether considered individually or in the aggregate, the policy issues identified above pose formidable challenges to IOs and those who study them. They also provide an opportunity for scholars representing a range of methodologies, perspectives, and substantive areas of expertise to contribute to their solution.   Hale, Held, and Young, Gridlock, 42.   Dunoff, “Mapping a Hidden World of International Regulatory Cooperation.” 113   Hale, Held, and Young, Gridlock, 42. 111

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88    law and politics of international organizations

Conclusion If the international community is to successfully resolve the pressing global problems of today and tomorrow, international organizations will play key roles. Thus, it is critical for international law and international relations scholars to understand the law and politics of international organizations. The purpose of this brief tour d’horizon of contemporary thinking about the law and politics of IOs has been to outline some of the key debates that have preoccupied international law and international relations scholars in recent years, as well as some of the most important ideas, concepts, and assumptions that shape those debates. It is also intended to reflect the vibrancy, creativity, and richness of contemporary research on the law and politics of international organizations and to highlight areas for productive new research.

 

Part I I

HISTORY

 

 

chapter 4

INTERNATIONAL ORGANIZATIONS, 1865–​1945 Madeleine Herren

The classical historical narration of international organizations begins with the establishment of the new political order of Europe in 1814/​15 after the Napoleonic Wars at the Congress of Vienna. This Congress started a series of multilateral security conferences as instruments of diplomatic consultation and introduced the idea of an interstate system, although not yet formalized and accessible only to the Great Powers. In the following decades, several bodies of interstate cooperation and regulation were established in a number of subject matters, especially with a focus on economic and public health interests, such as the Central Commission for the Navigation of the Rhine (1815), the European Commission for the Control of the Danube (1856), and the sanitary councils of Alexandria (1831), Constantinople (1838), and of Tangier (1840). Alongside this evolution of political internationalism, another strand of historical narration focuses on early transnational civil society activities, most importantly the anti-​slavery movement, early pacifist organizations, women’s rights, and transnational workers’ alliances. However, the years between 1860 to 1865 were the takeoff period of international organizations, when international organizations reached the status of agencies which further substantiated processes of nation-​building. Within only five

 

92   international organizations, 1865–1945 years, this first generation of modern international institutions,1 gained a certain level of stability and public visibility, which was to influence the history of international organizations for the century to come. Interconnectedness began to be an indispensable tool of power for the governments of nation states but also for groups and individuals in semi-​or nongovernmental functions, which opened up a new dimension of communicating, interacting, or direct and indirect negotiating and exchange. In the section below, the development of international organizations is described as a key phenomenon for understanding the time period from 1870 to 1945 in its globalized dimension, a time which in recent historical literature has been classified as “A World Connecting.”2 While there is a considerable body of literature on particular organizations and surveys on their encyclopaedic varieties, research efforts increasingly move beyond institutional frameworks in order to critically investigate the impact of international organizations on the processes of globalization. Two different angles have emerged in this context: First, research on global governance elucidates topics suitable for international cooperation. Second, discussions about the contemporary concept of internationalism elaborate on the historical contexts as well as the social, political, and economic environment which characterizes the development of international organizations from the late nineteenth century to the end of World War II.3 Recently, international organizations have gained additional importance through the idea of entangled histories and personal networks. The range and density of networks profoundly influenced the interactions between territorially based state powers and those agents who tried to use spheres of influence beyond the nation state by gaining access to global flows of information and to international meeting points. International organizations therefore are taken as platforms of exchange beyond their institutional frameworks, as social entities, as places which challenged (or also corroborated) the ruling orders of Great Powers in the crucial processes of nation-​building and the construction of Eurocentrist worldviews. The findings expected from a history of international organizations contribute to a history of globalization by placing global bodies within a relational setting which  Some had been founded already earlier in the nineteenth century. See F. S.  L. Lyons, Internationalism in Europe, 1815–​1914 (Leyden: A.W. Sythoff, 1963); Bob Reinalda, Routledge History of International Organizations: From 1815 to the Present Day (London: Routledge, 2009), 17–​50; Madeleine Herren, Internationale Organisationen seit 1865:  eine Globalgeschichte der internationalen Ordnung (Darmstadt: Wiss. Buchgesellschaft, 2009), 15–​18. 2   Emily S. Rosenberg (ed.), A World Connecting, 1870–​1945, A History of the World (Cambridge, MA: Harvard University Press, 2012). 3  Craig Murphy, International Organization and Industrial Change:  Global Governance Since 1850 (New  York:  Oxford University Press, 1994); Daniel Laqua (ed.), Internationalism Reconfigured Transnational Ideas and Movements between the World Wars (London: I. B. Tauris, 2011); Glenda Sluga, Internationalism in the Age of Nationalism (Philadelphia:  University of Pennsylvania Press, 2013); Patricia Clavin, Securing the World Economy:  The Reinvention of the League of Nations, 1920–​1946 (Oxford: Oxford University Press, 2013). 1

 

crucial decade of the 1860s and its consequences    93 is shaped by three points of reference: first, the global environment of international gatherings such as world’s fairs and international congresses; second, people and concepts related to global expertise; and third, divergences between foreign policy-​ driven international relations of states and global entanglements of an increasingly important international civil society. While the first point considers a developing international civil society, the second includes processes of professionalization of international expert groups, and the third accounts for interferences between global governance and foreign policies in the respective time period. The history of international organizations reaches therefore beyond a list of organizations in chronological order and is closely intertwined with their political, social, and cultural environments. In what follows, the first section will explain the takeoff period of the 1860s, when international organizations began to shape access to the world market and the formation of transnational movements. While the section on the crucial decade of the 1860s and its consequences explains aims and topics of a first generation of international organizations, the second section elaborates on the ideological framework international organizations were based on. Developed in the nineteenth century, the contemporary concept of internationalism served as an umbrella term that enumerated and linked different transnational movements. Within this ideological context, international organizations became part of an increasingly connected world that gained visibility in international conferences, world’s fairs, and the activities of an international civil society. After World War I, the function and importance of international organizations changed dramatically. The main focus of the third section is on the League of Nations as the first supranational body and the forerunner of today’s United Nations (UN). The League of Nations started a new generation of international organizations with Geneva as focal point. The following section addresses the influence of war and political crises on international organizations. Did the rise of totalitarian states destroy the network of international organizations, and did they share the fate of the League of Nations which, losing power and members in the 1930s, was dissolved in 1946? The conclusion discusses the historicity of international organizations and the conditions that influenced the creation of today’s UN system.

The Crucial Decade of the 1860s and Its Consequences The list of international organizations founded in the 1860s is remarkably long. It includes well-​known examples such as the International Committee of the Red

 

94   international organizations, 1865–1945 Cross (ICRC), founded in 1863, and the Telegraphic Union, established in 1865, and later renamed the International Union of Telecommunications in 1934. The foundation stories of both organizations document in a paradigmatic way the required structural background for initiating an international body at this time. The ICRC started as a private initiative, but attained international recognition by the Geneva Convention, signed in 1864, as a multilateral treaty. Throughout its history, the ICRC remained closely attached to official politics on one hand, and to national branch organizations supported by private initiative on the other.4 The Telegraphic Union established the type of so-​called public international unions, institutions based on multilateral treaties and devoted to technical standardization and the border-​crossing transfer of information.5 These were the tasks of rather small executive agencies, mostly called bureaux, whose activities remained supervised by the host states where these offices were located (the General Postal Union, later Universal Postal Union, for instance, has, since its foundation in 1874, been located in Bern, and until the end of World War II was under the supervision of the Swiss government). Like the international organizations of the twenty-​first century, the international bodies active in the 1860s distinguished themselves by a broad variety of activities, most of them blurring the borders between governmental activities and initiatives supported by an increasingly active international civil society. The existence of an international executive body does not always specify its political relevance, and therefore the very existence of an institutional framework does not sufficiently explain its respective importance. In the case of the Latin Monetary Union, a multilateral treaty, signed in 1865, fixed free circulation and convertibility of coins among the treaty powers and gave the French government the responsibility to organize regular conferences of this currency union without ever establishing an international secretariat. International bodies in a variety of different forms also dominated the most politically sensitive field of the time, ongoing colonial expansion, and discussed the question of whether territorial power, a key element of nation-​building, could be shared internationally. This aim of internationally administered territories resulted in extraterritorial arrangements of all kinds. Though they were instruments of coercion toward non-​Western states, these agreements made it possible for states not belonging to the exclusive club of the so-​called European Concert to participate in imperialist projects and to share political power in a way not known before. This

4  David P. Forsythe, The Humanitarians:  The International Committee of the Red Cross (Cambridge: Cambridge University Press, 2005). As an example of national Red Cross Organization see Julia Irwin, Making the World Safe: The American Red Cross and a Nation’s Humanitarian Awakening (New York: Oxford University Press, 2013). 5   Roland Wenzlhuemer, Connecting the Nineteenth-​Century World: The Telegraph and Globalization (Cambridge: Cambridge University Press, 2013).

 

crucial decade of the 1860s and its consequences    95 is evident in the case of the International Commission of the Cape Spartel Light, an international organization which owned and operated a lighthouse situated at the northwestern corner of the African continent in order to overview and control the access to the Mediterranean Sea through the Strait of Gibraltar from 1864 to 1956. Interestingly, this commission is one of the oldest international organizations in which the United States participated outside the sphere of influence defined by the Monroe Doctrine. In this and other similar cases, the option of founding an international organization was the only acceptable form of governance in cases of controversial colonial claims. These international bodies gained an increasing significance with regard to those empires which were accepted as sovereign states but at the same time targeted by Western imperialism. A  variety of international bodies focused on the Ottoman Empire and China. Concessions and capitulations granted privileges to Western foreigners in jurisdictional (mixed courts), economic, and taxation matters. These regimes prepared the ground for further multinational treaties and international bodies. In the timeframe mentioned, the Ottoman sultan signed international treaties which established an international committee for the reorganization of Lebanon in 1861 among others. International governance in the form of multinational treaties, international commissions, and committees followed in considerable numbers from the mid and late nineteenth century onwards. Such international agreements guaranteed access to rivers (Rhine, Danube, Congo), to territories (Congo 1885), and to ports. International committees controlled at least temporarily the national debts of Egypt (1880), Greece (1897), Macedonia (1906), the Ottoman Empire (1878), and established extraterritorial zones (international settlement in Shanghai, 1843). Access to the developing world market also required establishing regular bodies of cooperation of experts from different nations. Such epistemic communities created and fostered international organizations in their function as meeting points and, again, as platforms for exchange mechanisms suitable for a constant flow of information.6 In 1864, the International Geodetic Conference, held in Berlin, established a permanent administrative body and launched an International Geodetic Commission. Surveying and mapping, collecting statistics, and making trigonometrical surveys were some of the key activities undertaken by those epistemic communities, who belonged to the most powerful international communities in the nineteenth century. Despite belonging to expert communities with transnational academic and professional contacts, geodetic experts remained in close contact to the national administrations which controlled demographic developments and the territorial basis of the respective states as a source of income and power. A close coincidence between governmental, professional, academic, and commercial

  John Boli and G. M. Thomas (eds.), Constructing World Culture: International Non-​governmental Organizations since 1875 (Stanford: Stanford University Press, 1999). 6

 

96   international organizations, 1865–1945 interests empowered international bodies which were established to prevent the global dissemination of diseases from human, animal, or plant origins. In 1865, an international convention established measures of control against the spread of phylloxera, a vermin which devastated vineyards, and rinderpest, an epidemic suffered by hoofed animals which severely reduced the stock of European cattle. Other international bodies followed, and in 1907, an international sanitary office (the International Office of Public Hygiene) started working in Paris. This organization marked the beginning of health-​related international institutions which led to the foundation of the World Health Organization, one of the most powerful special agencies in today’s UN system. Established in a variety of forms and with widely differing impacts, international organizations covered a broad sphere of issues which included topics such as the Socialist International (1863);7 the suppression of the African slave trade;8 the coordination of chemical, biological, physical, and technological constants;9 and professional organizations from trade unions to international civil society organizations such as the International Council of Women (1888). Due to their varieties of topics and organization, neither an analysis of their institutional patterns nor a quantitative survey elucidates their historical value. Compared to those established after World War II, this early generation of international organizations escaped the most common categories of analysis, namely the differentiation between nongovernmental (NGO) and intergovernmental organizations (IGO). In the nineteenth century, the majority of international bodies worked in a semiofficial grey zone, where diplomacy and the developing international civil society overlapped and interfered. In practice, diplomatic representatives followed international statistical conferences and professors of international law participated in the Hague Peace Conferences in 1899 and 1907, both highly formalized diplomatic gatherings. The coincidence of private and official international gatherings enhanced their political value and made such activities into back doors to power, useful as platforms of lobbying to all who were excluded from international politics until now. Therefore studying the early generation of international bodies elucidates highly sensitive sites of inconsistencies between claims of national sovereignty and participation in the world market, and between profiting from the nations’ interconnectedness as a source of power and persisting on national authenticity, autarchy, and uniqueness. As presented in this section, with a takeoff period in the 1860s, international organizations developed parallel to the spread of modern nation states. From this time onwards, access to the world market depended on standardization processes and on mutual agreements between states. An increasingly connected world asked   For labour internationalism see Marcel van der Linden, Workers of the World (Brill: Leiden, 2008).   International League for the Protection of Native Races, seat in Geneva, founded in 1913. 9   International Committee for the Publication of Annual Tables of Chemical, Physical, Biological and Technological Constants, seat in Paris, founded in 1909. 7

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internationalism   97 for transnational contacts in almost every field of social, political, and cultural importance. Foundations of international organizations came from three interconnected centers of gravity, namely from pacifist-​oriented civil societies; from states securing transnational communication technologies; and from epistemic communities, experts interested in and working with the border crossing availability of knowledge. The next section will discuss the common ideological framework of these different topics and will ask who then was in charge of such semiofficial bodies, and who had the expertise to provide internationally relevant interpretations.

Internationalism: People, Ideologies, Platforms, and the Ambivalences of Eurocentrism The foundation of international bodies is closely associated with the needs of the world market under the conditions of industrialization. Toward the end of the nineteenth century, the connections of markets and industrialized economies reached a hitherto unseen level through expanding technologies of communication. Although the new international regulation of copyright,10 the international setup of information about customs tariffs,11 and the unification of rules of law were linked to the expanding world market, the establishment of international bodies went beyond the rationale of technical adaptation and legal or economic coordination. In fact, the various international organizations served as empirical evidence for an ideological master narrative under the contemporary label of internationalism. Complementary to nationalism at first glance, internationalism turned to a liberal ideological framework with the aim of reaching relevance and acknowledgment outside the borders of the nation state on the international level. Missing global connections deeply worried Western societies and nation states. With the exception of the Socialist International, the national presence in international bodies became a competitive element and influenced the nineteenth century’s way of interpreting the world. Debates around the introduction of the decimal classification provide an example of the multilayered effects such discourses had beyond the economic impact 10   International Union for the Protection of Literary and Artistic Work, seat in Bern, founded in 1886. International Union for the Protection of Industrial Property, seat in Bern, founded in 1885. 11   International Bureau for the Publication of Customs Tariffs (1890), seat in Brussels, founded in 1890.

 

98   international organizations, 1865–1945 of standardization. In 1863, the British House of Commons discussed a potential change to the decimal system. The debate not only included the historical origin of this system—​the French Revolution—​but also mentioned its importance for world’s fairs, mentioning the exhibition in London in 1851. Moreover, the discussion discloses the normative quality of standardization, its protagonists saying that “uniformity was the aim, or the dream of our legislation.”12 The debate culminated in the understanding of international standards of measurement as “a framework of decimal classification, a machine, saving a large amount of labour in the transactions of life.”13 The machine as the expression of global interactions remained a strong metaphor in the debate about international standardization and economic coordination, and was used in almost all fields of multilateral cooperation. A machine connected information flows globally instead of conventional forms of (military) power, and it coordinated cooperation in place of national domination or individual decision-​ making. Internationalism seemed to provide access to a world that was more peaceful because of rules and regulations that were established and driven by the so-​called Kulturstaaten, the Western nation states. The belief in such mechanisms took various forms during the long nineteenth century. Behind these concepts, the confrontation of two phenomena influenced the understanding of international organizations: the expansion of associations organizing civil societies across borders, and the development of an internationally active civil society that challenged traditional diplomacy. The rise of an international civil society orchestrated the translation of religious communities into secular international associations, regulated by membership, fees, and programs. It nourished the belief in organizing the world by adequate access to flows of information across borders. The decimal system remained just one among a variety of “mechanics” which were set into motion, although an especially strong one. Internationalists from different countries and political backgrounds developed and fostered the transmission tools of such mechanics under the umbrella term of “internationalism.” Among those, the Belgian Paul Otlet (1868–​1944) tried to concentrate all information about the existing diversity of international organizations with his Union of International Associations in Brussels.14 He was one of the key figures in a

  Debate in the House of Commons. On the proposed introduction of the metric system of weights and measures, July 1, 1863, corrected by the respective members who took part in the discussion and published by the International Decimal Association in Knowsley Pamphlet Collection (1863), 9, http://​ www.jstor.org/​stable/​60101604. 13   Debate in the House of Commons, 10. 14   Daniel Laqua, The Age of Internationalism and Belgium: Peace, Progress and Prestige (Manchester: Manchester University Press, 2013); Wouter van Acker and Geert Somsen, “A Tale of Two World Capitals: The Internationalisms of Pieter Eijkman and Paul Otlet,” Revue Belge de Philologie et d’Histoire 90/​4 (2012): 1389–​409; W. Boyd Rayward (ed.), Information Beyond Borders: International Cultural and Intellectual Exchange in the Belle E’poque (Burlington: Ashgate, 2014). 12

 

internationalism   99 lively community of internationalists who were more or less active in pacifist circles, alongside the Austrians Alfred H. Fried and Bertha von Suttner, the German chemist Wilhelm Ostwald, the French founder of the International Olympic Committee Pierre de Coubertin, and the Swiss co-​founder of the ICRC Gustave Moynier. In addition, internationalism had a strong legal direction. When a group of international lawyers founded the Institute of International Law in 1873, the most eminent scholars of the field participated, including James Lorimer, Johann Caspar Bluntschli, Gustave Rolin-​Jaequemyns, Tobias Asser, and Charles Calvo. In these circles, internationalism had a practical value with the coordination of norms and standards via the platforms of international organizations. Interest in processes of internationalization went along with an increasing academic interest in such fields of transnational coordination. Fervent internationalists such as the Swiss jurist Friedrich Meili established international private law as a new academic discipline, and an increasing number of scholars turned international organizations into a field of research. Jacques Novikow and René Worms from the International Institute of Sociology, together with the lawyer Max Huber, defined internationalism as a sociological approach in international law.15 In 1907, Paul Reinsch published an article on international unions and their administration in the first volume of the American Journal of International Law.16 The momentum and the topic were crucial for several reasons: the American scientific community laid the groundwork for a substantial part of future analytical work and gained an increasing scholarly attention within this—​former European—​debate. In addition, the definition of public international unions as international organizations based on international treaties enhanced the importance of international organizations as part of international administrative law.17 Although the network of internationalists formed close transatlantic ties from the very beginning, the inherently Eurocentric profile of international organizations and internationalism needs further consideration. While the Pan American international organizations followed the structure and topics of the Europe-​based organizations,18 the colonial foundation of Western-​shaped internationalism was   Max Huber, Die soziologischen Grundlagen des Völkerrechts (Berlin: Rothschild, 1928); Oliver Diggelmann, “Max Huber,” in The Oxford Handbook of the History of International Law, ed. Bardo Fassbender et al. (Oxford: Oxford University Press, 2012), 1156–​161. 16  Paul Reinsch, “International Unions and their Administration,” The American Journal of International Law 1, Part 2 (1907), 579–​623. 17   For the development of international administrative law into a global concept see the Global Administrative Law Project of the Institute for International Law and Justice (New York University of School of Law), http://​www.iilj.org/​gal/​. 18   Besides the Pan American Union (founded in 1890), there were numerous technical organizations to promote inter-​American cooperation, for instance the Pan American Railway Committee founded in 1901, and the Postal Union of the Americas and Spain, founded in 1911. For the various organizations see Handbook of International Organizations in the Americas, prepared by Ruth D. Masters et al. (Washington: Carnegie Endowment for International Peace, 1945). 15

 

100   international organizations, 1865–1945 evident. How far the merging of colonial and internationalist concepts could reach is shown in the transformation of an international geographical association into the Congo Independent State in 1885, a state, owned by the Belgian king. International organizations had their seats mostly in Europe—​and Europe remained the center of activities in global governance until the opening of the UN’s main seat in New  York after World War II. However, the very idea of international organizations as connecting platforms presupposes an international and sometimes even a global membership. Nineteenth-​century international organizations therefore included members from non-​Western countries. Japanese membership in international organizations gained increasing importance; the Interparliamentary Union (founded in 1889)  already had a Japanese president in 1906. For international organizations, a global scope of membership was a question of importance. This concept interfered at times with the idea of using international organizations as a tool of colonial governance, for example, when Egypt used the conferences of the Universal Postal Union for its own purpose. Although under the suzerainty of the Ottoman Empire and therefore not a sovereign state, Egypt was among the founding members of the Universal Postal Union and used its international conferences to establish an Egyptian foreign policy. There was indeed a specifically global profile of nineteenth-​century internationalism, as illustrated by examples such as the Theosophical Society, representing Western interest in Eastern religion, or the manifold activities of the World’s Alliance of Young Men’s Christian Associations in Asian countries. International organizations demonstrated a specific form of Western extraterritorial prerogatives and a “back door to power”19 for non-​Western states at the same time. Indeed, they shared this ambivalence with other manifestations of the international world, especially with world’s fairs, where colonial powers presented “African villages” and the public strolled the “streets of Cairo”—​but non-​Western aristocrats were nevertheless invited as official guests representing their country. As elaborated in this section, international organizations resumed a twofold aim, regulating on a technical basis incompatibilities across borders on one hand, and being part of an ideological rationale on the other. For the technical part, international organizations became instruments of global governance and relied on newly introduced communication technologies. International organizations shared and shaped internationalism, the contemporary ideological basis of transnational movements. Within internationalism, international organizations were one tool among many others, such as international gatherings and world’s fairs. In pacifist liberal thinking international organizations made the world a safer place. In their own view, international organizations opened a (semi-​)official testing ground

 Madeleine Herren, Hintertüren zur Macht:  Internationalismus und modernisierungsorientierte Aussenpolitik in Belgien, der Schweiz und den USA 1865–​1914 (Munich: Oldenbourg, 2000). 19

 

“thoroughgoing internationalism”   101 for mediation processes and gave small states and groups without political rights (for example, women) a platform for international interactions. At the turn of the century international organizations became a research topic in newly introduced studies of international law. Academic debates on the definition of international organizations specified public international unions as new actors in international politics. By the late nineteenth century, international organizations had enlarged the field of international relations beyond classical diplomacy.

“Thoroughgoing Internationalism”: New Actors and New Interactions under the Umbrella of the League of Nations The League of Nations, a result of the Peace Conferences in Paris in 1919, shaped the community of international organizations in a new way. Now, for the first time, an international governmental organization substantially shaped international relations in their broadest sense. The gospel of nineteenth-​century internationalism, namely the attempt to transform foreign politics from the unpredictable power play of governments into a smoothly working machine of international relations, seemed to have succeeded. With the Secretariat of the League of Nations in Geneva, a central cosmopolitan administrative powerhouse was now available to the international world. The new League became a hub of attraction for other international organizations, which opened their seats in Geneva, Switzerland. A narrative telling such a success story, however, clearly opposes the literature written about the League of Nations from the 1950s onwards. Most of these studies have followed Francis P. Walters’ masterly written History of the League of Nations, published shortly after World War II by an author who for a long time was part of the League’s Secretariat.20 Within this narrative, the League serves as an indicator for the failure of European international relations, starting from a period of hope with the reintegration of Germany into the system with the treaty of Locarno, followed by German 20   Francis P. Walters, A History of the League of Nations (London, New  York:  Oxford University Press, 1952 (repr. Westport, CT, 1986)). It is a characteristic of the League of Nations’ history that former members of the Secretariat provided the path of the master narrative, mostly looking back from their new position in the UN. See Egon Ranshofen-​Wertheimer, The International Secretariat: A Great Experiment in International Administration (Washington, DC: Carnegie Endowment for International Peace, 1945).

 

102   international organizations, 1865–1945 membership in the League in 1926. But then “The Lights that Failed” (according to Zara Steiner’s narrative) was followed by “The Triumph of the Dark,” shaped by the “retreat of internationalism” and Hitler’s road to war which started in 1938.21 A different perspective has been adopted only recently by authors who analyze the League of Nations in a less European and more global context owing to the “historiographic revolution”22 which, since the post-​Cold War era, has fostered interest in a historiography of global transcultural entanglements.23 In this context, starting from the interpretation of international organizations as actors of a “global community,”24 the technical work of the League of Nations has attracted more attention. The League’s activities in the fields of economy, health, law, and technical coordination, described in Article 23 of its Covenant, are now understood as crucial for understanding the UN system and its current development in the twenty-​first century.25 This ongoing sea change introduced two new foci of interest into the scholarly discussions about international organizations:  First, a growing body of literature has shifted the focus on international organizations from an institutional approach to the idea of far-​reaching networks, a perspective which underscores the analyses of international organizations’ impact on and inclusion of non-​Western agencies.26 Second, in the context of approaches toward a global history of international organizations, a growing number of scholars have also shown interest in how the League’s Secretariat, as the first international civil service body, administered its agenda. Such insights into the mechanics of international administration can highlight its inherent processes of inclusion and exclusion. The scope of action of the Secretariat discloses the difficult controversies between national and international claims. The Secretariat depended on additional money from governments27 and endowments, but was obligated to abstain from propaganda and preserve strict neutrality with only a small

21   Zara Steiner, The Lights that Failed (Oxford, New  York:  Oxford University Press, 2005); Zara Steiner, The Triumph of the Dark (Oxford, New York: Oxford University Press, 2011). 22   Akira Iriye, Global and Transnational History: The Past, Present, and Future (Basingstoke: Palgrave Macmillan, 2013); Akira Iriye, Global Community: The Role of International Organizations in the Making of the Contemporary World (Berkeley: University of California Press, 2002). 23  Madeleine Herren, Martin Rüesch, and Christiane Sibille, Transcultural History: Theories, Methods, Sources (Berlin: Springer, 2012). 24  Iriye, Global Community. 25   Patricia Clavin, “Europe and the League of Nations,” in Twisted Paths:  Europe 1914–​1945, ed. R. Gerwarth (Oxford: Oxford University Press, 2007), 325–​54; Herren, Internationale Organisationen seit 1865; Erez Manela, The Wilsonian Moment:  Self-​Determination and the International Origins of Anticolonial Nationalism (Oxford, New  York:  Oxford University Press, 2007); Mark Mazower, No Enchanted Palace:  The End of Empire and the Ideological Origins of the United Nations (Princeton, NJ: Princeton University Press, 2009); Susan Pedersen, “Back to the League of Nations: Review Essay,” American Historical Review 112/​4 (2007): 1091–​117. 26   Tomoko Akami, Internationalizing the Pacific: The United States, Japan, and the Institute of Pacific Relations in War and Peace, 1919–​45 (London: Routledge, 2003). 27   To give an example, the French government financed the Institute of Intellectual Co-​operation in Paris.

 

“thoroughgoing internationalism”   103 budget available for information. In addition, the research focus on the newly created status and work of international civil servants contributes to ongoing debates about those individuals whose status was neither one of a diplomatic passport holder nor a simple national.28 While the results of such investigations suggest understanding the League as a center of gravity and as a major knot in a net of international political, social, and economic connections of all kinds, the difficult political history of the League nevertheless demands serious attention for assessing the impact and long-​ term significance of the League experiment. The outbreak of World War II remains an ultimate proof of failure of one of the major aims of the League, namely “to promote international co-​operation and to achieve international peace and security,”29 as mentioned at the very beginning of the Covenant. Moreover, the war also remains a methodological point of reference for researchers. Not only World War II but also the Great War from 1914 to 1918 raises the question about continuities and the influence of war on international organization in a more general way. For the period between 1919 and 1945, complex interactions between states and transnational civil society shape the picture. Nineteenth-​century internationalism influenced the activities of an international administration (now with extraterritorial quasi-​ diplomatic rights) while an active, mobile, and modern international civil society was challenged by totalitarian states in the 1930s. These aspects influenced and reoriented the spheres of international organizations in multiple ways. Instead of avoiding these complex interactions by separating topics and actors, the following section explains these ambiguities, taking into consideration that international organizations have been served different and controversial political aims between 1919 and 1945. With the foundation of the League of Nations, prewar organizations and internationalism remained active for two reasons: First, although the number of international conferences and congresses decreased during the World Wars, international organizations, especially the public international unions, continued to work. Most of their member states continuously paid their membership fees. Second, the internationalists’ main concern about replacing foreign relations with internationally established mechanisms of international relations underwent a substantial change between 1919 and 1945. At the end of this process, Western diplomacy in the ­tradition of the European Concert had gained a strong counterpart in the new subject of International Relations studies. Since the end of the Great War, international organizations became the topic of International Relations, now established as an academic 28   Desley Deacon, Penny Russell, and Angela Woollacott, Transnational Lives: Biographies of Global Modernity, 1700–​Present (Basingstoke: Palgrave Macmillan, 2010); Glenda Sluga and Julia Horne (eds.), “Cosmopolitanism: Its Past and Practices,” Journal of World History 21/​3 (2010, special issue); Madeleine Herren and Isabella Löhr (eds.), “Lives beyond Borders: A Social History, 1880–​1950,” Comparativ 23/​6 (2013, special issue). 29   “The Covenant of the League of Nations,” in The Avalon Project: Documents in Law, History and Diplomacy, Yale Law School, http://​avalon.law.yale.edu/​20th_​century/​leagcov.asp.

 

104   international organizations, 1865–1945 discipline with chairs in the most prestigious universities and strong ties to the Geneva Research Center. The Covenant of the League of Nations had planned the transfer of the already existing international organizations under the supervision of the League in Article 24. However, this invitation excluded all international bodies not based on multinational treaties, and none of the organizations actually addressed acquiesced to being subordinated under the roof of the League. Eventually, in 1946 the liquidation committee enumerated only a few international organizations which had made use of Article 24 (International Bureau for Information regarding Relief to Foreigners, Paris; the International Hydrographic Bureau, Monaco; the International Central Office for the Control of the Liquor Traffic in Africa, Brussels; the International Commission for Air Navigation, Paris; and the International Exhibition Bureau, Paris).30 The relation between the League and the multilayered world of international organizations therefore remained informal from both sides. A special (and rather underfinanced) administrative unit in the Secretariat collected information about international bodies regularly and published several editions of a Handbook of International Organizations until 1938. The Handbook was just one of different measures which made at least the Secretariat of the League visible as a center of attraction for international bodies of all kinds, which, by self-​ declaration, shared at least some of the League’s aims. Some of these shared a common Geneva address in the late 1930s when the League left the Palais Wilson for the newly built Palais des Nations, while international organizations transferred their seats to the Palais Wilson. The informal contact between the League and international organizations fostered the perception of the League as a lively beehive of active internationalism, overarched by a transnational network of national League of Nations’ Associations founded in almost all of its member states and several nonmember states as well. In this informal network, membership remained a question of interpretation, an ambiguity which was used by those who did not apply for regular membership, but still participated in a hidden form. The United States of America exemplify this way of semiofficial participation:  although never officially a member state, Arthur Sweetser, a US journalist working for the League’s Information Section, successfully managed the contacts between the Secretariat and the State Department for years.31 Of course, the same is true for the member states who left the League but whose consulates remained present in Geneva.32  See “Bericht des Bundesrates an die Bundesversammlung über die XXI. Session der Völkerbundsversammlung,” Schweizerisches Bundesblatt 98/​2 (1946): 1222. Denys P. Myers, “Liquidation of the League of Nations Functions,” American Journal of International Law 42/​2 (1948): 351. 31   The often quoted nonmembership of the US therefore needs some differentiations. The USA became a member of the International Labour Organization (ILO) in 1934 and already in 1932 sent an official member to the League of Nations’ Lytton Commission. 32   For example Japan, whose government insisted after its withdrawal from the League in 1933 to further continue in the position as one of the League’s mandate powers. 30

 

“thoroughgoing internationalism”   105 Indeed, the porosity between formal foreign relations and international networks was not just the result of the League’s foundation, but also had its counterpart in the structural change of diplomacy after World War I. At the end of the war, the American president Woodrow Wilson and the Russian foreign minister Leon Trotsky had both publicly declared the end of European aristocracy-​based diplomacy, although for opposite reasons. While Wilson condemned the secrecy of peacebuilding in the way of the diplomacy-​driven Congress of Vienna in 1814/​15 and postulated a new era of open diplomacy, Trotsky opened the czarist archives and published this state’s secret treaties aiming at uniting the proletarians of all countries. During the Paris Peace Conference, therefore, the creation of a new political international organization—​ the League—​seemed an adequate tool for realizing new trends in diplomatic openness. Indeed, in the 1920s, the first generation of international civil servants working in Geneva nourished the image of a fine-​tuned machine, operated by a group of modern men and women, who drove fast cars, played tennis, and cultivated a cosmopolitan lifestyle.33 Egon Ranshofen-​Wertheimer, an Austrian civil servant working in the League’s Information Section, recalled his very first working day in exactly this context: “Before I had time to recover my breath the telephone began to ring. I was caught in a machine which did not release me until I left the Secretariat exactly ten years later.”34 In the mid 1930s, the architecture of the Palais des Nations likewise followed this narrative by providing newsrooms for journalists and offering rows of public seating in the room used for the League’s general meeting. In 1919, members of national movements in the colonies attentively listened to these promises of introducing a new form of an international public diplomacy and self-​determination. The British Dominions and India became founding members of the League and used this position for claiming national independence. However, the “Wilsonian Moment”35 remained a window of opportunity, which was swiftly closing shortly after the Paris Peace deliberations had ended—​at least partially: On the one hand, the League remained closely related to colonial concepts by transforming the former colonies of the defeated states into mandates, partly administered by British dominions as a form of sub-​colonialism. When in 1932 the League sent the so-​called Lytton Commission to China after the Manchurian Incident, all of the League’s experts had colonial backgrounds—​without any exception.36 On 33   The special atmosphere in Geneva attracted the attention of contemporary literature (for instance with George Edward Slocombe, A Mirror to Geneva:  Its Growth, Grandeur, and Decay (New  York: H. Holt, 1938) and is in the center of a series of fictional descriptions of the League by the Australian author Frank Moorhouse. 34   Ranshofen-​Wertheimer, The International Secretariat, ix. 35  Manela, Wilsonian Moment. 36   Even the US delegate, Frank Ross McCoy, had previously worked in Cuba as well as in the Philippines. For details about the Lytton Commission see the project Global Politics on Screen: A Japanese Film on the Lytton Commission (Cluster Asia-​Europe, University of Heidelberg), http://​kjc-​fs2.kjc.uni-​heidelberg.de/​ omeka/​. For the ambivalent colonial approach of the League and its mandate system see Susan Pedersen, The Guardians: The League of Nations and the Crisis of Empire (Oxford: Oxford University Press, 2015).

 

106   international organizations, 1865–1945 the other hand, the hopes and promises of 1919, though never realized, nevertheless had political consequences. The League Secretariat received endless material from disappointed nationalist movements and other claims against a European dominated Western world. Using the networks of international organizations, different national movements37 therefore opened offices for representation in Geneva. Even within the League itself, some non-​Western groups followed their own national strategy through the back door of their presence in the Secretariat. To give an example, the League’s Indian liaison office carefully followed a policy of sending constant information from Delhi to Geneva, even during World War II. The League undertook considerable technical work, especially its health section, and developed economic and financial cooperation. It gave marginalized groups and states beyond Western dominance a voice, and fostered new forms of cooperation, but the organization failed to secure the peace, was not able to stop anti-​Semitism or forced migration, and was helpless toward the rise of fascist states. However, the League did not dissolve before 1946. During World War II the Secretariat continued its work, although some of the sections left Geneva. The sections whose officials had left Europe for reasons of security started to build up new bodies of ­expertise in Princeton, New Jersey in the United States. They focused on economic and social surveys and trained a young (female) group of scholars in political economy. The office of the ILO did the same in Montreal, and both organizations prepared the postwar shifting of the European headquarters to the United States. From the nineteenth-​century system of semiofficial internationalism to the concept of the UN, the League of Nations and its surrounding organizations presented a remarkable intermediary which opened the door to a broad range of new actors and new interactions in international relations. Many organizations and individuals active in the early years of the UN had a common past with the League of Nations. Among others, Sir Atul Chandra Chatterjee from India and F. T. Cheng from China represented the new voices in international relations already present during the lifetime of the League. The quality of contacts between the League and the surrounding international organizations and their impact in international politics remained ambivalent during the whole lifetime of the League. From the League’s side, maintaining contacts with a variety of international organizations had a primarily financial justification. The Secretariat had limited access to funds for information, and technical cooperation remained a topic of scholarly research difficult to finance. Therefore, informal contacts, governmental influences, and private money deeply imbued the Geneva beehive. With the Institute of Intellectual Cooperation in Paris, the French government controlled the League’s cultural politics and influenced the League’s 37   For example, the International Committee for Georgia, the Permanent Agency of the Zionist Organisation accredited to the League of Nations, the International Philarmenian League, among others. See http://​www.lonsea.de.

 

“thoroughgoing internationalism”   107 Committee on Intellectual Cooperation, where prestigious persons such as Albert Einstein and Marie Curie served as advisors to the League’s program of international understanding. More problematic than the influence of the French government, however, was the use of the financial support of League-​related international organizations as a propaganda tool by the fascist Italian government, for example in the case of the International Educational Cinematographic Institute in Rome. This involvement leads to another important question: namely, how international organizations in general developed during the political tensions of the 1930s. Against all expectations, the numbers of international organizations listed in the League’s Handbook and in Otlet’s Annuaire increased constantly. Even with Wallace/​Singer’s warning in mind not to overemphasize the quantitative listing of institutions,38 the idea of international organizations remains obviously a successful or at least an indispensable model even in times of crisis and war. In 1931, Arnold Toynbee coined the term “thoroughgoing internationalism” and declared “the tendency of all human affairs to become international” as a main global characteristic in the post-​World War I period.39 In addition to continuity in those organizations which followed the development of modern communication technologies (for example, telecommunications, standardization of air and automobile traffic), the number of labor-​related and professional organizations increased after World War I.  The ILO was surrounded by international professional organizations, international trade unions, and the International Chamber of Commerce, founded in 1919. In addition, the economic consequences of the peace treaties left its traces in the world of international organizations such as the Bank for International Settlements in Basel, founded in 1931, for the regulation of war debts, and one of the rare examples of an organization with extraterritorial status besides the League. It would nonetheless be wrong to follow a narrative of constant growing and integration of modernization processes into the model of international organizations. The world of international organizations developed parallel structures after World War I. The net of multiple connected organizations now drifted toward a multicentered system of concurring organizations divided by political ideology. On one side, communist organizations developed under the umbrella of the Comintern, the third International founded in 1919, although the Soviet Union continued the membership of the czarist state in most of the public international unions. However, in the 1920s, communist international organizations founded or participated in red women’s organizations, communist trade unions, and relief organizations among others. On the right side of the political spectrum, a comparable development nourished the foundation of competing organizations in the core fields of internationalism, namely law and labor. In this subtle process of political diversification, the Italian 38   Michael Wallace and J. David Singer, “Intergovernmental Organization in the Global System, 1815–​1964: A Quantitative Description,” International Organization 24/​2 (1970): 239–​87. 39   Arnold J. Toynbee, “World Sovereignty and World Culture,” Pacific Affairs IV/​9 (1931): 753.

 

108   international organizations, 1865–1945 government took a leading function, using its position as member of the League for building agrarian labor networks in conjunction with the International Institute of Agriculture and against the ILO’s focus on industrial labor. Moreover, in 1928, the foundation of the Institute for the Unification of Private Law in Rome competed against existing legal epistemic communities. It was, however, the withdrawal of Japan from the League in 1933 which made clear that the League’s networks of international organizations had not just weakened but increasingly had to face a competing network of fascist or right-​wing-​oriented international organizations. With the League of Nations as the first international organization whose secretariat had extraterritorial prerogatives, a new, more formal and global era in the history of international organizations started, although the seats of the majority of international organizations remained in Europe. The League of Nations did not subordinate existing international organizations, but became their center of gravity. The small executive offices increased and administrative work in international organizations produced, in the case of the League of Nations, a specific class of international civil servants. These positions afforded access to the field of international politics to those excluded from the diplomatic services until now, for example colonial subjects and women, whose eligibility was mentioned in Article 7 of the Covenant. Internationalism now encompassed a wide range of international professional networks, trade unions, technical organizations, world’s fairs, and international conferences and exhibitions. Internationalism now became increasingly attractive to state-​driven propaganda. This development ended with competing international organizations placed in the same fields. While states increasingly left the League and weakened the political system in the 1930s, international technical cooperation grew in the form of complex, intertwined networks. After World War I, research on international organizations increased substantially with the foundation of the first chairs in international relations in Western universities.

Fascist Internationalism and International Organizations during World War II At first glance, the fascist version of internationalism stopped at an early stage with the failure of its first international conference in Montreux in 1934. Organized by the Comitati d’azione per l’Universalità di Roma under the direction of Eugenio Coselschi, the Montreux conference could not persuade the German national socialist party NSDAP to send an official delegation. Without the official support

 

fascist internationalism and international organizations    109 of Nazi Germany, Coselschi’s group remained a rather weak effort of internationalization with centers of gravity in Italy and the UK. However, in the same year, the German Reichspropagandaministerium advanced the foundation of the Deutsche Kongress-​Zentrale (DKZ), officially organized as a private association but in fact a governmental organization. This new organ closely controlled German participants in international gatherings and tried to lobby for Germany as an attractive host country of international meetings. After the beginning of World War II, this organization developed an unexpected new range of activities, trying to benefit from the German campaign in the West with the aim of collecting the archives of international organizations in Belgium, the Netherlands, and France for itself. Interestingly, the DKZ did not destroy the looted archival material, but transported those papers to Berlin in order to prepare a fascist version of the League of Nations for a postwar order dictated by the Nazi regime. In addition to the failed Italian first steps in building a Fascist International and the activities of the DKZ, as a third axis, the Japanese autocratic regime built strong international ties in the field of cultural policy. The former Japanese national Committee on Intellectual Cooperation, was integrated into Kokusai Bunka Shinkokai in the same year 1934. This organization served as a semiofficial agency of cultural policy for the autocratic regime in Tokyo. Although the ties between these three fascist networks are not yet fully investigated, recent research literature has started to discuss the interconnectedness of fascist regimes and the Axis as much more than just a military coalition.40 The German plan of a fascist League of Nations was realized in a draft of a new handbook of international associations, now with a fascist focus. Although never published in a final version, the compiled material41 gives a good impression of the planned totalitarian universe of internationalism. In contrast to liberal internationalism, the internationally acting fascist organizations understood information transfer as state-​controlled propaganda. Although active in a wide range of topics, in the fascist universe of international organizations, fascist corporatist economy predominated and translated into the foundation of internationally organized guilds. Moreover, the fascist network had a clearly visible thematic center of gravity in international law. Besides the Italian organizations of international law mentioned above, German internationalist activities ended up in the foundation of an “International Chamber of Law” in 1941. With Minister Hans 40  Arnd Bauerkämper, “Interwar Fascism in Europe and Beyond: Toward a Transnational Radical Right,” in New Perspectives on the Transnational Right, ed. Martin Durham and Margaret Power (Basingstoke: Palgrave, 2010), 39–​66, 40. Madeleine Herren, “Fascist Internationalism,” in Internationalism: A  Twentieth Century History, ed. Glenda Sluga and Patricia Clavin (Cambridge: Cambridge University Press, 2016). 41   For the outline of the handbook see Register of the German Deutsche Kongress-​Zentrale Records, 1870–​1943, The Hoover Institution Archives, Stanford. For the DKZ see Madeleine Herren, “‘Outwardly an Innocuous Conference Authority’: National Socialism and the Logistics of International Information Management,” German History 20 (2000): 67–​92.

 

110   international organizations, 1865–1945 Frank, the general governor of Poland, as its president, the International Chamber of Law was located in the building of the Reichspropagandaministerium. This fascist version of internationalism attracted Bulgaria, Denmark, Germany, Finland, Japan, Italy, Rumania, Spain, Portugal, Hungary, the Netherlands, Belgium, and Croatia and provided legitimacy for fascist satellite states. While in many of the newly founded organizations Japanese participation provided a global profile, so-​ called “European” organizations (for example, the European Postal Union) were planned to replace the old public international unions. Even more important, the International Chamber of Law published its own journal, the Archiv für das Recht der Internationalen Organisationen from 1940 to 1943.42 The articles published in this multilingual journal prepared a new legal understanding of international organizations whose offices were under the supervision of the hosting states. While disclaiming—​in contrast to the League of Nations—​extraterritorial rights for international organizations, the fascist legal framework nevertheless referred to the League in another important point: hosting states had an obligation to support and control international organizations. Although resolutely antagonized, the League of Nations and its mandate system therefore remained the ultimate point of reference in fascist thinking in terms of status and organizational features of international organizations. This fact contributes to a new evaluation of the still underestimated wartime periods in the history of international organizations. In a world of shattered structures of communication, and indeed of destroyed or impaired networks, international bodies increased their importance as valuable platforms of communication offering at least three functions: First, international organizations served as “Trojan horses,” concealing political intrusion or undermining, and therefore were used as sophisticated instruments of espionage by both sides.43 Second, countries at the periphery of the (European-​shaped) international system replaced at least partly the functions Paris, London, and Berlin had. The League’s Secretariat worked now in Princeton and asked for statistical data in New Delhi.44 Third, international organizations played a major role in reshaping international structures of governance and of relief coordination toward the end of the war and in postwar plans.45 For the Allied powers, the UN Relief and Rehabilitation Administration (UNRRA) combined the still 42   Helmuth Aschenbrenner (ed.), Archiv für das Recht der Internationalen Organisationen, Archive of the Law of International Organizations, Archives de droit des associations internationales, Archivio per il diritto di organizzatione internazionale, 1940–​1943. 43   See, for example, the activities of the International Transport Workers’ Federation, which supplied the allies with information. Bob Reinalda (ed.), The International Transport Workers’ Federation, 1914–​1945 (Amsterdam: Stichting beheer IISG, 1997). 44   For wartime international connections see ibid., 271ff. For the work of the Princeton group see Clavin, Securing the World Economy, 267ff. 45   Patricia Clavin and Sunil Amrith, “Feeding the World: Connecting Europe and Asia, 1930–​1945,” in Transnationalism and Contemporary Global History, ed. Rana Mitter and Matthew Hilton, Past and Present Supplement 218/​8 (2013), 29–​50.

 

conclusions   111 existing international organizations for the support of war-​torn countries.46 When dissolved after World War II, the same organization provided an important intermediary for the transfer of technical organizations into the UN system, a project accomplished at the UN Conference in San Francisco in 1945. The history of international organizations during crises and war is an underinvestigated topic. The rise of fascist states did not reduce the still rising number of international organizations, but generated specific right-​wing international bodies that followed a hidden agenda. With the outbreak of World War II, not all international organizations lost their activities. A new generation of fascist international organizations tied together the Axis in a semiofficial network. At the end of the war, the allies used the existing international organizations for the building of postwar structures. With parts of the League of Nations leaving Europe for Canada, the United Kingdom, and the United States, World War II shifted the center of gravity of international organizations outside Europe, although still in the Western world.

Conclusions In 1945, the Conference of San Francisco gave a last overview of liberal nineteenth-​ century-​origin internationalism and its institutional framework. In contrast to 1919, the existing international organizations did not have a choice to remain independent. The old public international unions now became with few exceptions special agencies of the UN. The supervision duties of the hosting states disappeared, and international regional organizations became the core element of regional cooperation. In the case of Europe, international organizations launched European integration. As a consequence, Switzerland, one of the main hosting states of international organizations in the period of liberal internationalism, lost an opportunity to participate in an active way in international relations through its international organizations, although Geneva remained at least the European seat of the UN. Parts of the former period of prewar internationalism continued in the new system: the

 The UNRRA has recently attracted much attention from historians. See Jessica Reinisch, “Internationalism in Relief:  The Birth (and Death) of UNRRA,” in Post-​ War Reconstruction in Europe: International Perspectives, 1945–​1949, ed. Mark Mazower, Jessica Reinisch, and David Feldman, Past and Present Supplement 210/​6 (2011), 258–​89; Jessica Reinisch, “Auntie UNRRA at the Crossroads,” in Transnationalism and Contemporary Global History, ed. Rana Mitter and Matthew Hilton, Past and Present Supplement 218/​8 (2013), 70–​97; Rana Mitter, “Imperialism, Transnationalism, and the Reconstruction of Post-​War China: UNRRA in China, 1944–​7,” in Transnationalism and Contemporary Global History, ed. Rana Mitter and Matthew Hilton, Past and Present Supplement 218/​8 (2013), 51–​69. 46

 

112   international organizations, 1865–1945 League’s Committee on Intellectual Cooperation became the UN Educational, Scientific and Cultural Organization (UNESCO) and the International Institute of Agriculture was integrated into the Food and Agriculture Organization (FAO). Although recent research literature deviates from characterizing the League as an incomplete and unsuccessful forerunner of the UN, there are still some good reasons to understand the foundation of the UN as a zero-​hour for the analysis of global governance. First, modern categorization established after 1945 by the UN Economic and Social Council clearly differentiates between NGOs and IGOs, eliminating a main characteristic of liberal internationalism, namely its “thoroughgoing” and semiofficial character which made possible the widespread activities of networking and cooperation. In the case of IGOs, therefore, archival evidence usually starts with the period when the respective organizations were newly founded as UN agencies. Second, many NGOs lost their archives during World War II and therefore remained underrepresented in the network of international relations at least during the Cold War period. Therefore, the question of what remains from liberal internationalism depends on the example chosen. Debates on the “third United Nations”47 reintroduce the importance of nongovernmental and semiofficial connections, although with the decisive and important difference of critically reading the conceptions of Western dominance in global governance. Considering the close connections of today’s UN system with the model of international organizations created in the late nineteenth century, the relevance of the historical development of international organizations is evident in their influence on the creation of an international system beyond traditional diplomacy from the 1860s onwards. An ongoing network of multilayered and intertwined international organizations multiplied the number of actors in international politics. Since a differentiation between governmental and nongovernmental activities was missing at this time, the political relevance of semiofficial decision-​making increased. An international civil society and states at the periphery of the “European Concert” used international organizations as a back door to power. International organizations were integrated in the ideological framework of internationalism and became a subject of academic research. With the League of Nations, the formal value of international organizations increased and their memberships went beyond Western states, although without rejecting colonial settings. In times of political tensions and crises, international organizations remained active and became platforms and tools of governmental propaganda even for fascist states that denied these organizations’ embeddedness in the ideological framework of liberal internationalism.

47   Thomas G. Weiss, Tatiana Carayannis, and Richard Jolly, “The ‘Third’ United Nations,” Global Governance 15/1 (2009): 123–42.

 

chapter 5

INTERNATIONAL ORGANIZATIONS, 1945–​P RESENT B. S. Chimni

Modern international organizations (IOs) are essentially a twentieth-​ century phenomenon.1 The League of Nations was the first real attempt at the ‘institutionalization of international relations’.2 But it is only since the Second World War that IOs have become an integral part of the landscape of international politics. From being peripheral actors, IOs have come to occupy a significant place in international relations. The history of IOs in the post-​1945 period can be told in a variety of ways. First, the history of IOs can assume the form of a general history of the evolution of IOs. This history can be a narrative of the creation and development of IOs in different functional areas: trade, environment, development, finance, health, human rights, migration, and counterterrorism. Second, the history of IOs can be told from a variety of theoretical standpoints viz., liberal, feminist, Marxist, and Third World. Each of these theoretical approaches has a different understanding of the evolution and role of IOs in the post-​Second World War period. Third, the history of IOs can 1   Inis L. Claude Jr, Swords into Ploughshares: The Problems and Progress of International Organization, 4th ed. (New York: Random House, 1971), 41. 2   David Kennedy, “The Move to Institutions,” Cardozo Law Review 8/​5 (1987): 850.

 

114   international organizations, 1945–present take the form of the history of individual IOs. There can be both official and unofficial histories. The official histories are sanitized histories that tend to embrace a narrative of progress.3 Fourth, the history of IOs can be of different phases of their existence. Each IO goes through distinct phases of development in response to both external and internal factors. In so far as external factors are concerned, general purposes organizations (e.g. United Nations) tend to respond more to the international political environment and international economic organizations (e.g. World Bank) to the state of global capitalism. The internal factors include changes in the culture of an organization and the quality of leadership. Fifth, the history of IOs can be of particular organs of IOs, especially that of the United Nations (UN), such as for example that of the UN Security Council (UNSC). Even in the instance of a single UN organ the history can be of different phases (e.g. pre-​and post-Cold War phases). Sixth, the history of IOs can be told as that of certain broad trends in the world of IOs: the enhanced role of non​governmental organizations (NGOs), the increasing number of international tribunals, growing regionalism, etc. Seventh, a history can be told of the emergence and development of the law of international organizations in the 1960s reflecting the need to clarify their legal status and growing complexity of their functioning.4 Eighth, the history of IOs can be of specific themes such as ‘democratic deficit’ or the need for greater accountability and legal responsibility of IOs. This theme has acquired salience in recent years as a result of the growing importance of IOs in global governance. Ninth, the history of IOs can be told as a move towards constitutionalism as in the case of the European Union (EU) whose decisions are binding on member states.5 Lastly, the history of IOs can be told as the slow process of the emergence of a world state. The chapter primarily focuses on histories of post-​1945 IOs told from different theoretical standpoints by political scientists and legal scholars. In the second section an attempt is made to narrate in a schematic manner the history of IOs by liberal and neo-​liberal scholars of IOs or what may be termed mainstream international organization scholarship (MIOS). This history is followed in the third section by thumbnail sketches of third-​world, left, and feminist histories of IOs. These histories—​that is, mainstream and critical histories—​need not be read as mutually exclusive histories. In many ways these capture different dimensions of the history of IOs. The fourth section contains some reflections on salient issues and themes that are the subject of current debates including the emergence of a nascent world  A  good example of official history is that of UNDP written by Craig Murphy, otherwise a critical scholar. Craig N. Murphy, The United Nations Development Programme:  A  Better Way (Cambridge: Cambridge University Press, 2006), 4. 4   The first textbook on law of international institutions written by Derek Bowett was published in 1963. Jan Klabbers, “The Paradox of International Institutional Law,” International Organizations Law Review 5 (2008) 3. 5   Jan Klabbers, “International Institutions,” in The Cambridge Companion to International Law, ed. James Crawford and Martti Koskenniemi (Cambridge: Cambridge University Press, 2012), 240. 3

 

mainstream history of ios    115 state. Readers will excuse the indicative presentation of materials necessitated by constraints of space.

Mainstream History of IOs The mainstream history of IOs is told by liberal and neo-​liberal scholars in the form of a narrative of progress. In this view, as two critical scholars note, the contribution of increasing and expanding IOs has been positive as IOs ‘help to resolve collective dilemmas and problems of interdependent choice, foster international co-​operation, and bring about a more rationalized world that is organized around fundamental liberal values such as liberty, autonomy, markets, democracy, and nonviolent conflict resolution’.6 The history of the post-​1945 period is usually divided into two phases: the Cold War and post-​Cold War phases. While these phases reveal distinct features, there is as much continuity as change that mark the function of IOs in the two periods.

The Cold War Phase: 1945–​89 The history of IOs in the Cold War phase is either told in ideological or functional terms. From an ideological perspective Robert Keohane writes that the IOs created after the Second World War ‘had a significant security justification: to create economic prosperity and patterns of cooperation that would reinforce the position of the West in the struggle with the Soviet Union’.7 These IOs ‘were constructed on the basis of principles espoused by the United States, and American power was essential for their construction and maintenance’.8 It can even be said that the UN system was used to fight communism by other means. Indeed, a separate history can be 6  Michael Barnett and Martha Finnemore, Rules For the World:  International Organizations in Global Politics (Ithaca: Cornell University Press, 2004), 157. In the same vein, Kams and Mingst write that “for liberals, international organizations play a number of key roles, including contributing to habits of cooperation and serving as arenas for negotiating and developing coalitions. They are a primary means for mitigating the danger of war, promoting the development of shared norms, and enhancing order.” Margaret P. Karns and Karen A. Mingst, International Organizations: The Politics and Processes of Global Governance (New Delhi: Viva Books, 2005), 38. Broadly speaking, neo-​liberal institutionalists like Robert O. Keohane and John Gerard Ruggie share these assumptions. 7   Robert O. Keohane, “Twenty Years of Institutional Liberalism,” International Relations 26/​2 (2012): 127. 8  Ibid.

 

116   international organizations, 1945–present written of how each of the UN bodies in this period was implicated in the Cold War. Thus, for example, by focusing on refugees fleeing the violation of civil and political rights, the Office of the UN High Commissioner for Refugees (UNHCR) helped embarrass former Soviet bloc countries. The former Soviet Union adopted a cautious approach towards IOs, albeit playing a relatively more active role in IOs in the post-​Stalin era.9 The East–​West ideological divide meant that certain organs of the UN, like the UNSC, were unable to function effectively in this period due to the use of the veto power by the Soviet Union. It was only after Mikhail Gorbachev came to power in 1985 that the Soviet Union sought greater engagement with the UN until its collapse in 1989.10 The other communist great power, China, also limited its participation in IOs after the revolution. In the Maoist period its participation remained ‘self-​consciously parsimonious and largely symbolic’.11 But the 1980s saw Beijing join practically all intergovernmental organizations (IGOs) in the UN system.12 China has sought to use IOs to gain authority in the international community and project its views to the outside world. The history of IOs in the Cold War phase is also narrated and assessed by MIOS in functional terms. The focus is on the multidimensional developments in and achievements of the UN system. But attention is also drawn to positive developments outside the UN system. The principal developments and achievements are stated by MIOS to be the following. First, the post-​war period saw the creation of new specialized agencies of the UN such as the Food and Agricultural Organization (FAO), the World Health Organization (WHO), the UN Educational, Scientific and Cultural Organization (UNESCO), and the International Atomic Energy Agency (IAEA) even as older organizations such as the International Labour Organization (ILO), the Universal Postal Union (UPU), and the World Meteorological Organization (WMO) were brought into a special relationship with the UN. The UN Economic and Social Council (ECOSOC) also established a number of functional organizations that included the Commission on Status of Women, the Population Commission (subsequently renamed Commission on Population and Development), and the Statistical Commission. A number of other commissions were created later. The ECOSOC also created regional commissions such as the Economic Commission for Europe, the Economic Commission for Latin America, and the Economic Commission for Africa. All these functional and regional commissions conduct studies and promote in other ways the specific 9  Kazimierz Grzybowski, “International Organizations from a Soviet Point of View,” Law and Contemporary Problems 29/​4 (1964): 886ff. 10   Jonathan Haslam, “The UN and the Soviet Union:  New Thinking?,” International Affairs 65/​4 (1989): 677. 11   Samuel S. Kim, “International Organizations in Chinese Foreign Policy,” ANNALS, AAPSS 519 (1992): 171. 12   Kim, “International Organizations in Chinese Foreign Policy,” 171.

 

mainstream history of ios    117 aims of each. These agencies, functional organizations, and commissions have contributed to the economic and social advancement of all peoples and nations. Second, in the aftermath of the war the two powerful international financial institutions (IFIs), the International Monetary Fund (IMF) and the World Bank (WB), were established also as specialized agencies of the UN, although they possess almost complete functional autonomy. The IMF promotes international monetary cooperation, while the World Bank supports international development. The WB is in reality a family of institutions that includes the International Bank for Reconstruction and Development, the International Development Agency, International Finance Corporation, the Multilateral Investment Guarantee Agency, and the International Centre for Settlement of Investment Disputes (ICSID). The IMF and WB family are seen to have contributed in distinct ways to the reduction of global poverty and the promotion of sustainable development. An International Trade Organization was also to be created in 1947 but the US Congress refused to ratify its charter. In its place the General Agreement on Tariffs and Trade (GATT) was adopted that successfully promoted free trade in goods. Third, this period saw the UN play a critical role in norm-​creation in diverse areas of international life. For instance, the normative architecture of human rights was adopted in this period. A large number of international human rights instruments that are either general in scope (e.g. the International Covenant on Civil and Political Rights, 1966) or concerned with the rights of particular groups of individuals (e.g. refugees, stateless persons, women, and children) were negotiated. Additionally, a number of non-​binding declarations were adopted, the most influential being the Universal Declaration of Human Rights (UDHR, 1948). Fourth, the UN assisted in the decolonization process. In 1960 the UN General Assembly adopted a landmark Declaration on the Granting of Independence to Colonial Countries and Peoples. The resolution inter alia declared that ‘the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-​operation’. The decolonization process led to the expansion of the membership of the UN and its specialized agencies and provided them with greater legitimacy. Fifth, the UN system helped initiate a dialogue between the developed and developing countries on establishing a new international economic order. A number of landmark resolutions such as the Declaration on Permanent Sovereignty over Natural Resources (1962), the Program and Declaration of Action on a New International Economic Order (1974), the Charter of Economic Rights and Duties of States (1974), and the UN Declaration on the Right to Development (1985) were adopted. In 1964 the first UN Conference on Trade and Development (UNCTAD) was convened and institutionalized. The UN Industrial Development Organization (UNIDO) and UN Development Programme (UNDP) were established in 1966.

 

118   international organizations, 1945–present While these measures may not have reduced the North–​South divide, they did facilitate the articulation of the concerns of third-​world countries. Sixth, the UN system made important contributions in the world of ideas that include the concepts of peacekeeping and sustainable development. The UN Intellectual History Project has recently documented these contributions.13 A UN Emergency Force was established in 1956 in the face of the Suez crisis, which was among the early peacekeeping operations. There have been dozens of peacekeeping operations undertaken since. The UN system also organized conferences that gave its ideas concrete shape. For instance, the UN Conference on the Human Environment was organized in Stockholm in 1972. It led to the creation of the UN Environment Programme. The UN Conference on the Law of the Sea was also convened in this period leading to the adoption of the UN Law of the Sea Convention in 1982. Seventh, the Cold War phase saw the first wave of regionalism. It saw the creation of several regional organizations including the Arab League, the Association of Southeast Asian Nations, the European Economic Community, the Organization of African Unity which later metamorphosed into the African Union, the Organization of American States, and security organizations such as the North Atlantic Treaty Organization (NATO).

The Post-​Cold War Phase The end of the Cold War resulted in many changes in the world of IOs. Most of these are viewed as positive developments by MIOS. First, the end of the Cold War led to the enhanced role of some organs of the UN like the Security Council. Thus, for example, ‘from 1946 to 1989 only 3.4  percent of Council resolutions were adopted under Chapter VII of the UN Charter. This number rose to roughly 38 percent between 1990 and 2008. By 2008, about 62 percent of all UNSC resolutions were adopted under Chapter VII authority.’14 Likewise, in the period 1945–​ 90 only two sanctions regimes (against Southern Rhodesia and South Africa) were authorized. After the end of the Cold War, a large number of sanctions regimes were adopted leading to the 1990s being dubbed ‘the sanctions decade’. Many of the new sanctions are targeted against individuals, groups, or entities.15 This phase has also seen the transformation of the concept of peacekeeping. As Doyle and Sambanis observe, ‘today peacekeeping is the multidimensional   See UN Intellectual History Project, http://​www.unhistory.org/​.   Michael Zürn, Martin Binder, and Matthias Ecker-​Ehrhardt, “International Authority and its Politicization,” International Theory 4/​1 (2012): 69–​106, 94. 15   The Consolidated UNSC Sanctions List is available at https://​www.un.org/​sc/​suborg/​en/​sanctions/​un-​sc-​consolidated-​list. 13

14

 

mainstream history of ios    119 management of a complex peace operation, usually in the post-​civil war context, designed to provide interim security and assist parties to make those institutional, material, and ideational transformations that are essential to make a peace sustainable’.16 Second, in this phase certain key IOs were established, the most significant of which was the creation of the World Trade Organization (WTO) in 1995. The WTO not only regulates international trade in goods but also international trade in services. Further, it enforces a global regime on intellectual property rights. The WTO is a powerful institution for it has a compulsory dispute settlement system that is backed by a system of retaliatory measures. It is seen as contributing in a significant way to the promotion of free and fair trade. Third, IOs and their organs have engaged in increased law-​making.17 Thus, for example, the UNSC exercised a form of legislative power to establish criminal tribunals for former Yugoslavia and Rwanda acting under Chapter VII of the UN Charter.18 UNSC Res. 1373 (2001) adopted in the wake of September 11 imposed a number of legal obligations on member states in combating terrorism. While these obligations were drawn from existing antiterrorism conventions, they became binding not because a state had become party to them but under the terms of the resolution. Fourth, the post-​Cold War phase has seen the greater judicialization of international relations.19 Besides the International Court of Justice, the principal judicial organ of the UN, a number of other international tribunals have been created. On one count there are ‘twelve international courts and arbitral bodies, nine regional bodies, and four hybrid criminal courts involving a mix of domestic and international judges’.20 The prominent tribunals are the WTO Appellate Body and the International Criminal Court (ICC). The former promote the peaceful settlement of trade disputes while the ICC brings to justice individuals who have committed war crimes or crimes against humanity.

16   Michael W. Doyle and Nicholas Sambanis, “Peacekeeping Operations,” in The Oxford Handbook on the United Nations, ed. Thomas G. Weiss and Sam Daws (New York: Oxford University Press, 2007), 323–​49. 17   José Alvarez, International Organizations as Law-​Makers (New  York:  Oxford University Press, 2005), 217. 18   See UNSC Res. 827 (1993) and UNSC Res. 955 (1994) respectively. See generally, Daphna Shraga and Ralph Zacklin, “The International Criminal Tribunal for the Former Yugoslavia,” European Journal of International Law 5 (1994): 360–​80; Ramses Wessels, and Jan Wouters, “The Phenomenon of Multilevel Regulation:  Interactions between Global, EU and National Regulatory Spheres,” International Organizations Law Review 4 (2007): 169–​201, 176. 19   “In contrast to the mid-​1980s, when only a handful of standing international courts were in place, twenty-​five such courts have been identified … by the Project on International Court and Tribunals.” Gregory Shaffer and Tom Ginsburg, “The Empirical turn in International Legal Scholarship,” American Journal of International Law 106/​1 (2012): 16. 20   Ibid., 16, n. 70.

 

120   international organizations, 1945–present Fifth, recent decades have seen the increased role of NGOs in IOs. In 1948 a mere forty-​one NGOs had ECOSOC consultative status. That number has gone up to 3,000 today.21 The grant of ‘consultative status has enabled NGOs to make significant contributions to international policy making’.22 Even in the absence of consultative status, NGOs can participate in UN conferences through a process of registration. For example, it is estimated that 1,400 NGOs registered at the UN Conference on Environment and Development in Rio de Janeiro of which less than half had consultative status.23 Sixth, the role of the private sector in the UN system has grown in recent decades.24 Christer Jonsson has observed that ‘UN attitudes toward the business community have shifted dramatically … businesses are now seen as partners rather than threats’.25 This development is viewed by MIOS as a benign development that uses the energy and resources of the private sector to meet the development goals of the UN system. Indeed, IOs see ‘PPPs [public–​private partnerships] solve the problems of scarce resources and eroding legitimacy’.26 Seventh, the post-​Cold War phase has witnessed a second wave of regionalism attributed to ‘global economic changes, the transformation of the Soviet Union and Eastern Europe, uncertainty over the outcome of the Uruguay Round of world trade negotiations, the European Union’s deepening and enlargement, fear that a set of trade blocs was emerging, and new attitudes toward international cooperation’.27 The functions of regional organizations vary greatly. Some organizations are devoted to greater economic cooperation (e.g. the North American Free Trade Agreement) and others to both economic and political cooperation. The second wave of regionalism has yet to abate. In fact today a ‘region’ has become an ‘imagined community’ delinked from geographical or cultural proximity. The impact of the regionalization of IOs is far from clear. Some see regional organizations as complementing the work of global IOs while others see these as reflecting local trends that may not dovetail with that of universal IOs. Eighth, the UN has continued its work of organizing conferences on important issues facing mankind. For instance, in the area of environmental governance the UN organized the Conference on Environment and Development (1992), the World Summit on Sustainable Development (2002), and the Rio+10 Conference (2012). These conferences resulted in the creation of the Global Environment Facility in 1991 and the Commission on Sustainable Development (1992) that has since been replaced by the UN High-​Level Political Forum on Sustainable Development (2013).   Paul Wapner, “Civil Society,” in The Oxford Handbook on the United Nations, ed. Thomas G. Weiss and Sam Daws (New York: Oxford University Press, 2007), 258. 22 23   Ibid., 258.   Wapner, “Civil Society,” 258. 24   See Craig N. Murphy, “Private Sector,” in The Oxford Handbook on the United Nations, ed. Thomas G. Weiss and Sam Daws (New York: Oxford University Press, 2007), 264–​75. 25  Christer Jönsson, “The John Holmes Memorial Lecture:  International Organizations at the Moving Public–​Private Borderline,” Global Governance 19 (2013): 2. 26 27   Ibid., 10.   Karns and Mingst, International Organizations, 151–​2. 21

 

mainstream history of ios    121 Ninth, the post-​Cold War period has seen the emergence of ‘international forums’ such as the Group of 20 (G20) which brings together advanced and emerging economies to promote international economic cooperation. The leaders of the G20 first met in 2008 in the wake of the global financial crisis. The G20 continues to meet once a year to discuss challenges facing the international community. The creation of the G20 has meant that the ECOSOC no longer plays a central role in the coordination of international economic cooperation. However, in order to strengthen the latter’s role, certain organizational changes were brought about in 2007 including the creation of a High Level Political Forum, Annual Ministerial Review, and a Development Cooperation Forum. Finally, the post-​Cold War phase has seen the reframing of the principle of sovereignty in the UN system. This reframing has assumed several forms. On the one hand, new concepts such as the ‘responsibility to protect’ have found their way into UN discourse, and on the other hand, the UN has come to assume the form of a surrogate state through establishing ‘transitional’ (or international) administrations as in the case of Kosovo and East Timor. A transitional administration has been defined as an exercise in state-​building ‘by assuming some or all of the powers of the state on a temporary basis’.28 While ‘transitional administrations’ have been part of the history of the twentieth century (e.g. the mandate system under the League of Nations), it has now sought to be given new life and meaning. These developments around reconceiving sovereignty are seen as promoting human rights and responsible government.

Decline of Liberal Internationalism? But despite the growing network and role of IOs in the post-​Cold War period, some mainstream scholars see it as a phase that has witnessed a decline in liberal internationalism. According to Keohane, in view of ‘the rise of China, India and other emerging economies, structures of power and interest have become more diverse’ leading to reduced coherence of IOs and also the increasing difficulties ‘to construct strong new institutions’.29 Likewise, Jorge Castaneda writes that ‘the possible accession of Brazil, China, India, and South Africa to the inner sanctum of the world’s leading institutions threatens to undermine those institutions’ principles and practices’ because they are not sufficiently committed to a liberal international order.30   Simon Chesterman, You, The People: The United Nations, Transitional Administration and State-​ Building (Oxford: Oxford University Press, 2004), 5. 29   Keohane, “Institutional Liberalism,” 134–​5. 30   Jorge G. Castaneda, “Not Ready for Prime Time: Why Including Emerging Powers at the Helm Would Hurt Global Governance,” Foreign Affairs, September/​October (2010):  112. He also observes (at 122) that “granting emerging powers a greater role on the world stage would probably weaken the trend towards a stronger multilateral system and an international legal regime that upholds democracy, human rights, nuclear nonproliferation, and environmental protection.” 28

 

122   international organizations, 1945–present What Keohane and Castaneda appear to be lamenting is the loss of pre-​eminence of Western states, in particular the United States, in the functioning of IOs. Indeed, arguably what they view as the lack of coherence is actually a liberating pluralism in the working of IOs. It is interesting that Keohane fails to acknowledge that the emerging powers are not opposed to the liberal international order, and thus that the coherence of IOs is far from being threatened. Indeed, rather than seeking to replace the liberal international order, emerging powers such as Brazil, China, and India want ‘more authority and leadership within it’.31 China, for instance, has greatly enhanced its engagement in and with IOs in the past decade.32 This has brought it great benefits as for instance from its membership in WTO.33 In other words, while the emerging powers would like important changes in particular regimes and to restructure IOs to their advantage, the idea is not to establish an alternative order. There is at least at present ‘no competing logic to liberal internationalism’.34 But Keohane and Castaneda are not alone in expressing concern about the decline of the liberal internationalism. Donald Puchala for instance expresses the same lament.35 But unlike Keohane and Castaneda he traces the decline of liberal internationalism to ‘a transatlantic rift over values that is threatening the group identity of the West, an essential element of Western hegemony’.36 From the perspective of the Global South it can be confidently said that Puchala exaggerates the threat that the transatlantic rift poses to liberal internationalism; in key international economic organizations (IEOs) the United States and Europe are united in their approach to developing countries.

Critical Histories The critical history of IOs is based on the view that ‘institutions are not, as some liberals would have us believe, neutral arenas for the solution of common problems but 31   John G. Ikenberry, “The Future of the Liberal World Order:  Internationalism after America,” Foreign Affairs May/​June (2011): 57. 32   “The past decades witnessed a transformation of four stages in China’s attitude toward international organizations. First, firmly opposing international organizations; second, holding reserved caution about international organizations; third, joining international organizations actively; fourth, taking the leadership in many international organizations and initiating new forums and organizations”:  Zhihai Xie, “The Rise of China and its Growing Role in International Organizations,” ICCS Journal of Modern Chinese Studies 4/​1 (2011): 85. 33 34   Ikenberry, “The Future of the Liberal World Order,” 62.   Ibid., 63. 35   Donald J. Puchala, “World Hegemony and the United Nations,” International Studies Review 7 (2005): 581. 36   Ibid., 582.

 

critical histories   123 rather sites of power, even of dominance’.37 This section briefly narrates three alternative stories about the role of IOs in the post-​1945 period: third-​world, Marxist, and feminist histories of IOs.

Third-​World Approach to IO History In recent years, third-​world scholarship on IOs has offered a critical history of their evolution and development from the standpoint of the lived experiences of third-​ world peoples. This view has principally been articulated in the last two decades by a second generation of third-​world scholars in the field of international law, going by the name of Third World Approaches to International Law (TWAIL).38 TWAIL calls for the decolonization of the history of IOs and offers a counter-​narrative to the MIOS history of IOs in the post-​1945 period. First, TWAIL notes that Asian and African states had a marginal role to play in the shaping of post-​Second World War institutions, including the UN system. The UN and its specialized agencies were established at a time when Asian and African states were colonies. The same was true of the early norm-​creation activity. Indeed, the UDHR, a charter for freedom and dignity, spoke of the protection of human rights in non-​self-​governing territories or trust territories and thereby ‘lent support to colonization and its discriminatory system’.39 Second, TWAIL points out that many post-​1945 IOs reveal a profound continuity with their predecessors in the colonial era. In other words, a number of IOs have their roots in colonial ideas, categories, and practices. Thus, for instance, Antony Anghie has demonstrated how the IFIs perform the same function as the Mandate System of the League of Nations: producing knowledge about backward peoples in order to guide them to becoming developed (formerly ‘civilized’) states through following certain economic and social policies.40 The concept of ‘transitional’ administration (e.g. in Kosovo, Iraq, and East Timor) also has a family resemblance with the colonial Mandate System. 37  Andrew Hurrell, “Power, Institutions, and the Production of Inequality,” in Power in Global Governance, ed. Michael Barnett and Raymond Duvall (Cambridge: Cambridge University Press, 2005), 56. 38   The second generation of TWAIL scholars are sometimes called TWAIL II. For the difference between TWAIL I and TWAIL II see Antony Angie and B.S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflict,” in The Methods of International Law, ed. Steven R. Ratner and Anne-​Marie Slaughter (Washington, D.C.: American Society of International Law, 2004), 185–​ 211; B.S. Chimni, “Towards a Radical Third World Approach to Contemporary International Law,” ICCLP Review 5/​2 (2002): 16–​30. 39   Emmanuelle Jouannet, The Liberal-​Welfare Law of Nations (Cambridge:  Cambridge University Press, 2012), 208. 40   Antony Anghie, “Time Present and Time Past: Globalization, International Financial Institutions, and the Third World,” New York University Journal of International Law and Politics 32 (2000): 243–​90.

 

124   international organizations, 1945–present Third, TWAIL sees the history of IOs in the post-​1945 period as facilitating a neocolonial project under US hegemony. The key organs or organizations in this respect have been the UNSC, GATT/​WTO, IMF, and World Bank. These IOs have compelled third-​world states to cede economic and political sovereignty to them.41 The IFIs in particular have used the tool of conditionalities to make countries of the Global South follow neo-​liberal economic policies to the advantage of corporate actors in the Global North.42 Fourth, TWAIL notes that MIOS neglects the history of the struggle of third-​ world nations and peoples against hegemonic states and organizations. There is thus little discussion of the efforts that led to the creation of new IOs like UNCTAD or UNIDO or of debates on how to strengthen ECOSOC in pursuing the development agenda. A third-​world history would also certainly record the contribution of the non-​aligned movement to the creation, strengthening, and democratization of IOs in addressing common problems facing humankind.43 Instead, it has been said by one mainstream scholar that a role of the UN ‘is to serve as a political-​ideological sink for counter-​hegemonic ideas and projects by ushering them into history’s dustbin’.44 Fifth, TWAIL points out that the response to the attempts of third-​world countries to reform the UN, especially its key body, the UNSC, and IFIs, has been excruciatingly slow. To take the case of reform in IFIs there has been, in the wake of the global financial crisis, a decision to allocate additional quotas and votes to countries like China and India.45 But the United States will continue to have a percentage of votes that allows it to exercise a veto over critical decisions in the IMF and the World Bank. Sixth, TWAIL notes with apprehension that the Western regional security organization NATO has unlawfully used force against third-​world countries. The illegal use of force against former Yugoslavia (1999) and Afghanistan (2001–​) are two instances.46 Seventh, TWAIL is concerned that international tribunals are often biased against third-​world countries. For instance, the investment jurisprudence that has been produced by ICSID has been pro-​investor, neglecting the environmental and 41  B. S. Chimni, “International Institutions Today: An Imperial Global State in the Making,” European Journal of International Law 15/​1 (2004): 1–​39. 42  B. S. Chimni, “International Financial Institutions and International Law:  A  Third World Perspective,” in International Financial Institutions and International Law, ed. Daniel D. Bradlow and David Hunter (The Netherlands: Wolters Kluwer, 2010), 31–​63. 43   Changavalli Siva Rama Murthy, “Non Aligned Movement Countries as Drivers of Change in International Organizations,” Comparativ 23 (2013): 118–​36. 44   Puchala, “World Hegemony and the United Nations,” 581. 45   Chimni, “International Financial Institutions,” 55 ff. 46   See, for example, G 77 “Ministerial Declaration” adopted in September 1999 which “rejected the so-​called right of humanitarian intervention, which had no basis in the UN Charter or in international law,” http://​www.g77.org/​doc/​Decl1999.html.

 

critical histories   125 human rights concerns of third-​world peoples.47 In the case of the ICC, TWAIL is concerned that it is only indicting leaders of the Third World. It has overlooked the gross violations of human rights and humanitarian laws by Western leaders during the intervention in former Yugoslavia and wars against Iraq and Afghanistan. Eighth, while recognizing the historical significance of greater civil society participation in deliberations of IOs, TWAIL concurs with the observation that ‘well-​ organized and well-​funded NGOs tend to be overrepresented whereas marginalized groups from developing countries tend to be highly underrepresented’.48 This has negative connotations for the pursuit of the interests of poor and marginal groups in the developing world. Ninth, TWAIL is sceptical of the benefits that come from IOs embracing public–​ private partnerships (PPPs). Take for instance two PPPs in the health sector, the Global Alliance for Vaccines and Immunization (GAVI) and the Global Fund to Fight AIDS, Tuberculosis and Malaria (Global Fund).49 Though these PPPs promote health services, ‘they also illustrate a gradual downgrading of traditional IGOs’.50 It is the Bill & Melinda Gates Foundation that ‘has emerged as a major player in global health governance’.51 In short, by increasing PPPs IOs ‘run the risk of pursuing the agenda of private actors rather than that of their member states’.52 The UN Global Compact initiative of Kofi Annan presented as an attempt to enhance Corporate Social Responsibility is also seen as ‘bluewashing’ the image of transnational corporations. Tenth, TWAIL expresses concern that debates on the future role of IOs and the creation of a world state draws only on Western intellectual traditions. The usual reference is to Immanuel Kant and his classic work Perpetual Peace or in recent times to the work of David Held or Alexander Wendt. The writings of thinkers from the Global South, such as the work of Sri Aurobindo on human unity, are mostly neglected.53

Marxist History of IOs The Marxist approach to the history of IOs shares common ground with TWAIL but sees it as tied in a more fundamental way to the forces of global capitalism. The approach that is most popular among left-​inclined academics is that of Robert Cox. 47   See generally, M. Sornarajah, The International Law on Foreign Investment, 3rd ed. (Cambridge: Cambridge University Press, 2010); UNCTAD, Trade and Development Report, 2014 (New  York:  UN, 2014). 48   Jönsson, “The John Holmes Memorial Lecture,” 6. 49   On GAVI see http://​www.gavi.org/​ and on the Global Fund see http://​www.theglobalfund.org/​en/​. 50 51 52   Jönsson, “The John Holmes Memorial Lecture,” 12.  Ibid.   Ibid., 14. 53   B. S. Chimni, “Retrieving ‘Other’ Visions of the Future: Sri Aurobindo and the Ideal of Human Unity,” in Decolonizing International Relations, ed. Branwen Gruffydd Jones (Lanham: Rowman and Littlefield, 2006), 197–​219.

 

126   international organizations, 1945–present He has used the work of the Italian Marxist Antonio Gramsci to advance the view that IOs support structures of capitalist hegemony: international organization functions as the process through which the institutions of hegemony and its ideology are developed. Among the features of an international organization which expresses its hegemonic role are the following: (1) they embody the rules which facilitate the expansion of hegemonic world orders; (2)  they are themselves the product of the hegemonic world order; (3) they ideologically legitimate the norms of the world order; (4) they co-​opt elites from peripheral countries; and (5) they absorb counter-​hegemonic forces.54

In short, Cox argues that IOs are ‘structures that provide the conditions for capitalism’.55 The Marxist political theorist Nicos Poulantzas more specifically spoke of the class powers of IOs. In his view, IOs ‘express and crystallize class powers’.56 In the Marxist view, the global social forces that shape the agenda of contemporary IOs constitute an emerging transnational capitalist class (TCC). This class is defined by a set of common interests of the transnational fractions of the national capitalist classes in both the First and Third Worlds that gain from the accelerated globalization process.57 As Ikenberry puts it in relation to emerging powers, ‘internationalist-​ oriented elites in Brazil, China, India and elsewhere are growing in influence within their societies, creating an expanding global constituency for an open and rule-​ based international order’.58 The TCC seeks to redefine the tasks of IOs, in particular IEOs, to push for a world economy in which goods, capital, and services can move unhindered across borders. In other words, IEOs are to facilitate the creation of a unified global economic space where uniform global standards apply as for instance in the domain of international property rights. In fact the prescription and enforcement of international property rights by the WTO is an example of the influence of the TCC over the normative agenda and working of IEOs. But there is no determinist logic at work. In the Marxist view, the function of IOs is not merely to advance the interests of one or other fraction of the global capitalist classes or of individual advanced capitalist states but to ensure the stability of the global capitalist system. This often requires that IOs serve the interests of subaltern groups and classes. Yet 54  Robert W. Cox, “Gramsci, Hegemony, and International Relations: An Essay in Method,” in Gramsci, Historical Materialism and International Relations, ed. Stephen Gill (Cambridge: Cambridge University Press, 1993), 62. 55   “Interview with Robert W. Cox,” Globalisation, Societies and Education 1/​1 (2003): 22. 56   Nicos Poulantzas, Classes in Contemporary Capitalism (London:  Verso, 1978), 70. The Marxist perspective partly explains the reluctance of the former Soviet Union to engage with IOs. It looked at IOs through a class lens: “The social character of a particular international organization is determined by the class nature of the participating States and, ultimately, by the nature of their economic system and by relations among them formed on the basis of that system.” G. I. Tunkin (ed.), International Law: A Textbook (Moscow: Progress Publishers, 1986), 186. 57  On TCC see Leslie Sklair, Globalization: Capitalism and Its Alternatives (Oxford: Oxford University Press, 2002), 98; and William Robinson and Jerry Harris, “Towards a Global Ruling Class? Globalization and the Transnational Capitalist Class,” Science and Society 64 (2000): 11–​54. 58   Ikenberry, “The Future of the Liberal World Order,” 63.

 

critical histories   127 broadly speaking, the history of each IO can be told as that of coming to terms with different phases of global capitalism. For instance, the World Bank has gone through different phases in the post-​1945 period: Four distinct periods mark the history of the World Bank: the ‘reluctant Banker’ period of 1944–​68; the Bank’s ‘rise to power’ in the period of 1968–​80 during which the calls for ‘poverty alleviation’ and meeting ‘basic needs’ for the ‘absolute poor’ reflected a new rhetorical turn in development; the ‘debt and adjustment’ period of 1980–​89; and the ‘green neoliberal’ period from 1989 to the present.59

Each of these periods can be viewed as a response to the state of global capitalism. Thus, for instance, the second phase (i.e. 1968–​80) represented an attempt to come to grips with the decolonization process and the demands of the developing world for addressing the concerns of its poor. The policy responses were, however, shaped by the neocolonial vision of the capitalist classes and states in the industrialized world. Against this backdrop, the Marxist approach points to the limits of the possible reform of IOs and offers a possible explanation for the historical failure to bring about their serious reform. IOs crucial to sustaining the global capitalist system cannot be radically restructured to greatly benefit subaltern states and groups in the international system. For that the nature of global capitalism would have to undergo major transformation.

Feminist History of IOs In recent times, feminist scholarship in the fields of international relations, international law, and international organization, has narrated the history of IOs from the standpoint of the life-​world and interests of women. The feminist critique of IOs is both at the level of representation and participation and the gendered nature of categories and concepts that inform their work. Indeed, feminists underline the dialectical and dynamic relationship between the two. Thus, for instance, international law scholars Hilary Charlesworth and Christine Chinkin have documented ‘the absence of women at senior levels in international institutions’ and argued ‘that the invisibility of women at the decision-​making levels has affected the treatment not only of “women’s” issues, but also the way all international concerns are understood’.60 The under-​representation of women in the UN is symbolized by the fact that there has been no woman Secretary-​General as yet. While there have been conscious efforts made within the UN system to correct the situation, ‘the advancement of women 59   Michael Goldman, Imperial Nature: The World Bank and Struggles for Social Justice in the Age of Globalization (New Delhi: Orient Longman, 2006), 50. 60   Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law:  A  Feminist Analysis (Manchester: Manchester University Press, 2000), 171.

 

128   international organizations, 1945–present has been glacial’.61 As Charlesworth and Chinkin point out, ‘equitable distribution of positions according to nationality continues to have a far greater priority than equitable distribution according to gender’, raising ‘issues of human rights’.62 They have also noted that ‘the general silence about women in discussions of UN reform has made the issue of sex and gender appear irrelevant to the process’.63 Feminist scholars have recommended that women’s participation should be enhanced in the UN and that international institutions and international power structures that keep out women be challenged.64 Feminist scholars have also raised a range of questions with regard to the historical record of IEOs so far as the welfare of women is concerned. The key questions include: What is the role of the World Bank, the IMF, and the WTO in perpetuating gendered economic regimes? How does the international trade regime help construct gender in different countries and different economic sectors? How do transnational corporations, another set of regime agents, participate in gender constructions? What kinds of gender and other status hierarchies operate within international organizations and transnational corporations? To what extent do status hierarchies in these organizations correlate with gender hegemonies reproduced through global economic institutions? Why has the feminist movement had so little success in changing neo-​liberal rhetoric and in breaking through organizational glass ceilings? Are institutional strategies in the organizations of economic governance more prone to cooptation than in other organizations?65

In the view of some feminist scholars, IEOs do perpetuate ‘gendered economic regimes’.66 In sum, the feminist history of IOs insists that gender justice be made central to any vision of the reform of UN system.67 Without contesting the active need to pursue the goal of gender justice, some feminist scholars have challenged overly pessimistic conclusions. In their view, since the declaration by the UN of International Women’s Year and subsequently a Decade for Women (1976–​85), ‘considerations of gender have entered the mainstream of policy-​making to a degree previously unimagined’.68 Thus, for instance, the importance of women’s participation in peace-​building has been recognized in UNSC Resolution 1325 on Women, Peace and Security and affirmed by later resolutions.69 The resolution called for the inclusion of a ‘gender perspective’ in post-​conflict settlements, ‘including the special needs of women and girls during repatriation and resettlement and for 62 63 64   Ibid., 183.   Ibid., 185, 189.   Ibid., 197.   Ibid., 198.   Elisabeth Prügl, “International Institutions and Feminist Politics,” Brown Journal of World Affairs 10/​2 (2004): 69–​84, 81. 66 67  Ibid.   Charlesworth and Chinkin, The Boundaries of International Law, 199. 68  Gülay Caglar, Elisabeth Prügl, and Susanne Zwingel, “Introducing Feminist Strategies in International Governance,” in Feminist Strategies in International Governance, ed. Gülay Caglar, Elisabeth Prügl (London: Routledge, 2013), 1–​18, 1. 69   The relevant UN Security Council Resolutions are UNSC Res. 1325 UN SCOR, 4213th mtg, UN Doc. S/​RES/​1325 (31 October 2000); UNSC Res. 1820 UN SCOR, 5916th mtg, UN Doc. S/​RES/​1820 (19 June 2008); UNSC Res. 1888 UN SCOR, 6195th mtg, UN Doc. S/​RES/​1888 (30 September 2009); and SC Res. 1889 UN SCOR, 6196th mtg, UN Doc. S/​RES/​1889 (5 October 2009). 61

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emerging themes   129 rehabilitation, reintegration and post-​conflict reconstruction’. In 2010, UN Women, the UN Entity for Gender Equality and the Empowerment of Women, was established and came into operation on 1 January 2011.70 It is therefore said that there have been ‘remarkable changes in gender regimes since the mid-​twentieth century’.71 Indeed, the Harvard scholar Janet Halley has used the term ‘governance feminism’ to describe the phenomenon of women coming to share power in the process of global governance.72

Emerging Themes The critical histories of IOs raise a number of questions concerning the ‘democratic deficit’ that characterizes their functioning and ways of not only making them more representative but also more accountable for their acts of omission and commission. Indeed, there is ‘a new level of public contestation of international institutions’.73 In fact an important segment of the anti-​globalization protests have IOs as their target, in particular the IFIs and the WTO. There is growing public consciousness in the developing world of the loss of policy space to IOs. However, not all students of IOs accept the view that domestic democracy is diminished. For example, Keohane, Macedo, and Moravcsik have argued that participation in multilateral institutions ‘can enhance the quality of domestic democracy’.74 In this view even when IOs are ‘captured by special interests, or operate in a nontransparent and unaccountable fashion’75 it is good to remember that ‘compared to most democratic states multilateral institutions are weak’ and ‘enjoy relatively little autonomy’.76 They conclude that multilateral institutions generate a ‘net positive impact’.77 On the other hand, third-​ world, left, and feminist critics perceive IOs as unresponsive to the concerns of the poor world or of women and are therefore suffering from a legitimacy crisis. They argue for greater accountability and responsibility of international institutions. 70   See UN Women, http://​www.unwomen.org/​en/​about-​us/​about-​un-​women. UN Women incorporates four existing parts of the UN system dealing with women and has been styled as the new UN “gender architecture.” Hilary Charlesworth and Christine Chinkin, “The New United Nations ‘Gender Architecture’: A Room with a View?,” in Max Planck Yearbook of United Nations Law, ed. A. von Bogdandy, A. Peters, and R. Wolfrum (2013), vol. 17, 1–​60, 3–​4. 71   See Charlesworth and Chinkin, “The New United Nations ‘Gender Architecture’: A Room with a View?” 72   Janet Halley, Prabha Kotiswaran, and Hila Shamir, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/​Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism,” Harvard Journal of Law & Gender 29 (2006): 335–​423. 73   Zürn, Binder, and Ecker-​Ehrhardt, “International Authority,” 78. 74  Robert O. Keohane, Stephen Macedo, and Andrew Moravcsik, “Democracy-​ Enhancing Multilateralism,” International Organization 63 (2009): 2. 75 76 77   Ibid., 22–​3.   Ibid., 23.   Ibid., 27.

 

130   international organizations, 1945–present The broad area of accountability of IOs has been sought to be addressed by liberal legal scholars by bringing to bear on them the principles of what has been called global administrative law (GAL). Indeed, GAL has been described as ‘the most notable attempt’ to establish accountability of IOs.78 GAL has been defined as: comprising the mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions they make.79

The problem with the GAL initiative, welcome as it is, is that it is confined to the procedural dimensions of the functioning of IOs. It does not concern itself with the substantive rules that IOs preside over and whose revision is more fundamental to the interest of subaltern states and groups.80 However, the extensive GAL literature does identify situations and instances in the functioning of IOs where there is a lack of effective participation and accountability. It also advances principles and best practices that can help improve the accountability of IOs.81 A final theme that is beginning to receive some attention is whether IOs can be considered as the building blocks of a world state. Alexander Wendt has argued from a philosophical/​teleological perspective that a world state is inevitable, albeit he has not considered the forms it may assume.82 It is unlikely that a world state will emerge in the near future as a single consolidated entity. But arguably a fragmented but functional world state is already in the process of evolving comprising a network of IOs operating in diverse fields of international life backed by the monopoly of the Global North over the legitimate use of force.83 The emergence of a nascent world state is also reflected in the fact that international law is slowly being transformed into internal law.84 In sum, while IOs are a derivate subject of international relations they are collectively assuming a primary character. If the future world state is democratic, federal, and just there would be less reason to complain. But at present the emerging world state has an imperial character.

  Klabbers, “International Institutions,” 238.  Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68 (2005): 17. 80   B. S. Chimni, “Co-​option and Resistance: Two Faces of Global Administrative Law,” New York University Journal of International Law and Politics 37 (2005): 799–​829. 81   See website of the Global Administrative Law Project at http://​www.iilj.org/​gal/​. 82   Alexander Wendt, “Why a World State is Inevitable,” European Journal of International Relations 9/​4 (2003): 491–​542. 83   B. S. Chimni, “International Institutions Today.” 84   Anne-​Marie Slaughter and William Burke-​White, “The Future of International Law Is Domestic (or, The European Way of Law),” Harvard International Law Journal 47/​2 (2006): 327–​52. 78

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Part I I I

FORMS OF ORGANIZATION

 

 

Chapter 6

FORMAL INTERGOVERNMENTAL ORGANIZATIONS Jan Klabbers

Those who design institutions, of whatever kind, will generally be torn between two contradictory imperatives. On the one hand, there is the desire to make the organization as effective and efficient as possible. It will be set up in order to ‘get things done’, and to do so with as little cost as feasible, in order to achieve maximum results. And yet, on the other hand, there is a realization that maximum results cannot be achieved by low costs alone; it is also important to hear what the relevant stakeholders have to say, and make sure that those who need to be involved can be involved. In a small pizza restaurant (this too is an organization, lest we forget) doing so may involve nothing more than setting up an ideas box for staff suggestions; with bigger entities, exercising public tasks may involve the creation of democratic organs. Hence, in any organization, there is a constant tug-​of-​war ongoing between the imperative of effectiveness and the imperative of legitimacy, whether described as technocracy versus politics, Oakeshott’s universitas versus societas, or, different in form but similar in inspiration, formalization versus deformalization.1 Whenever 1   See Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975), 198–​206; also Martti Koskenniemi, “The Fate of Public International Law: Between Technique and Politics,” Modern Law Review 70 (2007): 1–​30.

 

134   formal intergovernmental organizations an entity is considered too formal, ways will be invented to circumvent formal procedures; and whenever it is deemed too informal, there will be a call to strengthen control over decision-​making, or at least a call to broaden possibilities to influence decision-​making.2 And these, typically, take the form of formal procedures. International organizations then will exhibit both formal and informal elements, albeit in different quantities and mixes.3 With this in mind, it is not all that plausible to distinguish between formal and informal organizations—​the latter even comes close to being a linguistic impossibility: any chosen form will somehow be ‘formal’, if words have any meaning.4 In actual fact, international organizations typically display features of both formality and informality, and will do so in varying degrees. Still, there are two break-​even points on the continuum between formal and informal: at one end, an organization that becomes too formal becomes redundant, if not in theory then at least in practice—​it will collapse under the weight of its own formalism. At the other end, an entity that becomes too informal ceases to be an organization.5 What complicates things further is that the choice of a precise point on the continuum is not dictated by instrumental rationality alone. Given that politics is a messy business, decisions concerning institutional design tend to be influenced by numerous concerns, geopolitical, personal, or otherwise.6 Surely no rational designer would have dreamt of giving five states a right to veto any decisions in the Security Council; permanent membership could be probably be justified on a rational basis (these were supposed to be the five states with special responsibilities for the maintenance of international peace and security7), but the veto serves no instrumental-​rational purpose. It does, however, serve an eminently political purpose: it was considered the price to pay to get some of those five states on board to begin with and therewith give the United Nations (UN) the chance for   Jackall suggests, likewise, that organizations cannot escape bureaucracy, and bureaucracy begets calls to prevent domination and privilege. See Robert Jackall, Moral Mazes: The World of Corporate Managers, Twentieth Anniversary Edition (New York: Oxford University Press, 2010). 3   See Jan Klabbers, “Two Concepts of International Organization,” International Organizations Law Review 2 (2005): 277–​93. See also Jarna Petman, “Deformalization of International Organizations Law,” in Research Handbook on the Law of International Organizations, ed. Jan Klabbers and Åsa Wallendahl (Cheltenham: Edward Elgar, 2011), 398–​430. 4   Note also that it would be extremely odd to refer to states as more or less “formal,” yet states too are social constructs and thus subject, in principle, to the same political drives. Elsewhere I place states and their jurisdiction on a par with organizations and their powers: see Jan Klabbers, International Law (Cambridge: Cambridge University Press, 2013). 5  A  related perspective is that of organizations as more or less autonomous actors. For an exploration, see Richard Collins and Nigel White (eds.), International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order (London: Routledge, 2011). 6  See generally Raymond Geuss, Philosophy and Real Politics (Princeton: Princeton University Press, 2008). 7   See generally, e.g., Gerry Simpson, Great Powers and Outlaw States:  Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press, 2004). 2

 

formal intergovernmental organizations   135 relevance that the League of Nations never had. This, however, taps into political rationality rather than instrumental rationality. Likewise, the expansion eastwards of the European Union (EU) over the last decade cannot immediately be explained on the basis of the EU treaties and the stated desire to form an ‘ever closer union’ between the member states—​if anything, it works in the opposite direction, diluting such unity as there was among the original six member states.8 Yet, the eastward expansion finds its rationale in making a return of communism impossible by bringing a number of relatively poor states into the embrace of the West—​even at the cost of diluting the EU. And by the same token, the involvement of the World Trade Organization (WTO) with intellectual property rights (in the form of the Trade-​Related Aspects of Intellectual Property Rights Agreement) owes more to the lobbying of a handful of industrial sectors than to any particular rational concern: arguably, strengthening the World Intellectual Property Organization (WIPO) would have been just as plausible.9 In short, international organizations are not established, and do not function, in a political vacuum. Instead, they are set up to meet with particular historical circumstances following the desires (and whims perhaps) of particular actors and always have to make sure that both input and output legitimacy, so to speak, are sufficiently guaranteed lest they become irrelevant.10 Input legitimacy depends, in part, on formal characteristics: for example, will all member states have a say in decision-​making; and are parliaments and perhaps courts involved in controlling decision-​making processes? Output legitimacy, on the other hand, depends predominantly on the work the organization does and whether it leads to desired results. International law, it would seem fair to say, treats all organizations as ‘formal’, regardless of their precise degree of formalization, provided a certain threshold of ‘organizationhood’ is met. Where exactly the threshold is placed is debated, but the term ‘informal international organization’ is, legally, close to meaningless: at best it functions as a shorthand way of indicating that the entity concerned is not highly formalized. But it does not mean, contrary to the suggestion implicit in the term, that there exist two categories of international organization, subject to two distinct international legal regimes or, worse still, subject to two distinct normative regimes one of which (relating to formal entities) would be international law, while the other (relating to informal entities) would be something else—​which would raise serious questions as to what that ‘something else’ could possibly be. 8   Indeed, every expansion of the EU, including its first expansion when the United Kingdom, Ireland, and Denmark joined in 1973, has been said to dilute the Union. 9   The story is well-​told in Susan K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003). 10  The terms are borrowed from Fritz Scharpf, Governing in Europe:  Effective and Democratic? (Oxford: Oxford University Press, 1999). I should add though that in particular my conceptualization of input legitimacy is not identical to Scharpf ’s.

 

136   formal intergovernmental organizations This chapter will therefore treat the formal–​informal distinction as one of degree within international law, merely signifying that some organizations have attained (or suffer from) a higher degree of institutionalization than others. On the highly formal end of the continuum one can find entities such as the EU, the UN, and the World Bank, although here too elements of informality are present, and sometimes very visibly so, such as the informal arrangement that the president of the World Bank will be American.11 On the more informal end of the continuum one can find entities such as the Council of the Baltic Sea States or the Contact Group on Piracy off the Somali Coast, although here too some formalities will be present, if only in relation to such questions as who gets to preside meetings, how administrative matters are taken care of, the right to attend meetings, and who gets to launch initiatives. Typically, all organizations occupy a position on the continuum between formal and informal, and much the same even applies to the individual organs of organizations: the UN Security Council too displays both formalization and deformalization, or informality perhaps.12 Examples of the latter include the increased relevance of Presidential Statements (not mentioned in the UN Charter), the way the voting procedure over time has changed to make abstentions by permanent members possible, and the well-​known ‘pre-​cooking’ of decisions by the permanent members prior to involving the elected members. It is sometimes suggested that ‘informal’ equals ‘extra-​legal’, but this must be rejected, at least for two reasons. First, it may be doubted whether it is even possible to establish an international organization on an extra-​legal basis. The claim is sometimes heard with respect to the Organization for Security and Co-​operation in Europe (OSCE) and the Financial Action Task Force (FATF), but in both cases the claim is less than plausible. The OSCE works much like any other international organization: it has a constituent document, organs and programmes, staff, headquarters, and operations in a number of states. To claim that it is extra-​legal would somehow mean that it remains outside (and above) the law. Surely however, were the OSCE to be engaged in wrongdoing it could not escape being held responsible by claiming that it is extra-​legal; and surely, being held responsible cannot depend on the self-​characterization of an entity to begin with. And while the FATF is a strange creature, set up by the G7 and located within and administered by the Organisation for Economic Co-​operation and Development, it too functions much like a regular organization.13

11   See generally Jacob Katz Cogan, “Representation and Power in International Organization: The Operational Constitution and its Critics,” American Journal of International Law 103 (2009): 209–​63. 12   See, e.g., Edward C. Luck, UN Security Council: Practice and Promise (London: Routledge, 2006), 16–​20. 13   For earlier discussion, see Jan Klabbers, “Institutional Ambivalence by Design: Soft Organizations in International Law,” Nordic Journal of International Law 70 (2001): 403–​21.

 

why create an international organization?    137 Second, even if it would make sense to claim that an entity would somehow remain outside the law, such entities can still display greater or lesser degrees of formalization. The FATF seems fairly strongly formalized: it has a Secretariat, it meets at regular intervals, there are procedures to provide for the presidency and vice-​presidency, et cetera. The most curious aspect of its existence is perhaps that its life-​span is not unlimited: it operates on mandates that are valid for a number of years. This may be seen as a sign of de-​formalization (if no longer deemed desirable, it can easily be disbanded), but that only strengthens the general point that all institutional structures will combine elements of the formal and the informal. The law of international organizations is too vast a topic to be comprehensively covered in a chapter such as this.14 Instead, I will explore to what extent the formal-​informal distinction affects foundational decisions: the decision to set up an organization, to grant or withhold international legal personality, and to endow it with specific powers. These are not the only topics that could be discussed, nor are they even, for the everyday life of an international organization, necessarily the most relevant: it may well be argued (as will be suggested below) that international legal personality is not all that important. They do however have a bearing on the threshold between ‘organizationhood’ and ‘non-​organizationhood’, and therewith merit attention in a chapter on ‘formal international organizations’.

Why Create an International Organization? Theorists of international relations or world politics have presented various possible reasons why states may wish to set up an international organization and, often enough, these reasons tend to be traceable to the positions those theorists occupy on international relations generally.15 So-​called realists generally pay little attention to international organizations; one of the classic texts of the genre hardly mentions them16 and, to the extent that realists do pay attention to international organizations,  For a more comprehensive overview, see Jan Klabbers, An Introduction to International Organizations Law, 3rd ed. (Cambridge: Cambridge University Press, 2015), and for a far more comprehensive overview, see H. G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity, 5th ed. (Leiden: Martinus Nijhoff, 2011). 15   Kingsbury has astutely observed that much the same applies to the writings of international relations specialists on compliance. See Benedict Kingsbury, “The Concept of Compliance as a Function of Competing Conceptions of International Law,” Michigan Journal of International Law 19 (1998): 345–​72. 16   See Kenneth N. Waltz, Theory of International Politics (New York: McGraw Hill, 1979). 14

 

138   formal intergovernmental organizations they tend to treat them as epiphenomenal and having little influence on the behaviour of states. The one exception realists generally allow for is that of the military alliance: such alliances are considered as useful vehicles for the furtherance of state interests,17 even if most realists would tend to see military alliances as fleeting forms of cooperation, useful only until the next shift in the balance of power. All this follows directly from the basic premise of realism: states are engaged in a struggle for survival, and therefore only interested in increasing and cementing their absolute power. As a consequence, realists have little patience with the formal–​informal distinction: if organizations are by definition epiphenomenal or close to epiphenomenal, then it hardly matters how they are set up. Formalities, moreover, will have to give way to political realities: to the limited extent that realists would form an opinion on the formal-​informal distinction, they would hold that power trumps procedure. Liberal institutionalists, as the label suggests, are less dismissive of international organizations.18 They agree with realists that international affairs are about power, but differ on two counts. First, for institutionalists, power does not only come out of the barrel of a gun, but may also include economic or social power. Second, they hold that a relative (as opposed to absolute) increase in power may also be considered satisfactory. Thus, for them, international organizations can play a useful role in getting things done: they can help create stable expectations; and they can help reduce transaction costs. The result, though, is highly instrumental: if the same—​or better—​can be achieved by other means, then states may be tempted to opt for such other means. Not surprisingly then, it is in this tradition in particular that discussions on the extent of formalization and questions of institutional design tend to be most prominent.19 A less (or perhaps differently) instrumental approach is offered by constructivists. Their basic premise is that the global order is a social construct: norms and institutions help structure the world and give meaning to it. In this view, international organizations are useful as forums for discussing and influencing opinion, or as places where standards for behaviour can be created, monitored, and maintained. Organizations, moreover, can learn and adapt, and come to play a role of their own in world politics that is no longer solely reducible to the aggregate or mean interests of their member states. Here then, there may be close attention for insights from academic disciplines such as organizational sociology.20 That is not to say that constructivism ignores other factors:  leading constructivists have observed, for instance, that several organizations have predominantly been created with a view   Morgenthau, for instance, paid close attention to NATO. See Hans J. Morgenthau, Politics among Nations, 2nd ed. (New York: Knopf, 1955). 18   Arguably the classic text is Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984). 19   The standard reference is Barbara Koremenos, Charles Lipson, and Duncan Snidal (eds.), The Rational Design of International Institutions (Cambridge: Cambridge University Press, 2004). 20   See Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in Global Politics (Princeton: Princeton University Press, 2004). 17

 

why create an international organization?    139 to protecting the domestic status of political elites in their member states;21 thus, organizations can be put to political use. In a sense, the perspective of international lawyers is closest to constructivism. International law conceptualizes international organizations as independent creatures with an identity of their own, often (though not invariably) symbolized in the possession of international legal personality. Most international lawyers would agree with the view that international organizations are established by their member states in order to perform certain tasks that those member states are unable or unwilling to perform on their own. According to the leading theory of functionalism,22 then, international organizations are almost by definition working for the common good, and should not be hindered in their work: this would explain, for example, such phenomena as the recognition that international organizations may have implied powers (as will be discussed below) and will typically be granted tax breaks and immunity from suit before domestic courts. With some tasks, the need for collective action or management seems quite obvious: it is next to impossible for state A to guarantee that parcels sent from it arrive soundly at their destination in state B without B’s cooperation, and with 200 states, such cooperation is probably best achieved through an international organization. While it is not unthinkable to have a network of identical bilateral agreements between 200 states relating to postal matters (after all, the law on extradition, for example, is still largely structured along bilateral lines), it was realized early on that an institutional form would much facilitate things. Likewise, the management of international or transboundary waterways, railway traffic, and other forms of communication is no doubt much easier to achieve through an institution than through series of bilateral agreements. It is hardly a coincidence that the first organizations arose, during the nineteenth century, in relation to transport and communication.23 As a result, many have held that cooperation on technical, non-​divisive, non-​political issues, might be easiest to achieve,24 and functionalist integration theory predicted   See Michael Barnett and Etel Solingen, “Designed to Fail or Failure of Design? The Origins and Legacy of the Arab League,” in Crafting Cooperation: Regional International Institutions in Comparative Perspective, ed. Amitav Acharya and Alastair Iain Johnston (Cambridge: Cambridge University Press, 2007), 180–​220. 22   On functionalism and its intellectual history, see Jan Klabbers, “The Emergence of Functionalism in International Institutional Law:  Colonial Inspirations,” European Journal of International Law 25 (2014):  645–​75; also Jan Klabbers, “The EJIL Foreword:  The Transformation of International Organizations Law,” European Journal of International Law 26 (2015): 9–​82. 23   For a useful overview, see Bob Reinalda, Routledge History of International Organizations: From 1815 to the Present Day (London: Routledge, 2009); the intellectual origins are nicely sketched in Mark Mazower, Governing the World:  The History of an Idea (London:  Allen Lane, 2012). See also, for a neo-​Gramscian view, Craig N. Murphy, International Organization and Industrial Change:  Global Governance Since 1850 (Cambridge: Polity, 1994). 24  Indeed, the work of international organizations has always been presented as a-​ political. See already Paul S. Reinsch, Public International Unions, Their Work and Organization:  A  Study in International Administrative Law (Boston: McGinn & Co., 1911). 21

 

140   formal intergovernmental organizations that eventually, technical cooperation might ‘spill-​over’ into other walks of life. This too was based on a constructivist insight avant la lettre: states would over time learn to appreciate the values of cooperation and come to act accordingly.25

Legal Personality The law of international organizations is not governed by a single universal legal instrument nor even by a clear and universally accepted set of customary international legal rules. Typically, organizations have their own ‘internal’ systems of rules, while their relations with the outside world tend to be governed by international law—​the same international law, by and large, that relates to the activities of other actors operating in the international sphere.26 The question of when and whether an international organization comes into existence is answered on the basis of general international law, and there is widespread consensus among international lawyers that the criteria set by international law are neither strict nor precise. Generally speaking, it would seem that the literature accepts a set of four requirements: international organizations, so it is suggested, are typically (1) set up between states, (2) on the basis of a treaty, with (3) at least one organ which (4) is supposed to have a distinct will from the organization’s member states. I will briefly discuss these below, as well as two other possible criteria that are sometimes mentioned in connection with the legal existence of international organizations: recognition and the public nature (vel non) of the organization’s tasks. Before doing so, however, the confusing relationship between existence and legal personality of international organizations needs to be discussed, because it is especially on this point that symbolic battles between formalization and deformalization often play out: those who advocate a low degree of formalization often also (and not surprisingly) advocate that the organization not be given international legal personality. While legal personality under domestic law is considered very relevant for international organizations (this would allow them to rent buildings, hire staff, participate in legal proceedings, etc.), personality under international law may not be all

25   A  sophisticated recent constructivist contribution is Ian Johnstone, The Power of Deliberation: International Law, Politics and Organization (Oxford: Oxford University Press, 2011). 26   See Jan Klabbers, “The Paradox of International Institutional Law,” International Organizations Law Review 5 (2008): 151–​73; and Jan Klabbers, “Theorising International Organisations,” in The Oxford Handbook of the Theory of International Law, ed. Anne Orford and Florian Hoffmann (Oxford: Oxford University Press, 2016), 618–34, suggesting that organizations are subject to three different legal dynamics: their relations with member states, their internal relations, and their external relations.

 

legal personality   141 that relevant. There is some empirical support for this proposition: most constituent documents will either contain a grant of personality under the domestic law of the organization’s member states or will contain a clause on the specific legal capacities of the organization under domestic law. By contrast, clauses explicitly granting international legal personality have traditionally been few and far between, which might suggest both that personality was not considered all that relevant and that a grant of personality was considered more or less redundant. Both suggestions are plausible. Personality under international law is a problematic concept and, with respect to international organizations, often considered of limited relevance. This finds its cause in at least two related circumstances. First, organizations need powers (competencies) to act. When a power to act externally is granted (e.g. the power to conclude treaties), a separate grant of international legal personality may not be required: the power to conclude treaties presupposes—​or implies—​personality. The reverse, incidentally, does not hold true:  a grant of personality does not automatically imply any particular powers.27 As a result, it is more useful (one is tempted to say ‘functional’) to endow an organization with specific powers than to endow it with a general grant of international legal personality that will need further elaboration in the form of specific powers. Second, for a long time it was thought that organizations could do no wrong: they were created in order to help achieve the ‘salvation of mankind’ and for this, no personality would be required.28 The one exception, generally acknowledged, would relate to the financial institutions: in their case, a grant of personality would at least ‘presumptively shield the member states from liability’.29 More recently, another reason for attaching importance to international legal personality has been put forward: under the articles on responsibility of international organizations, adopted by the International Law Commission in 2011, it transpires that organizations can only be held responsible in their own right if they possess international legal personality, as only international legal persons can engage in internationally wrongful acts.30 The International Court of Justice addressed the question of the UN’s legal personality in a 1949 advisory opinion brought on by the death of a UN-​appointed mediator in the Middle East. In Reparation for Injuries, it specified that the UN was to be regarded as a legal person, both by its member states but also, more importantly

  With this in mind, it is curious to realize that the WTO has expressly been granted international legal personality without having any external powers. Unless and until such powers are granted, its legal personality remains an empty shell, the meaning of which is best seen as symbolic: it symbolizes that the WTO is an entity separate from its member states. Intriguingly, this in itself denotes a tension with the WTO’s oft-​heard claim to be “member-​driven” rather than bureaucracy-​driven. 28  The reference to the “salvation of mankind” stems from Nagendra Singh, Termination of Membership of International Organisations (London: Stevens and Sons, 1958), vii. 29   See C. F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd ed. (Cambridge: Cambridge University Press, 2005), 68. 30   See Art. 2(a) of the Articles on the Responsibility of International Organizations. 27

 

142   formal intergovernmental organizations perhaps, by third states.31 That member states are to accept the legal personality of their own creation is perhaps no cause for surprise, although it does suggest that legal personality is not something member states can easily withhold from their creations. While the Court did not provide much by way or argumentation on legal personality vis-​à-​vis member states, it did provide an argument as to why the UN’s legal personality would also be opposable to non-​member states. The argument, however, is very much geared to the particular characteristics of the UN, and thus not entirely capable of generalization. The Court applied an inductive approach and derived the personality of the UN first and foremost from the UN’s activities: these included treaty-​making and could thus only be explained by means of the existence of legal personality. And to bolster its conclusion, the Court handily referred to the power of numbers: fifty states, representing the vast majority of then existing states, had the power to bring into being a new international legal person, whose personality would also be opposable to non-​members. Reparation for Injuries can be interpreted in several ways. One reading, plausible in its own right, is that it supports the proposition that eventually the existence of legal personality depends on the legal system concerned, in casu international law. On such a reading, the intentions of the founders may have probative value, but will not be decisive. Alternatively, Reparation for Injuries can be read as supporting the proposition that, to the extent that the founders’ intentions are decisive, these manifest themselves through the specific powers granted to international organizations. Thus, on this reading, if an organization has been granted treaty-​making powers, it can only mean that its founders intended their creation to have international legal personality. Since few organizations are purely internally focused, a strong presumption persisted that organizations would almost by definition possess international legal personality, even without an explicit provision to this effect in their constituent treaty.32 After all, even the conclusion of a headquarters agreement—​probably the most common manifestation of treaty-​making by international organizations—​ would presuppose personality. And indeed, given the scarcity of clauses granting international legal personality, it could hardly be otherwise.33 This changed some two decades ago when, in the midst of much legal confusion, the EU was created as a new entity without an explicit grant of personality, giving rise to the proposition that therefore, it would not possess legal personality. Legally the argument was never very convincing, all the more so as that same EU was supposed to have a foreign policy and a migration policy—​both would seem highly 31  See Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174. 32   See further Jan Klabbers, “Presumptive Personality: The European Union in International Law,” in International Law Aspects of the European Union, ed. Martti Koskenniemi (The Hague: Martinus Nijhoff, 1998), 231–​53. 33   The main exceptions include the financial institutions, where a specific clause of personality is usually explained as flagging the limited liability of member states.

 

the traditional elements   143 implausible in the absence of international legal personality, at least on the theory that such personality is somehow a condition for action. Still, the putative legal personality of the EU came to symbolize the abdication of sovereignty of member states, and the argument that the EU lacked international legal personality thus acquired considerable political traction, even if not all international lawyers agreed. Perhaps the current law is best presented as follows. There is a strong presumption that once an organization is created, it will be a legal person for purposes of inter­ national law, but the presumption can be rebutted, for example when the member states explicitly withhold personality, but this is rare, perhaps even non-​existent. It can also be rebutted when organizations are not expected to have external affairs and have no intention of concluding even a headquarters agreement in their own name. Rare as this may be, there was consensus that this description fitted the Benelux for most of its existence, until its constitution was reformed in 2008,34 and to some extent it may apply to an entity such as the Council of the Baltic Sea States, which does not have a headquarters agreement itself but whose Secretariat has a separate headquarters agreement with Sweden.35 Finally, the presumption can be rebutted (if this is the proper way to put it) if the entity in question does not quite add up to an international organization. This is probably the most often encountered situation:  states set up an entity for cooperative purposes, but in such a loose format that doubts remain whether the entity is an international organization properly speaking—​whatever that may mean. And if the entity fails to meet the threshold for organizationhood, it would seem to follow that it cannot aspire to international legal personality either. One set of examples may include the various Committees of the Parties or Meetings of the Parties set up under multilateral environmental agreements. These are institutionalized in the descriptive sense of the term (e.g. they meet regularly, have a Secretariat, and produce documentation of normative relevance) but are often seen as falling just a few inches short of being a ‘proper’ organization.

The Traditional Elements Entities are generally considered international organizations (formal organizations, if you will), if they are set up by states, on the basis of a treaty, with at least one organ

  Art. 28 of the 2008 Treaty revising the Benelux Treaty (in force since 2012) grants Benelux international legal personality with a view to acquiring privileges and immunities. 35  For more details, see Jan Klabbers, “Ostseerat,” in Enzyklopedie Europarecht, I:  Europäisches Organisations-​und Verfassungsrecht, ed. Armin Hatje and Peter-​Christian Müller-​Graff (Baden-​ Baden: Nomos), 1163–​7 1. 34

 

144   formal intergovernmental organizations that, in turn, has a will that is distinct from the will of its member states (a volonté distincte).36 Those criteria are, however, highly flexible, and may give rise to much oscillation between formalization and deformalization. Intriguingly perhaps, the designation used by the founders may provide clues as to the desired degree of formalization, but is not considered to be of much legal relevance. Entities called Study Group or Network may well have a looser structure than those referred to as Union or Organization,37 but are nevertheless usually considered international organizations and may even be explicitly endowed with international legal personality. Entities set up by, or involving, other international organizations may well be international organizations, despite the general requirement that members be states: the WTO is an example (one of its founding members is the EU), and perhaps the most intriguing example is the Joint Vienna Institute, set up exclusively by other international organizations in 1992 to provide training to state officials from the formerly communist states of Eastern Europe. Likewise, international organizations can encompass territorial units that are not considered independent states (Taiwan, Hong Kong, and Macau are members of the WTO), or can encompass organs of states or even non-​state entities: Interpol was created by police officials, the Bank for International Settlements used to have private shareholders, and the European Committee for Standardization was set up by national standardization bodies rather than states per se. While it is the case that most international organizations are set up on the basis of a treaty,38 this is not invariably the case. Indeed, it is often held that states have the choice between using a legally binding instrument and a non-​legally binding instrument, and the OSCE is often considered to be set up on the basis of such a non-​legally binding document. Other organizations have been created on the basis of a resolution adopted by an existing organization, and the Nordic Council was set up by parallel decisions taken by the parliaments of the Nordic states. The requirement that an organization possesses at least one organ helps to distinguish institutionalized cooperation from non-​institutionalized cooperation. Put 36   See Klabbers, An Introduction to International Organizations Law, 6–​14. The list combines proposed requirements explored by other authors. 37   The International Jute Study Group, its informal designation notwithstanding, is explicitly granted international legal personality in Art. 16 of its constituent instrument. 38   Somewhat curiously at first sight, Schermers and Blokker list as separate requirements the existence of a treaty, and the entity being governed by international law. This seems curious in that treaties are by definition governed by international law, but becomes more plausible upon realizing that the drafters of a treaty can create an entity by treaty (the treaty will be governed by international law), but stipulate that their creature is a creature under some system of domestic law: an example sometimes mentioned is the Basle-​Mulhouse airport, governed by French law but set up on the basis of a treaty between France and Switzerland. This does however presuppose a distinction between the legal instrument used (the treaty) and the entity set up by it (the organization), which may give rise to further issues: if, e.g., the organization dissolves, does therewith the treaty also come to an end? The example is mentioned in Schermers and Blokker, International Institutional Law, 47.

 

the traditional elements   145 differently, a group of states meeting annually does not amount to an organization, but the same group of states meeting annually as the plenary organ of an organization (the organ in which all member states are represented) does amount to an organization. Often, at least two organs will be present: a plenary and a secretariat. The plenary will decide on activities, while a permanent secretariat can be entrusted with recurring tasks: preparing the agenda, sending out the invitations, providing translation, etc. The fourth requirement is that of the volonté distincte: at least one of the organs ought to have a distinct will from the aggregate wills of the member states. While the first three requirements are predominantly formal in nature, this requirement taps into substance, and doing so immediately encounters problems. Taken literally, the volonté distincte can only mean that the organ in question can take binding decisions by majority vote. After all, decisions taken by unanimity or consensus are indistinguishable from the aggregate wishes of the member states, and with non-​binding decisions it becomes problematic to speak of a volonté, whether distincte or otherwise. Empirically, however, few organizations (or organs thereof) can boast a volonté distincte conceptualized in this way: the Security Council can take binding decisions, as can the EU and, concerning air traffic over the high seas, the International Civil Aviation Organization, but the total number of organizations that can do so is rather small. Hence, interpreted this way, the fourth requirement would mean that there are really only a handful of international organizations. Not surprisingly then, this requirement is usually interpreted in a more relaxed sense: as long as there is an impression that the organization is more than a vehicle for its member states, it is taken to have the required volonté distincte. This, obviously, might apply quite often: a meeting persuading a single member state to soften its stance on topic X, Y, or Z can already be said to have a volonté distincte in this loose sense, and perhaps this is as it should be. After all, organizations are not just decision-​making devices, but also settings where states can socialize, debate, and aim to persuade one another: the formal and the informal vie for prominence. More technically, even though law-​making proper by organizations remains rare, typically organizations can and do set binding internal rules through majority decision-​making: rules on the budget, the admission of new members, or the appointment of high officials. Such internal administrative acts (if that is the proper way to classify them) may then be seen to manifest the volonté distincte. At the end of the day, the four requirements mentioned play but a limited role in the identification of organizationhood.39 As a result, additional factors are 39   There is a parallel here with statehood, where the Montevideo criteria play but a limited role. For in-​depth discussion, see Karen Knop, “Statehood: Territory, People, Government,” in The Cambridge Companion to International Law, ed. James Crawford and Martti Koskenniemi (Cambridge: Cambridge University Press, 2012), 95–​116.

 

146   formal intergovernmental organizations sometimes invoked. Two of these require separate discussion: recognition of the organization’s existence by third parties, and the possibly public nature of the organization’s task. Explicit acts of recognition of international organizations are rare, although acts of non-​recognition may be somewhat more common:  for a long time the USSR refused to recognize the European Economic Community (EEC), even to the point of refusing to bring a claim after an EEC driver had caused a traffic incident in Brussels, out of fear that pressing a claim could be interpreted as implied recognition.40 Nonetheless, it is sometimes posited that an organization can hardly be said to exist in any meaningful way unless others want to engage with it. Sensible as this position is, it does not amount to all that much: the very act of engaging with an organization presupposes some kind of recognition. If state A concludes a treaty with organization X, this is taken both as evidence and as constitutive of A’s recognition of X. Whereas unrecognized states can have all sorts of relationships with each other without this affecting the formal absence of recognition,41 such is not the case in the law of international organizations. This reflects the fact that organizations enjoy a secondary status in international affairs: they are formal in nature, and they lack territory, population, and natural resources: states may need to have ‘back channel’ relations with unrecognized states for strategic, economic, or other reasons, but it will be very rare indeed that any state will need to ‘back channel’ with, say, WIPO, or the World Meteorological Organization. Either way, since engagement with an organization manifests recognition while being constitutive of it, as a criterion to distinguish organizations from non-​organizations, or formal from informal ones, it is not all that helpful. The more interesting criterion would be the public nature of the organization’s tasks. After all, it is commonly understood that private for-​profit companies cannot be seen as international organizations. If organizations are seen as a force for the common good, as many would intuitively accept, then insistence on a public task might be warranted. On several occasions, courts have indeed hinted at such a conception: a local court in Paris, the EU courts on a few distinct occasions, and the Permanent Court of Arbitration have all held, in pertinent cases, that one of the decisive elements behind an international organization was the presence of a public task.42 And while an entity is perhaps allowed to make a little profit, as long as it does so in executing a public task it must still be considered an international organization. 40   I have been unable to find substantiation for the story, and cannot exclude it being apocryphal. Yet, the attitude would make sense and, as they say, one should never let the facts get in the way of a good story. 41  The locus classicus is B. R. Bot, Nonrecognition and Treaty Relations (Leiden: A.W. Sijthoff, 1968). 42  The relevant case law is discussed in Jan Klabbers, “Unity, Diversity, Accountability: The Ambivalent Concept of International Organisation,” Melbourne Journal of International Law 14 (2013): 149–​70.

 

powers?   147 Although an insistence on public tasks may work in particular settings, it is not all that helpful as a general criterion, largely because all organizational tasks can be seen to include a public element. Perhaps the most obvious example of an organization having first and foremost the protection of the interests of its member states in mind is the Organization of the Petroleum Exporting Countries (OPEC); hence, there is some merit in the suggestion that OPEC is an interest club or lobby group first and foremost, and should not be considered an international organization. And yet, not only does OPEC’s constitutional document refer to some public tasks, it is also the case that OPEC does what it does for its member states with a view to enhancing the well-​being of those member states. Hence, it exercises a public task, no matter how limited the ‘public’ concerned may be.43

Powers? Terms such as tasks and functions are often used interchangeably with terms such as powers and competencies, and not just in the literature but in the relevant case law as well. This reflects a large measure of conceptual confusion which, in turn, provides the space for all sorts of arguments concerning the desired degrees of formalization or informality. Moreover, as already alluded to, powers and functions both constitute legal personality, and are manifestations of personality.44 Powers are generally thought to flow from delegation by member states,45 and are usually thought to be conferred in two ways. First, powers can be granted explicitly. Thus, the Food and Agriculture Organization (FAO) has the power (its constitution speaks of ‘function’) to ‘recommend national and international action’ relating to, for example, the conservation of natural resources,46 while the powers of the World Health Organization (WHO) include the power (again, the constitution speaks of ‘function’) ‘to promote and conduct research in the field of health’.47 Such power grants may give rise to interpretative debates (e.g. does the   OPEC currently has twelve member states (Indonesia appears to have suspended its membership and is not counted), and it seems fair to suggest that in most of them, the well-​being of the state coincides with the well-​being of a fairly small elite. See http://​www.opec.org/​opec_​web/​en/​about_​ us/​25.htm. 44   For a useful recent monograph, see Viljam Engström, Constructing the Powers of International Institutions (Leiden: Martinus Nijhoff, 2012). 45   See generally Darren G. Hawkins et al. (eds.), Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006); Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers (Oxford: Oxford University Press, 2005). 46   Art. I(2)(c) FAO.    47  Art. 2(n) WHO. 43

 

148   formal intergovernmental organizations WHO’s power include the power to conduct studies into tobacco advertising?), but their existence as such is beyond dispute—​even if the power would never be used. Alternatively, powers can be granted by implication, the underlying assumption being that the member states would have granted such powers expressly if only they had thought of them. Hence, the International Court of Justice (ICJ) has repeatedly confirmed that such implied powers arise ‘by necessary intendment’: like express powers, they are somehow deemed to derive from the intentions of the organization’s founders.48 The main practical question then is how such powers can be implied:  what is the basis for their implication? In the leading Reparation opinion, the ICJ linked implied powers to the functions of the organization: the organization has implied powers to the extent necessary to function effectively or achieve its tasks. There are few activities imaginable that could not be seen to fall under this broad formula, especially as the functions of organizations are typically cast in broad terms. Thus, to provide a hypothetical example, the UN could be deemed to have the implied power to organize Miss Universe contests, on the theory that such contests help to bring nations together and therewith can be expected to contribute to the maintenance of international peace and security and the development of friendly relations among states.49 It has sometimes been argued that powers depend not so much on specific grants or delegations by member states, but rather depend on ‘organizationhood’:  once organizationhood is established, the organization would automatically possess whatever powers it needs, unless its constitution would explicitly prohibit it.50 The thought is not all that eccentric: it is generally assumed, for instance, that courts have certain powers which inhere in the judicial function, regardless of whether their founding documents refer to them, such as the power to hear expert testimony, or the power to render interlocutory measures. Still, the notion of inherent powers of international organizations meets with a few formidable obstacles. First, there are no clear indicia of organizationhood. Hence, a debate on the inherent powers of entity X will always be vulnerable to the argument that entity X might not even qualify, for whatever reason, as an inter­ national organization. That may not be terribly problematic when it concerns highly formalized entities (the UN, the EU), but will be difficult along the frontier between organizationhood and non-​organizationhood. Second, the notion of inherent powers is hard to align with the general relevance ascribed in international law to the intentions of the drafters of treaties, including   See the discussion in Klabbers, An Introduction to International Organizations Law, 63–​4.   These are among the purposes of the UN as mentioned in Art. 1, paras 1 and 2, UN Charter. 50   This is usually associated with the work of Seyersted. For a posthumously published synthesis, see Finn Seyersted, Common Law of International Organizations (Leiden: Martinus Nijhoff, 2008). 48 49

 

powers?   149 treaties establishing international organizations. Surely, states would find it difficult to accept that the European University Institute in Florence (which is set up as an international organization) would have the power to engage in military activities due to the mere circumstance that its constituent document does not prohibit it from doing so. The underlying presumption with international organizations generally is, true or false, that they follow a functionalist logic: they are set up by states in order to achieve certain specified results, through the powers those states have delegated to these creatures. Inherent powers simply do not fit the functionalist model,51 unless limited to administrative matters. Thus, a claim that organizations have the inherent power to conclude a headquarters agreement may be plausible; a claim that they can engage in military action unless otherwise specified is not—​the latter is the sole prerogative of organizations with a military function, whether as alliances or as peacekeeping entities.52 If powers are typically granted either explicitly or by implication, an important additional source (in particular given the tension between formalization and deformalization) resides in informal amendment—​in fact, there are but fuzzy lines between legal phenomena such as implied powers, subsequent interpretation, and informal amendment. The textbook example is the transformation of the North Atlantic Treaty Organization (NATO) since the end of the Cold War from a defensive alliance to a global police force. This took place through informal means, in particular the adoption of a series of strategy documents rather than formal amendments of NATO’s constituent document. In doing so, the parliaments of NATO’s member states were hardly (or not at all) consulted, and much the same applies to judicial institutions.53 What applies to NATO also applies elsewhere. Kirgis has drawn attention to the changes in the scope of activities the Security Council can undertake,54 and others have made the more general observation that amendment can take place formally, but that informal amendment will continue to exercise a huge attraction for decision-​makers.55 51   It is fair to say, incidentally, that Seyersted was the only non-​functionalist specialist in the law of international organizations of his generation. 52  To be sure, Seyersted suggests that some activities need to be based on specified powers (i.e. not all powers are inherent), but does not specify what these are. He does seem to think that international legal personality inheres in organizationhood: see Seyersted, Common Law of International Organizations, 31. 53   See generally Stefan Bölingen, Die Transformation der NATO im Spiegel der Vertragsentwicklung: Zwischen sicherheitpolitischen Herausforderungen und völkerrechtlicher Legitimität (Saarbrücken: VDM Verlag, 2007). 54   See F. L. Kirgis, “The Security Council’s First Fifty Years,” American Journal of International Law 89 (1995): 504–​39; see also José E. Alvarez, International Organizations as Law-​makers (Oxford: Oxford University Press, 2005). 55   See Ralph Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (Leiden: Sijthoff, 1968).

 

150   formal intergovernmental organizations

Conclusion International law provides little support for a hard-​and-​fast distinction between formal and informal international organizations. To the extent that the terms are useful, it is to signify a relative value: some organizations exhibit a higher degree of institutionalization than others or, differently put, the mixture of formal and informal elements in any organizational design may locate the organization on different points on a continuum between formal and informal. It is doubtful, however, whether this has any immediate legal ramifications.56 This chapter has suggested that the distinction between formal and informal meets with little resonance in the law of international organizations or, more accurately, that while founding actors can opt for higher or lower degrees of formalization or institutionalization, their intentions have little direct bearing on the legal nature of the organization per se. Legal personality under international law is, as noted, both evidenced and constituted by the facility of engaging in external action: an organization does not become ‘more formal’, or ‘more institutional’ if it is granted personality, nor does it becomes less formal or less institutional if personality is withheld. Likewise, the established requirements for organizationhood do not seem to signify all that much: they are too loose and flexible to allow for any strict conceptualization of the formal and the informal. Finally, the question of the powers of organizations is inconclusive as well. It is generally acknowledged that organizations derive their powers from some kind of delegation by their member states, either expressly or by implication (or, throughout their existence, through informal amendments), with possibly some administrative powers inhering in organizationhood. In a quasi-​Kelsenian way, it may be said that the organization is the sum total of its powers,57 and while the sum total can be high or low (and this would seem to depend on the institutional design), it cannot be formal or informal, legal or extra-​legal. All this leaves unaffected, of course, that constituent documents can display greater or lesser degrees of formalization. Some constitutions have highly formalized amendment provisions and are thus notoriously difficult to amend: the UN is a classic example, demanding the approval of the five permanent members of the

  There are, obviously, non-​immediate ramifications. Thus, in a highly formalized institution, judicial review of decision-​making may be a possibility, because in such an organization there may be a judicial organ, and some procedure for judicial review may have been envisaged. Judicial review in such a setting is, however, neither a direct nor a necessary consequence of a high degree of formalization. 57   Kelsen famously held that the state was pure legal abstraction, the sum of its rights and obligations under international law; see Hans Kelsen, Introduction to the Problems of Legal Theory, trans. B. L. Paulson and S. L. Paulson (Oxford: Oxford University Press, 1992). 56

 

conclusion   151 Security Council.58 In some cases decision-​making by the organization is subject to parliamentary control and possibly also hemmed in by judicial review: here the EU is the classic example. In some cases there may be strict conditions set for aspiring new members, whereas others are more welcoming, and in some organizations the functions are open-​ended while in others they are more strictly written down. All these variations (and more) are possible, and tend to be informed by a mixture of instrumental, functionalist concerns and political concerns, informed by existing political configurations. But the claim that the very existence of an international organization in law is subject to the same variation is implausible.

  Although it is arguable that here the problem is not formalization per se, but rather the precise contents of the provision, giving a veto to a handful of states. 58

 

Chapter 7

SUPRANATIONAL ORGANIZATIONS Peter L. Lindseth

The key distinction between a supranational organization (SNO) and an international organization (IO) is the scope of autonomous regulatory power that the body may enjoy. Taking the European Union (EU) as the leading exemplar of the type, an SNO can exercise a whole range of rulemaking, adjudication, and enforcement powers with a comparatively high degree of independence from intergovernmental or national control, at least within the scope of authority delegated to the supranational level. Indeed, in the case of the EU, the very purpose of delegating authority has been to create precisely this sort of autonomy. The aim has been to overcome cooperation and coordination problems among multiple principals (the member states) and thus make European integration a functioning reality rather than a legal fiction. More traditional IOs, of course, also exist to overcome coordination or cooperation problems.1 However, the degree of an IO’s delegated regulatory power, particularly in the economic or trade context, is generally less comprehensive, intrusive, and/​or binding in national legal orders than in the case of an SNO.2 On the other hand, an IO in the security context (such as the United Nations Security 1   See generally Darren G. Hawkins et al. (eds.), Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006). 2  Cf. William Phelan, “What Is Sui Generis About the European Union? Costly International Cooperation in a Self-​Contained Regime,” International Studies Review 14 (2012): 367–​85.

 

supranational organizations   153 Council) may also exercise autonomous regulatory power to varying degrees.3 But the instances are still generally more constrained or targeted as compared to an SNO like the EU, with its extensive competences across a broad range of regulatory domains. Hence the old adage to describe the EU—​that it “remains something well short of a federal state” but “has become something far more than an international organization of independent sovereigns.”4 In the literature on European legal integration over the last several decades, this degree of autonomous regulatory power has given rise to the notion that the EU has become something of an autonomous “constitutional” order in its own right.5 To my mind, however, the idea of the EU as autonomously “constitutional” is based on a partly valid but nevertheless incomplete legal-​historical perspective, one that focuses excessively on supranational adjudicative power in disciplining member states as well as the enforcement of rights on behalf of private parties.6 This perspective operates along a spectrum from the relative weakness of public international law (IOs) to the stronger disciplinary power of supranational “constitutionalism” (the EU). When applied to SNOs more generally, this becomes what we might call the “constitutional, not international” framework. However, both SNOs and IOs can equally be seen—​in fact, arguably should better be seen—​along a different dimension, what we might call the “administrative, not constitutional” framework.7 From this perspective, delegation expresses “pre-​commitment” of constitutional principals on the national level to a stream of policy choices to be implemented by denationalized agents enjoying some measure of autonomy, either de jure or de facto. The key difference between an SNO and IO is not in their purported “constitutionalization” but in the degree of autonomous regulatory discretion delegated to the denationalized agent. In legal terms, this analytical framework operates along a spectrum stretching from strongly legitimated “constitutional government” on the national level to diffuse and fragmented forms of “administrative governance” on either the sub-​national, national, supranational,

3   Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton, NJ: Princeton University Press, 2007). 4   Anne-​Marie Burley and Walter Mattli, “Europe Before the Court:  A  Political-​Theory of Legal Integration,” International Organization 47/​1 (1993): 41–​76, 41. 5   See, e.g., Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000). 6   Cf. J. H. H. Weiler, “The Geology of International Law: Governance, Democracy and Legitimacy,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 64 (2004):  547–​62, 551 (referring to “a third stratum of [international] dispute settlement which may be called constitutional, and consists in the increasing willingness, within certain areas of domestic courts to apply and uphold rights and duties emanating from international obligations. The appellation constitutional may be justified because of the ‘higher law’ status conferred on the international legal obligation”). 7  Peter L. Lindseth, Power and Legitimacy:  Reconciling Europe and the Nation-​State (Oxford; New  York:  Oxford University Press, 2010); and “Equilibrium, Demoi-​cracy, and Delegation in the Crisis of European Integration,” German Law Journal 15/​4 (2014): 529–​67.

 

154   supranational organizations or international levels. In this regard, both SNOs and IOs, as well as national and sub-​national agencies, can be seen as a further stage in the development of the diverse expressions of administrative governance beyond the political summit of the state (i.e., the “legislature” or the “executive” in their highest institutional forms). This approach has admitted affinity to the groundbreaking work of Giandomenico Majone on the EU as a regulatory “fourth branch.”8 I certainly share with Majone the view that the nature and legitimacy of European power can best be measured against standards derived from modern administrative governance.9 However, my work has tried to make clear that this insight in fact entails a good deal of historical and legal complexity as to what those standards demand.10 As I try to summarize in this contribution, a more legal-​historical approach challenges the idea, now fairly widespread in the literature on legal integration in the EU, that the member states “self-​consciously took the decision to create institutions constitutionally separated from national legitimation processes.”11 The advantage of a historical approach to European legal integration is that it captures important elements of the complex process of reconciling “government” and “governance,” terms that are more familiar in this context. If we recast this challenge as one of reconciling strongly legitimated democratic and constitutional “government” and diffuse and fragmented administrative “governance,” then SNOs become, in important respects, a “new dimension to an old problem.”12 As we shall see later, national constitutional bodies play a crucial role in addressing the disconnect between “government” and “governance” in its now supranational form. To capture the full import of this process, however, one must undertake an examination that is sensitive to institutional change within three interrelated historical dimensions. The first is functional, in which existing institutional structures and legal categories are brought under pressure and even transformed as a consequence of objective social and economic demands (e.g., international competition, the extension of markets beyond national borders, transnational environmental or financial challenges, etc.). The second is political, in which divergent interests struggle over the allocation of scarce institutional and legal advantages in responding to these structural-​functional pressures. The third is cultural (in the sense that a historian uses the term), encompassing the ways in which competing notions of 8  Giandomenico Majone, “The European Community: An ‘Independent Fourth Branch of Government?’,” in Verfassungen für ein ziviles Europa, ed. Gert Brüggemeier (Baden-​Baden: Nomos, 1994), 23–​44. 9   Giandomenico Majone, “Europe’s ‘Democratic Deficit’:  The Question of Standards,” European Law Journal 4/​1 (1998): 5–​28. 10   Peter L. Lindseth, “Democratic Legitimacy and the Administrative Character of Supranational­ ism: The Example of the European Community,” Columbia Law Review 99/​3 (1999): 628–​738, 657–​9, 684–​91; and Power and Legitimacy, 36–​7. 11  Anand Menon and Stephen Weatherill, “Democratic Politics in a Globalizing World: Supranationalism and Legitimacy in the European Union,” LSE Law, Society and Economy Working Papers 13/​2007 (2007). 12   Lindseth, “Democratic Legitimacy and the Administrative Character of Supranationalism,” 630.

 

supranational organizations   155 legitimate governance (conceptions of “right”), often legally expressed, are then mobilized to justify or resist these changes in institutional and legal categories or structures. The interaction of these dimensions results in a complex interplay of reciprocal influences that can only be explored historically, through an analytical narrative of institutional and legal evolution that tries its best not to privilege change along any single dimension at the expense of the others. This process of change is punctuated, finally, by the quest for “settlement,” in which actors seek to reconcile developments in the various dimensions in some roughly stable way.13 The reconciliation aims at satisfying structural-​functional and political demands while still allowing the outcome to be experienced in terms of persistent, though evolving, cultural conceptions of legitimacy. *** The aptness of an administrative framework for analyzing supranational delegation does not flow from the nature of the power exercised (political vs. technical). Supranational regulatory power can obviously be deeply political, in the sense of dealing with the allocation of scarce resources or contests over values, as is the case with most regulatory power in the modern administrative state.14 What in fact defines an administrative regime, regardless of its location (within or beyond the state), is the separation of norm-​ production from strongly legitimated “democratic” and “constitutional” bodies, whether legislative, executive, or judicial. Although SNOs and IOs may enjoy other kinds of legitimacy (legal, technocratic, functional), they are not experienced, within the cultural dimension at least, as democratic or constitutional in their own right. The reason is that they do not represent a historically grounded political community conscious of itself as “entitled to effective organs of political self-​government.”15 They are—​despite efforts to democratize and constitutionalize the EU’s supranational institutions over many decades—​experienced as disconnected from more strongly legitimated national political communities; hence they are experienced as essentially legal, technocratic, and functional—​that is, administrative—​ agents, exercising specified regulatory powers, albeit beyond the state. This disconnect at the heart of supranationalism—​between regulatory power and democratic and constitutional legitimacy—​gives rise to a central feature of the public 13  Lindseth, Power and Legitimacy, 13–​ 14. For further elaboration, see Peter L. Lindseth, “Between the ‘Real’ and the ‘Right’:  Explorations Along the Institutional-​Constitutional Frontier,” in Constitutionalism and the Rule of Law: Bridging Idealism and Realism, ed. Maurice Adams, Ernst Hirsch Ballin, and Anne Meuwese (Cambridge University Press, forthcoming), http://​papers.ssrn. com/​sol3/​papers.cfm?abstract_​id=2716185. 14  Lindseth, Power and Legitimacy, 35. 15   Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press, 1999), 173. This democratic and constitutional self-​consciousness need not be grounded in exclusionary ethnic, religious, or linguistic affinities; indeed, as Neil MacCormick has also shown, this demos-​consciousness can also be “civic,” although it still must be grounded in a “historical” and indeed “cultural” experience for that particular community (ibid., 169–​74).

 

156   supranational organizations law of European integration that this contribution seeks to highlight. I am referring here to the seemingly paradoxical combination of autonomy from, and yet dependence upon, national oversight mechanisms—​executive, legislative, and judicial—​in the legitimation of the integration process. These mechanisms include, most importantly: collective oversight of the supranational policy process by national executives; judicial review by national high courts with respect to certain core democratic and constitutional commitments; and increasing recourse to national parliamentary scrutiny of supranational action, whether of particular national executives individually or of supranational bodies more broadly. These mechanisms operate in conjunction with participation and transparency rights within supranational policy processes themselves; together, they do not necessarily “control” the EU qua SNO, but they do attempt to ensure that the EU is experienced as “under control.”16 They serve, in other words, the crucial function of legitimation—​that is, bridging the disconnect between diffuse and fragmented regulatory power and its ultimate sources of legitimacy in the historically constituted bodies on the national level—​a function similar to what analogous oversight mechanisms serve within the administrative state. To understand national oversight mechanisms as instruments of legitimation, if not actual control, we must appreciate certain features of modern administrative governance more generally. Delegation is obviously pervasive in modern governance, initially within and now beyond the confines of the state. However, the capacity for hierarchical control over administrative and technocratic actors who exercise delegated power is generally overstated even within states, often on the basis of stylized principal–​agent models.17 To understand modern governance, we must dispense with an idealized understanding of a “Westphalian” principal with unbridled power to direct regulatory outcomes within a particular territory, an ahistorical reading of state sovereignty if there ever was one.18 As a consequence of institutional complexity, the power of control over administrative actors, whether de facto and de jure, is often greatly diminished, if sometimes nearly relinquished entirely, except in all but the most extreme circumstances. Over the course of the twentieth century in particular, constitutional principals came to settle for something less than actual control—​perhaps merely supervision, coordination, or what an American administrative lawyer would call “oversight.”19

  Peter L. Lindseth, Alfred C. Aman, and Alan Charles Raul, Administrative Law of the European Union: Oversight, ed. George A. Bermann, Charles H. Koch, and James T. O’Reilly (Chicago, IL: ABA Publishing, 2008), 140. 17   See, e.g., Deirdre Curtin, “Holding (Quasi-​)Autonomous EU Administrative Actors to Public Account,” European Law Journal 13/​4 (2007): 523–​41, 524–​5 18  James J. Sheehan, “Presidential Address:  The Problem of Sovereignty in European History,” American Historical Review 111/​1 (2006): 1–​15. 19  Lindseth, Aman, and Raul, Administrative Law of the European Union; Peter L. Strauss, “Forward: Overseer, or ‘the Decider’? The President in Administrative Law,” George Washington Law Review 75 (2007): 696–​760. 16

 

supranational organizations   157 This shift away from actual control toward oversight of administrative governance, whether within or beyond the state, necessarily has given rise to the need to reconcile, in normative cultural terms, the socio-​institutional reality of diffuse and fragmented regulatory power with conceptions of strongly legitimated representative government inherited from the past. In this process of reconciliation, both the reallocations of regulatory power (understood legally as “delegations”) and the conceptions of legitimacy tied to representative institutions on the national level (and below) have necessarily adjusted in the face of the reciprocal demands of the other. This is an intensely political-​cultural process of contestation over values but also in deference to functional realities. In the case of the EU, the result has been an uneasy balance, not merely in European integration but in administrative governance more generally. On the one hand, the diffuse and fragmented administrative sphere came to exercise significant and often seemingly autonomous regulatory power of varying types (rulemaking, enforcement, adjudication); on the other hand the supranational sphere has never been understood culturally to enjoy an autonomous democratic and constitutional legitimacy of its own, at least in a historically recognizable sense.20 As a consequence, the possessors of supranational regulatory power have remained answerable, in terms of the rationality and limits of their actions, to the oversight of what I define below as “historically constituted bodies” in the nation-​state, all in order to satisfy these cultural demands for legitimacy. Rarely do these mechanisms prevent the exercise of delegated authority outright. Rather, they simply serve as a means of raising the costs to the administrative agent in the exercise of delegated regulatory power, while having the added benefit of simultaneously reducing the information costs to the constitutional principal that in turn enables more effective oversight.21 The emergence of these national legitimating mechanisms in European public law over the last half-​century, my theory suggests, reflects a convergence of European integration around the legitimating structures and normative principles of what I call the “postwar constitutional settlement of administrative governance.” * * * This theoretical perspective is thus born of a particular historical understanding of the evolution of public law and institutions in the North Atlantic world over the course of the nineteenth and twentieth centuries, culminating in that postwar settlement. At the core of this evolution is the diffusion and fragmentation of regulatory power away from what I call the “historically constituted bodies” of the state. By this I mean those institutions—​notably national legislatures, but also chief executives

20   Peter L. Lindseth, “Agents Without Principals?: Delegation in an Age of Diffuse and Fragmented Governance,” in Reframing Self-​Regulation in European Private Law, ed. Fabrizio Cafaggi (Alphen aan den Rijn: Kluwer Law International, 2006). 21  Lindseth, Power and Legitimacy, 261–​2.

 

158   supranational organizations and cabinets, as well as courts or court-​like jurisdictions like the French Conseil d’Etat—​which evolved over the course of the nineteenth and twentieth centuries into the preeminent expressions of ruling legitimacy within democratizing national political communities. Tocqueville anticipated this development in Democracy in America (1835) when he spoke of the process of “centralization of government,” particularly in elected assemblies, with the English Parliament being his paradigmatic example.22 Latter-​day political sociologists referred to this process as national “consolidation” in nineteenth-​century Europe, a development with territorial, political-​ cultural, and institutional dimensions.23 And yet, almost from the moment of the seeming triumph of national assemblies and other Tocquevillean expressions of the “centralization of government” (the second half of the nineteenth century), these bodies were confronted by extraordinary, countervailing functional pressures for diffusion and fragmentation of regulatory power. The need to address a range of new regulatory challenges posed by urbanization, industrialization, and the globalization of markets in goods, capital, and labor forced the historically constituted bodies of the nation-​state to begin transferring regulatory authority outward and downward, into an increasingly complex, multilayered administrative sphere. Despite our images of national “consolidation” in the nineteenth century, one could just as easily conclude, based on these countervailing pressures, that the nation-​state throughout the North Atlantic world was very much a “leaky and porous … vessel.”24 This administrative “leakiness,” if you will, would be one of the identifying attributes of modern governance over the course of the twentieth century, as advanced nation-​states confronted even more intense functional and political pressures to regulate a whole range of social and economic phenomena, both in war and peace. My historiographical theory thus stresses two overarching and somewhat contradictory trends over the second half of the nineteenth and first half of the twentieth centuries, a period of “significant acceleration” in administrative governance.25 The first was the ascendance of centralized elected assemblies (parliaments and the like), which, by the later nineteenth century, became the core institutions of  Cf. Alexis de Tocqueville, Democracy in America, ed. Bruce Frohnen (London:  Longmans; Washington: Regnery Publishing, 2002 [1835]), 64–​7 (associating “centralization of government” with the elected legislature, distinguishing it from decentralized “local administration” in the United States). 23   Robert J. Holton, Globalization and the Nation-​State (New York: Macmillan, 1998), 45–​6; Stein Rokkan, State Formation, Nation-​Building, and Mass Politics in Europe: The Theory of Stein Rokkan, ed. Peter Flora with Stein Kuhnle and Derek Urwin (Oxford; New  York:  Oxford University Press, 1999), 163; Charles Tilly, Stories, Identities, and Political Change (Lanham, MD: Rowman & Littlefield, 2002), 178. 24   Charles Bright and Michael Geyer, “Where in the World Is America? The History of the United States in the Global Age,” in Rethinking American History in a Global Age, ed. Thomas Bender (Berkeley and Los Angeles: University of California Press, 2002), 65. 25   Sabino Cassese, “The Rise of the Administrative State in Europe,” Rivista Trimestrale di Diritto Pubblico 4 (2010): 981–​1008, 981. 22

 

supranational organizations   159 representative government in democratizing nation-​states of the North Atlantic.26 (Of course, full democratization, defined in terms of extension of suffrage to all adult citizens equally, regardless of economic status, religion, race, or gender, would only come much later.)27 The second trend in some sense emerged out of the first and was born of the growing recognition over the late nineteenth and early twentieth century that these assemblies, along with traditional executive and judicial bodies, were increasingly unable “to deal with modern problems.”28 Deeply functional in character, this second development was by no means confined to the United States, with its notorious dispersal of regulatory power.29 Rather, throughout the North Atlantic world functional pressures led to the diffusion of regulatory power away from those same historically constituted bodies into an increasingly complex and variegated administrative sphere, often but not exclusively under the executive, in order to address the challenges that modern industrial (and later post-​industrial) society posed.30 My theory therefore understands European integration, and the phenomenon of supranational regulatory power more generally, as a new stage in this historical process of diffusion and fragmentation of administrative governance, operating in tension with the “centralization of government” in a Tocquevillean sense on the national level. Such disaggregated governance did not emerge only recently, as a consequence of late-​twentieth century globalization, as Anne-​Marie Slaughter has suggested.31   Cf. Geoff Eley, “The Social Construction of Democracy in Germany, 1871–​1933,” in The Social Construction of Democracy, 1870–​1990, ed. George Reid Andrews and Herrick Chapman (New York: New York University Press, 1995), 106–​15. 27   For a useful summary for Europe, see Charles Tilly, Contention and Democracy in Europe, 1650–​2000 (New York: Cambridge University Press, 2003), 213–​17 (“A Rough Map of European Democratization”). 28   James Landis, The Administrative Process (New Haven, CT: Yale University Press; London: Oxford University Press, 1938), 1. 29   William J. Novak, “The Myth of the ‘Weak’ American State,” American Historical Review 113 (2008): 752–​72. 30   For a suggestive overview of trans-​Atlantic developments in this “social politics,” see Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge, MA: Belknap Press of Harvard University Press, 1998). We should recall, moreover, the extent to which the functionalist strain within international relations theory was influenced by a particular understanding of the development of the modern administrative state. See, e.g., David Mitrany, A Working Peace System: An Argument for the Functional Development of International Organization (London: National Peace Council, 1946), 30 (“the situation at the end of this war will resemble that in America in 1933, though on a wider and deeper scale. And for the same reasons the path pursued by Mr. Roosevelt in 1933 offers the best, perhaps the only chance for getting a new international life going”). Indeed, some argue that over the last quarter century this process has now led to the emergence of an “administrative space” decoupled from the nation state entirely, not merely regional in character (as in the EU) but also “global” in many respects: Sabino Cassese, “What Is Global Administrative Law and Why Study It?,” (2012) http://​ cadmus.eui.eu/​bitstream/​handle/​1814/​22374/​RSCAS_​PP_​2012_​04.pdf?sequence=1; Joshua Cohen and Charles F. Sabel, “Directly-​Deliberative Polyarchy,” European Law Journal 3/​4 (1997): 313–​42; Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68 (2005): 15–​61. 31   Anne-​Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004). 26

 

160   supranational organizations It is in linking European governance to this deeper history of the rise of administrative governance that one can begin to see the basic truth in Alan Milward’s famous, though controversial, assertion with regard to European integration—​that it is “one more stage in the long evolution of the European state.”32 To gain a more complete picture of how this is true, however, one must go beyond a focus on the functional and political dimensions to a perspective more sensitive to institutional change along the more normative cultural dimension as well. As an extension of the functional diffusion and fragmentation of regulatory power, supranational governance in postwar Western Europe necessarily relied on elements of the same legal-​cultural settlement that provided the foundation for the twentieth-​century welfare state (Sozialstaat, l’Etat providence). When observers emphasize certain features of governance in Europe—​for example, “deparliamentarization” or “executive dominance”—​they are in fact referring to elements of this same settlement. Moreover, when they suggest that integration somehow caused the development of these features,33 they are in fact ignoring this deeper history on the national level and below.34 Over the first half of the twentieth century, the dispersion of authority inherent in the emergence of modern administrative governance was a deeply destabilizing process, particularly with the demands of total war between 1914 and 1945—​punctuated, of course, by the Great Depression and genocidal horrors on a scale heretofore unimaginable.35 For postwar Western Europeans struggling, as Alan Milward put it, for a “new form of governance” to meet the needs of the modern welfare state,36 the legal and constitutional lesson of this tumultuous period was twofold: first, that executive and technocratic power were essential to the welfare state’s success; and second, that such power must be counterbalanced by parliamentary and judicial checks. In the postwar constitutional settlement of administrative governance, the three traditional constitutional branches remained as separate mechanisms of legitimation—​legislative, executive, and judicial—​despite the diffusion and fragmentation of regulatory power. This ‘mediated legitimacy’ allowed the postwar state to surmount what Carl Schmitt had asserted in the interwar period was “insurmountable,”37 a situation that he thought demanded not balanced administrative governance but executive dictatorship.   Alan S. Milward, The European Rescue of the Nation-​State, 2nd ed. (London: Routledge, 2000), x.   See, e.g., Tanja A. Börzel, and Carina Sprungk, “Undermining Democratic Governance in the Member States? The Europeanization of National Decision-​making,” in Democratic Governance and European Integration: Linking Societal and State Processes of Democracy, ed. Ronald Holzhacker and Eric Albæk (Cheltenham: Edward Elgar, 2007), 113–​36. 34   Tapio Raunio and Simon Hix, “Backbenchers Learn to Fight Back:  European Integration and Parliamentary Government,” West European Politics 23/​4 (2000): 142–​68. 35  Peter L. Lindseth, “The Paradox of Parliamentary Supremacy:  Delegation, Democracy, and Dictatorship in Germany and France, 1920s–​1950s,” Yale Law Journal 113/​7 (2004): 1341–​415. 36  Milward, The European Rescue of the Nation-​State, 4. 37  Carl Schmitt, “Vergleichender Überblick über die neueste Entwicklung des Problems der gesetzgeberischen Ermächtigungen (legislative Delegationen),” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 6 (1936): 252–​68, 257. 32 33

 

supranational organizations   161 This constitutional settlement after 1945 allowed the diffusion and fragmentation of normative power in the postwar administrative state to claim a democratic and constitutional pedigree in a historically and culturally recognizable sense, even as governance was obviously deeply evolving. From its inception in the 1950s, European integration also relied heavily on mechanisms of mediated legitimacy—​ most importantly, at least in the initial decades, on various forms of oversight by increasingly plebiscitarian national executives, in order to establish a connection between supranational regulation and historically constituted representative government on the national level.38 Eventually, as supranational regulatory power expanded, these mechanisms would come to include judicial review by national high courts as well as national parliamentary scrutiny, all in the interest of furthering the integration project while seeking to preserve some semblance of national democracy in an intelligible sense.39 *** Other scholars have certainly acknowledged the legitimating functions of national institutions in European governance, at least in a limited sense.40 Indeed, this is something that the Treaty on European Union post-​Lisbon explicitly recognizes (e.g., in Art. 12, on the role of national parliaments in European integration). And thus, from that perspective at least, my argument regarding the role of national legitimation and oversight in European integration may not appear to be particularly original. My aim, however, is to offer a more ambitious analytical and historical framework for understanding the role of national legitimation in European public law as an extension of “administrative” governance. In so doing, I  also hope to offer a deeper challenge to the persistent impulse in the scholarship to characterize EU governance in autonomously “constitutional” terms. By virtue of delegations from the historically constituted bodies of the nation-​state, I claim that European governance as a whole (including the European Parliament as well as the European Court of Justice (ECJ)) is best understood as an extension of administrative governance on the national level over the course of the twentieth century. Taking such a position is in obvious tension with the “constitutional, not international” perspective that has dominated scholarship on European legal integration over many decades. My alternative perspective, however, is born of a basic insight: that the legitimation of supranational regulatory power (its “mandate,” so to speak) has never been successfully located supranationally, whether in the elections to the European Parliament, in the deliberations of the European Commission, or even, dare I say it, in the judgments of the ECJ (the ultimate bastion of a seeming 39  Lindseth, Power and Legitimacy, ch. 3.   Ibid., chs. 4 and 5.   See, e.g., Stefano Bartolini, Restructuring Europe: Centre Formation, System Building, and Political Structuring between the Nation State and the European Union (Oxford: Oxford University Press, 2005), 175 (“[I]‌t is difficult to identify any other sources of legitimacy [for the EU] than the direct borrowing of national legitimacy through the governments’ representatives”). 38

40

 

162   supranational organizations supranational “constitutionalism”). Regardless of any legal, technocratic, input, output, or even “messianic”41 legitimacy that the integration process might otherwise possess, what integration lacks, for the present, is the necessary sense of European governance of a historically cohesive polity—​namely, “Europe” as a collectivity.42 For that particular form of legitimacy, European integration has depended, and continues to depend, on its more strongly legitimated member states, despite the extensive regulatory power transferred to the supranational level. As a consequence, the mandate of the EU, qua SNO, has been located, however tenuously, in the “enabling” treaties themselves, akin to enabling legislation for administrative bodies on the national level. Undoubtedly these treaties were concluded under public international law, and in that sense European governance is clearly, at least in part, an international phenomenon. But the European treaties are also mechanisms to delegate regulatory power akin to a loi-​cadre on the national level—​a traité-​cadre in the parlance of Giandomenico Majone.43 The purpose of such “enabling legislation,” if you will—​ whether national or supranational—​is not to make rules but rather to create other institutions and confer power upon them to make rules.44 This delegation is then subject to substantive parameters and procedural mechanisms of oversight to ensure pre-​commitment to a stream of regulatory choices generally in line with the original enactment. Moreover, both the substantive parameters and procedural mechanisms find their ultimate legal basis in national constitutional orders, authorizing the enforcement of European norms in national law, the sine qua non of European integration. Viewing the European treaties as enabling legislation and pre-​commitment mechanisms in this way falls naturally into a principal–​agent construct, albeit of a more historical-​constructivist than purely rational-​choice variety.45 Rational-​ choice institutionalism undoubtedly offers a compelling theory—​often inspired by the analysis of the American administrative state—​of why the member states of the EU might have opted for supranational delegation as a tool of governance.46 41   J. H. H. Weiler, “The Political and Legal Culture of European Integration: An Exploratory Essay,” International Journal of Constitutional Law 9/​3–​4 (2011): 678–​94. 42   Peter L. Lindseth, “Of the People: Democracy, the Eurozone, and Lincoln’s Threshold Criterion,” Berlin Journal 22 (2012): 4–​7. 43  Giandomenico Majone, Dilemmas of European Integration:  The Ambiguities and Pitfalls of Integration by Stealth (New York: Oxford University Press, 2005), 7. 44  Edward L. Rubin, “Law and Legislation in the Administrative State,” Columbia Law Review 89 (1989): 369–​426, 380–​5. 45  Lindseth, Power and Legitimacy, 54–​5; cf. also Hurd, After Anarchy. 46   Mark A. Pollack, “Learning from the Americanists (Again): Theory and Method in the Study of Delegation,” in The Politics of Delegation, ed. Alec Stone Sweet and Mark Thatcher (Portland, OR: Frank Cass, 2003); and “Delegation and Discretion in the European Union,” in Delegation and Agency in International Organizations, ed. Darren G. Hawkins et al. (Cambridge: Cambridge University Press, 2006), 165–​96.

 

supranational organizations   163 Most importantly, rational-​choice approaches theorize that the member states have sought, as multiple principals, to reduce the transaction costs of their cooperation and to enhance the credibility of their treaty commitments by delegating significant normative authority to relatively autonomous supranational bodies as their agents. The problem with this rationalist interpretation, however, is that it often treats the choice for delegation in general, and for supranational delegation in particular, as a choice made outside of time, born of a logic without a normative legal and political history of its own.47 Constructivist approaches, by contrast, take that normative history more seriously, paying much closer attention to the specifically legal-​cultural dimension in the process of institutional change. This implies, in the context of integration, an effort to understand why delegation came to be seen as an appropriate foundation for supranational governance in the 1950s, after a period of significant constitutional struggle and contestation.48 By tracing the emergence of this “logic of appropriateness,”49 one should seek to understand how and why notions of hierarchical control necessarily gave way, over time, to looser forms of oversight as an acceptable means of legitimating diffuse and fragmented forms of administrative decision-​making. The purpose of history as a scholarly discipline, and more particularly of legal history, should be to help trace the “micro-​foundations” of new institutional structures—​that is, “how and why they emerge, develop, or die out within any group”—​something that, in its complexity and variability among contexts, often appears to political scientists as “problematic” and “somewhat mysterious.”50 In searching for these legal-​cultural micro-​foundations in the case of “delegated” administrative governance in the EU, what one finds, both nationally and supranationally, is that the very essence of public law itself deeply evolved over the course of the second half of the twentieth century. Public law has become less a system of rules marking seemingly clear lines between “valid” and “invalid” exercises of authority, as classical understandings of the Rechtsstaat, l’Etat de droit, or the “rule of law” might have demanded.51 Instead, public law has evolved toward something 47   Cf. Ann-​Christina L. Knudsen and Morten Rasmussen, “A European Political System in the Making 1958–​1970: The Relevance of Emerging Committee Structures,” Journal of European Integration History 14/​1 (2008): 51–​67, 57. 48   Lindseth, “The Paradox of Parliamentary Supremacy”; and Power and Legitimacy. 49   James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics (New York: Free Press, 1989); “The Institutional Dynamics of International Political Orders,” International Organization 52/​4 (1998): 943–​69; “The Logic of Appropriateness,” Centre for European Studies, University of Oslo, ARENA Working Papers, WP 04/​09 (2009), http://​www.arena.uio.no/​publications/​wp04_​9.pdf. 50   Stone Sweet, Governing with Judges, 8. 51   Ernest A. Young, “Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review,” Texas Law Review 78 (2000): 1549–​614, 1594 (describing “a regime of invalidation norms” as opposed to one of “resistance norms”—​the former being a system in which “governmental action is perfectly unproblematic even though it pushes right up to the constitutional limit; that limit, however, amounts to an inflexible line beyond which any government action is barred”).

 

164   supranational organizations more focused on “the allocation of burdens of reason-​giving,”52 or, as scholars of European legal integration are increasingly calling it, accountability. Accountability mechanisms are, in turn, best understood as a system of “resistance norms,” operating “as a ‘soft limit’ which may be more or less yielding depending on the circumstances”—​to borrow a powerful distinction first advanced by the American public law scholar Ernest Young.53 The evolution of public law toward a system of “resistance norms” in European integration is intimately linked to the distinction between legitimation and control that is essential to the administrative character of supranational governance. This distinction is admittedly spectral rather than dichotomous, but the key difference is this: control entails power over the formulation of specific policies whereas legitimation does not (or at least not necessarily)—​hence the crucial distinction between more intergovernmental IOs and the more supranationally autonomous EU. There are clearly elements of control within some forms of legitimation (e.g., treaty ratification), but otherwise legitimation generally permits a larger measure of functional autonomy in the agent exercising delegated authority. Legitimation, rather, serves the purpose (to borrow from another American administrative law scholar, Peter Strauss) of “maintaining the connection between each of the [constitutional] institutions and the paradigmatic function which it alone is empowered to serve, while also retaining a grasp on [administrative governance] as a whole that respects our commitments to the control of law.”54 As in the administrative state, so too in the process of European integration: the persistence and growth of national oversight mechanisms in European public law have worked to “maintain the connection” between supranational regulatory power and the historically constituted bodies of the nation-​state, providing an essential means of legitimating administrative governance in its now supranational form. In the integration context just as in the administrative state, the separation of regulatory power from democratic and constitutional legitimacy has been accomplished through transfers of authority that are best understood legally (if not always functionally) as “delegations” in an administrative sense—​that is, as transfers from constitutional “principal” to administrative “agent”—​not as the establishment of a constitutionally original or autonomous level of governance at the supranational level. From this theoretical perspective, it is no coincidence that European integration emerged as a viable supranational project at precisely the moment in Western history (the 1950s) when the foundations of the “postwar constitutional settlement 52  Alexander Somek, “Dogmatischer Pragmatismus. Die Normativitätskrise der Europäischen Union,” in Demokratie und sozialer Rechtsstaat in Europa. Festschrift für Theo Öhlinger, ed. Stefan Hammer et al. (Vienna: WUV-​Universitätsverlag, 2004), 58. 53   Young, “Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review,” 1594. 54   Peter L. Strauss, “Formal and Functional Approaches to Separation-​of-​Powers Questions: A Foolish Inconsistency?,” Cornell Law Review 72 (1987): 488–​526, 488.

 

supranational organizations   165 of administrative governance” were also secured on the national level.55 The mechanisms of national oversight over the integration process have developed, even if imperfectly, to do the work of reconciliation not unlike similar mechanisms within the administrative state. This reconciliation has tolerated a good deal of autonomous regulatory power in what has become an increasingly dense and complex sphere of “Europeanized” administrative governance, one that now encompasses both national and supranational technocratic actors. Nevertheless, these mechanisms strive to balance the evident functional and political demands for supranational regulatory solutions, on the one hand, with the continued cultural attachment to the nation-​state as the primary locus of democratic and constitutional legitimacy in Europe, on the other. Put another way, these mechanisms establish a legitimating framework within which the otherwise undoubted complexity of Europe’s policymaking processes—​ characterized by significant amounts of functionally autonomous regulatory power, distributed across multiple levels of governance—​can operate without evident democratic and constitutional legitimacy of their own, at least as classically understood. To borrow an apt phrase from Robert Dahl,56 nationally grounded legitimating mechanisms can be seen as efforts to reduce the “costs to democracy” that inevitably flow from the transfer of regulatory power outside the historically constituted bodies of representative government on the national level. * * * To arrive at this seemingly sanguine conclusion is not to ignore the real difficulties of legitimation that arise when the locus of administrative governance shifts beyond the confines of the state (particularly in the context of the Eurozone crisis, as we shall see later). We should not simply assume that the largely technocratic and delegated character of “Europeanized” administrative governance is somehow unproblematically equivalent to its national counterparts in terms of democratic and constitutional legitimacy.57 Even as Europeans have attempted to translate the postwar settlement into workable supranational form (notably through national oversight mechanisms, conjoined with other kinds of transparency and participation rights), integration remains a unique form of administrative governance in one critical respect: the fact of the member states and their electorates serving as principals severally in the system.58

  Lindseth, “The Paradox of Parliamentary Supremacy”; and Power and Legitimacy.  Robert Dahl, “Can International Organizations Be Democratic? A  Skeptic’s View,” in Democracy’s Edges, ed. Ian Shapiro and Casiano Hacker-​Cordón (New York: Cambridge University Press, 1999), 34. 57   See, e.g., Andrew Moravcsik, “The European Constitutional Compromise and the Neofunctionalist Legacy,” Journal of European Public Policy 12/​2 (2005): 349–​86 (describing the EU as democratically legitimate). 58   Lindseth, “Democratic Legitimacy and the Administrative Character of Supranationalism,” 637. 55

56

 

166   supranational organizations While multiple principals are hardly unknown in modern administrative states (legislatures, for example, are notoriously plural and diverse), the challenge of multiple principals is of a completely different order of magnitude in European governance. In the integration context, there is a vastly larger number of possible “veto players,”59 which in turn leads to a “joint-​decision trap” of significantly greater difficulty than anything experienced on the national level.60 There are several potential consequences of these factors worth noting. First, ex ante, the fact of multiple principals can, in certain domains, create incentives for exceedingly broad delegations of autonomous regulatory power to supranational agents, precisely so the latter can address and perhaps overcome the coordination and cooperation problems that the larger number of veto players creates. The purpose of such broad, initial delegations is to reduce the risk of potential defection among the multiple principals—​what has been called “principal drift.”61 These delegations occur not just to the Commission and to the Council acting by qualified majority, but also, perhaps most importantly, to the ECJ in its interpretation of the Treaty and EU legislation, as well as to the European Central Bank in the exercising of monetary policy. Second, once these bodies exercise their relatively autonomous normative power at the supranational level, then, ex post, the erstwhile principals in some sense become agents themselves, responsible for implementation. In theory, this should only occur within the bounds of the broad policy limits to which member states themselves originally committed—​such as free movement or fiscal discipline. But this transformation of principals into agents can nevertheless have consequences that member states may still find deeply disruptive in domestic legal and political orders (something that the Eurozone crisis has proven at repeated junctures). Third, again ex post, a desire may subsequently emerge in one member state to reverse any of these supranationally devised norms—​for example, ones announced by the ECJ, interpreting the general provisions of the treaties. If this occurs, then the fact of multiple principals (and therefore of even more multiple “veto players”)   George Tsebelis, Veto Players: How Political Institutions Work (Princeton, NJ: Princeton University Press, 2002). 60   Fritz W. Scharpf, “The Joint-​Decision Trap:  Lessons from German Federalism and European Integration,” Public Administration 66/​2 (1988): 239–​78. 61  Anand Menon and Stephen Weatherill, “Legitimacy, Accountability, and Delegation in the European Union,” in Accountability and Legitimacy in the European Union, ed. Anthony Arnull and Daniel Wincott (Oxford: Oxford University Press, 2002), 119. Cf. also Mark Thatcher and Alec Stone Sweet, “Theory and Practice of Delegation in Non-​Majoritarian Institutions,” West European Politics 25/​1 (2002): 1–​22, 6, discussing “[c]‌omposite principals” as “a principal comprised of multiple actors whose collective makeup changes periodically through, for example, elections,” and which thus “may not possess stable, coherent preferences over time. Instead, they may be competitive with one another over some or many issues, as when member state governments in the EU disagree on matters of policy that fall within the agents’ mandate.” 59

 

supranational organizations   167 means that the sort of political mobilization needed to undertake such a reversal is vastly more challenging than within a purely national administrative polity—​not impossible, but challenging.62 In these various regards, supranational administrative governance is different from its purely national counterparts.63 From the perspective of a theory of democracy focusing on the circulation of elites,64 perhaps the biggest problem with integration is the perceived entrenchment of its technocratic class in Brussels or Frankfurt, or its juristocratic class in Luxembourg (or, for that matter, in Strasbourg, if one were to add the European Court of Human Rights to the discussion). In other words, as a practical matter, given the reality of multiple principals in the European system, the institutional beneficiaries of supranational delegation are entrenched to a degree not found in instances of administrative delegation on the national level, even with regard to independent agencies. Giandomenico Majone’s effort to capture the sometimes extreme independence of certain supranational agents by introducing the subcategory of “trustee” is analytically helpful.65 The result is that supranational agents appear (at least from a populist, plebiscitarian perspective) to enjoy an unusual degree of freedom from the ultimate political sanction in the administrative state—​specific legislative de-​authorization. Perhaps the talk in the midst of the Eurozone crisis about “repatriation of competences”—​that is, the return of powers in certain domains to the national level—​is a sign of change in course.66 But it should be recognized as well that, even in national administrative states, that sort of outright de-​authorization is relatively rare, in part because the instrument is blunt and costly, indeed even “illusory.”67 Rather, as discussed above, the focus of legitimation in administrative governance today has much more to do with “the allocation of burdens of reason-​giving” and “resistance norms” than outright sanction. Moreover, as one scholar has suggested from a game-​theoretic perspective, just because oversight does not tend to “bite” does not mean that the “bark” is ineffective.68 Even within national administrative states

62  Hussein Kassim and Anand Menon, “The Principal–​Agent Approach and the Study of the European Union: Promise Unfulfilled?,” Journal of European Public Policy 10/​1 (2003): 121–​39, 131. 63  Cf. David A. Lake and Mathew D. McCubbins, “The Logic of Delegation to International Organizations,” in Delegation and Agency in International Organizations, ed. Darren G. Hawkins et al. (Cambridge: Cambridge University Press, 2006), 341–​68. 64   Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper, 1976 [1942]), 269–​73. 65  Giandomenico Majone, “Two Logics of Delegation:  Agency and Fiduciary Relations in EU Governance,” European Union Politics 2 (2001): 103–​22. 66   See, e.g, Michael Emerson, “The Dutch Wish-​List for a Lighter Regulatory Touch from the EU,” CEPS Commentary (2013), http://​ceps.be/​book/​dutch-​wish-​list-​lighter-​regulatory-​touch-​eu. 67  Carol Harlow and Richard Rawlings, “Promoting Accountability in Multilevel Governance: A Network Approach,” European Law Journal 13/​4 (2007): 542–​62, 545. 68   Arthur Dyevre, “Judicial Non-​Compliance in a Non-​Hierarchical Legal Order: Isolated Accident or Omen of Judicial Armageddon?” (2012) http://​papers.ssrn.com/​abstract=2084639.

 

168   supranational organizations the focus today is much more on raising the “enactment costs” for delegated rulemaking, primarily through procedural and substantive requirements that can be monitored in less direct ways.69 In this sense, the difference between administrative governance nationally and supranationally is, I would suggest, one of degree and not of character. By contrast, at the level of legitimacy (understood in terms of conceptions of democracy and constitutionalism in the cultural dimension), the difference between European institutions and the strongly legitimated bodies on the national level amounts to a vast gulf, one not merely of degree but truly one of character. At this point in history, Europeans have found it extremely difficult, if not impossible, to experience supranational governance as “democratic” or “constitutional” in itself, despite the existence of a quite stimulating theoretical literature explaining how they might do so.70 Instead, Europeans see supranational governance as a largely “bureaucratic affair run by a faceless, soulless Eurocracy in Brussels.”71 In this sense, the actual evolution of European public law—​as an “administrative, not constitutional” phenomenon in which legitimation by historically constituted bodies on the national level plays such a crucial role—​is more in line with this popular understanding than is normally supposed. * * * There is one additional consequence of this legal-​cultural/​political-​cultural state of affairs I would like to stress in conclusion, relating to the scope of authority delegable to the supranational level in Europe. This aspect of the “administrative, not constitutional” character of integration has been of particular importance to understanding the evolution of European public law in the Eurozone crisis. The problem with a “constitutional” framework for understanding European integration is that it ignores any limitation on the scope of authority delegable to the supranational level. It assumes European supranationalism can legitimize an ever increasing range of regulatory powers in autonomously democratic and constitutional terms, as if supranational institutions are or could be a site of such authority in their own right, apart from the member states that created them. Even for the most sophisticated “constitutional” theorists of the EU, the evolution of European public law and supranational authority ultimately is a question of the functional demands   Cf. Matthew C. Stephenson, “The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs,” Yale Law Journal 118/​1 (2008): 2–​62. 70   See, e.g., Jürgen Habermas, “The Crisis of the European Union in the Light of a Constitutionalization of International Law,” European Journal of International Law 23/​2 (2012): 335–​48; and The Crisis of the European Union: A Response (Cambridge: Polity Press, 2012). 71  Joschka Fischer, “From Confederacy to Federation:  Thoughts on the Finality of European Integration,” Speech by Joschka Fischer at the Humboldt University in Berlin, May 12, 2000, http://​ ec.europa.eu/​dorie/​fileDownload.do?docId=192161&cardId=192161; also http://​www.cvce.eu/​en/​obj/​ speech_​by_​joschka_​fischer_​on_​the_​ultimate_​objective_​of_​european_​integration_​berlin_​12_​may_​ 2000-​en-​4cd02fa7-​d9d0-​4cd2-​91c9-​2746a3297773.html. 69

 

supranational organizations   169 of interdependence as they perceive them.72 Given the demands of the Eurozone crisis, this ultimately functionalist understanding suggests that the Eurozone crisis should have automatically led to both to greater fiscal capacities as well as an intensification of democratization and constitutionalization at the supranational level.73 This purely functionalist approach, however, ignores the complex interplay between the various dimensions of institutional change, not just functional (need), but also political (interests) and cultural (conceptions of right), as well as the ensuing process of contestation, reconciliation, and settlement.74 This failure to account for the full complexity of institutional change leads to a temptation to view European legitimacy as primarily a matter of institutional engineering, most often revolving around more powers for the European Parliament.75 By contrast, a historical-​constructivist understanding of the EU as a denationalized form of administrative governance is deeply cautious about such engineering and, in view of the complex process of institutional change, stresses the ultimate constraints on the scope of authority delegable to the supranational level. Such supranational delegation constraints are analogous, I would maintain, to similar constraints that exist in national administrative states, expressed in such doctrines as the Italian riserva di legge, the German Vorbehalt des Gesetzes, or the American “nondelegation doctrine.”76 Given the fundamentally administrative character of the European integration, the EU (qua SNO) can sustain a great deal of autonomous regulatory power; nevertheless, there are limits to what it can reasonably sustain given the lack of autonomous democratic and constitutional legitimacy. This disconnect is something that the Eurozone crisis (indeed, also the more recent refugee crisis) has arguably demonstrated in a highly acute and perhaps even tragic way. As Stefano Bartolini presciently warned in 2005 (i.e., well before the onset of these crises), “the risk of miscalculating the extent to which true legitimacy surrounds the European institutions and their decisions … may lead to the overestimating of the capacity of the EU to overcome major economic and security crises.”77 When it comes to the sort of transnational taxing, borrowing, and spending authority that many thought the Eurozone crisis demanded for the EU, there proved to be

72   Miguel Poiares Maduro, “A New Governance for the European Union and the Euro: Democracy and Justice,” (2012) http://​cadmus.eui.eu/​bitstream/​handle/​1814/​24295/​RSCAS_​PP_​2012_​11rev.pdf? sequence=1&isAllowed=y. 73   Cf. Jürgen Habermas, “Democracy, Solidarity and the European Crisis,” Presented at the KU Leuven, Belgium (2013). 74   Cf. Lindseth, Power and Legitimacy, 13–​14; and “Between the ‘Real’ and the ‘Right’.” 75   See, e.g., European Commission, “A Blueprint for a Deep and Genuine Economic and Monetary Union: Launching a European Debate” (May 28, 2013), http://​eur-​lex.europa.eu/​LexUriServ/​LexUriServ. do?uri=COM:2012:0777:FIN:EN:PDF. 76   Lindseth, “Equilibrium, Demoi-​cracy, and Delegation in the Crisis of European Integration,” 553, 556. 77  Bartolini, Restructuring Europe, 175.

 

170   supranational organizations “a line in the sand beyond which only governments can set priorities and act.”78 The lack of robust democratic and constitutional legitimacy at the supranational level in the EU is a barrier to formulating policies with real macroeconomic significance (not the 1 percent of European GDP that is the current EU budget). Without these supranational fiscal capacities—​and more importantly without the autonomous democratic and constitutional legitimacy to support them—​the central instrument used to pay for the Eurozone crisis has necessarily been national austerity, combined with national pre-​commitments to fiscal discipline enforced by supranational institutions. This outcome, alas, is entirely predictable from an administrative perspective on European legal integration and its ongoing struggle for reconciliation between supranational regulatory power and national democratic and constitutional legitimacy.79 European governance, as an example of an SNO of an essentially administrative character, is legitimate for certain purposes but not others—​unless Europeans are prepared to change fundamentally their understanding of what democratic self-​ government means, or where it is located. Both the allocation of competences in the first place, as well as the interpretation of competences already allocated, must be sensitive to this reality. In short, whenever we talk about the legitimacy of a supranational organization, we must always ask “legitimate for what?”—​just as we would for an administrative body on the national level.80 It is one thing to delegate authority to harmonize regulatory standards in various domains (important a task though that may be). It is quite another to delegate taxing, spending, and borrowing authority in some indeterminate way, subject to the control of a European Parliament whose democratic and constitutional legitimacy is tenuous. For that latter kind of power, as the Eurozone crisis seems to have demonstrated, Europe still depends on the strongly legitimated institutions of outright “government” at the national level. Institutions of supranational “governance,” exercising delegated power in a delegated, administrative sense, are simply not yet equal to that task.

 Jean Pisani-​Ferry, “Whose Economic Reform?,” Project Syndicate (2013), http://​www.project-​ syndicate.org/​commentary/​the-​purpose-​and-​strategy-​of-​structural-​reofrm-​by-​jean-​pisani-​ferry. 79   See generally Lindseth, Power and Legitimacy. 80   Peter L. Lindseth, “Author’s Reply: ‘Outstripping’, or the Question of ‘Legitimate for What?’ in EU Governance,” European Constitutional Law Review 8/​1 (2012): 153–​64. 78

 

Chapter 8

PRIVATE TRANSNATIONAL GOVERNANCE Walter Mattli

The traditional understanding of international governance organized around the idea of sovereign states vesting authority in centralized intergovernmental organizations (IGOs) to govern the conduct of states has been found increasingly wanting. By now it is widely accepted that the structure and arrangement of international governance has been fundamentally transformed. Strong linkages between actors from different institutional levels—​sub-​national, national, and supranational—​ and sites of authority—​public and private—​have been shifting authority away from its traditional vestiges and changing its form away from hierarchy and direct regulation toward softer forms of law and indirect market-​based instruments. Public–​ public, public–​ private, and private–​ private partnerships are particularly salient new transnational organizational forms.1 They exist today in virtually every arena of global governance. To give just a few examples, the World Trade Organization (WTO) has been linked through the SPS and TBT Agreements2 to   K. Abbott and D. Snidal, “The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State,” in The Politics of Global Regulation, ed. W. Mattli and N. Woods (Princeton: Princeton University Press, 2009), 44–​88. 2  The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT) were negotiated during the Uruguay Round and entered into force in 1995. 1

 

172   private transnational governance private international standard-​setting organizations. These organizations set regulations for agricultural products, health and safety standards, and a broad range of other product-​related standards. The global financial architecture is similarly no longer comprised solely of the twin Bretton Woods institutions but rather is the sum of various disparate partnerships established between political networks (e.g., the G20), IGOs (e.g., the International Monetary Fund), and a plethora of technocratic authorities (e.g., the International Organization of Securities Commissions). Equally, a meaningful picture of global environmental governance cannot be gleaned by only looking to Nairobi and the United Nations (UN) Environment Programme, while ignoring all the partnerships with NGOs and private sector organizations that constitute this disparate regime. Partnerships have attained a particularly prominent status in European Union (EU) governance.3 Pioneered in the 1980s through the so-​called “New Approach” to product standard-​setting, against a background of legal constraints and bureaucratic conservatism, there now exist over twenty pan-​European specialized agencies that regulate the common market, working outside the structure of the EU’s central institutions. The EU Commission also retains hundreds more alliances with NGOs, trade associations, and a wide range of private sector groups. The frequency with which the Commission seeks to partner with others should not surprise: its mandate is sweeping; its resources, however, are few. Its own administrative staff is small—​“much smaller than that of the local government of the city of Rotterdam,” for example.4 The inevitable consequence, as put by Bowen, is that “[b]‌ecause of the under-​resourced nature of the European Commission, the institution depends heavily on external resources.”5 It is important to emphasize that regional governance partnerships are not unique to the EU:  the Association of Southeast Asian Nations and the North American Free Trade Agreement, for instance, have also witnessed the sharing of regulatory authority with an increasing number of specialized agencies and networks. The focus of this chapter is on the “private ordering” dimension of this complex new governance. This dimension has two parts. The first is the privatization of functions or policy areas previously largely dealt with or controlled by states; the second is the astounding growth of governance functions that have always been principally “private”—​that is, outside the sphere of state preoccupation or control. Needless to say, the two parts are not fully separate or independent. Over the last two decades,   R. Dehousse, “Regulation by Networks in the European Community,” Journal of European Public Policy 4/​2 (1997): 246–​61; A. Héritier and D. Lehmkuhl, “The Shadow of Hierarchy and New Modes of Governance: Sectoral Governance and Democratic Government,” Journal of Public Policy 28/​1 (2008): 1–​17; and B. Eberlein and A. Newman, “Escaping the International Governance Dilemma? Incorporated Transgovernmental Networks in the European Union,” Governance 21/​1 (2008): 25–​52. 4   P. Bouwen, “The European Commission,” in Lobbying the European Union:  Institutions, Actors, and Issues, ed. David Coen and Jeremy Richardson (Oxford: Oxford University Press, 2009), 19–​38, 20. 5  Ibid. 3

 

privatization of transnational governance    173 public–​private partnership arrangements and state acts of delegation of regulatory authority to private sector organizations have strongly invigorated the already perceptible endogenous growth of transnational private governance. The two parts are discussed separately.

The Privatization of Transnational Governance and Its Limits Globalization has laid bare some of the procedural inadequacies and organizational limits of traditional intergovernmental organizations, most notably the excruciatingly slow pace of rules production and, increasingly, their lack of technical expertise and financial resources to deal with ever more complex and demanding regulatory issues. This has led to a much greater involvement of private sector actors in transnational rulemaking. This trend has diminished the presence of state actors in important areas of global regulation but it has not necessarily led to state capitulation to private sector regulators. The state has been redefining its role in some of these areas of rulemaking. Private regulation may fail to consider nonindustry interests or revert to anticompetitive practices. Thus, in some cases, governments have reasserted their authority by imposing upon transnational private rulemakers important organizational changes to comply with public interest safeguards. In other cases, governments have decided to work in tandem with transnational private groups, with each party contributing according to its comparative institutional advantage. What is emerging in some areas is a novel type of transnational governance, one that is neither purely private nor public but may best be captured by the term of “joint or hybrid governance.” It describes an arrangement that seeks to combine technical expertise, extensive resources, and market responsiveness with genuine openness, transparency, and legitimacy.6 In more analytical terms, the general evolution of governance can be summarized as following a three-​stage process driven by externalities triggered by mismatches between (1) national rules and international markets, (2) limited public capabilities and expansive private sector needs, and (3)  private rulemaking and public policy goals. The first mismatch drives the site of governance upwards to the transnational level; the second causes a horizontal move from public (transnational) to private 6  K. Abbott and D. Snidal, “International ‘Standards’ and International Governance,” Journal of European Public Policy 8 (2001): 345–​70; W. Mattli, “Public and Private Governance in Setting International Standards,” in Governance in a Global Economy: Political Authority in Transition, ed. M. Kahler and D. Lake (Princeton: Princeton University Press, 2003), 197–​229.

 

174   private transnational governance (transnational) governance; and the third drives the transfer from private governance to hybrid governance. None of these transfers of site of governance is automatic or inevitable, however. General efficiency gains alone do not explain governance change. Any change in regulatory governance generates winners and losers; and potential losers may seek to stop or slow change. Institutional and actor-​specific characteristics tend to shape the politics of governance choice and regulatory outcomes. The following subsections illustrate this process of governance evolution or transformation.

Enlisting International Private Sector Rulemaking Organizations By the late 1970s, cross-​national differences in product standards had become prominent nontariff barriers (NTB) to international trade, stifling economic recovery and growth. These standards addressed national compatibility issues and served as the technical basis of laws that sought to tackle purely domestic health, consumer safety, or environmental concerns. In addition, many countries had adopted such standards to protect domestic producers, usually in declining or uncompetitive industries. One seemingly simple way of tackling the NTB problem was to replace domestic standards with international standards. But who would produce international standards? The WTO did not have the in-​house expertise to produce detailed technical rules for all major sectors of the global economy. The International Organization for Standardization (ISO) and International Electro-​ Technical Commission (IEC), by contrast, possessed the requisite resources. The WTO thus decided to enlist these two private sector rulemakers. The ISO and IEC are best described as centrally coordinated global networks comprising hundreds of technical committees from all over the world and involving tens of thousands of experts largely hailing from industry. ISO and IEC are not operationally self-​sufficient, and their officials do not work in isolation. They rely heavily on private sector standards bodies at the national level for logistical and technical support. The domestic bodies thus are part and parcel of the global institutional structure of standardization; in a sense, they form the institutional backbone of the global regulators.7 ISO and IEC have produced about 85 percent of all international product standards. Product standards are technical specifications of design and performance characteristics of manufactured goods.8 ISO standards include the standards for freight containers, paints and varnishes, screw threads, corrosion protection, thermal   W. Mattli and T. Büthe, “Setting International Standards: Technological Rationality or Primacy of Power?,” World Politics 56 (2003): 1–​42. 8   More specifically, product standards cover properties such as interoperability, interconnectability, levels of safety, conformity, materials, systems of classification, methods of testing, the operation of systems, and quality assurance. 7

 

privatization of transnational governance    175 performance, and air quality measurement, as well as the “ISO 9000”-​series management standards. IEC standards specify, for instance, radiation dosages for X-​ray machines, the standard dimensions and other characteristics of audio CDs and battery sizes, as well as methods to measure electromagnetic interference and thresholds to safeguard against it, so that the operation of one piece of electric equipment, such as a vacuum cleaner or microwave, does not interfere with the operation of other crucial equipment such as pacemakers or computerized security systems. Little known until the mid 1980s, ISO and IEC became prominent, in large part, due to the WTO endorsement, which took the form of the Agreement on Technical Barriers to Trade (negotiated during the Uruguay Round trade negotiations from 1986 to 1994). This Agreement obliges all member states of the WTO to use international standards as the technical basis of domestic laws and regulations unless international standards are ineffective or inappropriate for achieving the specified public policy objectives. Regulations that use international standards are presumed to be consistent with the country’s WTO obligations, whereas the use of a standard that differs from the pertinent international standard may be challenged through the WTO dispute mechanism as an unnecessary nontariff barrier to trade and thus a violation of international trade law. Unsurprisingly, WTO endorsement has spurred growth of ISO and IEC standards; domestically produced standards, by contrast, have steadily declined. The combined annual production of ISO and IEC standards grew in the early 1980s from about 500 to 1,700 standards in recent years. In the same period, the annual standards production of the German National Standards Institute, for instance, declined from 1,300 to about 200. Another example of governance transformation relates to an important area of global financial regulation. Financial reporting rules specify how to calculate assets, liabilities, profits, and losses in a firm’s financial statements, as well as which particular type of transactions and events to disclose, so as to create accurate and easily comparable measures of its financial position. Cross-​national differences in these rules are said to have exacerbated the Asian Financial Crisis of 1997/​98. The belief that harmonization would bring substantial benefits prompted firms and governments to call on the private sector International Accounting Standards Board (IASB), based in London, to produce a single set of international financial reporting standards. Such standards would increase the cross-​national comparability of corporate information, improve the transparency of financial statements for shareholders, investors, and creditors, as well as achieve greater efficiency and stability in global capital markets.9   See three titles by W. Mattli and T. Büthe, namely “Accountability in Accounting? The Politics of Private Rule-​Making in the Public Interest,” Governance 18 (2005): 399–​429; “Global Private Governance: Lessons From a National Model of Setting Standards in Accounting,” Law and Contemporary Problems 68 (2005): 225–​62; and The New Global Rulers: The Privatization of Regulation in the World Economy (Princeton: Princeton University Press, 2011). 9

 

176   private transnational governance Similarly, in 2009, as the global financial crisis was quickly deepening, the leaders of the G20 group of industrialized and developing nations met in London and urged the IASB to improve standards on valuation and provisioning and achieve a single set of high-​quality global accounting standards to bring greater stability to global financial markets and thus lay the foundation for the resumption of economic growth around the world. State leaders turned to the IASB because it had the resources to produce these standards and had established itself as the focal organization in global accounting. Early public sector competitors to IASB, including the UN Group of Experts on International Standards of Accounting and Reporting and its successor, the Intergovernmental Working Group of Experts on International Standards of Accounting and Reporting, quickly lost the race to become the global focal regulator on financial reporting, largely due to insufficient technical expertise and political wrangling.10 State-​endorsement has served the organizational interests of the IASB well, boosting its prestige and increasing demand for its rules. A rapidly growing number of countries have set out timetables to adopt or converge to IASB standards. By 2010, about one hundred countries required compliance with international financial reporting standards, up from fewer than twenty countries ten years earlier.

The Risks and Limits of Privatization of Regulatory Governance The privatization of transnational regulation entails considerable distributional implications within the private sector.11 That is, some industry actors will be more successful than others in pushing their preferred technical standards for adoption as international standards; winners incur no or only minimal switching costs, whereas losers may find the switch to international standards exorbitantly expensive. However, the privatization of regulation can have other distributional consequences:  it may promote industry interests at the expense of public interests. As Braithwaite and Drahos note:  “Industry can utterly dominate [rulemaking in standards-​developing organizations] because no one else has the energy to do so,”12 and private rulemaking and public policy goals do not always go hand in hand.13  J. Jupille, W. Mattli, and D. Snidal, Institutional Choice and Global Commerce (Cambridge: Cambridge University Press, 2013). 11   Mattli and Büthe, “Setting International Standards”; and The New Global Rulers. 12   J. Braithwaite and P. Drahos, Global Business Regulation (New York: Cambridge University Press, 2000). 13  D. Vogel, The Market for Virtue:  The Potential and Limits of Corporate Social Responsibility (Washington, DC: Brookings Institution Press, 2005); “Private Global Business Regulation,” Annual Review of Political Science 11 (2008): 261–​82. 10

 

privatization of transnational governance    177 Similarly, Eyal Benvenisti and George Downs voice concern about the move toward new global regulation in which private sector actors play an increasingly central role:  It “circumvent[s]‌domestic democratic and supervisory processes that had developed over the years through the efforts of civil society, legislatures and courts. By doing so it threatens to effectively disenfranchise both voters and legislators in a host of areas.”14 In short, the problem with privatization of regulation is twofold: (1) the private forums of global rulemaking tend to be secretive and devoid of proper due process, and (2) the number of groups involved in private regulation is small and disproportionately—​if not exclusively—​from industry. The risk, then, is that this combination of skewed institutional setting and narrow participation may lead to regulatory capture.15 A case in point is consumer participation in international product standardization.16 Such participation is strikingly weak. Indeed, a 2004 survey undertaken by the EU Commission on consumer participation in standardization found that the “participation of consumer organisations in international standardization … seems to be out of reach for them at present.”17 There are at least three reasons for the weak role played by consumer groups in global product regulation. First, direct access to ISO/​IEC technical committees is difficult. The only group allowed to represent consumer interests within such committees—​independently of national member body representatives—​is Consumer International (CI), an umbrella organization representing over 200 independent consumer organizations from almost one hundred countries. CI must apply for liaison status for each ISO/​ IEC technical committee in which it wants to participate. Such status is not given as a right but only at the discretion of the chairperson of the committee, and it merely offers the possibility to participate as a nonvoting member.18

14  E. Benvenisti and G. Downs, “Toward Global Checks and Balances,” Constitutional Political Economy 20 (2009): 366–​87, 367; see also S. Quack, “Law, Expertise, and Legitimacy in Transnational Economic Governance,” Socio-​Economic Review 8 (2010): 3–​16; J. Black, “Constructing and Contesting Legitimacy and Accountability in Polycentric Regulatory Regimes,” Regulation and Governance 2 (2008): 137–​64; J.-​C. Graz and A. Nölke (eds.), Transnational Private Governance and Its Limits (London–​New York: Routledge, 2008); M. Zürn, “Global Governance and Legitimacy Problems,” Government and Opposition 39 (2004): 260–​87. 15   W. Mattli and N. Woods (eds.), The Politics of Global Regulation (Princeton: Princeton University Press, 2009). Regulatory capture is defined as the control of the regulatory process by those whom it is supposed to regulate or by a narrow subset of those affected by regulation, with the consequence that regulatory outcomes favor the narrow “few” at the expense of society more broadly. 16  Other nonindustry or noncommercial groups, such as trade unions, are similarly limited or effectively excluded from effective participation in international standardization. 17  European Commission, Health and Consumer Protection Directorate-​ General, Evaluation Report: Questionnaire on Consumer Representation in Standardisation Activities at National, European and International Level, January 2005, 4, http://​ec.europe.eu/​consumers/​cons_​org/​eval_​report_​en.pdf. 18   K. Dawar, “Global Governance and Its Implications for Consumers,” Consumer Policy Review 16 (2006):  2–​4; B. Farquhar, “Consumer Representation in International Standards,” Consumer Policy Review 16 (2006): 26–​30, 26.

 

178   private transnational governance Second, measures by international standards bodies to provide financial support to consumer representatives are few and far between, hampering CI’s ability to send observers to all important committees. In the words of a European Commission survey participant: “The lack of resources … forces consumer associations to make a strict selection of what they consider to be the most important [standards issues] for consumers.”19 The absence of significant financial assistance offered at the international level reflects, in part, the practice of some key ISO/​IEC members. American private sector standard-​setting bodies have always staunchly opposed to any government interference and contend that willingness to pay is the best measure of interest in standardization. Unsurprisingly, those who see no need for financial assistance domestically oppose the idea internationally. Third, consumer representatives are frequently viewed as “outsiders” in private sector rulemaking bodies. Heavily outnumbered by industry representatives, they often are no more than tolerated. Or, as put by CI: Many consumers [believe] … when they are invited to join [a technical committee] that their views are being sought and will be valued. The reality can be different; the invitation may have come simply because the meeting host was required to demonstrate that all major stakeholders were involved in the process. Once the goal of having a consumer representative attend the meeting ha[s]‌been achieved there [i]s no further need of the consumer representative and substantive input from [consumers] would not be encouraged.20

The ISO and IEC are not the only major global private rulemaking bodies singled out for lacking proper representation of noncommercial stakeholders. The IASB, similarly, has been a target of criticism. In 2008, the European Parliament issued a report highly critical of the IASB governance structure, observing: “[The] IASB lack[s]‌transparency, legitimacy, [and] accountability.”21 The report went on to make a series of proposals to remedy perceived institutional deficiencies. The proposals include strengthening the due process of IASB to enable previously rarely represented groups, such as investors, to play a prominent role in rulemaking; the creation of a public oversight body involving domestic legislators and financial market supervisors; transparent appointment procedures of board members and trustees drawn from all main groups with an interest in international financial reporting; and a new funding structure that avoids conflicts of interests. These proposals heed calls by politicians and scholars alike to apply lessons from domestic administrative law to debates on how to improve global public and private governance. Laura Dickinson, for example, writes: “[P]‌rivatization is now as significant a phenomenon internationally as it is domestically … I [thus]   European Commission, Health and Consumer Protection Directorate-​General, Evaluation Report, 10.   Consumers International, First Steps in Standards Representation (London, September 2005), 10, http://​www.consumersinternational.org. 21   European Parliament, Committee on Economic and Monetary Affairs, Report on International Financial Reporting Standards and the Governance of International Accounting Standards Board (2008). 19

20

 

privatization of transnational governance    179 suggest [that] the domestic U.S. administrative law literature may provide a useful set of responses to privatization that has been overlooked by international law scholars, policy-​makers, and activists.”22 Administrative law offers a system of institutionalized procedural and substantive norms intended to assure that all those affected by regulation will be heard during the rulemaking process, that decisions will be taken in a transparent manner on the basis of disclosed reasons and in compliance with norms of proportionality and means–​end rationality, and that regulations are subject to review by a judicial or another independent body upon request. There is growing evidence that state pressure is transforming private regulatory governance into a form of hybrid governance—​a new form of governance that comes with public oversight and robust due process and disclosure. The IASB is a case in point. In 2010, it created a new body, the Monitoring Board, to provide a formal link between the private sector trustees and public authorities. The Monitoring Board consists of one representative, each, of the Securities and Exchange Commission, the EU, and the Japan Financial Services Agency, two representatives of the International Organization of Securities Commissions—​and the chair of the Basel Committee on Banking Supervision as an observer. It has the power to request meetings with the Trustees and “participate” in their appointment, but it has no authority directly vis-​à-​vis the IASB. In a wide-​ranging study on trends in global institutional reform, Benedict Kingsbury, Nico Krisch, and Richard Stewart identify many cases similar to the IASB. The authors thus are sanguine about the potential for the growth of administrative law principles and mechanisms in global governance and conclude that a global administrative law is not only possible, but that it is in the process of being created.23 Greater transparency, more provisions for participation, and related reforms may indeed be necessary first steps to ensure that global regulation will come to reflect a wide range of interests. But, as I have argued elsewhere, such steps are far from sufficient—​especially in global private governance. Lack of broad-​based participation in highly technical domains may be caused not just by exclusion or nontransparent procedures but also by technical ignorance, information deficits, erroneous beliefs, or collective action dilemmas. The creation of more robust notice-​and-​ comment procedures, for example, will achieve little when the problem is ignorance or lack of technical expertise by the subjects of a particular governance arrangement. Greater procedural transparency and formal rules guaranteeing procedural inclusion of all affected parties may be in vain if those parties’ participation is in 22   L. Dickinson, “Public Law Values in a Privatized World,” Yale Journal of International Law 31 (2006): 383–​426, 383. 23   B. Kingsbury, N. Krisch, and R. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68 (2005): 15–​61.

 

180   private transnational governance fact prevented by a lack of financial resources or collective action problem.24 The most likely outcome in such cases may be de facto capture regulation—​not common interest regulation.

Endogenous Growth of Private Governance Efficient transacting in global markets necessitates not only global rules but also international enforcement mechanisms finely attuned to the needs of different business groups. States have addressed some of these needs by creating and improving treaty-​based dispute resolution mechanisms such as the European Court of Justice or the mechanisms offered by the WTO.25 The number of cases brought to these bodies, however, is tiny compared to the enormous volume of cases resolved in private international arbitration courts. International arbitration, indeed, is one of the most striking and vibrant—​yet least explored—​areas of global private governance. This section offers a brief overview of private international courts and concludes with a discussion of the risks and limits of such courts.

The Growth of Private International Courts Arbitration is a binding, nonjudicial, and private means of settling disputes based on an explicit agreement by the parties involved in a transaction. Such an agreement is typically embodied in the terms of a contract between the parties. Unlike judges in public courts, who must follow fixed rules of procedure and apply the laws of the land, arbitrators can dispense with legal formalities and may apply whatever procedural rules and substantive law best fit a case. Arbitration becomes international when the parties to a dispute reside or conduct their main business in different countries. The term commercial in international commercial arbitration (ICA) is broadly conceived and covers activities such as sale of goods, distribution agreements, commercial representation of agency, leasing, consulting, transportation, construction work, joint ventures, and other forms of industrial or business cooperation.   Mattli and Büthe, “Global Private Governance”; Mattli and Woods, The Politics of Global Regulation.   J. Goldstein and R. Steinberg, “Regulatory Shift: The Rise of Judicial Liberalization,” in The Politics of Global Regulation, ed. W. Mattli and N. Woods (Princeton: Princeton University Press, 2009), 211–​41. 24 25

 

endogenous growth of private governance    181 Two broad types of ICA can be distinguished:  universal arbitration and specialized arbitration. The former is offered by major arbitration centers such as the International Court of Arbitration of the International Chamber of Commerce (ICComm), the London Court of International Arbitration, the Arbitration Institute of the Stockholm Chamber of Commerce, the Singapore International Arbitration Center, and the International Center for Dispute Resolution of the American Arbitration Association. The combined annual caseload of these major arbitration forums has steadily increased over time, reaching 602 in 1992 and 2,348 in 2011.26 Specialized arbitration, by contrast, is conducted in forums established in specific industries by the respective international trade associations, such as the Society of Maritime Arbitration, the Grain and Feed Trade Association, and various stock and commodity exchanges, and is open only to the members of these associations and exchanges. Specialized courts are a particularly vibrant part of the global arbitration scene, adjudicating many more cases than universal arbitration forums. For example, the caseload of the London Maritime Arbitrators Association alone exceeds the combined annual total cases of all major universal arbitration courts: it has grown from 2,219 cases in 2002 to 3,849 in 2012.27 How can we account for the growing popularity and seeming efficiency of ICA? One explanation—​the economic-​rationalist model—​is based on insights from new institutional economics and the rational institutional design school in political science.28 These schools conceive of governance structures as organizational frameworks within which the integrity of a contractual relationship is decided and maintained. Governance structures emerge and adjust to minimize the costs and risks of transacting in markets. That is, transaction costs are economized by assigning transactions (which differ in their attributes) to governance structures (which differ in their adaptive capacities and associated costs) in a discriminating way. The higher the asset specificity of a transaction, for example, the greater the governance complexity needed to promote efficient exchange. With globalization, the volume of transactions in international markets has grown exponentially and so have the potential costs and problems associated with  W. Mattli and T. Dietz (eds.), International Arbitration and Global Governance:  Contending Theories and Evidence (Oxford: Oxford University Press, 2014). 27   The numbers are published by the London Maritime Arbitration Association, see http://​www. lmaa.org.uk/​default.aspx. A third type of international arbitration, Investor-​State Arbitration, is public. The main provider of such arbitration is the International Centre for Settlement of Investment Disputes (ICSID). ICSID was created in 1966 by the so-​called Washington Convention and is part of the World Bank organization. ICSID’s authority is limited to investment disputes where one of the parties is the host state. ICSID arbitration has recently become more prominent largely due to the growth of bilateral investment treaties (BITs) in the 1990s. However, ICSID cases are relatively few, though growing: two in 1992 and fifty in 2012 (see https://​icsid.worldbank.org). 28   O. Williamson, Markets and Hierarchies (New York: Free Press, 1975); The Economic Institutions of Capitalism (New York: Free Press, 1985); B. Koremenos, C. Lipson, and D. Snidal, “The Rational Design of International Institutions,” International Organization 55/​4 (2001): 761–​99. 26

 

182   private transnational governance these transactions. In response, businesses have designed a wide range of novel transnational governance structures to minimize transaction costs and maximize the net benefits to firms and societies of operating in global markets. International commercial arbitration is one such governance structure. The surge in its popularity as a method of dispute resolution can be attributed to features or attributes of arbitration that economic agents operating in global markets value, including flexibility, technical expertise, privacy, confidentiality, and speed. From the perspective of the economic-​rationalist model, agents select, use, amend, or design new dispute resolution forums based on their evolving needs and priorities.29 An illustration of an arbitral governance structure that appears to fit the economic-​rationalist model is the ICA of the ICComm.30 It seems to have evolved to maximize the efficiency of dispute resolution in a challenging and rapidly changing international economic environment. For example, its rules and institutional apparatus effectively override obstacles that a noncooperative disposition by one of the parties to an international commercial dispute may pose. If one of the parties refuses to participate in the arbitral proceedings (despite a contractual obligation to do so), ICA is entitled to appoint the arbitrator(s) and constitute a tribunal. The notice and summons procedure is performed by the ICComm Secretariat and is supervised by the court, assuring the arbitrators that the defaulting party had notice of the arbitration. If one party fails to sign the Terms of Reference, ICA may approve them and the proceedings continue. After the Terms of Reference are approved, the opportunity for a party to engage in dilatory tactics by presenting additional claims and counterclaims is minimized because such claims can only be heard on the agreement of all parties. The Court closely monitors the arbitral proceedings, ensuring that time limits and due process principles are respected.31 It replaces arbitrators who do not fulfill their functions or are behind in their work. At the end of the process, it scrutinizes the award in relation to jurisdiction and applicable law. This monitoring and checking increases the quality of the arbitral award and, in turn, reduces the chance that the losing party will challenge the award in a national court. As noted by an experienced international arbitrator, “most final awards rendered under [ICComm] auspices are carried out voluntarily by the parties, because [of their high] quality … A  company that fails to carry out an [ICComm award] is almost certain to lose subsequently and in addition runs the risk of jeopardizing its reputation in international circles.”32 Indeed, only about 5 percent of awards have been challenged, and   Jupille, Mattli, and Snidal, Institutional Choice and Global Commerce.   W. Mattli, “Private Justice in a Global Economy,” International Organization 55/​4 (2001): 919–​47. 31   Principles of due process include transparency of the arbitral process, the right of the parties to be called and heard, and equal treatment of the parties in the exchange of pleadings, in evidentiary matters, in resort to expertise proceedings, and in the holding of hearings. 32  G. Aksen, “Ad Hoc Versus Institutional Arbitration,” ICC International Court of Arbitration Bulletin 2 (1991): 12, 22. 29

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endogenous growth of private governance    183 of these only one in ten awards rendered under the aegis of the ICComm has been set aside by a national court. This remarkable organizational sophistication and efficiency is not unique to ICA. According to the economic-​rationalist approach, different types of international arbitration respond in different ways to the specific requirements of different sets of economic actors. The rules and institutional approaches of specialized arbitration as conducted in maritime affairs or offered by various stock and commodity exchanges thus are different from those designed for users of universal commercial arbitration or investor-​state arbitration. In each case, optimal institutional design and organizational efficiency is assumed to emerge given the backdrop of intense competitive pressure that each forum faces. Forums that do not innovate and adjust in order to satisfy their clients’ needs and priorities will lose arbitration business and become obsolete. Direct state intervention in ICA governance is neither necessary nor desirable as market pressure keeps arbitration centers on their “organizational toes.” States may help indirectly by ensuring the functioning of ICA is not hampered by state corruption and related failings or jurisdictional jealousies. In this backstage role, states have made important contributions, for example, by enacting statutes to reform their arbitration laws to satisfy the business users of international arbitration or signing the New York Convention on the Recognition and Enforcement of Arbitral Awards. The result is a strengthening and enhanced efficiency of ICA governance. The economic-​rationalist model further implies that organizational efficiency of arbitration forums is good not only for the contracting parties (by generating private gains); it also is good for the wider public. By enabling the smooth operation of global markets, ICA contributes to the optimal allocation of the world’s resources, which, in turn, generates economic growth and prosperity for societies across the globe. Recent econometric analysis strikingly illustrates the positive impact of effective ICA governance on international trade.33 In short, the model claims that ICA is a source of significant positive externalities.

The Risks and Limits of Private International Justice The economic-​ rationalist explanation of ICA is not universally accepted. Cultural-​sociological theorists, for example, consider the model incomplete and thus misleading.34 They argue that the key to understanding ICA’s emergence

33   T. Hale, “What Is the Effect of Commercial Arbitration on Trade?,” in International Arbitration and Global Governance, ed. W. Mattli and T. Dietz (Oxford: Oxford University Press, 2014), 196–​213. 34   J. Karton, “International Arbitration Culture and Global Governance,” in International Arbitration and Global Governance, ed. W. Mattli and T. Dietz (Oxford: Oxford University Press, 2014), 74–​116.

 

184   private transnational governance as a form of global governance is a legal culture specific to the international arbitration community. Culture is defined as a complex of norms that condition behavior both by shaping the thinking of members of a community and by creating a community consensus or peer pressure that discourages deviation from these norms. Culture emerges from the repeated interactions among actors of a particular community. Culture-​based behavior is reflexive; it operates prior to deliberative decision-​making. Several factors are said to have facilitated the emergence of a strong legal culture among international arbitration practitioners: they were educated in elite institutions, share cosmopolitan backgrounds and multicultural legal training, speak multiple languages, travel in both business and academic circles, frequently meet in conferences, and work repeatedly with each other and on disputes within a relatively narrow range of commercial subjects. Their community, unsurprisingly, is small. It has been described as an exclusive club, epistemic community, caste, cartel, gang, and even mafia.35 Perhaps a more troubling “incompleteness” in economic-​rationalist analysis is the lack of any discussion of power and its implications for the functioning of ICA. Power plays a central role in the analysis of ICA by critical political economy theorists.36 They see ICA governance as a scheme designed by the powerful few for their own private commercial ends. It is a mechanism of rent-​extraction from the weak and poorly organized in business and society at large. In other words, far from being the “positive-​sum” arrangement with positive externalities, as portrayed by economic-​rationalist theorists, ICA governance is better understood as a “zero-​ sum” arrangement that, in addition, generates extensive negative social, economic, and political externalities.37 The image of holistic efficiency is a mirage, a ploy by powerful business groups to silence the critics and seduce the gullible. Critical theorists point primarily to abuses in investor-​state arbitration in the context of BITs as evidence in support of their thesis. These treaties may involve powerful investors (multinational corporations or “vulture” funds) and weak or corrupt governments. Some such treaties have led to harmful industrial activities and short-​sighted policies dictated by investor interests. Examples of negative externalities include land-​grabbing affecting access to food for the poor, pollution and other durable ecological harm, destruction of local cultural or religious heritage, discrimination in respect of local workforce, exploitation, and violence.38   Ibid.; Y. Dezalay and B. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (Chicago: University of Chicago Press, 1996). 36  C. Cutler, “International Commercial Arbitration, Transnational Governance, and the New Constitutionalism,” in International Arbitration and Global Governance, ed. W. Mattli and T. Dietz (Oxford: Oxford University Press, 2014), 140–​67. 37   “Zero-​sum” implies that the gains of one group are the losses of another. 38   H. Muir Watt, “The Contested Legitimacy of Investment Arbitration and the Human Rights Ordeal,” in International Arbitration and Global Governance, ed. W. Mattli and T. Dietz (Oxford: Oxford University Press, 2014), 214–​39. 35

 

endogenous growth of private governance    185 Are the inequities generated by power asymmetries unique to investor-​state arbitration? In his critical assessment of ICA, Thomas Dietz answers the question negatively. He claims that power asymmetries are pervasive in ICA and a root-​cause of the relatively ineffective or marginal role played by universal arbitral governance, as reflected in the modest growth of arbitration cases relative to the explosive growth of global trade over the last two decades: “The relatively low case load points to a limited governance function of international commercial arbitration.”39 Dietz’s argument can be put as follows:  in a commercial relationship, one private party is likely to be more powerful than the other. It will use its power to create an uneven legal playing field disadvantaging the other party. A  particularly effective strategy is to bypass neutral transnational commercial law and choose instead national law it knows best and the other party may know least: “Parties do not choose the law that is most efficient for both parties but the law that suits their self-​interests.”40 For the same reason, the powerful party may even want to drag a case to a familiar domestic court rather than have it adjudicated in a neutral international arbitration court. A domestic court is likely to confer a home advantage to the powerful party and increase the legal cost and uncertainty for the weak foreign party. As a result, and in striking contrast to the prediction of the economic-​ rationalist model, the vast majority of international commercial contracts, even when they contain arbitration clauses, are said to still be governed by national laws. The chosen tribunal may be international; the preferred choice of law, however, tends to be national. The result is not the de-​localized, autonomous, private, and efficient ICA governance portrayed by economic-​rationalists but instead a system that still largely depends on territorially fragmented (and sometimes dysfunctional) state law, is less than efficient, and favors the powerful at the expense of the weak. Constitutionalist theorists reject such gloomy or negative assessment of ICA. They acknowledge its imperfections but emphasize the ability of ICA governance to evolve—​consistent with the three-​stage theory introduced earlier in this chapter—​to obviate weaknesses inherent in a purely private arbitration system. Moritz Renner, for example, notes that arbitral tribunals increasingly are not simply executors of the will of the contracting parties but apply public policy norms, thereby supplementing the supposedly private nature of arbitration with broader policy objectives. Recent arbitral practice “integrates different conceptions of public policy into an overarching hierarchy of norms mimicking domestic constitutional orders.”41 Mandatory public policy norms are long established in domestic systems,   T. Dietz, “Does International Commercial Arbitration Provide Efficient Contract Enforcement Institutions for Global Commerce?,” in International Arbitration and Global Governance, ed. W. Mattli and T. Dietz (Oxford: Oxford University Press, 2014), 168–​95. 40  Ibid. 41   M. Renner, “Private Justice, Public Policy: The Constitutionalization of International Commercial Arbitration,” in International Arbitration and Global Governance, ed. W. Mattli and T. Dietz (Oxford: Oxford University Press, 2014), 117–​39. 39

 

186   private transnational governance where courts may enforce rules limiting freedom of contract to protect public goods or interests (e.g., market stability or fair competition) or the weaker party in a contractual arrangement (e.g., consumers or employees). An international arbitrator may now refer, for example, to domestic mandatory rules against corruption as an expression of domestic public policy as well as to more recent rules in international anticorruption conventions as an expression of transnational public policy. Renner considers the rise of transnational public policy as “the starting point of a constitutionalisation of international commercial arbitration.” Two features characterize constitutionalization: First, a hierarchy of norms. “Both [domestic and international] layers of public policy are reflected in a legal hierarchy which by now forms the constitutional core of the regime of transnational commercial arbitration.” The second feature is the structural coupling of law and politics. “By referring to policy considerations and political discourse, be it on the domestic … [or] international level, international arbitral tribunals ‘externalize’ the problem of norm justification to the realm of politics.”42 What may be facilitating constitutionalization? Arguably an important factor is the increasing willingness of tribunals to publish arbitral awards. Such publication enables the development of a genuinely legal form of reasoning based on precedent, generating normative expectations as well as greater doctrinal consistency, and fostering the growth of transnational law.43

Conclusion This chapter has offered an overview of the key drivers and risks of private transnational governance. One finding worth highlighting is that private governance rarely seems to stay purely private. When it fails to consider wider societal interests and concerns, private governance will draw unwanted attention to it from governments, potentially leading to oversight and regulation or public private partnerships—​ what I referred to as “joint or hybrid” governance. A trend toward hybrid governance appears to be detectable both in the cases of privatization of global regulation and the rise of transnational private justice. In the former case, states have taken steps to improve procedural transparency and broaden the range of partners involved in transnational rulemaking. In the latter case, the constitutionalization  Ibid.  A. Stone Sweet and F. Grisel, “The Evolution of International Arbitration,” in International Arbitration and Global Governance, ed. W. Mattli and T. Dietz (Oxford: Oxford University Press, 2014), 22–​46. 42 43

 

conclusion   187 of international arbitration governance promises to integrate and safeguard fundamental public policy norms in private judicial processes. Future research on global governance will have to carefully examine the significance and effectiveness of “joint or hybrid” governance. Is such governance working as envisaged and making a real difference? Or is it simply a façade, an illusion, a ploy to hide an inconvenient truth? Who benefits the most from it—​who the least, when, and why? I conclude with a few conjectures in the hope of stimulating further research on the distributional implications of hybrid governance and partnerships.44 First, the parties in hybrid governance arrangements often assume one of two complementary roles: rulemaking and rule supporting. Rule supporting partners provide a wide range of services, including provision of information on local conditions or compliance levels, endorsement or appointment of rulemakers, ongoing legitimation and oversight, and various forms of logistic and material support to rulemakers. The latter define the general parameters and/​or specific details of a solution to a cooperation challenge. In areas where partners diverge on how best to approach and solve a joint cooperation problem, agents with rulemaking capabilities will have a disproportionate impact on the ultimate solution. They are in a position to select their preferred Pareto points—​that is, they are likely to set regulatory parameters that reflect their substantive policy preferences and ensure that their organizational and economic interests are maximized subject to a constraint of minimum acceptability to rule supporting partners. Three reasons explain why rulemakers accrue more power over time. First, their technical or expert knowledge generates great information asymmetry between partners, keeping the rule supporter potentially in the dark or at bay. The latter partner may trust the rulemaker but not fully understand the regulatory solutions proposed or grasp the long-​term implications of these solutions. Lack of information and knowledge makes it difficult to effectively oppose a regulatory proposal that may have unfavorable distributional implications. In other words, asymmetry reduces the constraints under which the rulemaker operates, enabling the forging of solutions that will favor the interests of the rulemaker more so than those of the rule supporter. Second, rulemaking is more constitutive than rule supporting. A  rulemaker is in the driver’s seat, charting the course of action and continuously deciding which turn to take or not. Rulemakers can use their power to directly enhance their own capacity for political action. By contrast, rule supporting activities—​though critically important to effective governance—​are more discrete and backstage. A decision by an IGO, for example, to formally endorse a private sector rulemaking partner can tremendously boost the legitimacy of the rulemaker. However, the rule supporting 44   W. Mattli and Jack Seddon, “Orchestration along the Pareto Frontier: Winners and Losers,” in International Organizations as Orchestrators, ed. K. Abbott et al. (Cambridge: Cambridge University Press, 2015), 315–​48.

 

188   private transnational governance act of endorsement is a single event. Endorsement can be revoked, of course, as can logistic or financial support. Nevertheless, rule supporting events have less direct impact on the shaping of cooperation outcomes than the more continuous activity of rulemaking. And third, rules once set and adopted may be hard to change because of network effects. The power to institute rules inevitably attracts actors outside the hybrid partnership with an interest in the form and content of rules, gradually concentrating and reinforcing the locus of relevant information and deliberation, decision and authority. The benefits of adopting and complying with new rules also increase as more targets convert to these rules. The logic of these increasing returns is to spawn large networks of vested interests in and defenders of the rules and rulemakers, increasing the cost to opponents seeking to dislodge their status. Network effects entrench and magnify the power of the rulemaker over time and, ceteris paribus, render it more difficult for the governance partner to successfully rectify the rules’ distributional biases. The ease with which rulemakers obtain their preferred “Pareto points” (that is, regulatory parameters that reflect their substantive policy preferences and maximize their organizational gains) is not constant, however. The price of cooperation also depends on a second variable—​the number of (actual or potential) partners. For example, a single or focal initiator of a joint governance scheme who faces a steady supply of (actual or potential) partners to co-​opt incurs a lower opportunity cost (suspended gains if a partnership breaks down) than an easily substitutable partner. The former will find it easy to arrange an alternative arrangement with another “supplier” whereas the latter may be excluded from such an arrangement for some time and thus incur a high opportunity cost. As a result, an actor is expected to accrue fewer benefits or pay a higher price to institute and/​or maintain a partnership with an organization in a monopoly position than if the actor faces many (actual or potential) partners. Only a monopoly player can set a monopoly price. In sum, in hybrid or joint governance, the partners gaining the greatest share of benefits from cooperation are those endowed with rulemaking capability that is not easily substitutable (i.e., they have no competitors). Examples are the ISO or the IEC in their arrangement with WTO members. Other combinations of the two variables—​rulemaking versus rule supporting role and single versus many (actual or potential) partners—​will generate further testable distributional scenarios.45

  For a full elaboration of the theory and systematic testing, see Mattli and Seddon, “Orchestration along the Pareto Frontier.” 45

 

Part I V

ACTIVITIES OF ORGANIZATIONS

 

 

Chapter 9

PEACE OPERATIONS Anjali Dayal Lise Morjé Howard

Peace operations are a broad category of military interventions undertaken for the purposes of humanitarian relief, conflict stabilization, ceasefire monitoring, and implementing peace agreements in response to war or disaster. They encompass a variety of conflict management, peacebuilding, and statebuilding missions, strategies, and techniques.1 Peace operations are the “signature activity” of the United Nations (UN).2 They are the most expensive and most visible of the UN’s programs, and they are associated with the core functions and challenges of contemporary international organizations. It is in peace operations staged within war-​decimated places that international organizations have most approximated substitute Leviathans, standing in for the state and organizing order, force, and law.3   Paul F. Diehl, Peace Operations (London: Polity, 2008); Michael Barnett and Martha Finnemore, Rules for the World:  International Organizations in Global Politics (Ithaca:  Cornell University Press, 2004); Alex J. Bellamy and Paul D. Williams, Understanding Peacekeeping, 2nd ed. (London:  Polity, 2010); Norrie MacQueen, Peacekeeping and the International System (London:  Routledge, 2006); Michael Doyle and Nicholas Sambanis, Making War and Building Peace:  United Nations Peace Operations (Princeton: Princeton University Press, 2006). 2   David Bosco, “The Price of Peace:  How Much Is a UN Blue Helmet Actually Worth?,” Foreign Policy, May 29, 2013: http://​foreignpolicy.com/​2013/​05/​30/​the-​price-​of-​peace/​. 3  Alexandros Yannis, “The UN as Government in Kosovo,” Global Governance 10/​1 (January–​ March 2004):  67–​81; Michael J. Matheson, “United Nations Governance of Postconflict Societies,” The American Journal of International Law 95/​1 (January 2001): 76–​85; Simon Chesterman, You, the People:  The United Nations, Transitional Administration and Statebuilding (Cambridge:  Cambridge University Press, 2004); Lise Morjé Howard, “East Timor: The UN as State,” in UN Peacekeeping in Civil Wars (Cambridge: Cambridge University Press, 2008), 260–​98. 1

 

192   peace operations Since the late 1940s, peace operations have operated under legal mandates issued by the UN Security Council, and have been executed by a diverse but consistent set of actors that include major and former colonial powers, multinational forces acting under the aegis of the UN, and regional organizations marshaling standing or national armies. By the end of 2015, there were over 120,000 personnel serving in sixteen UN-​led operations, making UN peace operations the second largest active military force in the world.4 This chapter discusses peace operations’ origins; their evolution alongside the growing international conflict management structures of the UN and other international organizations; and their core functions, composition, and efficacy. Although peace operations have roots in earlier forms of military intervention, their emergence as a dominant tool for conflict management is a distinct innovation of the same internationalist project that forged the UN.5 Their evolution lays bare the fundamental tensions between state interests and the liberal internationalist project of a “world organization for the enforcement of peace,” and their execution has defined the way wars are fought today.6 We focus on UN peace operations throughout because they are the modal type of mission in the world. The conclusion discusses the use of force within peace operations, an issue of growing importance that highlights fundamental tensions in the authorization and execution of internationally led efforts to maintain global peace and security. Taken together, these issues set in relief larger debates on cooperation between states, global integration, and the efficacy of intervention that characterize scholarship on international organizations.

Definitions We classify peace operations as the internationally sanctioned deployment of military personnel or police to a war-​torn area with the stated purpose of upholding an agreement after fighting has stopped or of limiting violence between warring parties and promoting an environment for conflict resolution.7 This is a narrow 4   United Nations, UN Peacekeeping Operations Fact Sheet, 2015, available from http://​www.un.org/​en/​ peacekeeping/​documents/​bnote1215.pdf. This figure includes civilians and volunteers. By contrast, the US military had approximately 150,000 troops deployed overseas at the end of 2015 (Julia Zorthian and Heather Jones, Time Magazine, 16 October 2015, http://​time.com/​4075458/​afghanistan-​drawdown-​obama-​troops/​). 5   Kimberly Zisk Marten, Enforcing the Peace: Learning from the Imperial Past (New York: Columbia University Press, 2004); MacQueen, Peacekeeping and the International System. 6   Harry S. Truman, “Address to the United Nations Conference in San Francisco,” Harry S. Truman Library and Museum, April 25, 1945, http://​trumanlibrary.org/​publicpapers/​viewpapers.php?pid=17. 7   This definition draws on Diehl, Peace Operations.

 

definitions   193 definition that includes multidimensional missions with large civilian components but excludes peacebuilding and political missions that are primarily composed of civilians.8 Other chapters in this volume offer sustained analysis of human rights, humanitarian action, and development; accordingly, we focus our attention on missions with a substantial military component. Although peace operations may have many goals and may deploy a wide set of military and diplomatic tools, by our definition all carry the UN Security Council’s seal of approval.9 Indeed, the UN is the international actor most associated with peace operations, although regional organizations and single states have shouldered a substantial and growing portion of the operational burden over the last two decades. Irrespective of any mission’s composition, however, its legitimacy and legality stem from the UN Security Council. This function of the Security Council is so deeply entrenched that even powerful single states staging military intervention and occupation have sought the UN’s approval.10 The definition of “peace operations,” however, remains contested and politicized. Actors have claimed the term for actions that in other times might have been called war, occupation, or trusteeship, as those terms have become less politically desirable.11 The UN Charter famously does not refer to peacekeeping. Peace operations in their current guise are issued under UN Charter Chapter VI, concerning the pacific settlement of disputes, or under Chapter VII, which covers threats to the peace, breaches of the peace, and acts of aggression—​“Chapter Six and Half,” as Dag Hammarskjöld framed them.12 Without a formalized doctrine for peace operations, the UN’s Department of Peacekeeping Operations (DPKO) has defined peace operations in various ways: as “a technique designed to preserve the peace, however fragile, where fighting has been halted, and to assist in implementing agreements achieved by the   These missions include the UN Assistance Mission for Iraq and the UN Assistance Mission for Afghanistan. 9   The definition we offer here thus includes armed interventions that are lead by a single state with the approval of the UN Security Council (such as France’s 2006 activity in Côte d’Ivoire), but excludes armed interventions lead by a single state without the UN Security Council’s approval. 10   Erik Voeten, “The Political Origins of the UN Security Council’s Ability to Legitimize the Use of Force,” International Organization 59/​3 (2005): 527–​57; Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton: Princeton University Press, 2008); Alexander Thompson, Channels of Power: The UN Security Council and U.S. Statecraft in Iraq (Ithaca: Cornell University Press, 2010). 11  Paul F. Diehl, International Peacekeeping (Baltimore: Johns Hopkins Press, 1994); Martha Finnemore, The Purposes of Intervention (Ithaca: Cornell University Press, 2003); Bellamy and Williams, Understanding Peacekeeping; MacQueen, Peacekeeping and the International System; Michael W. Doyle and Nicholas Sambanis, “International Peacebuilding: A Theoretical and Quantitative Analysis,” American Political Science Review 94/4 (December 2000): 779–801. 12   UN, “Charter of the United Nations” (October 24, 1945); Virginia Page Fortna and Lise Morjé Howard, “Pitfalls and Prospects in the Peacekeeping Literature,” Annual Review of Political Science 11 (2008): 283–​301; UNIS, Looking Back/​Moving Forward, May 20, 2013, http://​www.unis.unvienna.org/​ unis/​en/​60yearsPK/​index.html. 8

 

194   peace operations peacemakers”;13 by simply listing civilian and military peacekeepers’ most common functions;14 or by offering a continuum of activities ranging from conflict prevention to peacebuilding.15 Scholars have advanced a wide range of typologies to classify peace operations. In their 2000 study, Doyle and Sambanis specify four types of peace operations—​ monitoring or observer missions, traditional peacekeeping, multidimensional peacekeeping, and peace enforcement—​dividing missions on the basis of their UN mandates. Scholars disagree on whether to distinguish operations primarily by their means or by their ends.16 This variety of definitions reflects the ways in which peace operations may bleed conceptually, theoretically, and operationally into war fighting, statebuilding, and peacebuilding.17 The most commonly specified division is between consent-​and enforcement-​ based operations, or between “traditional,” Chapter VI interpositional peacekeeping missions and post-​Cold War Chapter VII enforcement missions.18 The Security Council authorizes “traditional” peacekeeping missions under Chapter VI for the pacific settlement of disputes, and they hew to the three general rules—​limited force, consent of the warring parties, and impartiality. Peace enforcement missions are authorized under Chapter VII of the mandate, invoking the Security Council’s responsibility for the maintenance of international peace and security. They are closer to conventional military operations:  soldiers undertake coercive actions, have greater military capacity, and may not have been authorized with the consent of all warring parties in place. Aside from the issue of consent, peacekeeping and peace enforcement have generally differed in three major respects: purpose, means, and actors. First, the basic purpose of a peacekeeping mission is usually to implement peace accords that have

13  UN DPKO, “United Nations Peacekeeping Operations Principles and Guidelines,” Capstone Doctrine Draft 3, Quoted in Bellamy and Williams, Understanding Peacekeeping. 14   UN DPKO, Handbook on United Nations Multidimensional Peacekeeping Operations (New York: DPKO Best Practices Unit, 2003). 15  UN DPKO, “United Nations Peacekeeping Operations Principles and Guidelines,” Capstone Doctrine (2008). 16   e.g., Bellamy and Williams, in Understanding Peacekeeping, distinguish operations by the ends, while Diehl, Druckman, and Wall divide them by their means. See Paul F. Diehl, Daniel Druckman, and James Wall, “International Peacekeeping and Conflict Resolution: A Taxonomic Analysis with Implications,” Journal of Conflict Resolution 42/​1 (1998): 35–​55. 17   Doyle and Sambanis, “International Peacebuilding: A Theoretical and Quantitative Analysis,” 779. 18   See, e.g., Virginia Page Fortna, Does Peacekeeping Work? Shaping Belligerents’ Choices after Civil War (Princeton: Princeton University Press, 2008); Michael J. Gilligan and Ernest J. Sergenti, “Do UN Interventions Cause Peace? Using Matching to Improve Causal Inference,” Quarterly Journal of Political Science 3/​2 (2008): 89–​122; Lise Morjé Howard, UN Peacekeeping in Civil Wars (New York: Cambridge University Press, 2008); Victoria K. Holt and Tobias C. Berkman, The Impossible Mandate? Military Preparedness, The Responsibility to Protect, and Modern Peace Operations (Washington, DC: The Henry L. Stimson Center, 2006).

 

evolving mandates   195 already been agreed to by the warring parties, regional actors, and the UN Security Council. In other words, peacekeepers are tasked with implementing existing peace agreements, not creating peace. The purpose of peace enforcement is to end fighting by means of military force. Second, the means at peacekeepers and peace enforcers’ disposal have often been very different. UN peacekeeping troops hail from dozens of different countries and often spend little (if any) time training together before deployment. Their armor is often light and may not be interoperable across units of different nationalities, and they do not always have common languages by which to communicate. They are capable of tasks like monitoring ceasefires and escorting and retraining troops, but they generally cannot use military force (except in self-​defense). Unlike peacekeeping troops, peace enforcers must be able to fight as coherent units. Third, in terms of actors, the UN is tasked with the vast majority of international peacekeeping operations. In contrast, peace enforcement has often been the domain of single states or small coalitions of the willing (such as the British Special Forces operation in Sierra Leone, the US operation in Liberia, French operations in Côte D’Ivoire, and the Australian-​led International Force for East Timor). Regional organizations have also often played the role of peace enforcer, as did the North Atlantic Treaty Organization (NATO) in Bosnia and Kosovo; the Economic Community of West African States (ECOWAS) in Liberia, Sierra Leone and Mali; and the African Union (AU) in Somalia. The distinction between peacekeeping and peace enforcement has been fading, however, as mission mandates have evolved.

Evolving Mandates Most early missions, from peacekeeping’s inception with the UN Truce Supervision Organization in 1948 through the end of the Cold War, were designed as interpositional forces to monitor ceasefire arrangements between states. This was as much a political innovation as it was a political necessity: while peacekeeping was a novel option for conflict management in the modern state system, it was also fundamentally limited by the composition of the Security Council and the bipolar Cold War structure of the international system.19 Since US and Soviet agreement was required to authorize missions, new peacekeeping missions were rare. There was only one peacekeeping mission in a civil war—​Opération des Nations Unies au Congo (ONUC), the UN Operation in the Congo—​as some intrastate conflicts were proxy  Diehl, Peace Operations.

19

 

196   peace operations superpower wars that permanent Security Council members were in no rush to turn over to peacekeepers. Fourteen peacekeeping missions were authorized during the Cold War’s forty years, while fifty-​five missions have been authorized in the twenty-​seven years that have followed it.20 We identify three types of peacekeeping missions: first, interpositional missions deployed along borders between states, authorized under Chapter VI of the UN Charter; second, complex multidimensional peacekeeping operations in civil wars; and third, complex peace enforcement operations authorized under Chapter VII of the UN Charter to use force, often to protect civilians. Although progression between types was not perfectly generational, the three types are roughly demarcated by major world-​historical events—​the Cold War, the end of the Cold War, and 9/​11.21

Interpositional Peacekeeping The first type of peacekeeping mission involved observing ceasefires between formerly warring states. These missions were lightly armed for defensive purposes and charged primarily with preventing defection from agreements and providing information that prevented accidental engagement and cheating on ceasefire agreements, with few combat or humanitarian tasks.22 Their function was primarily to deter interstate hostilities with their presence.23 The Security Council usually authorized these missions under its authority for the pacific settlement of disputes without authorizing them to use force. Several of these missions—​the UN Military Observer Group in India and Pakistan, the UN Disengagement Observer Force, and the UN Truce Supervision Organization—​continue today, serving as buffers and tripwires between antagonistic, if not actively belligerent, states. Most peace operations in this period were a foreign policy innovation, not a military innovation—​they signaled the international community’s interest in conflict  UN DPKO, “List of Peacekeeping Operations,” United Nations Department of Peacekeeping Operations (2016), http://​www.un.org/​en/​peacekeeping/​documents/​operationslist.pdf. 21   Some missions, such as the complex, multidimensional ONUC (1960–​4), for example, deployed decades before other missions of its type. More recently, the ceasefire monitoring mission between Ethiopia and Eritrea (2000–​8) was also anachronistic: its mandate was more like those of the Cold War missions between states. 22  Fortna, Does Peacekeeping Work? 23   Thomas Schelling, Arms and Influence (New Haven: Yale University Press, 1966); Virginia Page Fortna, “Interstate Peacekeeping:  Causal Mechanisms and Empirical Effects,” World Politics 56/​4 (July 2004): 481–​519. 20

 

multidimensional peace operations   197 resolution without a commitment to resolve conflict with armed force. They were sparingly deployed, and they hewed to the three traditional “rules” of peacekeeping: the consent of all parties, impartiality, and the limited use of force by peacekeepers.24 The doctrinal rules of peacekeeping and the multilateral nature of the interventions made these missions palatable even in a polarized international system and distinguished such operations as a cooperative activity of international organizations that was distinct from, and was intended to stop, war fighting.25

Multidimensional Peace Operations The end of the Cold War brought about major changes in both the number and type of peace operations. With the thaw in the Security Council, thirty-​eight new missions were authorized between 1989 and 1999, and eighteen new missions between 1989 and 1994 alone.26 These missions were for the most part deployed to intrastate, rather than interstate conflicts, as civil war became the modal form of conflict at the Cold War’s end, and as the decline of superpower support changed the technologies of rebellion with which these wars were fought.27 Peace operations acquired additional functions, as well: multidimensional missions within states began charging the UN not simply with the political task of observing ceasefires, but also with civilian and military functions like electoral assistance, delivering humanitarian aid, rebuilding judicial and economic institutions, police retraining, troop demobilization, disarmament, and reintegration. Former Secretary-​ General Boutros Boutros-​ Ghali laid out these new goals in his 1992 report An Agenda for Peace:  Preventive Diplomacy, Peacemaking, and Peace-​Keeping. In it, he welcomed a new era of possible action following the “crippled” possibilities of the Cold War and argued that the UN should foster peace and international security by meeting internal strife with an arsenal of economic, institutional, and diplomatic tools. The DPKO was established in 1992, transforming peacekeeping from an ad hoc activity authorized by the Security Council and

 Howard, UN Peacekeeping in Civil Wars.   On the multilateral nature of peace operations and legitimacy, see Barnett and Finnemore, Rules for the World; John Ruggie, Constructing the World Polity (New York: Routledge, 1998). 26  UN DPKO, “List of Peacekeeping Operations,” United Nations Department of Peacekeeping Operations (2016), http://​www.un.org/​en/​peacekeeping/​documents/​operationslist.pdf. 27   Michael Mandelbaum, “Is Major War Obsolete?,” Survival 40/​4 (Winter 1998/​99): 20–​8; Stathis N. Kalyvas and Laia Balcells, “International System and Technologies of Rebellion: How the End of the Cold War Shaped Internal Conflict,” American Political Science Review 104/​03 (2010): 415–​29. 24 25

 

198   peace operations overseen by the Secretariat’s political staff into a complex set of policy tools with their own overseeing department. This move gave international peace operations a specific institutional home, a bureaucracy charged with their oversight, and a centralized staff to plan and coordinate missions whose military staff was still drawn from the volunteer pool of troop-​contributing countries. The development of a peacekeeping bureaucracy gave peace operations an organizational nucleus with its own developing interests and institutional culture, while troops were still drawn from countries that volunteered for the task.28 Boutros-​ Ghali’s ambitious agenda found early support with the powerful Security Council members and was met with increased demand for intervention. With only a few exceptions in the mid 1990s (the Balkans missions and UNOSOM II in Somalia), these missions all had Chapter VI mandates, authorized under the Security Council’s offices for pacific settlement of disputes, and most were tied to a political negotiation process with UN oversight or Secretariat investment.

Success, Failure, and the Brahimi Report The confluence of peacemaking and multidimensional peacekeeping was a historically new phenomenon.29 The quick flurry of mission authorizations in the early 1990s also demonstrated that the UN was underresourced. No other international organization had the purview, political will, or material resources to take up these missions, and single states and troop-​contributing countries were reluctant to undertake intervention alone, particularly when faced with potential personnel losses. Despite the important successes in Namibia, El Salvador, Cambodia, and Mozambique, the human costs of peacekeeping failures were vivid and staggering during this era.30 Between 1993 and 1995, there were three highly publicized, brutal

  Michael Barnett and Martha Finnemore, “The Politics, Power, and Pathologies of International Organizations,” International Organization 54/​4 (1999): 699–​732. 29   Indeed, since the end of World War II, there have been more negotiated settlements than any other time in history (Peter Wallensteen, Understanding Conflict Resolution, 3rd ed. (London:  Sage, 2012), and since the end of the Cold War, negotiated settlements have risen even more while the likelihood that wars will end in military victory has declined (Virginia Page Fortna, “Where Have All the Victories Gone? Peacekeeping and War Outcomes,” presented at the Annual Meeting of the American Political Science Association (September 2009); see also UN, “A More Secure World:  Our Shared Responsibility,” Report of the High-​level Panel on Threats, Challenges and Change (New York, 2004)). 30  Howard, UN Peacekeeping in Civil Wars. 28

 

success, failure, and the brahimi report    199 collapses of peace operations, including the pivotal deaths of US and Pakistani peacekeepers in Somalia in 1993. The tragedies in Somalia extinguished US support for the new peacekeeping agenda, reduced political will for robust interventions among troop contributing countries and the Security Council, and thereby enabled genocide, massacres, and ethnic cleansing to continue in Rwanda, Angola, and Srebrenica despite the presence of UN peacekeepers.31 These failures entrenched peacekeeping as a losing game in the public imagination of wealthy donor states.32 They also triggered a generation of scholarship focused on the sources of the UN’s failures and stayed the profusion of new missions: between late 1993 and 1998, the UN’s only major mission authorization was in Eastern Slavonia; several smaller, more modest missions were authorized in this time period.33 Peace operations did not cease, however. Instead, these failures began a period in which powerful states shifted their focus away from UN peacekeeping, and from UN peacekeeping contributions, toward hybrid missions “where the Western troop contribution [sat] outside UN command and control structures.”34 Financial and troop contributions shifted outside the UN toward peace operations conducted by the AU, ECOWAS, and, notably, NATO, which spearheaded the UN-​mandated Implementation Force in Bosnia from 1995 to 2004. Failures also provoked UN-​wide introspection and reform. The Report of the Panel on UN Peacekeeping Operations, known as the “Brahimi Report” (2000), advocated comprehensive reform for the DPKO in the wake of the failed operations of the 1990s. Its panel of expert authors argued that the UN had overstretched its abilities; that it could do more to protect civilians in conflict; and that UN peacekeeping would have to be more robust in order to be more effective. It also recommended the UN refuse missions for which its peacekeeping apparatus lacked resources.35 The DPKO underwent a series of reforms and grew by 50 percent in size in accordance with the report’s recommendations.36 The Brahimi Report pushed peace operations away from the three traditional rules of peacekeeping by recommending better protection of civilians and creating a more robust fighting posture in UN peacekeeping. Early, limited multidimensional missions that hewed to the three rules had produced stable agreements 31  Fortna and Howard, “Pitfalls and Prospects in the Peacekeeping Literature”; Howard, UN Peacekeeping in Civil Wars. 32   See, e.g., Max Boot, “Paving the Road to Hell: The Failure of UN Peacekeeping,” Foreign Affairs (March–​April 2000): 143–​8. David Igantius, “The Failure of a Noble Idea,” The Washington Post, August 31, 2012; Edward Luttwak, “Give War a Chance,” Foreign Affairs (July/​August 1999): 36–​44. 33  Fortna and Howard, in “Pitfalls and Prospects in the Peacekeeping Literature,” outline this scholarship. 34   Alex J. Bellamy and Paul D. Williams, “The West and Contemporary Peace Operations,” Journal of Peace Research 46/​1 (January 2009): 39–​57, 44. 35   Panel on UN Peace Operations, Report of the Panel on UN Peacekeeping Operations (Brahimi Report) (New York: UN, 2000). 36  Howard, UN Peacekeeping in Civil Wars.

 

200   peace operations and comparative peace in Namibia, El Salvador, Mozambique, and Cambodia, but impartiality, consent, and a very limited mandate to use force were also seen as facilitating conditions for some of the worst tragedies that occurred on the UN’s watch: the UN had mandated peacekeeping behavior that seemed to confer moral equivalency on groups bent on massacring civilians while lacking the capacity or legal authorization to stop massacres.37 The heightened use of force in civil wars, required for greater civilian protection and a robust fighting posture, could be compatible with impartiality and consent but required a new kind of operational mandate.

Civilian Protection, Peace Enforcement, and R2P Beginning in 1999, the UN authorized an increasing number of peace enforcement mandates under Chapter VII of its charter, turning from traditional peace operations toward mandates that justified intervention in the defense of international peace and security. Today, all multidimensional peacekeeping operations have Chapter VII peace enforcement provisions. The shift from Chapter VI to Chapter VII mandates is not simply semantic: contemporary Chapter VII missions are authorized to use force most notably to protect civilians, in self-​defense, and in defense of the mandate. The limited Chapter VII mandate to use force in defense of civilians began in Sierra Leone, which received the first Chapter VII mandate to protect civilians in conflict.38 Since then, it has gained consensus among Security Council members and has been authorized in nearly every mission since 2006.39 The protection of civilians norm has been less controversial than the related Responsibility to Protect (R2P) norm, which originated alongside discussions of civilian protection. R2P arose on the heels of the UN’s failures in Rwanda and Srebrenica. It was the subject of a series of Canadian-​led reports and Security

37   On the limits of this strategy, see, e.g., Alan J. Kuperman, “The Moral Hazard of Humanitarian Intervention:  Lessons from the Balkans,” International Studies Quarterly 52 (2008):  49–​80. Roméo Dallaire offers a similar perspective from the practicioner’s perspective: Roméo Dallaire, Shake Hands with the Devil: The Failure of Humanity in Rwanda (New York: Carroll and Graf Publishers, 2003). 38   S/​RES/​1270 (1999). 39   This mandate has been repeated verbatim no fewer than eight times since 1999, including in the United Nations Operation in Côte d’Ivoire (UNOCI), the United Nations Observer Mission in Georgia (UNOMIG), United Nations Mission in the Republic of South Sudan (UNMISS), and the United Nations Stabilization Mission in Haiti (MINUSTAH) mandates.

 

civilian protection, peace enforcement, and r2p    201 Council debates in the early 2000s. While many Western nations favored framing humanitarian intervention in terms of responsibilities, many developing nations feared that the formalization of such a doctrine might erode the sovereignty norms that had helped avert major interstate war since World War II. The debates culminated in the 2009 formulation of a three-​pillared approach to R2P wherein “protection” and “rebuilding” are clearly preferential to the last resort of “action.”40 The R2P debates were matched by similar normative moves across the UN system: the Brahimi Report (2000) advocated comprehensive reform for DPKO, while a host of thematic resolutions publicly outlined the Security Council’s positions on civilians in armed conflict, children and armed conflict, and women and armed conflict.41 Thus, in the early 2000s, a formal normative architecture around the protection of civilians and vulnerable populations in conflict emerged at the UN. Peace operations became a tool with which to protect civilians in conflict, not merely a new diplomatic tool to stop or prevent the recurrence of conflict. The formal adoption of the norm charges the international community to act in defense of the victims of conflict and in lieu of states that are unwilling to do so. Concurrent with these normative shifts was the United States’ renewed interest in peace operations following 9/​11. After the Clinton administration’s early enthusiasm for peacekeeping faded in the early 1990s, US involvement in peace operations was limited. The United States became increasingly concerned with failed states after 9/​11, however, viewing them as potential breeding grounds for al-​Qaeda, similar terrorist organizations, and strategic threats to international security. Beginning in 2002, the United States ceased actively blocking efforts for more robust peacekeeping missions and provided increased financial support to UN peacekeeping operations.42 President George W. Bush’s advisers, some of whom were famous for their anti-​UN rhetoric, oversaw the largest budgetary expansions in the UN’s history—​a doubling of the operational budget, and tripling of the UN peacekeeping budget starting in 2003.43 Other emerging powers—​including China, Brazil, South Africa, and Nigeria—​also began to contribute more resources to UN peace operations. 40   World Summit in 2005 (Alex J. Bellamy, “Whither the Responsibilty to Protect? Humanitarian Intervention and the 2005 World Summit,” Ethics & International Affairs 20/​2 (Summer 2006)); Security Council adoption in 2006 (S/​RES/​1647); General Assembly passage in 2009 (A/​RES/​63/​308); see also Gareth Evans and Mohamed Sahnoun, “The Responsibility to Protect,” Foreign Affairs (November/​ December 2002). The “three pillars” formulation appears in the Secretary-​General’s Report on the Implementation of R2P (A/​63/​677 (2009)). 41   On the protection of civilians in armed conflict, see S/​RES/​1265 (1999), S/​RES/​1296 (2000), S/​RES/​ 1674 (2006), S/​RES/​1738 (2006), and S/​RES/​1894 (2009). On children and armed conflict, see S/​RES/​1261 (1999), S/​RES/​1314 (2000), S/​RES/​1379 (2001), S/​RES/​1460 (2003), S/​RES/​1539 (2004), S/​RES/​1612 (2005), and S/​RES/​1882 (2009). On women and armed conflict, see S/​RES/​1325 (2000), S/​RES/​1820 (2008), S/​RES/​1889 (2009), and S/​RES/​1960 (2010). 42  Council on Foreign Relations, “More than Humanitarianism,” Task Force Report No. 56 (Washington, DC, January 2006); James Fearon and David Laitin, “Neotrusteeships and the Problem of Weak States,” International Security 28/​4 (2004): 5–​43. 43   Lise Morjé Howard, “Sources of Change in US–​UN Relations,” Global Governance 16/​4 (2010).

 

202   peace operations In light of these transformations, the UN has become the arbiter of situations in which civilians are falling victim to civil war, genocide, state failure, and state predation. Whether or not Security Council members themselves cleave to R2P, they have acted to implement it: the Security Council is more likely now to deploy a peace operation where belligerents target the civilian population, and conflicts with higher levels of civilian targeting are more likely to receive robust operational mandates.44 The Security Council has granted these mandates even when it has not granted commensurate resources to execute the mandates. While the R2P norm is strong enough to animate the repeated authorization of Chapter VII mandates to protect civilians, it is not strong enough to override the interests of powerful states, which persist as the engine of Security Council action. Despite concurrent Security Council support for forceful action in the Democratic Republic of the Congo (DRC), Côte d’Ivoire, Mali, and Libya, for example, the deadlock between the United States, Russia, and China on Syria from 2011 to 2015 indicates that Great Power rivalries have not subsided.45 Like Cold War-​era interpositional missions, the limited Chapter VII mandate to use force is possible only when the permanent five members of the Security Council (P5) agree.46 There is early evidence, however, that deadlock on action to protect civilians is less acceptable to the UN’s member states than it was during the Cold War—​in August 2012, for instance, the UN General Assembly formally rebuked the Security Council for its inaction on Syria.47 In the context of the growing normative architecture surrounding intervention, and a growing number of peacekeeping missions worldwide, what was once status quo for the Security Council may have become deplorable. Chapter VII mandate authorizations have, however, often outstripped the UN’s actual capacity to protect civilians under imminent threat of physical violence. Indeed, the authorization to use force is frequently granted, but peacekeepers still rarely use force; when they do, it is in accordance with their national rules of engagement. The patchwork nature of troop contributions and the diffuse nature of the UN’s central command and control structure mean that peacekeepers use force when their national capitals deem it in line with their rules of engagement. The actual protection of civilians varies in accordance with which battalions are on the ground. Moreover, it is important to distinguish between war fighting and the limited Chapter VII mandate to protect civilians under imminent threat of violence. Analysts  Lisa Hultman, “UN Peace Operations and Protection of Civilians:  Cheap Talk or Norm Implementation?,” Journal of Peace Research 50/​1 (2013): 59–​73. 45   While the Security Council has struggled to find common ground over Syria, in December 2015, despite serious strategic differences, the Council collectively endorsed a road map for peace and a national ceasefire (S/​RES/​2254, SC/​12171). These actions were not Chapter VII actions and, as of this writing, did not point to an imminent UN mission to Syria. 46   The P5 are the United States, the United Kingdom, Russia, China, and France. Any member of the P5 may unilaterally veto Security Council actions. 47   UN News Centre, “As Syria Fighting Continues, General Assembly Urges Immediate Halt to Violence,” August 3, 2012, http://​www.un.org/​apps/​news/​story.asp?NewsID=42624&Cr=Syria&Cr1=#.Ua0eruuhZQY. 44

 

mission composition   203 usually frame peace enforcement operations as closer to conventional military operations; these missions are undertaken with the will of the Security Council, not the will of the warring parties, as a guide to action.48 The prevailing mode of Chapter VII mandate does not authorize actual military action absent an immediate threat to the civilian population or to UN staff. It is in partial recognition of this fact, and in recognition of its long, checkered history in the DRC, that the UN authorized its first-​ ever Intervention Brigade in 2013, establishing a unit within the UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), the larger, more traditional peacekeeping operation, and granting “the brigade a mandate to carry out offensive operations alone or with Congolese Army troops to neutralize and disarm militant groups.”49 The Intervention Brigade in the Congo has some antecedents, including Anglo-​French “rapid reaction” ground forces in Bosnia operating alongside the UN Protection Force, but the Security Council resolution establishing the Brigade came with the explicit note that its authorization was “on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping.”50 At the time of writing, important questions persist about its composition, its efficacy, how it will distinguish itself from other parts of MONUSCO, and how peace operations will navigate the transition from neutrality to partisan military postures. Its authorization signals the continually evolving nature of peace operations and the challenges and limitations of military actions undertaken by international organizations, which sit uncomfortably alongside an expressly stated commitment to the “agreed principles” of traditional peacekeeping. The 2008 report United Nations Peacekeeping Operations: Principles and Guidelines from the Department of Peacekeeping Operations’ Best Practices Section began the work of bridging foundational UN doctrine and growing challenges to peace operations in the field, while the 2015 Report of the High-​level Independent Panel on Peace Operations began the process of grappling with the growing turn toward military force postures with which future reports will also have to contend.

Mission Composition Peace operations are characterized by a division of labor: the warring parties request assistance implementing a peace agreement, the Security Council authorizes  Diehl, Peace Operations.   The Associated Press, “UN Approves New Force to Pursue Congo’s Rebels,” The New York Times, March 28, 2013, http://​www.nytimes.com/​2013/​03/​29/​world/​africa/​un-​approves-​new-​force-​to-​pursue-​ congos-​rebels.html?ref=world&_​r=0. 50  Ibid. 48 49

 

204   peace operations a mission and its mandate; the Secretariat and the Department of Peacekeeping Operations plan the mission and staff its political positions; and troop-​contributing countries provide troops, police, political staff, equipment, and other resources. Troop contributions come from a heterogeneous group of more than 100 small and middle powers with extensive military resources, with varying motivations for contribution and varying levels of contribution. For regional hegemons, including Nigeria, South Africa, and Brazil, troop contributions may be framed as a duty that falls to powerful states.51 Pakistan, Bangladesh, and India rank high on the list of troop contributing countries that participate in peace operations for both increased international prestige and resources. Nigeria, Ethiopia, and Rwanda are all steadily increasing their contributions, while the “West” has alternated between providing troops and financial support.52 The current system of troop contributions is what one analyst called a “blue helmet caste system”: wealthy countries finance peacekeeping, while poor countries provide peacekeepers who “die in far higher numbers than their wealthier counterparts.”53 While this neglects the advance role that former colonial powers, such as France and the United Kingdom, have played in enforcement operations, one of the troubling recent trends in peacekeeping is an increasing divide between the Global North and South: “The first world sets the policies, and third world supplies the troops.”54 This division is set in relief by debates on the Chapter VII Mandate to protect civilians: the P3 (the United States, the United Kingdom, and France) have been at the forefront of the move toward Chapter VII force mandates in peacekeeping operations, while fewer states from the global South have been pushing the Chapter VII agenda.55 Nor are the peacekeeping troop suppliers seeking force mandates in order to better defend their troops on the ground; troop-​supplying countries argue they can defend themselves under   On troop-​contributing countries for whom peacekeeping is expensive, see Arturo Sotomayor, “Peacekeeping Effects in South America:  Common Experiences and Divergent Effects on Civil-​ Military Relations,” International Peacekeeping 15/​5 (November 2010): 629–​43. 52   Recent statistics on comparative contributions to the UN’s general budget are as follows: the United States provides 22% (or $532,435,102), Japan (12.53%), Germany (8.018%), the United Kingdom (6.604%), and France (6.112%). See Marjorie Ann Browne and Luisa Blanchfield, “United Nations Regular Budget Contributions: Members Compared, 1990–​2010,” Congressional Research Services, January 15, 2013. For the 2013 UN Peacekeeping budget, which is approximately $7.33 billion, the United States is assessed at 27.14% (or nearly $2 billion), Japan (12.53%), the United Kingdom (8.15%), Germany (8.02%), France (7.55%), Italy (5.00%), China (3.93%), and Canada (3.21%). See A/​67/​224, August 3, 2012. 53   Colum Lynch, “The Blue Helmet Caste System,” Foreign Policy (April 11, 2013), http://​turtlebay. foreignpolicy.com/​posts/​2013/​04/​11/​the_​blue_​helmet_​caste_​system. 54  Author interview with Robert M.  Perito, Director, Security Sector Governance Center, US Institute of Peace, Washington DC, April 30, 2012. 55   At the time of writing, it remains unclear whether and how recent moves such as the Kigali Principles on the Protection of Civilians, a series of 2015–​16 pledges initiated by the United States, the Netherlands, and Rwanda concerning the implementation of civilian norms in peace operations, will affect this long-​running division. 51

 

efficacy   205 Chapter VI.56 In this sense, the Council’s P3 members are not responsible for the implementation of the mandates that they set, while troop-​contributing countries lack the necessary institutional power to alter mandates. This divide results in a hierarchy within the peacemaking apparatus.

Efficacy The popular perception of peace operations—​particularly those led by the UN—​is that they are largely ineffective. Scholars have engaged seriously with whether or not peacekeeping works, however, and have found that it can be very effective under some conditions. If we adopt a broad definition as Page Fortna does57—​the collapse of any peace agreement overseen by a guarantor—​there have been fourteen major peacekeeping failures since the end of the Cold War out of the fifty-​five peacekeeping missions authorized since 1989, which makes for a failure rate of slightly over one in four. When we consider that peacekeeping is often the last-​ditch solution to an already intractable problem, these are comparatively favorable statistics.58 Indeed, major works have found that, ceteris paribus, peace operations make agreements more likely to be implemented and the peace more likely to hold: combatants are 20 percent more likely to implement the terms of a peace agreement with a third-​party guarantee in place, and by conservative estimates, peacekeepers’ presence cuts the risk of recidivism by more than half; by less conservative estimates, they lower the hazard of backsliding by 75 or 85 percent.59 Moreover, as transitional authorities, complex multidimensional peace operations have been successful at reconstructing decimated states and handing power back to them, a rather remarkable feat.60 Finally, there is good evidence that peacekeeping limits the diffusion of conflict across national borders, preventing domestic strife from becoming regional.61 56   Lise Morjé Howard and Anjali Dayal, “The ‘Tyranny of Getting to Yes’ and the Use of Force in UN Peacekeeping,” presented at the Annual Meeting of the International Studies Association (San Francisco, CA, April 6, 2013). 57  Fortna, Does Peacekeeping Work? 58   “Major failure” excludes the failure of ceasefires and truces for the most part and focuses on the failure of formally negotiated settlements, except where noted. Anjali Dayal, “Negotiation, Repetition, Reputation:  Peacekeeping and Links between Civil Wars,” presented at the Annual Meeting of the International Studies Association (San Francisco, CA, April 3, 2013). 59   Barbara Walter, Committing to Peace: The Successful Settlement of Civil Wars (Princeton: Princeton University Press, 2002); Fortna, Does Peacekeeping Work? 60  Howard, UN Peacekeeping in Civil Wars. 61   Kyle Beardsley, “Peacekeeping and the Contaigon of Armed Conflict,” Journal of Politics 73/​4 (October 2011): 1051–​64: Halvard Buhaug and Kristian Skrede Gleditsch, “Contagion or Confusion? Why Conflicts Cluster in Space,” International Studies Quarterly 52 (2008): 215–​33.

 

206   peace operations At the most basic level, peace operations do, then, seem to work; peace operations are not just the UN’s “signature activity,” but a highly effective activity of international organizations: states coordinating multilaterally sanctioned military action to oversee agreements and to maintain international peace and security through the UN Secretariat, the DPKO, NATO, the AU, and ECOWAS have improved security outcomes for states at war. Further examination of the empirical work on peace operations, however, reveals that answers about peacekeeping’s efficacy are highly contingent on the measure of success, the kind of mission deployed, and the actors involved. A key problem in this scholarship is the selection problem—​peace operations are not distributed randomly, and peacekeepers therefore systematically select into cases that conform to two criteria: (1) where no member of the P5 has vetoed or will veto action; (2) where other options have been exhausted; that is, the hardest conflict cases. First, these criteria indicate that peace operations are most likely to go where no P5 member has an overwhelming strategic interest, although this norm pattern may be declining.62 Second, much like hospitals are the destination where patients are most likely to die, peacekeepers will most likely be where destruction is imminent. This is particularly true as peace operations have evolved away from classic interpositional peacekeeping. Accordingly, scholars have adopted an increasingly sophisticated set of quantitative and qualitative methodologies at multiple levels of analysis to disaggregate the situational difficulty of the conflict from the peace operation’s efficacy. To begin, for example, the evolution from interpositional Chapter VI to Chapter VII enforcement mandates has not been matched by a neat, linear relationship between mandate strength and mission efficacy. Indeed, most existing work tells us that the UN is effective at keeping the peace, but that it is not particularly effective at using force to establish peace: while case studies and statistical work comparing cases with and without peacekeeping indicate that UN peacekeeping is successful at maintaining an already negotiated peace, work within the universe of peacekeeping cases indicates that UN interventions are effective in post-​civil conflict interventions, but have no causal effect on ongoing civil wars. 63 Scholarship that evaluates peacekeeping alongside measures of conflict severity offers an additional wrinkle. A key problem in this literature is “[distinguishing] between the ability of peacekeeping missions to prevent potential mass murderers from actually resorting to a strategy of mass killing, on the one hand, and the 62  Howard, UN Peacekeeping in Civil Wars; on the potential decline, see Bellamy and Williams, “The West and Contemporary Peace Operations.” 63   Doyle and Sambanis, “International Peacebuilding” and Making War and Building Peace; Fortna, “Interstate Peacekeeping” and Does Peacekeeping Work?; Fortna and Howard, “Pitfalls and Prospects in the Peacekeeping Literature”; Gilligan and Sergenti, “Do UN Interventions Cause Peace?”; Patrick M. Regan, “Third-​Party Intervention and the Duration of Interstate Conflicts,” The Journal of Conflict Resolution 46/​1 (2002): 55–​73.

 

efficacy   207 capacity of peacekeepers to stop ongoing massacres, on the other.”64 Findings converge on two points: (1) that peacekeepers are poorly equipped to deal with ongoing massacres and will sometimes exacerbate ongoing violence; (2) that peacekeepers are most likely to be sent where civilians are under imminent threat of violence to begin with, but they appear to have a preventative effect on mass atrocities, particularly when they are charged with keeping a formally negotiated peace.65 Following political science’s overall turn toward the finer-​ grained levels of analysis, some scholars have adopted a local approach to evaluating peace operations.66 This scholarship notes that the national-​level approach that the Security Council (and most scholars) adopt in evaluating peace operations often ignores the local level at which peace operations actually unfold.67 Séverine Autesserre’s ethnographic work on the DRC, for example, has found that peace operations often arrive with a plan for, and culture of, peacebuilding that operates at the national level and has little relevance to local-​level violence. This peacebuilding culture in many cases normalizes high local levels of violence, while the simplifying narratives that policy makers, journalists, advocacy groups, and practitioners on the ground employ may lead to heightened human rights violations.68 The divergent results from varying levels of analysis and methodologies may also reflect the highly contingent nature of peacekeeping’s efficacy and the classic and severe endogeneity problems that plague scholarship on its success. While scholars have adopted ever more sophisticated ways to deal with this problem, separating the difficulty of the problem peacekeepers face from the effect that they have on preventing conflict is a challenge that requires methodological sophistication and deep case knowledge. Results can be highly sensitive to the method, specification, and cases examined. One final issue should shade our measurement of peace operations’ efficacy: over what timeframe we should expect success. Three of the UN’s longest running and 64   Erik Melander, “Selected to Go Where Murderers Lurk? The Preventive Effect of Peacekeeping on Mass Killings of Civilians,” Conflict Management and Peace Science 26/​4 (2009): 389–​406, 393. 65   Samantha Power, A Problem from Hell: America in the Age of Genocide (New York: Basic Books, 2002); Lawrence Woocher, “Peace Operations and the Prevention of Genocide,” Human Rights Review 8/​4 (July 2007): 307–​18; Melander, “Selected to Go Where Murderers Lurk? The Preventive Effect of Peacekeeping on Mass Killings of Civilians”; Jacob Kathman and Reed M. Wood, “Managing Threat, Cost, and Incentive to Kill: The Short-​and Long-​Term Effects of Intervention in Mass Killings,” Journal of Conflict Resolution 55/​5 (October 2011): 735–​60; Jacob Kathman, Lisa Hultman, and Megan Shannon, “United Nations Peacekeeping and Civilian Protection in Civil War,” American Journal of Political Science 57/​4 (2013): 875–​91. 66   Séverine Autesserre, The Trouble with the Congo: Local Violence and the Failure of International Peacebuilding (Cambridge: Cambridge University Press, 2010); Béatrice Pouligny, Peace Operations Seen from Below: UN Missions and Local People (Bloomfield: Kumarian Press, 2006). 67   See, e.g., Autesserre, The Trouble with the Congo; Séverine Autesserre, “Hobbes and the Congo: Frames, Local Violence, and International Intervention,” International Organization 63/​2 (April 2009): 249–​80. 68  Autesserre, The Trouble with the Congo and “Hobbes and the Congo.”

 

208   peace operations most notable peacekeeping engagements—​the DRC, Sudan, and Haiti—​are responsible for much of peace operations’ negative press. In all three locations, moreover, the UN has compounded intractable conflict with either scandal or highly visible inefficacy—​whether through retreat when faced by rebels, allegations of sexual abuse, or involvement in the spread of epidemics.69 And in all three locations, if we were to choose an arbitrary date line and draw the mission to a close on that day, we would have to call each mission a failure. They have not collapsed or ended, however; in the most technical sense, they may yet succeed as a result. Any evaluation of peace operations must take into account the way these cases sit alongside more easily defined successes and failures.70 Despite these qualifications, however, scholars agree that conflicts that receive peace operations are more likely to implement and uphold peace agreements than conflicts left to flame out on their own. As a novel alternative to war and diplomacy, then, peace operations are an evolving policy tool with some indications of efficacy. Their successes, however modest, represent an arena in which international organizations are stitching together centralized authority from anarchy:  since the Cold War, the international maintenance of peace and security has ever more resided with the UN and regional organizations acting under its authorization. Thus, the relative efficacy of international peace operations likely guarantee their continued importance to states stricken by conflict and states interested in maintaining global stability.

Conclusion When peacekeeping was invented after World War II, it was considered a major innovation in war and peace—​although peacekeepers carried light weapons for defensive purposes, they were deployed “to help everyone and to harm no one.”71 Today, peace operations have become increasingly hard to distinguish from war.   Khalid Abdelaziz, “Heavy Fighting Rages in Sudan’s Darfur Region,” Reuters (January 9, 2013), http://​www.reuters.com/​article/​us-​sudan-​darfur-​idUSBRE90819720130109; Jonathan Katz, “In the Time of Cholera: How the UN Created an Epidemic—​Then Covered It Up,” Foreign Policy (January 10, 2013), http://​www.foreignpolicy.com/​articles/​2013/​01/​10/​in_​the_​time_​of_​cholera; “UN Sexual Misconduct Investigation in DR Congo Finds Violations and Cases of Abuse” (April 4, 2016), http://​ www.un.org/​apps/​news/​story.asp?NewsID=53609#.V0i0MhMrJPM. 70   Anjali Dayal, “UN Peacekeeping and Links between Civil War Peace Processes,” PhD Dissertation, Georgetown University, 2015. 71   Dag Hammarskjold, quoted in Andrew W. Cordier and Wilder Foote (eds.), Public Papers of the Secretaries-​General of the United Nations (New York: Columbia University Press, 1974–​5). 69

 

conclusion   209 The Security Council has developed a standard practice of issuing Chapter VII force mandates for UN peacekeepers by default rather than by design, often with negative results. Most discussions about the legitimacy of the Security Council focus on membership, but there remain real and pressing questions about the Council’s right to make decisions about the international use of force when Council members are divorced from both the implementation and the effectiveness of the mandates they issue, and when they are rarely the executors or the recipients of peace operations.72 Indeed, the question of which entities in the international system ought to wield legitimate force in internal conflicts will become even more pressing very soon, and much will, once again, depend on European decisions, with tens of thousands of European troops available for other activities, including peacekeeping, following the drawdown of international troops in Afghanistan.73 In order to maintain defense budgets in a time of austerity, ministries of defense must engage in some activity, and peacekeeping or peace enforcement would be logical. Moreover, the current Secretary-​ General’s term is set to expire in 2016; if the historic norm holds, the next UN Secretary-​General may hail from a second-​tier European power.74 Thus in a short time, we may be facing a European UN Secretary-​General, thousands of available European troops, and ongoing civil wars across the globe. Will those troops be allocated to UN peace enforcement, peacekeeping, or be set aside for non-​UN peace enforcement? Or will the current “caste system” dividing the labor of mandate authorization and the operational securing of the peace prevail? Greater European involvement in peace enforcement—​particularly where peace enforcement has entailed statebuilding and the policing of failed states—​may leave internationally led peace operations open to delegitimizing and damaging charges of imperialism, even while improving the operational capacity of peacekeeping. However, the current system of two-​tiered involvement in peace operations is likely also untenable, as shifting geopolitics change the power and capabilities of troop-​contributing countries. New cooperative developments between members of the P5, European powers, and troop-​contributing countries indicate that key actors are trying to bridge these deep fault lines; how precisely this will affect peace operations on the ground remains to be seen.75 Creatively rethinking the politics of force and peace operations is not out of the question. Peace operations have evolved a great deal since they began after World 72   Ian Hurd, “Myths of Membership: The Politics of Legitimation in UN Security Council Reform,” Global Governance 14 (2008): 199–​217. 73   Howard and Dayal, “The ‘Tyranny of Getting to Yes’ and the Use of Force in UN Peacekeeping.” 74   Peacekeeping has not been one of the eighth UN Secretary-​General’s priorities. 75  “CONCEPT NOTE:  The Future of Civilian Protection in Peace Operations Endorsing and Implementing the Kigali Principles,” May 11, 2016, UNHQ NY, http://​www.un.org/​pga/​70/​wp-​content/​ uploads/​sites/​10/​2016/​01/​Concept-​note-​Kigali-​Principles-​event-​final.pdf.

 

210   peace operations War II, fundamentally changing the way both powerful and weak states deal with war; making very real, in some parts of the world, the liberal international ideal of an organization that meaningfully addresses the scourge of war; and stepping into governance voids when it suits the will of the Security Council. This evolution may, in turn, necessitate new forms of cooperation between states that want to maintain the legitimacy of the international organizations that undertake peace operations.

 

Chapter 10

COUNTERTERRORISM AND TRANSNATIONAL CRIME James Cockayne

The authority to define conduct as criminal and to use force to repress it lies at the heart of state sovereignty. States are inherently reluctant to share that authority with other entities, whether states or international organizations. Outside of federalist politics, such sharing has historically occurred only in the presence of unusually high inter-​state trust, as in the case of the German states in the nineteenth century or the European Union (EU) in recent decades, or as the result of hegemonic powers using force, as in the case of the concession systems imposed on China and the Ottoman Empire by Western powers. Since the mid nineteenth century, however, transnational criminal and terrorist activity has been facilitated by economic globalization, incentivizing closer international law enforcement cooperation. This chapter explores the history of that cooperation, the contours of which are shaped by the interaction of the institutions of sovereignty and the reality of power in the international system. The chapter argues that international law enforcement cooperation to counterterrorism and transnational crime takes two independent, but interacting, forms: (1) the use of existing international institutions to define behaviour as criminally deviant and to repress it, even against the will of some states; and (2)  the formation of transgovernmental policing networks, and, more recently, collaborative multi-​ sectoral governance arrangements—​ both

 

212    counterterrorism and transnational crime notionally apolitical, but inherently reflective of a shared understanding of criminally deviant behaviour. The interplay of these two approaches follows the contours defined by juridical sovereignty and power in the international system.

The Emergence of Transgovernmental Policing Networks The history of modern policing is tied up with the political and institutional development of the modern nation-​state.1 As the relation between policing and political institutions has developed differently in different states, the web of international ties between policing institutions has correspondingly developed in a patchwork, organic manner. This development has proceeded fastest where national policing institutions shared a perception of a common criminal or terrorist threat and came together to form a practically oriented ‘transgovernmental network’.2 This first occurred at the end of the eighteenth century, as European autocratic and conservative states built up domestic policing services as a bulwark against the anti-​establishment tendencies being exported from Revolutionary France, and then in the nineteenth century, against anarchist, communist and labour movement networks. Between 1851 and 1866, the Police Union of German States provided an information exchange network, without any shared operational or strategy-​setting capacity. These information-​sharing networks slowly congealed into more institutional form as counterterrorism moved from the area of ‘low’ politics to ‘high’ politics, particularly as anarchist movements found success in targeting heads of state and government.3 The response was two Anti-​Anarchist Conferences in 1898 and 1904,4 and a Congress of International Criminal Police in Monaco in 1914. In   See David H. Bayley, “The Police and Political Development in Europe,” in The Formation of National States in Western Europe, ed. Charles Tilly (Princeton, NJ: Princeton University Press, 1975). 2   This concept of transgovernmentalism was popularized by Anne-​Marie Slaughter in “The Real New World Order,” Foreign Affairs 76/​5 (September/​October 1997):  183–​97. See also Anne-​Marie Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004). For a related account of the formation of more recent transgovernmental networks in the area of international war crimes, see Jenia Iontcheva Turner, “Transnational Networks and International Criminal Justice,” Michigan Law Review 105 (2007): 985–​1032. 3  On the relation between transgovernmental networks, low politics and high politics see Kal Raustiala, “The Architecture of International Cooperation:  Transgovernmental Networks and the Future of International Law,” Virginia Journal of International Law 43/​1 (Fall 2002): 1–​92, 5. 4  Mathieu Deflem, “Bureaucratization and Social Control:  Historical Foundations of International Policing,” Law & Society Review 34/​3 (2000): 601–​40; Richard B. Jensen, “The International Anti-​Anarchist Conference of 1898 and the Origins of Interpol,” Journal of Contemporary History 16 (1981): 323–​47. 1

 

counter-narcotics: hegemonic criminal law   213 Latin America, calls for the internationalization of policing were heard at conferences in Buenos Aires in 1905, in São Paolo in 1912, and again in Buenos Aires in 1920.5 Finally, in 1923, police officials created the International Criminal Police Commission (ICPC) in Vienna to circulate police ‘notices’ pooling limited investigative information.6 By 1934 the ICPC had fifty-​eight members. Parallel projects emerged in the United States, where an ‘International Police Conference’ operated in the 1920s and 1930s, and an International Association of (municipal) Chiefs of Police operates to this day.7 (Despite their names, however, these projects were essentially American exercises, just as the ‘World Series’ of baseball is a north American competition.) After World War II—​during which it was controlled by the Nazi SS—​the ICPC was revived as the International Criminal Police Organization (since 1956 known as ‘Interpol’), and moved to France. Its new constitution formally depoliticized the network, with Article 3 forbidding intervention in ‘political’ matters. Today, Interpol has 190 members. It operates primarily as a clearing-​house, an administrative liaison between the law-​enforcement agencies of its member countries, sharing data on fingerprints, mug shots, lists of wanted persons, DNA samples, and travel documents.8 Today’s Interpol is thus the descendant of earlier transgovernmental policing networks. It is neither a supranational force, nor a classic treaty-​based intergovernmental organization, but rather an informal international network of national systems of police.9 And as an informal network, its success relies on the cooperation and effectiveness of its member ‘bureaux’. This has proved an inherent limit to its effectiveness—​and a spur for more proactive collaboration by those actors who wish to see a more forceful approach to repress specific forms of criminal conduct. Nowhere is this more clear than in the US-​driven ‘War on Drugs’.

Counter-​Narcotics: Hegemonic Criminal Law Strong states have long sought to project power internationally by defining conduct as outside the law.10 International institutions—​especially those with norm-​making 5   Paul Marabuto, La Collaboration policière internationale en vue de la prévention et de la répression de la criminalité (Nice: École Professionnelle Don-​Bosco, 1935). 6   Deflem, “Bureaucratization and Social Control,” 755–​6.    7  Ibid., 758–​61. 8  Interpol, 2011 Annual Report (Lyon: Interpol, 2012). 9   Malcolm Anderson, Policing the World: Interpol and the Politics of International Police Cooperation (Oxford: Clarendon Press, 1989), 168–​85. 10   See Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (New York: Cambridge University Press, 2004).

 

214    counterterrorism and transnational crime power—​offer a tantalizing instrument for amplifying normative power and normalizing coercive authority in the inter-​state system. When a strong state can instrumentalize a law-​making international institution, some international legal scholars even speak of the result as ‘hegemonic international law’.11 During the twentieth century, the United States used international institutions to promote several bespoke regimes to tackle different aspects of terrorism and transnational crime. This web of legal arrangements, which we might describe as ‘hegemonic criminal law’, was built and launched from several different international law-​making and norm development platforms. International law enforcement cooperation has proceeded fastest and farthest where: (1) the functional or topic-​area of cooperation could be narrowly (i.e. technically) defined, because stakeholders share a common political understanding of the deviant nature of the targeted behaviour; and (2) stronger international powers (such as the United States) had a strong interest in cooperation, while other international actors did not have a strong interest in resisting cooperation. One clear example is in the field of counter-​narcotics. For several centuries after Western maritime powers arrived in Asia, they promoted narcotic consumption and trade in Asia. European powers famously went to war with imperial China in the mid nineteenth century to force China to allow European opium sales. At the beginning of the twentieth century, however, Western policy began to turn 180 degrees, under American missionary leadership.12 After acquiring the Philippines from Spain, the US government decided not to support the state-​run opium trade in the country, but rather to ban it. To be effective, that ban needed to be internationalized (as the UK ban on slavery in the eighteenth century had been internationalized). The United States organized a series of international conferences,13 and in The Hague in 1911 a treaty was agreed to regulate the trade in opium and cocaine on the basis of medical need.14 After World War I, US power in the international arena had increased significantly. The United States saw to it that ratification of the International Opium Convention became one of the terms of the Versailles Peace Agreement in 1919. The new League of Nations was then tasked with oversight of the Convention. The resulting regime included a global certification system for international drug transactions, required reporting to a central Opium Control Board, allowed for the 11   Detlev F. Vagts, “Hegemonic International Law,” American Journal of International Law 95 (2001): 843; José E. Alvarez, “Hegemonic International Law Revisited,” American Journal of International Law 97 (2003): 873. 12   See Peter Andreas and Ethan Nadelmann, Policing the Globe: Criminalization and Crime Control in international Relations (New York: Oxford University Press, 2008), 37–​45. 13  William B. McAllister, Drug Diplomacy in the Twentieth Century:  An International History (London: Routledge, 2000), 29. 14   D. Bewley Taylor, The United States and International Drug Control, 1909–​1997 (London:  Continuum, 2001).

 

counter-narcotics: hegemonic criminal law   215 League to adopt an embargo on drug transactions to or from a country that was exceeding its medical needs, and included a scheduling system to allow experts to expand international prohibitions to new drugs, beginning with cannabis. A 1936 Convention, initiated by the ICPC, suggested the criminalization of trafficking outside this regime. World War II further consolidated American influence over the international counter-​narcotics regime. The international oversight machinery was moved to Washington in 1941, and the dependence of European powers on American military support in South-​East Asia led them to agree not to re-​establish state-​run opium trades in their colonial territories after the war. The League system was transformed into a United Nations (UN) system, based in Geneva. In 1961, at US behest, the counter-​narcotics machinery was consolidated through a ‘Single Convention on Narcotic Drugs’, which extended the system of licensing, reporting and certifying drug transactions to all raw ‘narcotic’ plant materials including cannabis and coca leaves. A 1971 Convention on Psychotropic Substances set up a similar regime for synthetic drugs. The various oversight bodies were consolidated into a thirteen-​ person International Narcotics Control Board, which continues today to evaluate national statistical information, monitor the import-​export control system and authorize narcotic plant cultivation for medical and scientific need. It serves as a key interpreter of the global drugs prohibition. Since the 1970s, non-​compliance with this regime has been criminalized through international treaties and domestic legislation. The 1971 reforms mandated that drug offences be extraditable, and a 1988 Convention required parties to cooperate in anti-​trafficking initiatives, criminalize money-​laundering, allow for asset seizure, and control chemical precursors. The counter-​narcotics regime is a clear example of hegemonic criminal law. As a system of ‘legally binding regulation, backed by the possibility of real enforcement action, imposed on all states by a global international organ engaged in a continuous legislative enterprise by virtue of delegated power and subject to no geographic or temporal limitation’,15 it foreshadowed the approach the United States would later take to constructing a global counterterrorism regime. As with that initiative, the United States and other major powers have used UN institutions to promote compliance with the global counter-​narcotics regime at the national level. The major conduit for such assistance is the UN Office on Drugs and Crime (UNODC), based in Vienna.16 But in recent years the UN Security Council (UNSC) has also been used as a platform for encouraging compliance by member states—​and non-​state actors. Starting in the late 1990s, Council members  Alvarez, “Hegemonic International Law Revisited,” 874, citing Paul C. Szasz, “The Security Council Starts Legislating,” American Journal of International Law 96 (2002): 901–​2. 16   See Cindy S.J. Fazey, “The Commission on Narcotic Drugs and the United Nations International Drug Control Programme:  Politics, Policies and Prospect for Change,” The International Journal of Drug Policy 14 (2003): 155–​69. 15

 

216    counterterrorism and transnational crime began warning of the threats potentially posed by drug trafficking in Angola, Bosnia and Herzegovina, Democratic Republic of the Congo, Haiti, Iraq, Kosovo, Lebanon, Myanmar, and Somalia.17 In Resolution 1333 (2000), when the Taliban refused to surrender Osama bin Laden, the Security Council imposed a ban on the sale to Afghanistan of acetic anhydride, a heroin precursor, and demanded that the Taliban eliminate all illicit cultivation of the opium poppy.18 Since 2007 the Council has also closely scrutinized drug trafficking in West Africa, and supported efforts by UNODC and UN peacekeeping, peace-​building, and political missions in the region to support local efforts to counter transnational organized crime and drug trafficking.19 Around October 2009, the Council also began to import the language developed in the West African context into commentary on the impact of drug trafficking on other situations on its agenda, notably Afghanistan and Haiti.20

Financial Crime: Hegemonic Criminal Law Goes Multi-​Sectoral The pattern of the US projecting power through criminal norms promulgated by international organizations recurred around the issue of financial crime. The central role of the financial sector in this normative effort takes it beyond the traditional sphere of international (public) law into new, multi-​sectoral territory, governing the conduct of private, corporate actors. The first push focused on anti-​bribery. Watergate investigations in the 1970s revealed that US corporations had spent millions of dollars bribing foreign officials to promote their commercial interests. At the time, this was not illegal; in many European jurisdictions, such payments were even tax deductible. In 1977, the US Congress adopted the Foreign Corrupt Practices Act, which criminalizes bribery of foreign officials, even by some foreign companies. But American companies complained that the legislation placed them at a commercial disadvantage

  Security Council Report, Update Report No. 1, December 4, 2009.   S/​RES/​1333 (2000), December 19, 2000. See also S/​PRST/​2003/​7, June 18, 2003; UN Doc. SC/​8850, Press Statement, October 9, 2006; S/​RES/​1817 (2008), June 11, 2008. 19   S/​RES/​1829 (2008), August 4, 2008; S/​RES/​1876 (2009), June 26, 2009; S/​PRST/​2009/​20, July 10, 2009. See S/​RES/​1885 (2009), September 15, 2009; S/​PV.6212, November 5, 2009; and S/​PRST/​2009/​29, November 5, 2009. 20   See S/​RES/​1890 (2009), October 8, 2009; and S/​RES/​1892 (2009), October 13, 2009. 17

18

 

financial crime   217 in global markets. As with slavery and counter-​narcotics, in a globalized economy the only effective solution was to internationalize the regulatory scheme. After a decade of American advocacy, the Organisation for Economic Co-​operation and Development (OECD), a Paris-​based intergovernmental economic cooperation organization, did just that, establishing an Anti-​Bribery Convention to which the thirty-​four OECD members and six other countries (including Russia and South Africa) are party, which requires states to criminalize foreign bribery and creates a peer-​review system to encourage implementation. A second, related effort emerged in the field of anti-​money-​laundering (AML). This spun off from the counter-​narcotics regime, when the earlier-​referenced 1988 Convention encouraged states to criminalize the laundering of drug crime proceeds. The United States recognized that effective promotion of AML norms required implementation not only by states but also by banks and other financial institutions. A  G7 meeting in 1989 in Paris established a Financial Action Task Force on Money Laundering (FATF), to examine money-​laundering techniques and trends, review public and private AML efforts, and propose new measures. In 1990 the FATF issued ‘Forty Recommendations’ to member states to improve domestic and private sector AML arrangements, and created a system of member state peer review. After 9/​11, nine further Recommendations were added to address terrorist financing, and a 2012 revision added a focus on nuclear proliferation and corruption. The FATF system is informal, but unusually powerful. Its influence comes not from its legal form:  it is not enshrined in treaty law, and a 2005 resolution of the Security Council, though adopted under Chapter VII, only ‘strongly urges’ member states to implement the FATF recommendations, rather than requiring them to do so.21 The system’s power comes, instead, from the potential cost of non-​compliance—​exclusion from the US-​based, private financial infrastructure. In 2000 FATF began issuing lists of ‘Non-​Cooperative Countries or Territories’ which were perceived as having deficient AML arrangements. Appearance on such a list placed these jurisdictions at risk of being cut off from the international financial system, since the US Treasury required US financial institutions not to deal with entities operating there. This approach was met with similar criticisms that would, as we shall see, meet the US-​initiated UN counterterrorism regime:  claims of a deliberative deficit resulting from a lack of participation of affected jurisdictions and, later, for its impacts on civil society and humanitarian financial flows. But it has proven highly effective in encouraging states and financial institutions to adopt the AML norms and practices promoted by the FATF regime.

  See S/​RES/​1615 (2005), July 29, 2005, para. 7.

21

 

218    counterterrorism and transnational crime

Counterterrorism: Transgovernmental Networks Built on Hegemonic Foundations The American approach to promoting and enforcing counter-​terrorism norms has passed through three phases. For much of the twentieth century, working with other affected states, the United States used existing international organizations to generate international support for voluntary counterterrorism cooperation arrangements. Then, in the last decade of the twentieth century, the United States shifted tack, using the UN Security Council’s Chapter VII powers to impose a counterterrorism regime from the top down. The result—​perhaps predictably—​has been resistance from some states, and significant legal uncertainty around the relationship between the new legal regime and existing legal norms.22 As a result, the United States has shifted course to a third approach, relying more heavily on both overt and covert transgovernmentalism, working with a group of like-​minded states in non-​ treaty collaborations, ranging from the public Global Counterterrorism Forum (GCTF) to secret intelligence and rendition collaborations. Terrorism was already a matter considered by the League of Nations.23 But it rose to particular prominence on the world stage after World War II, particularly in Europe and the Middle East in the 1960s and 1970s, when the UN General Assembly became the forum for political bargaining around international law enforcement responses. Cold War political tensions constrained international responses. There was no coordinated mobilization of states’ law enforcement capacities to tackle the 1960s and 1970s terrorist groups head on. Instead, a series of UN-​blessed international treaties emerged, providing a framework for voluntary legal cooperation based on mutual legal assistance and extradition for specific types of terrorist activities.24 As Soviet power waned in the late 1980s, however, the Western powers adopted a more top-​down approach in the Security Council. When Libyan agents bombed French and US airliners, the United States, the United Kingdom, and France convinced the Security Council to adopt Chapter VII sanctions against Libya for failing to cooperate with requests that it try or extradite the suspects.25 In 1996, the Council 22  See James Cockayne, “Challenges of Coordination in United Nations Counter-​Terrorism Efforts,” in Research Handbook on Terrorism and International Law, ed. Ben Saul (Cheltenham: Edward Elgar, 2014). 23  Marabuto, La Collaboration policière internationale, 113–​49; and on terrorism see Ben Saul, Defining Terrorism in International Law (Oxford: Oxford University Press, 2006). 24  The fourteen international legal instruments are detailed at http://​www.un.org/​en/​terrorism/​ instruments.shtml. 25   See UNSC Res. 731 (1992) (January 21, 1992), 748 (1992) (March 31, 1992), 883 (1993) (November 11, 1993), and 1192 (1998) (August 27, 1998).

 

counterterrorism   219 similarly adopted resolutions sanctioning the government of Sudan for failing to try or extradite terrorists that had attempted to assassinate the President of Egypt, Hosni Mubarak, during a visit to Ethiopia.26 In 1998, after al-​Qaeda operatives blew up US embassies in Kenya and Tanzania, the Security Council demanded that Afghanistan stop providing sanctuary for terrorists, and ‘cooperate with efforts to bring indicted terrorists to justice’.27 When Afghanistan failed to hand over Osama bin Laden, the Security Council adopted Resolution 1267, requiring all states to take a series of measures, including instituting financial freezes and travel embargoes, against al-​Qaeda and the Taliban.28 Then, the day after 9/​11, the Security Council recognized the United States’ right to self-​defence under the UN Charter as having been activated by al-​Qaeda’s attacks, and pre-​validated the US armed attack against Afghanistan that followed weeks later.29 These steps stood in stark contrast to the lack of involvement of the Security Council in responding to European and Middle Eastern terrorism in the 1970s. The Council was now effectively ‘outlawing’ certain individuals and groups from circulation in international society, mandating states to use their criminal justice capabilities to enforce these arrangements. This was only possible because of the unrivalled influence of the United States in the Council, the interest it shared with France and the United Kingdom in tackling specific terrorist threats, and the absence of strong incentives for other powerful states (notably Russia and China) to resist this top-​down approach. Two weeks after 9/​11, however, the Council took a giant further step, which changed that equation. In Resolution 1373 (2001), the Security Council required states to adopt a range of criminal justice and other measures to tackle not just these specific groups that states recognized as a shared threat, but all terrorism per se. And the Council took serious steps to ensure states complied with the new regime, creating a Counter-​Terrorism Committee to oversee states’ efforts to implement these obligations, to which they were obliged to report. This was a radical new top-​ down way to impose criminal norms on international society, turning the Security Council into a kind of ‘world legislature’.30 But it was a ‘legislature’ controlled by the hegemon and its close allies. Departing from prior practice, this Council subsidiary body was to be chaired by a Permanent Member of the Council (the United Kingdom).31 Resolution 1373 quickly met resistance outside the Council, and attempts by the United States and its allies to use the norms developed in the Council to develop 27   UNSC Res. 1044, 1054, 1070 (1996).   UNSC Res. 1214 (1998) (December 8, 1998).   UNSC Res. 1267 (1999) (October 15, 1999). 29   UNSC Res. 1368 (2001) (September 12, 2011). 30   Szasz, “The Security Council Starts Legislating”; Stefan Talmon, “The Security Council as World Legislature,” American Journal of International Law 99 (2005): 175–​93. 31   See Eric Rosand, “Security Council Resolution 1373, the Counter-​Terrorism Committee, and the Fight against Terrorism,” American Journal of International Law 97/​2 (April 2003): 333–​41. 26 28

 

220    counterterrorism and transnational crime a broader comprehensive Convention against Terrorism, in the UN General Assembly, ran aground.32 Many states resented this new legislative approach in the Council, and its arrogation of quasi-​judicial powers over individuals. They saw both moves as legally questionable and politically unwarranted, and pointed to a stark ‘deliberative deficit’ in the development of the new counterterrorism regime.33 The regime quickly came to be seen as a Trojan horse for America to expand its power in the international system, under the rubric of a ‘Global War on Terror’. States resented ‘being dragooned by the Security Council for what many of them see as a Western security agenda’.34 The invasion of Iraq in 2003 only confirmed that the United States saw the Council’s imprimatur as instrumental, not integral, to any American decision to use force. Political resistance to the UN counterterrorism regime rippled across the UN system. In 2004 a push began to give the General Assembly a larger role in global counterterrorism efforts. In 2005 and 2006 states developed a UN Global Counter-​Terrorism Strategy.35 Largely a rhetorical document, the Strategy commits Member States to: (1) address the conditions conducive to the spread of terrorism; (2) prevent and combat terrorism; (3) build states’ capacity to prevent and combat terrorism and to strengthen the role of the UN system in this regard; and (4) ensure respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism. The unanimous endorsement of the Strategy was politically important as a signal that there were limits to the UN membership’s tolerance for hegemonic unilateralism in the area of law enforcement. But consensus in the Assembly was achieved through several rhetorical manoeuvres that have subsequently limited the Strategy’s impact, notably by stating various goals—​such as the integration of counterterrorism with human rights—​without specifying the means for achieving those goals. The Global Counter-​Terrorism Strategy represented a classic diplomatic exercise in creative ambiguity, and a correspondingly poor basis for integrating the new counterterrorism norms with existing practice of law enforcement professionals worldwide. The UN system has consequently struggled to operationalize the Strategy, despite the formation of a system-​wide Counter-​Terrorism Implementation Task Force comprising thirty-​one UN bodies. Like many UN agencies, this coordination committee has turned into something of a mutual surveillance exercise, with established thematic agencies focused on protecting their normative and bureaucratic   Kendall W. Stiles, “The Power of Procedure and the Procedures of the Powerful: Anti-​Terror Law in the United Nations,” Journal of Peace Research 43/​1 (January 2006): 37–​54. 33  Talmon, “The Security Council as World Legislature”; Ian Johnstone, “Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit,” American Journal of International Law 102/​2 (April 2008): 275–​308. 34   Senior UN member state official, quoted in James Cockayne et al., Reshaping UN Counterterrorism Efforts (New York: Center on Global Counterterrorism Cooperation, 2012), 25. 35   A/​RES/​60/​288, September 8, 2006. 32

 

counterterrorism   221 turf from the revisionist impacts of the new counterterrorism regime. This impact has been particularly felt in the area of humanitarian and development assistance, with donor states increasingly relying on UN counterterrorism norms to insist on brakes on established forms of engagement with non-​state armed groups, such as negotiation for humanitarian access.36 The UN has provided limited leadership to resolve these normative and practical tensions.37 Similar challenges of normative integration have emerged in the human rights sphere. Soon after its adoption, commentators began to realize that Resolution 1373 (2001) authorized government actions that sat uncomfortably with existing human rights law and practice.38 In 2005, a UN human rights expert concluded that the Security Council’s approach ‘may have given currency to the notion that the price of winning the global struggle against terrorism might require sacrificing fundamental rights and freedoms’.39 A  2009 Counter-​Terrorism Committee Executive Directorate assessment found that ‘in virtually all regions there remain significant concerns that the counter-​terrorism measures adopted by certain States … within the framework of resolution 1373 (2001), do not comply with those States’ obligations under international law’.40 European states, in particular, have come under steadily rising pressure on this issue from regional human rights bodies and domestic courts.41 In response to these concerns, the Security Council took a series of limited steps to adjust its listing and delisting decision-​making processes. This included creating a position for an Ombudsperson to make (non-​binding) recommendations to the Council about how to handle specific cases.42   See Naz K. Modirzadeh, Dustin A. Lewis, and Claude Bruderlein, “Humanitarian Engagement under Counter-​Terrorism:  A  Conflict of Norms and the Emerging Policy Landscape,” International Review of the Red Cross 93/​883 (September 2011): 623–​47; Sara Pantuliano, Kate Mackintosh, and Samir Elhawary (with Victoria Metcalfe), “Counter-​Terrorism and Humanitarian Action: Tensions, Impact and Ways Forward,” HPG Policy Brief 43, October 2011, http://​globalcenter.org/​wp-​content/​uploads/​ 2012/​03/​Mediation_​engaging_​with_​proscribed_​armed_​groups.pdf. 37   See Conciliation Resources et  al., “Summary of Expert Meeting:  Mediation and Engagement with Armed Groups” (March 29, 2012), http://​w ww.globalct.org/​images/​content/​pdf/​summaries/​ Mediation_​engaging_​with_​proscribed_​armed_​groups.pdf. 38   See Human Rights Watch, “Hear No Evil, See No Evil: The UN Security Council’s Approach to Human Rights Violations in the Global Counter-​Terrorism Effort,” Human Rights Watch Briefing Paper, August 10, 2004, http://​www.hrw.org/​backgrounder/​un/​2004/​un0804/​un0804.pdf; and see International Commission of Jurists, “Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-​Terrorism and Human Rights” (Geneva, 2009). 39   UN Economic and Social Council, “Protection of Human Rights and Fundamental Freedoms while Countering Terrorism,” E/​CN.4/​2005/​103, February 7, 2005, para. 6. 40   UN Security Council, “Survey of the Implementation of Security Council Resolution 1373 (2001) by Member States,” S/​2009/​620, December 3, 2009. 41   See, e.g., Joined Cases C-​402/​05 P and C-​415/​05 P Yassin Abdullah Kadi & Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, 3 CMLR 41 (2008); Case T-​318/​01 Othman v Council and Commission, 2009/​C180/​66, Judgment of the European Court of First Instance, 11 June 2009; Abousfian Abdelrazik v Minister of Foreign Affairs and the Attorney General of Canada, Reasons for Judgment and Judgment, 2009 FC 580, Ontario, June 4, 2009. 42   The Ombudsperson role was created by UNSC Res. 1904 (2009), December 17, 2009. 36

 

222    counterterrorism and transnational crime Yet this procedural tinkering in New York left large areas of national practice, justified by reference to new global counterterrorism norms, untouched: drone strikes, electronic surveillance, rendition, and indefinite detention. Increasingly, these issues found their way into the UN’s human rights accountability machinery in Geneva,43 particularly in the context of UN bodies dealing with torture44 and extrajudicial executions.45 In 2005, European states spearheaded the creation of a mandate for a UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, which has gone some way towards clarifying existing, good, and bad practice through country visits and thematic reports.46 In 2010, several UN Human Rights Council mandate-​holders published a joint study on ‘secret detention’, which, inter alia, found the CIA’s transnational detention programme to violate international law in several ways.47 The ripple effect of the new counterterrorism regime on human rights and law enforcement has arguably extended beyond the UN system. Numerous regional organizations and groups of like-​minded states—​including the G8, Organization of American States, African Union, Organization for Security and Co-​operation in Europe (OSCE), East African Community, and Shanghai Cooperation Organization—​have referenced Resolution 1373 as a basis for increased policing cooperation.48 Some of that cooperation appears to have provided a cover for an expansion of executive policing powers at the expense of political opponents, and in that respect bears a notable resemblance to the autocratic policing cooperation of the nineteenth century, discussed earlier.49

  Nabil Sayadi and Patricia Vinck v Belgium, Communication [Comm.] No. 1472/​2006, UN Human Rights Committee, CCPR/​C/​94/​D/​1472/​2006, December 29, 2008, 48 ILM 570 (2009); UN Human Rights Committee, CCPR/​C/​88/​D/​1416/​2005, November 10, 2006 (Mohammed Alzery v Sweden) (on listing and delisting procedures); UN Committee Against Torture, CAT/​C/​38/​D/​281/​ 2005, May 29, 2007 (Pelit v Azerbaijan) (state responsibility for extraterritorial counterterrorism conduct). 44   Human Rights Council, “Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment, Manfred Nowak,” A/​HRC/​4/​33, January 15, 2007. 45  Human Rights Council, “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston: Study on Targeted Killings,” A/​HRC/​14/​24/​Add.6, May 28, 2010. 46   See Human Rights Council, “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin,” A/​HRC/​ 14/​46, May 17, 2010; and Human Rights Council, “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Martin Scheinin,” A/​HRC/​16/​51, December 22, 2010. 47   Human Rights Council, “Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism,” A/​HRC/​13/​42, February 19, 2010. 48   Eric Rosand, “The G8’s Counterterrorism Action Group,” CGCC (May 2009), http://​www.globalct. org/​images/​content/​pdf/​policybriefs/​rosand_​policybrief_​092.pdf; and OSCE, “Ministerial Statement on Supporting the United Nations Global Counter-​Terrorism Strategy,” MC.DOC/​3/​07, November 30, 2007. 49   See International Commission of Jurists, “Assessing Damage, Urging Action.” 43

 

counterterrorism   223 Indeed, reporting triggered by Edward Snowden in 2013 revealed that the new counterterrorism regime had been used as the legal touchstone for the creation of perhaps the most powerful of all the transgovernmental policing networks that the United States had established after 9/​11. This was a covert network of surveillance agencies and private companies, led by the National Security Agency in the United States and the General Communications Headquarters in the United Kingdom, but also involving Australia, Canada, France, Germany, Israel, Netherlands, New Zealand, Norway, and Sweden, all participating in coordinated digital surveillance—​including to spy on each others’ citizens.50 This network had developed the capabilities to capture and analyse vast volumes of internet traffic, telephone calls, and private computer network activity. Once it was revealed that these capabilities were being deployed to intercept the communications not only of suspected terrorists and private citizens, but also of foreign heads of state and diplomats, the controversy quickly found its way to the UN Human Rights Council in Geneva, and the General Assembly in New York. In December 2013 the General Assembly affirmed that ‘the same rights that people have offline’, notably privacy, ‘must also be protected online’.51 Notwithstanding the normative impact of the UN counterterrorism regime, the United States quickly lost patience with the UN as a mechanism for operationalizing counterterrorism norms. In 2011, the United States announced the creation of the Global Counter-​Terrorism Forum.52 This consortium of twenty-​ nine countries plus the EU,53 co-​chaired by the United States and Turkey, aims to provide ‘a venue for national CT officials and practitioners to meet with their counterparts from key countries in different regions to share CT experiences, expertise, strategies, capacity needs, and capacity-​building programs’.54 It is thus a cross between a formal international organization and a transgovernmental network.

50   See Didier Bigo et  al., “National Programmes for Mass Surveillance of Personal Data in EU Member States and their Compatibility with EU Law,” PE 493.032, European Parliament, Brussels, October 2013. On the involvement of private companies, see, e.g., Charlie Savage, “C.I.A. Is Said to Pay AT&T for Call Data,” NY Times (November 7, 2013). 51  A/​RES/​68/​167, December 18, 2013; see also A/​HRC/​RES/​20/​8, July 16, 2012; and UN Human Rights Committee General Comment 16: “Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-​tapping and recording of conversations should be prohibited.” (CCPR, “General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation,” April 8, 1988, para. 8). 52  See http://​www.thegctf.org. 53  Algeria, Australia, Canada, China, Colombia, Denmark, Egypt, EU, France, Germany, India, Indonesia, Italy, Japan, Jordan, Morocco, Netherlands, New Zealand, Nigeria, Pakistan, Qatar, Russia, Saudi Arabia, South Africa, Spain, Switzerland, Turkey, UAE, United Kingdom, USA. 54   GCTF, “Mission,” http://​www.thegctf.org.

 

224    counterterrorism and transnational crime It has generated normative documents that may, in time, come to be seen as contributing to an emerging body of soft law in this area.55 This points to its deeper utility to the hegemon. It was conceived, bankrolled and remains largely driven by the United States. Its influence now seems likely to grow with the Obama Administration calling for the creation of a $5 billion Counterterrorism Partnerships Fund. Explaining the decision, President Obama noted that while the UN had served as a ‘force multiplier’, which ‘reduce[d]‌the need for unilateral American action’, ‘[e]volving these international institutions to meet the demands of today must be a critical part of American leadership’.56 All of this raises questions about the legitimacy of norms developed through the GCTF. The transgovernmental approach inevitably raises concerns about accountability and participation,57 but these questions are heightened when a forum, like the GCTF, has limited scope for participation by those communities who will be affected by the policing actions it seeks to promote. This was the fate of FATF, which has come under increasing criticism on just these grounds. It may yet be the fate of the GCTF.

Transnational Organized Crime: A Patchwork of Solutions The end of Cold War antagonisms also led to the emergence of more forceful international responses to transnational crime, but the absence of US leadership in this area—​p erhaps because it has focused more on counterterrorism—​ has led to a variety of different responses, with European states often taking the lead. In the late 1990s European states pushed the development of a UN Convention against Transnational Organized Crime (UNTOC), which harmonized domestic criminal norms relating to organized crime and created a multilateral framework

55  See the Rabat Memorandum on Good Practices for Effective Counterterrorism Practice in the Criminal Justice Sector, the Rome Memorandum on Good Practices for Rehabilitation and Reintegration of Violent Extremist Offenders, and the Algiers Memorandum on Good Practices for Preventing and Denying the Benefits of Kidnapping for Ransom by Terrorists. 56   Tyrone C. Marshall Jr, “Obama Announces New Counterterrorism Partnerships Fund,” American Forces Press Service, May 28, 2014. 57  Philip Alston, “The Myopia of the Handmaidens:  International Lawyers and Globalization,” European Journal of International Law 8 (1997): 435.

 

transnational organized crime   225 for extradition and mutual legal assistance.58 The UNTOC, adopted in 2000, was accompanied by three separate protocols relating to human trafficking, people smuggling, and illicit manufacture and trafficking in firearms. Implementation of the Convention is overseen by a Conference of Parties, which works closely with UNODC. Thirteen years after the adoption of the Convention, however, states have been unable to agree the terms of a peer review mechanism to encourage effective implementation.59 A similar framework, the Convention Against Corruption (UNCAC) was approved by the UN General Assembly in 2003.60 Like UNTOC, UNCAC aimed to harmonize domestic criminal justice approaches to corruption and foster cross-​border cooperation, including for asset recovery. Unlike UNTOC, however, the UNCAC Conference of Parties has been able to agree a system for review of implementation—​perhaps because of the strong interest from developing states in using the UNCAC as a vehicle for recovering assets former (corrupt) rulers have moved offshore. The UNCAC’s Implementation Review Group uses governmental experts to conduct peer reviews, identify implementation challenges and good practices, and consider technical assistance needs.61 In contrast to the treaty-​based approach, there has been greater movement towards collective enforcement arrangements where organized crime has arisen in the context of already established multilateral peace operations and political missions, including those organized by the OSCE, UN, and ad hoc coalitions such as the Regional Assistance Mission to the Solomon Islands.62 Though such efforts are increasingly common,63 they continue to be framed as exceptional, and undertaken only as an effort to buttress, not replace, state capacity. This is also the case where international support takes the form not of a peace operation, but of external assistance to domestic law enforcement, as in the case with the International Commission against Impunity in Guatemala.64 The outlier is the EU, which has gone further than any other international organization in pooling law enforcement arrangements. Since 2005, the European Court   A/​RES/​55/​25, November 15, 2000.   The matter remains under discussion in the Conference of Parties to the UNTOC. 60   A/​RES/​58/​4, October 31, 2003. 61   See UNCAC Coalition, “The UNCAC Implementation Review Group,” http://​www.uncaccoalition. org/​uncac-​review/​implementation-​review-​group. 62   See James Cockayne and Adam Lupel, Peace Operations and Organized Crime: Enemies or Allies? (New  York:  Routledge, 2011); and James Cockayne and Camino Kavanagh, “Flying Blind? Political Mission Responses to Transnational Threats,” in Review of Political Missions (New  York:  Center on International Cooperation, 2011), 19–​30. 63   See Walter Kemp, Mark Shaw, and Arthur Boutellis, The Elephant in the Room: How Can Peace Operations Deal with Organized Crime (New York/​Vienna: International Peace Institute, 2013). 64   Andrew Hudson and Alexandra W. Taylor, “The International Commission against Impunity in Guatemala:  A  New Model for International Criminal Justice Mechanisms,” Journal of International Criminal Justice 8/​1 (2010): 53–​74. 58

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226    counterterrorism and transnational crime of Justice has recognized the competence of the EU Commission to create EU-​ wide criminal norms.65 Even before that, however, European states had created pooled criminal justice investigation capabilities in the form of OLAF (to investigate fraud related to EU expenditures), EUROJUST (a judicial investigation clearinghouse), and EUROPOL (a police investigations body). EUROPOL has no arrest powers, but is actively involved in supporting EU member states’ policing investigations, with 100 criminal analysts involved in 13,500 investigations each year. Most recently, European states have sponsored the creation of a broader multi-​ sectoral platform to underpin practical cooperation against organized crime. The result is the fledgling Global Initiative Against Transnational Organized Crime, a ‘a network of prominent law enforcement, governance and development practitioners who are dedicated to seeking new and innovative strategies to end organized crime’.66

Resource Trafficking:  A Multi-​Sectoral Approach Quite different cooperation arrangements, relying more heavily on the participation of market actors, have emerged to deal with the illicit trafficking of natural resources. Once again the UN has had an important role as an incubator for closer cooperation arrangements, but here the UN itself has played a notable and independent norm entrepreneurship role in developing collaborative multi-​sectoral governance solutions. In 2003, the Security Council gave strong support to the Kimberley Process Certification Scheme, intended to reduce illicit trade in diamonds, which had emerged out of work done earlier within the Council’s Angola Sanctions Committee, pushed by Canadian diplomats.67 In November 2010, the Council went further, adopting ‘Due Diligence Guidelines’ intended to mitigate the risk of conflict in eastern Democratic Republic of Congo arising from the provision of direct or indirect support to illegal armed groups, sanctions busters, and ‘criminal networks and perpetrators of serious violations of international humanitarian law and human rights abuses, including those within the national armed forces’.68 The Council indicated that sanctions could be imposed against any entity—​including businesses—​ that failed to exercise due diligence in accordance with these Guidelines. These Guidelines have now been picked up and enforced through national regulation,   See Case C-​176/​03 Commission v Council; Case C-​440/​05 Commission v Council.   “About Us,” n.d., http://​www.globalinitiative.net. 67   See S/​RES/​1459 (2003), January 28, 2003.    68  S/​RES/​1952 (2010).

65

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counter-piracy   227 including by the United States Securities and Exchange Commission. In 2011, the Council took a similar approach to encourage removal of Eritrean extractive enterprises from global supply chains, and extended the approach to the provision of financial services, including insurance and reinsurance, that would facilitate investment in the Eritrean extractive sector.69 A subsequent 2012 resolution recognized that the ‘commerce’ in charcoal through Al-​Shabaab-​controlled areas of Somalia ‘may pose a threat to the peace, security, or stability of Somalia’, and authorized a sanctions committee to impose targeted sanctions against ‘individuals and entities engaged in such commerce’.70 UN expert groups and sanctions committees played a key role, in all three cases, in identifying the trading networks and devising licensing or embargo arrangements that might help put them out of business. But the effort to involve the Security Council in tackling such trafficking has not gone entirely unquestioned, particularly when the American delegation instigated an open debate in the Security Council in April 2012 entitled ‘Threats to international peace and security:  Securing borders against illicit flows’.71 The United States suggested a need to ‘streamline and strengthen’ UN capacity on border control issues by focusing less on bespoke regimes built to address the trafficking in specific goods or from specific conflict zones, and more on thinking generally about how to strengthen state capacity to deal with any trafficking.72 China and the Non-​Aligned Movement saw echoes, however, of the top-​down approach the United States had taken to counterterrorism. The Chinese ambassador argued bluntly that ‘border management falls within the sovereignty of Member States’.73 The Indian delegate expressed concern about the Council stepping into a norm-​setting role that was properly that of various UN bodies and agencies.74 And the Pakistani and Cuban representatives suggested that the discussion risked violating Article 24 of the UN Charter.75 The effort stalled.

Counter-​Piracy:  Mixing Transgovernmentalism and Multilateralism One final area of transnational criminal activity that has recently given rise to international cooperation efforts is maritime piracy. Piracy off the coast of Somalia has   S/​RES/​2023 (2011), December 5, 2011.    70  S/​RES/​2036 (2012), February 22, 2012, OP 23.   S/​PV.6277, February 24, 2010, 10; S/​PV.6668, November 23, 2011, 25; S/​PV.6760, April 25, 2012. 72   S/​PV.6760, April 25, 2012, 18–​19.    73 Ibid., 11.   74  Ibid., 8. 75   Ibid., 17, 29. 69 71

 

228    counterterrorism and transnational crime drawn the most international attention to date, though in recent years a rise in piracy in the Gulf of Guinea has also sparked the UN Security Council’s interest.76 By 2005, the World Food Programme (WFP) was warning that Somali piracy, which had emerged in previous years as a lucrative predatory business activity for local militias in north-​eastern Somalia, threatened to disrupt humanitarian assistance to the country. As shipping and economic costs mounted from paying ransoms, increased insurance and taking precautionary measures—​reaching as much as $7 billion by 201177—​the International Maritime Organization and WFP both started calling for a strengthened international response. The UN Security Council responded in June 2008. The United States had learned lessons from its negative earlier experience creating a top-​down regime to deal with counterterrorism, and this time took several steps aimed ‘at fending off possible criticism [for] acting as a “legislator”’.78 The Council explained carefully both that it had Somali consent for its actions, and that nothing in the resolution altered existing international law—​a particular concern for the G77 states.79 It limited the scope of the authorization for the use of force in time (through a sunset clause) and space (making clear it covered only Somali waters, not Kenyan or Yemeni waters, for example). It protected third-​party rights, such as innocent passage. And it treated piracy not as a threat to international peace and security itself, but as an amplifier of threats already being addressed by the Council in specific cases.80 Having inoculated itself against charges of legislative adventurism, the Council then authorized collective enforcement action under Chapter VII against Somali pirates, within Somali territorial waters,81 later extended to Somalia’s land territory.82 The response by states was vigorous—​but this time vigorously positive. Numerous multilateral naval operations were initiated to enforce the new regime, not only by the EU (Operation Atalanta), and the United States (two NATO operations, Allied Protector and Ocean Shield), and a separate maritime task force (TF 151) involving both NATO and non-​NATO states (including Australia, New Zealand, Pakistan, Republic of Korea, Singapore, Turkey, and Thailand), but also by a host of other states, including China, India, Iran, Japan, Malaysia, Russia.83 All this activity required operational coordination, not only of states but also international shipping bodies and other non-​state stakeholders. So in January

  See S/​PRST/​2010/​20, July 10, 2009; UN Doc. S/​2012/​45, January 19, 2012.   “The Economic Cost of Somali Piracy 2011,” Working Paper, One Earth Future Foundation, 2012, http://​oceansbeyondpiracy.org/​sites/​default/​files/​economic_​cost_​of_​piracy_​2011.pdf. 78  Ibid. 79   Letter to Security Council President, February 27, 2008, not publically available, but referenced in Doc. S/​2008/​323 containing a letter dated May 12, 2008 from the Permanent Representative of Somalia to the UN to the President of the Security Council. For the concerns of G77 states and China see UN Doc. S/​PV.5902 at 2–​5. 80 81   S/​RES/​1816 (2008), June 8, 2008, Preamble.   Ibid., OP 7. 82 83   S/​RES/​1851, December 6, 2008, OP 6.   See, e.g., S/​2012/​783. 76

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counter-piracy   229 2009 member states set up a Contact Group on Piracy off the Coast of Somalia (CGPCS), outside the UN system, with the Council’s vocal support.84 CGPCS is a bespoke coordination regime that aims to facilitate collective enforcement of the international law created by the Security Council—​and the norms CGPCS generates through its own working groups. It is, in a sense, a transgovernmental network formally blessed by the UN. Like drug trafficking and resource trafficking, maritime piracy came onto the agenda of the Security Council through conflict cases already on its agenda. But three aspects of Somali piracy problem facilitated the emergence of new cooperative organizational arrangements, in ways that other transnational criminal activities have not. First, piracy involves conduct on the high seas, where no state could plead sovereignty as a bar to Council-​backed enforcement action. Second, the conduct at issue was already unquestionably criminalized under international law. States perceived less danger that the Council would become involved in top-​down legislative action. Third, through the increased insurance, consular and physical security costs it imposed on international shipping, Somali piracy directly touched the economic and security interests of the five Permanent Members of the Security Council—​yet without creating strong incentives for other states to resist. On the contrary, some other states—​notably India, China, Japan, and Iran—​have found in the piracy issue an opportunity for strategic power projection, through participation in multilateral maritime enforcement activity in the Indian Ocean. Yet the counter-​piracy experiment has also shown the continuing real-​world constraints on cooperative international law enforcement. The states involved in counter-​piracy operations off Somalia quickly found that submitting Somali pirates to criminal trial was a long, costly, and complex process, raising many difficult legal questions, particularly relating to the extraterritorial application of human rights regimes, the cost and length of detention, resulting due-​process problems, and the inability to return convicts to Somalia because of the risk of unlawful refoulement.85 The result was that—​surely contrary to the original intent of the Council—​Western states quickly began to decide not to enforce the regime, despite their costly naval presence off Somalia. The British Foreign Office warned its military not to detain pirates because of the cost and risk of violating international law.86 By 2011, the US Congressional Research Service found that 90 percent of all pirates being detained off Somalia were not being brought to trial.87   S/​RES/​1897 (2009), November 30, 2009.   See LJN: BM8116, Rechtbank Rotterdam, 10/​600012-​09 (Netherlands); and Verwaltungsgericht Köln, 25 K 4280/​09 (Germany). 86   David B. RivkinJr and Lee A. Casey, “Pirates Exploit Confusion about International Law,” Wall Street Journal (19 November 2008). See also Saoirse De Bont, “Prosecuting Pirates and Upholding Human Rights Law: Taking Perspective,” Working Paper, One Earth Future Foundation, September 2010, http://​oneearthfuture.org. 87   “Piracy off the Horn of Africa,” April 27, 2011. 84 85

 

230    counterterrorism and transnational crime The Security Council and the CGPCS responded by trying to mobilize resources to mount fair trials in the region. Donors worked with a variety of African states to develop capacity to receive, investigate, and try seized piracy suspects.88 UNODC became a key delivery platform for these capacity-​building efforts. But the process ran aground amid disputes over assistance programmes and complex questions of law.89 So the Council looked closely at whether it might need to create a specialized, perhaps international, piracy court to fill this gap, appointing former French Foreign Minister Jack Lang as a special adviser.90 He recommended the creation of a Somali extraterritorial jurisdiction court in Arusha, in Tanzania, later to be transferred to Mogadishu (similar to the Scottish court in the Netherlands that had ultimately tried the Lockerbie suspects), and the creation of two further special courts—​one in Puntland and the other in Somaliland.91 After the UN Secretariat looked at these options in more detail and found significant legal, constitutional, human resources and resourcing complications, support waned.92 Instead, the idea of establishing a network of specialized piracy courts within local national jurisdictions slowly gained favour with donors.93 But local states saw the emphasis on piracy chambers as potentially diverting resources from other domestic judicial needs, with no guarantee that such chambers would in fact be ‘full’.94 As the political process in Somalia improved, and pirates returned to livelihoods on land, the urgency of the question slowly evaporated.

Conclusion After a century and a half of networking and normative innovation by enterprising law enforcement officials and diplomats, law enforcement remains a fundamentally national affair. The reasons for this are not hard to discern. The power to define conduct as criminal and to use force legitimately to back up those choices is central to juridical sovereignty. States will always be reluctant to officially share that power with other states. 88   S/​RES/​1846 (2008), December 2, 2008; and “Exchange of letters for the conditions and modalities for the transfer of persons having committed acts of piracy and detained by the EU-​led Naval Force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya” in OJ (2009) L79/​49, annex to EU Council decision 2009/​293CFSP of February 26, 2009. 89   In re Mohamud Mohamed Dashi and 8 ors [2009] eKLR, Mombasa HC, Misc. Application 434 of 2009. 90   S/​RES/​1918 (2010), April 27, 2010, OP4; UN Doc. S/​2010/​394, July 26, 2010. 91 92   UN Doc. S/​2011/​30, January 25, 2011.   S/​2011/​360, June 15, 2011. 93 94   See, e.g., S/​RES/​2015, October 24, 2011.   UN Doc. S/​2012/​50, January 20, 2012.

 

conclusion   231 The more interesting trend that this brief survey reveals is instead that states seem increasingly willing to unofficially cooperate—​both with each other, and with other actors such as international peacekeepers, global banks, and multinational companies—​in enforcing shared norms. This is in part a product of continuing economic globalization, and in part the result of a group of powerful like-​minded Western states instrumentalizing the legislative potential of international organizations. In the last twenty years, transnational crime and terrorism have served as useful rhetorical adversaries for that group of states. Their quest to ‘fight’ crime and terror through a mixture of transgovernmental networks, multi-​sectoral initiatives and international organizations has provided a vehicle for projecting their own vision of legality, in a necessarily selective manner that—​unsurprisingly—​protects their interests. Piracy provides a good example: the Council has condemned the payment of ransoms, often from Western states, but it has also taken few operational steps to force states to enforce that condemnation.95 Nor have suggestions of the creation of an anti-​piracy court with jurisdiction over such payments led to action, such is the weight of the shadow cast by the British veto.96 Ultimately, the international community’s responses to piracy, like its responses to other forms of organized criminality and militancy, follow the contours of international cooperation shaped by the interplay between power and sovereignty.

  S/​RES/​2077 (2012), November 21, 2012.   

95

  S/​RES/​2015, October 24, 2011, OP 17.

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Chapter 11

NON-​PROLIFERATION AND DISARMAMENT Waheguru Pal Singh Sidhu

International organizations and institutions are products of their time and invariably designed to prevent the previous rather than the next global conflict. The United Nations (UN), the premier international organization, established in the wake of two destructive world wars ‘to save succeeding generations from the scourge of war’ is no exception. Article 11 of the UN Charter empowers the UN General Assembly to consider ‘principles governing disarmament and the regulation of armaments, and … make recommendations with regard to such principles to the Members or to the Security Council or to both’.1 The UN’s initial focus was, clearly, on conventional weapons. By the time the UN Charter came into force on 24 October 1945, however, the world was confronted by the violent dawn of the nuclear era following the atomic bombing of Hiroshima and Nagasaki in August 1945. Unsurprisingly then, the UN’s efforts towards disarmament and non-​proliferation became focused on weapons of mass destruction (WMD) in general and nuclear weapons in particular, in addition to conventional weapons. The very first UN General Assembly (UNGA) resolution in January 1946 called for the ‘Establishment of a Commission to Deal with the Problems Raised by the Discovery of Atomic Energy’. Although the resolution does not explicitly use the term ‘disarmament’ or ‘non-​proliferation’, it mandated

  Charter of the United Nations and Statute of the International Court of Justice, 8–​9.

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non–proliferation and disarmament   233 the commission to make specific proposals ‘for the elimination from national armaments of atomic weapons and of all other major [chemical and biological] weapons adaptable to mass destruction’.2 In doing so the resolution set apart atomic weapons, which appeared only in 1945, from biological and chemical weapons, even though it stressed the threat posed by the latter. While chemical weapons in particular have gained the reputation of a ‘poor man’s nuclear bomb’, are more likely to be used by terrorists, and grabbed headlines following their use in Syria, the victims of some chemical and biological weapons can be effectively treated. In contrast, there is no known treatment for the effects of nuclear radiation. Given the particularity of nuclear weapons, this chapter will focus almost exclusively on the nuclear non-​proliferation and disarmament regime, though it will briefly examine how chemical and biological weapons were dealt with in the multilateral arena. Serious multilateral efforts to deal with chemical weapons predate the UN and go back to at least the nineteenth century.3 Similar efforts for biological weapons date back to the 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and Bacteriological Methods of Warfare, which focused on both chemical and biological weapons and drew on the horrendous experience of World War I.4 It was only around 1970 that multilateral attempts to outlaw possession of biological and chemical weapons diverged. These efforts culminated in the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction, or simply the Biological Weapons Convention (BWC), which entered into force in March 1975.5 The BWC paved the way for a similar convention related to chemical weapons, and after nearly two decades of negotiations the Chemical Weapons Convention (CWC) was finally concluded by January 1993 and entered into force in April 1997—​nearly a century after the 1899 Hague Convention first sought to ban the use of chemical weapons. Ironically, while the 1975 BWC provided an impetus for the negotiations leading up to the 1993 CWC, the BWC itself has not managed to establish an international organization or any kind of verification system to oversee the disarmament of biological weapons since then, though like the CWC it explicitly bans the development and possession of biological weapons by its signatories. In contrast, the CWC led to the establishment of the Organisation for the Prohibition of Chemical Weapons 2   UNGA 1(1) “Establishment of a Commission to Deal with the Problems Raised by the Discovery of Atomic Energy,” January 24, 1946. 3   The 1899 Hague Convention was the first serious attempt to prevent the use of the chemical weapons and called on signatories to “abstain from the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases,” http://​avalon.law.yale.edu/​19th_​century/​dec99-​02.asp. 4   Text of the Geneva Protocol, http://​www.un.org/​disarmament/​WMD/​Bio/​1925GenevaProtocol.shtml. 5   For details of the BWC see http://​www.unog.ch/​bwc and the unofficial http://​www.opbw.org/​. In addition, see the Arms Control Association fact-​sheet on the Biological Weapons Convention at a glance, http://​www.armscontrol.org/​factsheets/​bwc.

 

234   non–proliferation and disarmament (OPCW) in 1997 to carry out the mission of disarming chemical weapons. In its short existence of a mere fifteen years the OPCW has already verified the destruction of more than 80 per cent of the chemical weapons declared by its members—​the biggest disarmament achievement of any WMD regime—​though the destruction of US and Russian arsenals are still well behind schedule. In contrast to long-​standing attempts to limit the use of chemical and biological weapons, efforts to build norms and organizations to effectively monitor, implement, and enforce nuclear disarmament began only after nuclear weapons were used in 1945 and following the first UNGA resolution in 1946. These initial efforts to ban nuclear weapons sputtered to a halt by 1952. However US President Dwight Eisenhower’s famous ‘Atoms for Peace’ address to the UNGA on 8 December 1953, which led to the establishment of the International Atomic Energy Agency (IAEA) in Vienna in 1957, revived the prospects of establishing an international regime to tackle non-​proliferation. Subsequently the successful conclusion of the 1963 Partial Test Ban Treaty (PTBT), the 1967 Outer Space Treaty, and the 1968 Nuclear Non-​Proliferation Treaty (NPT) laid the foundations for an international non-​proliferation regime. Unlike the BWC and the CWC, which banned the possession of biological and chemical weapons, the NPT did not outlaw the possession or use of nuclear weapons. Instead, it sought to prevent further proliferation while giving the existing possessors the status of nuclear weapon states.6 Although the NPT is the linch-​pin of the non-​proliferation regime, the regime is much broader and is comprised of the following elements: the PTBT, and the 1996 Comprehensive Nuclear-Test-Ban Treaty (CTBT), both of which seek to prevent proliferation by banning nuclear tests; the proposed Fissile Material Cutoff Treaty, which seeks to ban the production of fissile material; ensuring compliance of the NPT provisions through the safeguards of the IAEA; and various Nuclear Weapon Free Zones. The UN Security Council (UNSC), which includes the five ‘official’ nuclear weapon states as permanent veto-​wielding members, is also a key component of the global non-​proliferation regime. Bilateral agreements to limit nuclear arsenals, particularly of the US and the Soviet Union/​Russian Federation, such as SALT I and II, the 1972 Anti-​Ballistic Missile Treaty, START I, II, and III, the 1986 INF Treaty, and the 2002 Strategic Offensive Reductions Treaty also contributed to the regime. 6   Since their appearance in 1945, nuclear weapons were perceived to be the principal guarantors of international peace and security and underpinned world order during the Cold War. Indeed, it was the possession, or protection under the umbrella, of nuclear weapons that was widely regarded as one of the primary factors behind the long period of relative peace and stability in the international system after World War II. Even after the Cold War, the possession of and protection by nuclear weapons, remains the fundamental basis for world order, evident from the continued dependence on nuclear weapons by states already possessing them and the acquisition of these weapons by new states. See Waheguru Pal Singh Sidhu, “The Nuclear Disarmament and Non-​Proliferation Regime,” in Security Studies: An Introduction, ed. Paul D. Williams, 2nd ed. (London/​New York: Routledge, 2012), 410.

 

non–proliferation and disarmament   235 In addition to the multilateral institutions, individual states (notably the United States) and other like-​minded countries (mostly Western industrialized states) also established national instruments and/​or collective plurilateral export control and other arrangements to prevent the spread of nuclear weapons technology and expertise. Perhaps the most prominent national instrument is the 1978 Nuclear Non-​Proliferation Act passed by the United States Congress. Similarly, the plurilateral Nuclear Suppliers Group (NSG), the Zangger Committee, and the Missile Technology Control Regime (MTCR) sought to prevent nuclear weapon proliferation by restricting export of nuclear and missile technology. More recently the Proliferation Security Initiative (PSI), launched in 2003 and now endorsed by 103 countries, and the Nuclear Security Summit (NSS) process, launched in 2010 with more than fifty participants, aim to interdict and intercept the transfer of WMD material and to secure fissile material respectively. While these arrangements might have contributed to slowing down if not curbing proliferation, the ad hoc, exclusive and non-​transparent nature of these instruments has laid them open to accusation of being technology-​denial cartels, preventing developing countries’ access to nuclear technology for peaceful uses. The NSS process, which has a broader and more diverse membership, and is mostly aimed at securing material from non-​state actors, is sui generis among these. Thus, in contrast to the biological and chemical weapons regime, the nuclear non-​proliferation regime is marked by three distinct characteristics. First, despite their cataclysmic nature, nuclear weapons are not forbidden by international law (as is the case with biological and chemical weapons). Second, although efforts to address threats posed by nuclear weapons began in earnest only in 1946 (following the appearance and use of these weapons) the key norms and organizations to deal with them were established within a relatively short time of a couple of decades (in comparison to the prolonged efforts to deal with chemical and biological weapons). Finally, while the key intergovernmental organizations to manage nuclear weapons were established by 1970 and preceded those for biological and chemical weapons, the institutions set up to deal with the disarmament and non-​proliferation of nuclear weapons have been less effective. The first section of this chapter will trace the history and evolution of the formal international organizations and treaties—​notably the NPT—​that provide the foundation for the nuclear regime. The second section will note how the UNSC sought to support the mandate of the NPT. The next section will track the origins of informal and ad hoc arrangements—​particularly the NSG and the MTCR—​and assess their contribution to preventing nuclear proliferation. The following section will outline the three contemporary challenges posed to the regime by states within the regime, states outside the regime, and non-​state actors. The final section will examine the diverse set of responses to these contemporary challenges and the effectiveness in

 

236   non–proliferation and disarmament addressing them. The chapter will conclude by identifying the trends in the evolution of international organizations to prevent nuclear proliferation.

The Long and Winding Road to  the NPT There is broad consensus that the NPT is the central text defining the international community’s efforts to address proliferation of nuclear weapons and provides the legal basis for all intergovernmental organizations and even informal arrangements to deal with nuclear weapons. However, the path from the ‘Atoms for Peace’ initiative to the NPT through the PTBT and the Outer Space Treaty was neither straightforward nor smooth. It began with the establishment of the Ten Nation Committee on Disarmament in Geneva.

The Genesis: The Ten Nation Committee on Disarmament Following the ‘Atoms for Peace’ call for dialogue, the so-​called Big Four—​the US, Soviet Union, Britain, and France—​met in Berlin in 1959 against the backdrop of escalating Cold War tensions and decided to resume previously shelved disarmament talks and establish a new negotiating forum. Consequently, the UN’s Disarmament Commission, created in 1952 and enlarged in 1959 to include all UN members, unanimously established the Ten Nation Committee on Disarmament (TNDC) in 1960 in Geneva.7 However, the tenure of the TNDC was short-​lived. It met for two short sessions in 1960 before being indefinitely adjourned on 28 June 1960 following the collapse of the Big Four Paris summit in the wake of the infamous 1 May 1960 U-​2 spy plane incident.8 Despite its brief life the TNDC made some key disarmament proposals. The Soviet bloc called for a treaty to prohibit the manufacture of nuclear weapons and their means of delivery, the closing of all foreign military bases and withdrawal of all foreign troops, and a verification mechanism for delivery systems. The US and its allies made counter-​proposals to stop the production of fissile material for nuclear 7   Apart from the Big Four, the other six were Bulgaria, Canada, Czechoslovakia, Italy, Poland, and Romania. 8   Nagendra Singh and Edward McWhinney, Nuclear Weapons and Contemporary International Law (Dordrecht: Martinus Nijhoff Publishers, 1989), 230–​1.

 

the long and winding road to the npt    237 weapons, ban WMDs in outer space, and enact/​implement confidence-​building measures to prevent surprise attacks.

The Revival: The Eighteen Nation Committee on Disarmament In the wake of the dramatic demise of the TNDC, the UNGA passed Resolution 1665 (XVI) on 4 December 1961 (‘Prevention of the Wider Dissemination of Nuclear Weapons’). This set the terms of the proliferation problem, the parameters of future approaches for dealing with it, and called on: all states, and in particular upon the states at present possessing nuclear weapons, to use their best endeavours to secure the conclusion of an international agreement containing provisions under which the nuclear states would undertake to refrain from relinquishing control of nuclear weapons and from transmitting the information necessary for their manufacture to states not possessing such weapons, and provisions under which states not possessing nuclear weapons would undertake not to manufacture or otherwise acquire control of such weapons …

While it identified the problem to be addressed as the ‘increase in the number of states possessing nuclear weapons’ the resolution did not mention the term ‘proliferation’, resorting instead to the notion of the ‘wider dissemination’ of nuclear weapons. To facilitate negotiations for the proposed international agreement, the UNGA established the Eighteen Nation Committee on Disarmament (ENCD), which began work in March 1962.9 The Geneva-​based ENCD included the original ten nations of the TNDC plus Brazil, Burma, Ethiopia, India, Mexico, Nigeria, Sweden, and United Arab Republic and became the primary negotiating venue. Between 1962 and 1968 the ENCD witnessed the successful conclusion of three crucial treaties:  the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water or simply the Partial Test Ban Treaty (1963); the Outer Space Exploration and Use Treaty (1967); and finally, the NPT (1968). These three treaties, along with other regional nuclear weapon-​free zone treaties, together laid the legal foundation for the non-​proliferation regime.

The Home Stretch: The NPT By 1964 five states (the United States, Soviet Union, Britain, France, and China) possessed nuclear weapons. With the prospect of at least a dozen other countries   UNGA Res. 1722 (XVI) “Question of Disarmament,” December 20, 1961.

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238   non–proliferation and disarmament joining the club, the emphasis of the two superpowers shifted from futile disarmament efforts to trying to prevent further proliferation of these weapons and preserving the existing nuclear order. The NPT was negotiated between 1965 and 1968 in the ENCD, which was co-​chaired by the United States and the Soviet Union, reflecting the prevailing Cold War international order. As two superpowers and possessors of the largest nuclear arsenals, the United States and the Soviet Union carried a preponderant influence in the negotiations and in drafting the text. In their leading roles, they also conferred with states not represented in the ENCD (especially their own allies), some of which held strong views about the future non-​proliferation treaty and their own security.10 The Treaty itself was a complex balance of obligations, often referred to as ‘the NPT bargain’, which can be summed up through the ‘three pillars’ on which it is often said to rest, namely: • non-​proliferation (Arts. I and II of the Treaty) • disarmament (Art. VI of the Treaty) • peaceful uses (Art. IV). However, neither the expression ‘three pillars’ nor any synonym expressing the three priority areas appears in the Treaty itself. Moreover, the relative emphasis that different states and groups of states have placed on each of these pillars was a prominent feature of the NPT negotiations. Such diverging interpretations and priorities have remained a source of tensions ever since, notably on the occasion of the quinquennial Review Conferences of the Treaty. While the five nuclear weapon states and some of their allies stress the non-​proliferation pillar, most of the non-​ nuclear weapon states, especially non-​aligned states, emphasize the disarmament and peaceful uses aspect of the Treaty. Although not usually referred to as one of the ‘pillars’ of the NPT, a central function in nuclear non-​proliferation is the task of inspection and verification. Verification, or the legal authority and technical ability to check that parties are in compliance with (or at least not in breach of) their treaty obligations, is a central recurring theme in all arms control and disarmament agreements. However, the NPT neither specifies detailed provisions for verification of compliance nor sets up an inspectorate or verification organization. Instead, the Treaty relies on the IAEA to work out the scope, frequency, intrusiveness, and procedures of inspections with member states and also to carry them out. The Agency has the twin objective of promoting peaceful uses of nuclear energy and preventing the proliferation of nuclear weapons—​a daunting task, given that the wherewithal for peaceful uses can easily be converted to produce nuclear weapons.   Jozef Goldblat, Nuclear Non-​Proliferation: A Guide to the Debate (Stockholm: SIPRI, 1985); and Melissa Gillis, Disarmament: A Basic Guide, 3rd ed. (New York: United Nations, 2012). 10

 

the long and winding road to the npt    239 Also, as noted above, the IAEA could only verify safeguards at the request of the parties. The NPT is a peculiar case in this respect. By contrast, the CWC created the OPCW, based in The Hague, which has three advantages over the IAEA/​NPT arrangement. First, the CWC calls for the elimination of all chemical weapons without exception, which strengthens the disarmament norm. Second, the OPCW has a narrow mandate of disarming existing chemical arsenals and preventing non-​ proliferation. Unlike the IAEA its mandate does not include promoting the civilian or peaceful applications, apart from supporting efforts to enhance safety. Finally, the CWC comprises a lengthy, detailed, and elaborate verification annex; the treaty text itself is fifty pages in length, while the annexes on verification and confidentiality bring the total to nearly 200. As for the BWC, it has no verification provisions at all, and therefore no verification agency or inspectorate, and this is widely regarded as a weakness. Were the BWC to develop verification provisions it is very likely that it would also establish a dedicated verification agency. Despite these drawbacks the NPT did enhance the IAEA’s ability to implement safeguards and verify adherence of NPT signatories to the Treaty’s provisions. In this context two post-​NPT Information Circulars (‘INFCIRC’ in IAEA parlance) are noteworthy. INFCIRC/​153 of 1971—​also known as NPT safeguards, ‘full-​scope safeguards’ or ‘comprehensive safeguards agreements’ (CSAs)—​was the standard for safeguards to be concluded pursuant to NPT’s Article III. Titled ‘The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Non-​Proliferation of Nuclear Weapons’ it obligates each non-​nuclear weapon state to declare to the IAEA all nuclear materials in all peaceful nuclear activities on its territory or under its jurisdiction. However, these safeguards focus on nuclear materials rather than on facilities and equipment. The INFCIRC/​153 agreement also links the IAEA to the Treaty of Tlatelolco (or other nuclear-​weapon-​free-​zone treaties). INFCIRC/​540 of 1997 is frequently mentioned in connection with recent and ongoing verification issues and is commonly referred to as the Additional Protocol (AP). Titled ‘Model Protocol Additional to the Agreements between States and the Atomic Energy Agency for the Application of Safeguards’ it serves as the template for agreements that aim to improve on CSAs. It was prompted by the discovery in 1991 of the advancement of Iraq’s clandestine nuclear programme and confirmed that safeguards focusing on declared nuclear materials could be circumvented by a state determined to set up an undeclared nuclear weapons programme. In February 1993, following inconsistencies between declarations made by the Democratic People’s Republic of Korea (DPRK) and the Agency’s findings, the IAEA Director-General, Hans Blix, invoked the special inspection procedure provided for in the Safeguards Agreement. The DPRK refused the request for a special inspection and the Board of Governors on 1 April 1993 concluded that the DPRK was in non-​compliance with its Safeguards Agreement and, in line with Article XII.C of the IAEA Statute, referred this non-​compliance to the UNSC.

 

240   non–proliferation and disarmament Thus in 1993, Programme ‘93+2’ (signifying its two-​year timeline) was started at the IAEA to examine and reinforce safeguards. It produced results in two stages: first, in 1995 a set of strengthening measures under the existing legal authority of CSAs; and second, measures requiring new agreements between states and the IAEA according to the AP approved by the Agency’s Board of Governors in May 1997. While the first set of measures sought to improve the IAEA’s ability to verify declared nuclear activities, the second set (the AP itself) aimed to strengthen the Agency’s ability to detect undeclared activities. The enhancement of the Agency’s role before and after the NPT is illustrated in Table 11.1. While the post-​NPT provisions strengthened the legal basis for the IAEA’s verification role, its practical ability to carry out these tasks remained limited. For several years, the sum total of the IAEA’s safeguards budget covering all of its verification, monitoring, inspections, and analytical activities worldwide has remained pegged at some US$150 million annually. Given the expected growth of the nuclear industry in the coming years, the number of power reactors already under construction in the world, and the average cost of each such nuclear power plant at some US$5 billion or more, there is, clearly, a discrepancy between the importance governments say that they place on nuclear non-​proliferation and the money they are willing to allocate to these safeguards. Table 11.1  The changing verification role of the International Atomic Energy Agency Before the NPT

• Safeguards were voluntary, not

After the NPT

• Safeguards agreements with the IAEA are compulsory. A state providing, for compulsory for all non-​nuclear weapon example, a research reactor and/​or states signatories to the NPT. nuclear materials to another country • These safeguards focus on nuclear could make this supply conditional materials (rather than on entire facilities, on safeguards. Some of the early plants, or reactors). However, they apply nuclear transfers were not subject to across the board to all the nuclear material any safeguards at all. Not only were used in all the safeguarded state’s nuclear safeguards optional, but they could also activities. be conducted by national inspectors from • Voluntary safeguards (known as Voluntary the supplier state rather than from the Offer Agreements) are possible only for IAEA (as indeed was necessarily the case the nuclear weapon states, and it is up to before the IAEA came into existence). them which portion of their non-​military • Even when IAEA safeguards were nuclear activities they choose to submit to agreed as part of a nuclear transaction, safeguards. they were facility-​specific, and were confined to the particular materials, equipment, or facilities provided.

 

the unsc and the non-proliferation regime    241

The UNSC and the Non-​Proliferation Regime In the run-​up to the NPT, and since its entry into force, the Council’s efforts related to nuclear weapons have focused almost entirely on non-​proliferation both at the generic and country-​specific level. The UNSC (particularly the five permanent members—​the P5) supported the NPT’s mandate in two ways. First, the Council regularly passed resolutions to buttress the NPT arrangements. Resolution 225 of 19 June 1968, adopted just before the NPT was opened for signatures on 1 July 1968, was a sop to countries to sign the NPT and give up the right to nuclear weapons in return for the most perfunctory of security guarantees. The Council passed similar resolutions, notably, before crucial reviews conferences, such as Resolution 984 (to support the indefinite extension of the Treaty in 1995) and Resolution 1887 (before the critical 2010 review conference). While both resolutions referred to Article VI (the disarmament pillar), the emphasis was on non-​proliferation. Second, the Council also took up specific cases of proliferation either on its own volition (as in the case of South Africa) or at the behest of the IAEA (Art. XII.C of the IAEA’s statute also allows it, at the behest of its board, to refer cases to the UNSC)—​as was evident in the case of Iran, DPRK, and Syria. The Council has relied on norm creation, legislative action, negotiations, sanctions, and ultimately military action. While the Council has been relatively effective in establishing norms and laws against proliferation by non-​state actors, it has been less successful in curbing proliferation by states within the regime and woefully ineffective in preventing the proliferation by states outside the regimes. The only exception is South Africa, which was disarmed in the broader context of regime change. UNSC Resolution 418 of 1977 expressed grave concern at Pretoria being on the ‘threshold of producing nuclear weapons’ and decided that ‘all States shall refrain from any co-​operation with South Africa in the manufacture and development of nuclear weapons’11 even though South Africa was not a NPT member. While South Africa was the first country to be sanctioned by the Council for its nuclear weapons programme, these were part of a broader sanction regime aimed at the Apartheid regime and were not specifically targeted at the nuclear programme. It is unlikely that sanctions imposed under Resolution 418 were the dominant factor compelling South Africa to give up its arsenal. Instead it is likely is that these sanctions, which primarily contributed to the dismantling of the Apartheid regime, also prompted the regime to give up nuclear weapons, perhaps to win further support from the international community. Thus regime change emerged as an important consideration to counter future proliferation challenges.

  See Res. S/​RES/​418 (1977), November 4, 1977.

11

 

242   non–proliferation and disarmament

Informal Arrangements Beyond the NPT and IAEA safeguards the P5 also established informal arrangements to deal with proliferation by states outside the NPT, such as the Nuclear Suppliers Group, which sought to prevent nuclear weapon proliferation by restricting export of nuclear material and technology. India’s ‘peaceful nuclear explosion’12 on 18 May 1974—​the first by a state outside of the NPT—​provided the impetus for the NSG. While the UNSC entirely ignored the Indian test (probably because India was not a signatory to the NPT), several P5 members, notably the United States, condemned the test and took unilateral and plurilateral measures to curtail further proliferation by India and others.13 A related initiative was the 1987 Missile Technology Control Regime created by the world’s seven most industrialized nations (Canada, France, Italy, Japan, the United Kingdom, the United States, and West Germany) in the waning days of the Cold War, to primarily curtail the spread of missiles capable of delivering nuclear weapons. The regime had two approaches to accomplish this: first, to coordinate policies and practices in supplying missiles and missile components to non-​members; second, to limit the proliferation of nuclear, chemical, and biological weapons by curtailing the spread of ballistic missiles that could deliver such weapons. The regime has been reasonably successful in streamlining and coordinating the policies of MTCR members. One of its earliest contributions was to set the parameter of a nuclear-​capable ballistic missile as one that could carry a 500 kg payload to a range of 300 km. The regime was extended in 1993 to cover not only ballistic missiles and technology capable of delivering nuclear weapons but also chemical and biological weapons. The new MTCR guidelines did not alter the established payload or range limits, even though it was evident that a chemical or biological warhead could weigh considerably less than the prescribed 500 kg payload. Instead, members were urged to restrict the sale of any missile or unmanned aircraft to countries thought to be developing these WMDs.14

12   Peaceful nuclear explosions, though indistinguishable from other nuclear explosion, were allowed under Art. V of the NPT. Essentially they were nuclear explosions conducted for civilian or “peaceful” purposes, such as excavating canals, building reservoirs, and recovering natural resources. IAEA also promoted peaceful nuclear explosions (PNEs). See IAEA write-​up on PNEs, http://​www.iaea.org/​ Publications/​Magazines/​Bulletin/​Bull172/​17203505359.pdf, and assessment of the Comprehensive Test Ban Treaty Organization on PNEs, http://​www.ctbto.org/​nuclear-​testing/​history-​of-​nuclear-​testing/​ peaceful-​nuclear-​explosions/​. 13   The US Congress passed the 1978 Nuclear Nonproliferation Act and Washington was also instrumental in establishing the NSG in 1974. The seven original NSG members, in addition to the US were Canada, West Germany, France, Japan, Soviet Union, and the United Kingdom. 14  Waheguru Pal Singh Sidhu, “Looking Back:  The Missile Technology Control Regime,” Arms Control Today 37 (2007).

 

three challenges   243 Although the regime has been fairly successful in establishing policies, it has been less so in putting these policies into practice among members. Indeed, some of the notable violators of the MTCR guidelines have been entities from within the original MTCR member states. For instance, the suppliers listed in the weapons-​ programme dossier submitted by Iraq to the UN Security Council in December 2002 reads like a directory of MTCR members. As the Israeli, Indian, Pakistani, and Iraqi nuclear weapons programmes show, these initiatives may have delayed weapon programmes but they were unable to prevent these states from building nuclear weapons. The NSG and MTCR efforts were partly dented by the growing indigenous capabilities of the target countries and partly because of the networks that had sprung up to counter the NSG guidelines. A similar fate is likely to befall the newer generation of informal arrangements, such as the PSI, as is evident from the growing capabilities of Pakistan, North Korea, and now Iran. The 2003 US-​led PSI was designed to intercept suspicious cargo to and from states of proliferation concern but not all states possessing nuclear weapons or missiles. The most successful PSI interception was of the German-​owned freighter BBC China carrying Malaysian-​built centrifuge parts to Libya via Dubai, an interception that exposed the A. Q. Khan network. It proved to be the last straw for Libya, which came clean on its WMD programme thereafter, and also provided an impetus for the 2004 UNSC Resolution 1540.

Three Challenges The nuclear non-​proliferation regime faces three sets of challenges in the twenty-​ first century. The first is posed by states within the existing regimes. Here states that either withdraw from the regime and build weapons or violate the regime through clandestine weapons programmes pose as much of a challenge as states that are dragging their feet over disarming their existing arsenals while seeking to improve the quality of weapons. For instance, much attention has been devoted to Iran and North Korea, but not as much effort has been devoted to the huge arsenals and the modernization plans of the five nuclear weapons states within the NPT. The second set of challenges comes from states outside the existing regimes. In the nuclear arena it includes India, Israel, and Pakistan, which have not signed the NPT, but also states like the China, North Korea, Egypt, Iran, Israel, and the United States, which have yet to ratify the CTBT. There are a variety of reasons why some states either never joined the treaties, or having signed them did not ratify them, or having joined decided to opt out. These reasons vary from domestic, technological,

 

244   non–proliferation and disarmament or economic factors, to regional security concerns, to prestige and the desire to reform global governance. The third and perhaps most formidable challenge comes from non-​state actors, including but not limited to terrorist groups. All three WMD-​related regimes were conceived and designed to deal with state-​based nuclear, chemical, and biological weapons, and therefore stipulate obligations for state parties only. At best, they address the threat from non-​state actors only indirectly. According to UNSC Resolution 1540 of 28 April 2004, a non-​state actor is defined as an ‘individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution’.15 This would include the quest of transnational or sub-​national fundamentalist or cult groups, such as Aum Shinrikyo and al-​Qaeda, to develop WMDs, as well as the antics of scientists and entities, such as A.  Q. Khan, to hawk their materials and expertise. The Khan episode in particular indicates a triple proliferation threat: first, concern about the ability of a weak state like Pakistan to manage and control its nuclear establishment and, as a corollary, its nuclear weapons; second, the possibility that states seeking nuclear weapons now have access to another unchecked proliferation network; third, the prospect that terrorist groups seeking nuclear weapons (such as al-​Qaeda) might receive know-​how and expertise directly from the elaborate Khan network.16

Three Responses Three distinct sets of responses involving these different institutional arrangements are discernible to address the abovementioned challenges.17 First, there are efforts to strengthen the traditional multilateral institutional approach anchored in negotiated treaty-​based regimes, such as the NPT, the BWC, and the CWC (which were concluded after a long-​drawn out negotiating process), through the review process. However, given the complexity of negotiating treaties, such treaties are not amenable to amendments and cannot be altered to adjust to the new realities. They are invariably strong in setting norms and principles and in international law, but

15   UNSC Res. S/​RES/​1540 (2004), April 28, 2004, specifically seeks to address “the threat of terrorism and the risk that non-​State actors … may acquire, develop, traffic in or use nuclear, chemical and biological weapons and their means of delivery.” 16   Sidhu, “The Nuclear Disarmament and Non-​Proliferation Regime,” 417–​18. 17  This section is drawn from Waheguru Pal Singh Sidhu, “Weapons of Mass Destruction,” in International Organizations and Global Governance, ed. Thomas G. Weiss and Rorden Wilkinson (London: Routledge, 2013), 449–​51.

 

three responses   245 they tend to be relatively weak on enforcement. For instance, the NPT (and IAEA) is as incapable of dissuading states from exercising the right to withdraw under Article X as it is of enforcing nuclear disarmament under Article VI.18 If the treaty-​ based regime is ineffective in holding member states to their commitments, it is even weaker in its efforts to deal with both non-​member states as well as non-​state actors. Despite these drawbacks the post-​Cold War period was regarded as one of opportunity to strengthen the treaty-​based regime. However, in the period of transition to a multipolar world this optimism was dashed. For instance while the CTBT, the latest attempt to address nuclear weapons, was successfully negotiated in 1996 it has still not entered into force and is unlikely to do so in the foreseeable future. Similarly a single country—​Pakistan—​has successfully blocked negotiations for the proposed Fissile Missile Cutoff Treaty. Indeed, even NPT review conferences have often failed to produce any outcome, though the 2010 conference was considered relatively successful because it produced an outcome document along with an ambitious 64-​point action plan. Moreover, there is also the fundamental question whether any verification system, however efficient, can ensure that no cheating occurs. This applies notably to uranium enrichment by means of centrifuges, as illustrated by recent events in Iran and North Korea. Iran built uranium-​enrichment facilities before declaring them to the IAEA, and North Korea announced some activities with centrifuge enrichment, but these have never been subject to inspections. Not only is uranium enrichment one of the processes by which weapons-​usable (or ‘direct use’) material can be obtained, it is also a method which is especially difficult to detect (and conversely, easy to conceal). This is because of some of its technical characteristics, most notably the fact that since centrifuge installations operate under vacuum, there is little or no tell-​tale leakage into the environment for verification equipment to identify. Second, partly on account of the inherent limits of the treaty-​based regime, in the post-​ Cold War world a series of non-​ treaty-​ based multilateral approaches have been initiated, particularly in the UNGA. This, of course, is not the first time that such an approach was followed:  in the 1960s the Assembly passed several resolutions supporting the NPT and, after further revision—​concerning mainly the Preamble and Articles IV and V—​it commended the draft text of the NPT, which is annexed to Resolution 2373 (XXII). During the Cold War there were the declarations on the illegality of the threat or use of nuclear weapons, which eventually became the subject of the International Court of Justice advisory opinion. Similarly, it was the General Assembly that resurrected the CTBT (after it had been blocked by India at the Conference on Disarmament in Geneva) by adopting a resolution 18   Art. X NPT give each signatory the “right to withdraw from the Treaty if it decides that extraordinary events … have jeopardised the supreme interests of its country” while Art. VI calls on members to “pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament.”

 

246   non–proliferation and disarmament (A/​RES/​50/​245) on 10 September 1996. In April 2005, the UNGA also adopted the International Convention for the Suppression of Acts of Nuclear Terrorism, which set norms against supporting non-​state actors seeking nuclear weapons. The Council, which had been in a debilitating paralysis during the Cold War, also became active on the issue of WMD proliferation. The first indications of this were the various resolutions related to Iraq’s invasion of Kuwait, which established the UN Special Commission to disarm Iraq’s WMD programmes.19 Subsequently, the Council has increasingly taken the lead in tackling proliferation by states, particularly by North Korea and Iran, passing an unprecedented number of resolutions imposing sanctions.20 However, the Council’s efforts have been marred by disunity, an inconsistent approach, and the preference to pursue non-​proliferation without disarmament (particularly of the P5 to preserve their nuclear weapons while denying others). This is apparent in the Council’s dealing with states within the NPT (Iraq, North Korea, Libya, and Iran) and without (Israel, India, and Pakistan). Significantly, once a state acquires nuclear weapons, the Council has been ineffective in reversing this reality; the only exception remains South Africa. In the twenty-​first century, military action is increasingly seen as the only way to reverse proliferation once it has occurred, but this is an unattractive and unlikely option, given Council disunity and other factors. In addition, the UNSC also passed several resolutions related to non-​state actors including 1373 (2001), 1540 (2004), 1673 (2006), 1810 (2008), 1977 (2011), and 2055 (2012). These resolutions are particularly innovative for two reasons:  they seek to deal with non-​state actors, and they aim to provide stop-​gap arrangements to plug existing loopholes in the present treaty-​based regime. Council Resolution 1540 in particular is far-​reaching because it calls on all UN member states to ‘adopt and enforce appropriate effective laws which prohibit any non-​State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery’ as well as to ‘take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery’. While the resolution has been generally welcomed given that present treaty-​based regimes do not address this aspect of proliferation, there is concern that this approach of using the Council to legislate, if exercised often enough, would circumvent the negotiated approach to developing treaty-​based regimes. This reservation apart, Resolution 1540 is a partial success story to address non-​state-​actor proliferation in that it establishes norms   For details see Waheguru Pal Singh Sidhu, “Weapons of Mass Destruction: Managing Proliferation,” in The UN Security Council in the 21st Century, ed. David Malone, Sebastian von Einsiedel, and Bruno Stagno Ugarte (Boulder, CO: Lynne Rienner, 2015), 323–​46. 20   These include UNSC Resolutions 1172 (1998), 1696 (2006), 1718 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1887 (2009), 1929 (2010), 1984 (2011), and 2049 (2012). The bulk of these relate to North Korea and Iran. 19

 

conclusion   247 and requires states to legislate and regulate to prevent non-​state actors from getting their hands on WMDs and their means of delivery. However, the implementation of Resolution 1540 still remains uneven and far from complete. Third, there are a set of ad hoc, non-​institutional, non-​conventional approaches led by individual states or a group of states to address the immediate challenges of non-​proliferation. These include the so-​called preventive war against Iraq’s WMDs in 2003, which was probably the first and perhaps last non-​proliferation war; the US-​led PSI and the Nuclear Security Summit (NSS) as well as other initiatives; the so-​called P5+1 negotiations with Iran; the six-​party talks to reverse North Korea’s nuclearization; and the Indo-​US civilian nuclear initiative as well as India’s efforts to join the MTCR and the NSG. These arrangements tend to be stronger on the enforcement dimension but are relatively weak in both international law as well as establishing norms and principles. Indeed, all of these initiatives are discriminatory and, predictably, do not enjoy universal adherence. Although the states behind these initiatives—​primarily the P5—​have attempted to seek greater legitimacy for their actions by having these initiatives endorsed by the Council, there is concern that these initiatives might deal a fatal blow to the already weakened treaty-​based non-​proliferation regime. Nonetheless, given the inability of the existing formal regime to address many of the proliferation challenges of today, these ad hoc initiatives are likely to flourish.

Conclusion While international institutionalists would prefer organizations based on legally anchored multilateral treaties, there is every indication that ad hoc and informal plurilateral arrangements will be necessary to prevent proliferation of nuclear weapons among states as well as non-​state actors. However, it is equally clear that ad hoc approaches alone are unlikely to be considered legitimate or likely to be effective either in the short or long term unless they are intrinsically linked to the universally applicable treaty-​based regime. Similarly, treaty-​based regimes by themselves, despite their solid legal credentials and legitimacy, are unlikely to be effective in their objectives unless they are non-​discriminatory and have strong verification and enforcement mechanisms. Empirically, it is difficult to conclude whether the ad hoc approaches undermine the treaty regimes or reinforce them. These approaches, which might provide a breakthrough in the right circumstances, have not always been linked to the NPT process. For instance, there is no formal reporting back by the parties involved to the progress (or lack of it) in these ad hoc initiatives. Thus, while

 

248   non–proliferation and disarmament the P5+1 negotiations with Iran are seen to be preventing Tehran’s nuclear ambitions and reinforcing the NPT, they find no mention in the 2010 NPT Review conference outcome document. On the other hand, despite several rounds of the six-​party talks, the DPRK is nowhere near returning to the NPT fold and yet is fecklessly chastised in the 2010 outcome document revealing, perhaps, resignation rather than reinforcement of the NPT. Clearly, there is a serious disconnect between the NPT process and these initiatives, with the NPT being increasingly rendered inconsequential. While the CWC and the OPCW are, perhaps, the model treaties to emulate, it is unlikely that the nuclear non-​proliferation regime will evolve in that direction, given the role nuclear weapons still perform in underpinning the global order.

 

Chapter 12

HUMAN RIGHTS Dinah Shelton

The international protection of human rights has become a fundamental aim of modern international law in the century since states began creating permanent international organizations. During the early period, international law was defined as the law governing the relations between states (horizontal relations) and thus excluded the relations between a state and its citizens and residents, this being considered a matter exclusively within the domestic jurisdiction of states (vertical relations). The development of human rights as a distinct branch of international law is thus relatively recent, although a limited set of legal norms designed to protect individuals against mistreatment has been in existence since the beginnings of the modern law of nations in the seventeenth century.1 Even a cursory review of human rights law demonstrates the rapid expansion of this field since the end of World War II.2 During this period, nearly all global organizations have adopted human rights standards and addressed human rights violations by member states.3 Supplementing the global efforts, regional organizations in the Americas, Europe, Africa, and more recently the Arab League,

1  For an extensive treatment of the history of human rights, see Louis B. Sohn and Thomas Buergenthal (eds.), International Protection of Human Rights (Indianapolis: Bobbs-​Merrill, 1973). 2   See Louis B. Sohn, “The New International Law: Protection of the Rights of Individuals Rather than States,” American University Law Review 32 (1982): 1. 3   Ibid., 19–​20.

 

250   human rights Association of Southeast Asian Nations, and other regional bodies,4 have elaborated their own legal texts, institutions, and procedures for the promotion and protection of human rights.5 As a consequence no state today can legitimately claim that its treatment of those within its jurisdiction is a matter solely of domestic concern. This chapter examines the express and implied powers of international organizations to address human rights issues, standard-​ setting by such organizations, and the structure and functioning of the bodies and institutions they have established to consider this topic. Standard-​setting in itself constitutes a multifaceted set of processes that has resulted in the complex web of treaties, political commitments (“soft law”), and jurisprudence that make up modern human rights law. The chapter is focused on intergovernmental organizations, but the discussion will refer at times to the vast array of civil society and nongovernmental organizations (NGOs) that have contributed immeasurably to the development of human rights law, in particular through their formal and informal participation in the work of intergovernmental organizations, their subsidiary organs, and treaty bodies.6 In fact, the creation of some NGOs and civil society networks preceded and to a certain extent stimulated the formation of intergovernmental organizations.7 In order to address the topic of this chapter both broadly and in some depth, the discussion will exclude, for the most part, international humanitarian law (IHL) and interna­tional criminal law. No doubt this division is somewhat artificial, because

 The Organisation of Islamic Cooperation (OIC), Mercado Común del Sur (Mercosur), the Economic Community of West African States (ECOWAS), and the European Union (EU). 5  See generally R. Blackburn and J. Polakiewicz (eds.), Fundamental Rights in Europe: The European Convention on Human Rights and Its Member States, 1950–​ 2000 (Oxford: Oxford University Press, 2001); Rachel Murray, Human Rights in Africa:  From the OAU to the African Union (Cambridge:  Cambridge University Press, 2004); Fatsah Ouguergouz, The African Charter on Human and Peoples’ Rights:  A  Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague:  Martinus Nijhoff Publishers, 2003); Christof Heyns, “The African Regional Human Rights System: The African Charter,” Penn State Law Review 108 (2004): 679; Dinah Shelton, “The Inter-​American Human Rights System,” in Guide to International Human Rights Practice, ed. Hurst Hannum, 4th ed. (Ardsley, N.Y.:  Transnational Publishers, 2004), 121. 6   As of June 2013, more than 3,700 NGOs had been granted consultative status with the United Nations. United Nations Dept of Economic and Social Affairs:  NGO Branch, http://​ esango.un.org/​civilsociety/​displayConsultativeStatusSearch.do?method=search&sessionCheck= false. 7  See Jenny Martinez, “The Anti-​ Slavery Movement and the Rise of International Non-​ Governmental Organisations,” in The Oxford Handbook of International Human Rights Law, ed. D. Shelton (Oxford: Oxford University Press, 2013); James T. Shotwell (ed), The Origins of the International Labor Organization (New York: Columbia University Press, 1934). 4

 

organizations and activities prior to the un    251 both humanitarian law8 and international criminal law9 increasingly overlap in substance and process with human rights law.

Organizations and Activities Prior to the United Nations As the history of international organizations reveals,10 the emergence and proliferation of international organizations is largely a phenomenon of the last century. Nonetheless, relatively frequent ad hoc or periodic meetings of states took place earlier, nearly all of them at the regional level. From the beginning, matters were discussed that are today encompassed by human rights law, often due to their links with issues of peace and security. With the formation of permanent intergovernmental organizations, some of these issues were within the mandates of the new bodies, as illustrated in this section. Nonetheless, the definition of international law remained one that excluded individuals and other nonstate actors from its scope,   Human rights bodies increasingly apply humanitarian law as lex specialis when addressing human rights issues in the context of internal or international armed conflicts. See, e.g., Abella v Argentina, Case 11.137, Inter-​Am Comm’n HR, Report No. 55/​97, OEA/​Ser.L./​V/​II.9, Doc. 6 rev. P 161 (1998); UN Office of the High Commissioner for Human Rights, International Legal Protection of Human Rights in Armed Conflict (New York: United Nations, 2011), 1; Human Rights Council Res. 9/​9 (referring to human rights law and IHL as complementary and mutually reinforcing). The International Court of Justice (ICJ) has made clear that parts of human rights law continue to apply during conflicts and occupation. In the advisory opinion on the Wall, the Court specified: “the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, Save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 106, July 9, 2004, http://​www.icj-​cij.org/​homepage/​sp/​advisory/​advisory_​2004-​07-​09.pdf. See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 240. 9   Human rights bodies and international criminal tribunals both may have matters submitted that concern genocide or crimes against humanity, and address issues of due process, access to justice, and reparation and remedies for violations. See, e.g., ICTY, Prosecutor v Anto Furundzija, Case No. IT-​95-​17/​1-​T, Judgment of December 10, 1998 (finding torture to be a jus cogens violation); Velásquez-​ Rodríguez v Honduras, 1989 Inter-​Am Ct HR (ser. C) No. 7 (July 21, 1989) (noting the regional recognition of forced disappearance as a crime against humanity). 10   See Chs. 4–5 in this volume. 8

 

252   human rights viewing them as objects or indirect beneficiaries of the law and not subjects with direct rights and responsibilities.

Congresses and Conferences of States Well before the formation of permanent international organizations, states began meeting in periodic or ad hoc congresses or conferences to address matters of collective concern, often including humanitarian or human rights matters such as combatting the slave trade or protecting religious minorities from persecution. Within Europe, in 1860 major European powers forced Turkey to accept, “in the name of Europe,” French military action to protect the Christian minority in Lebanon.11 Subsequently, the 1878 Treaty of Berlin included special provisions for the protection of religious minorities.12 The Americas had a tradition of regional approaches to international issues, including human rights, growing out of regional solidarity developed during the movements for independence.13 Pan American Conferences took action on several human rights matters during the nineteenth and early twentieth centuries. Simón Bolivar urged the initial 1826 Congress of Panama to consider a confederation of Latin American states, based on a Treaty of Perpetual Union, League, and Confederation, which foresaw joint action to combat the slave trade. Later Latin American Conferences adopted treaties on the rights of aliens,14 nationality and asylum,15 and the rights of women.16 In addition, Conference resolutions dealt with labor conditions, women, and children, but with the approach of World War II resolutions reflected broader human rights concerns: Humanization of War (1936); Defense of Human Rights and Persecution for Racial or Religious Motives (both 1938); Humanization of   A. Tibawi, A Modern History of Syria (London: Macmillan, 1969), 121–​33. See also Sohn and Buergenthal, supra note 1, at 143–​78. 12   Ibid., 178–​9. 13   As early as 1907 some states in the region created the Central American Court of Justice. The court had jurisdiction over cases of “denial of justice” between a government and a national of another state, if the cases were of an international character or concerned alleged violations of a treaty or convention. See M. Hudson, The Permanent Court of International Justice (New York: Macmillan, 1943), 49–​50. 14   Treaty for the Extradition of Criminals and for Protection against Anarchism (1902); Convention Relative to the Rights of Aliens (1902); Convention on Private International Law (1928); Convention on the Status of Aliens (1928). 15   Convention establishing the Status of Naturalized Citizens Who Again Take up Residence in the Country of Origin (1906); Convention on Asylum (1928); Convention on the Nationality of Women (1933); Convention on Nationality (1933); Convention on Extradition (1933); Convention on Political Asylum (1933). 16  Convention on the Rights and Duties of States (1933); Convention for the Maintenance, Preservation and Reestablishment of Peace (1936); Convention Concerning Peaceful Orientation of Public Instruction (1936); Inter-​American Convention on the Granting of Political Rights to Women (1948); Inter-​American Convention on the Granting of Civil Rights to Women (1948). 11

 

organizations and activities prior to the un    253 War (1942); War Crimes, Free Access to Information, International Protection of the Essential Rights of Man, Racial Discrimination, and Persecution of the Jews (all 1945).

International Labour Organization The International Labour Organization (ILO), the oldest global organization, focuses on human rights related to employment, including “[working] conditions of freedom and dignity,”17 trade union freedoms,18 freedom from slavery and forced labor,19 and freedom from child labor.20 The ILO has concluded more than 180 conventions and has highly developed monitoring procedures,21 which to some extent provided models for later human rights bodies.

The League of Nations Although the League of Nations was not intended to be a human rights organization, it gained a limited mandate to examine specific problems in select countries as a consequence of the Versailles Peace Conference (1919–​20), whose outcome was partly shaped by the principle of self-​determination. In order to promote ratification of the peace treaties in the states emerging from the defeated Central Powers and to secure the newly drawn state boundaries, the League of Nations obtained limited competence over minority issues, primarily in Central Europe and the Balkan states. Multilateral and bilateral peace treaties, as well as some unilateral commitments made in the context of securing admission to the League of Nations, contained provisions that guaranteed citizenship rights, prohibited discrimination, guaranteed freedom of religion and belief, and in some cases, ensured linguistic rights for minorities. A few special clauses concerned either territorial autonomy22 17   Convention Concerning Discrimination (Employment and Occupation) (No. 111), June 15, 1960, 362 UNTS 31. 18   Convention on Freedom of Association and Protection of the Right to Organize (No. 98), July 9, 1948, 68 UNTS 17. 19  Convention Concerning Forced or Compulsory Labor (No. 28), June 28, 1930, 39 UNTS 55; Convention Concerning the Abolition of Forced Labor (No. 105), June 25, 1957, S. Treaty Doc. No. 88-​11, 320 UNTS 291. 20   Convention Concerning the Prohibition and Immediate Action for the Elimination of Worst Forms of Child Labor (No. 182), June 17, 1999, 2133 UNTS 161, 38 ILM 1207. 21  See Lee Swepston, “Human Rights Complaint Procedures of the International Labour Organization,” in Guide to International Human Rights Practice, supra note 5, at 89. 22  The autonomy provided for in the Swedish-​speaking Åland Islands and the Ruthenians in Czechoslovakia (never realized) included a regional parliament and a regional government according to the competences attributed to these territories. In contrast, the local judiciary and administration remained competences of the state.

 

254   human rights or personal autonomy.23 The minority treaties or declarations also contained general reference in their final articles to oversight by the Council of the League of Nations, on the basis of which the organization developed procedural rules for monitoring the implementation of commitments states made in favor of minorities. The procedures, even more than the substantive norms, influenced the development of modern human rights law. The League of Nations Council was empowered to undertake the monitoring of state commitments, but the Permanent Court of International Justice (PCIJ), could also contribute through delivering advisory opinions at the request of the Council,24 or deciding interstate cases based on dispute settlement provisions contained in the peace treaties.25 After 1930, the Paris Agreement of Hungary, Romania, Yugoslavia, and Czechoslovakia, further empowered the PCIJ to act as an appellate body from decisions of the Mixed Arbitral Tribunals set up to ensure implementation of the peace treaties. Perhaps most importantly in setting a precedent for modern human rights law, a state or a person alleging a violation of any protected right could file a complaint with the League of Nations. The admissibility criteria for such petitions are largely retained by modern treaty bodies, including a bar on filing anonymous petitions or those previously dealt with.26 The petition process was conducted through written submissions to a committee made up of members of the Council, but efforts were also made to secure friendly settlements, a practice also followed by many human rights bodies today. Although the League of Nations system was rightly and heavily criticized for the double standard employed in limiting scrutiny to certain states only, it nonetheless established important substantive precedents on equality and nondiscrimination, as well as procedural innovations that have carried through to current human rights law. 23   See, e.g., the freedom of Jews to hold their religious holidays (in the Polish treaty), the religious and cultural autonomy of the kutzo-​valach (Aromanian) community, the special status of the monks of the monastery at Mount Athos (Greece), or the religious and schooling autonomy of Saxon and Szekler public bodies in Romania (between the eleventh and nineteenth centuries, the Hungarian speaking Szeklers had enjoyed a special status of collective nobility in Transylvania, when it belonged to Hungary). 24   Nearly a dozen advisory opinions concerned minority problems:  Settlers of German Origin in Poland; Acquisition of Polish Nationality; Exchange of Greek and Turkish Populations; Interpretation of the Greco-​Turkish Agreement of December 1 1926; Greco-​Bulgarian Communities; Access to German Minority Schools in Upper Silesia; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory; Interpretation of the Greco-​Bulgarian Agreement of 9 December 1927; Minority Schools in Albania; Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City. 25   Important precedent in this respect include the following cases: Certain German Interests in Polish Upper Silesia (Germany v Poland); Factory at Chorzów; Rights of Minorities in Upper Silesia (Minority Schools) (Germany v Poland); Interpretation of the Statute of the Memel Treaty (United Kingdom v Lithuania); Administration of Prince von Pless (Germany v Poland); Polish Agrarian Reform and German Minority (Germany v Poland). 26   Unlike nearly all current procedures, however, the League’s admissibility requirements did not include prior exhaustion of local remedies, although in practice petitioners sought local resolution before filing a petition.

 

human rights in the un charter and charter bodies    255 Perhaps most significantly, the experience of the League of Nations contributed to enhancing the legal status of individuals, helping their transformation from objects to subjects of international law. As a corollary, emerging from the League of Nations precedents, human rights generally became a matter of legitimate international concern.27

Human Rights in the UN Charter and Charter Bodies Many of the states involved in negotiating the United Nations (UN) Charter, as well as many nongovernmental groups and individuals, successfully pressed for the inclusion of human rights within the mandate of the new organization. The objectives of the UN as stated in Charter Article 1 set the stage for the organization’s human rights work, with particular emphasis on equality and nondiscrimination: The Purposes of the United Nations are: 1. To maintain international peace and security … 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-​determination of peoples … 3. To achieve international cooperation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion … 28

Other provisions in the UN Charter contributed to placing human rights firmly on the organization’s agenda.29 Articles 55 and 56 create binding if vague obligations for all member states.30 The organs of the UN have given content to these obligations and sought to ensure compliance with them by adopting a set of detailed human rights treaties and other legal instruments.  For additional discussion, see Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998), 82–​138. 28   UN Charter, Art. 1. 29   See ibid., Preamble; ibid., Arts. 1, 13, 55, 56, 62, 68, 76 (mentioning human rights). For a discussion of UN activities on human rights, see generally John P. Humphrey, Human Rights and the United Nations: A Great Adventure (Dobbs Ferry: Transnational Publishers, 1984); Irwin Cotler and F. Pearl Eliadis (eds.), International Human Rights Law:  Theory and Practice (Montreal:  Canadian Human Rights Foundation, 1992); Philip Alston, The United Nations and Human Rights: A Critical Appraisal (New York: Oxford University Press, 1992). 30   UN Charter, Art. 55 (establishing that the UN “shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”); ibid., Art. 56 (“[A]‌ll Members pledge themselves to take joint and separate action in cooperation with the Organisation for the achievement of the purposes set forth in Article 55”). 27

 

256   human rights Governmental representatives of the member states sit in the main bodies of the UN concerned with human rights: the General Assembly (GA), the Security Council, the Economic and Social Council, and the Human Rights Council.31 The former Sub-​Commission on the Prevention of Discrimination and Protection of Minorities (renamed in 1999 the Sub-​Commission on the Promotion and Protection of Human Rights) was composed of independent experts, nominated by states and elected by the Human Rights Commission,32 but the decision to transform the Commission into the Council was coupled with the demise of the Sub-​Commission. The UN High Commissioner on Human Rights is an independent official, with a mandate to act on behalf of the organization and to administer the office for human rights.33 The Charter guarantees independence for the Secretariat working under her administration,34 but it has been subject to outside political pressure at times.35 Also sitting in an independent capacity are the fifteen judges of the International Court of Justice (ICJ), the “principal judicial organ of the United Nations.”36 The Court has jurisdiction to decide interstate cases and issue advisory opinions.37 Until recently, relatively few cases involving human rights matters have come before the Court,38 but litigating states have insisted on the human rights and duties reflected in the UN Charter.39   “The General Assembly, the plenary body of the United Nations, shall … initiate studies and make recommendations” to assist in the “realization of human rights and fundamental freedoms.” Ibid., Art. 13, ¶ 1(b). The Security Council’s primary responsibility over peace and security includes a mandate to take action in response to any situation it concludes is a threat to the peace, breach of the peace, or act of aggression, including violations of human rights. Ibid., Arts. 39–​42. The Economic and Social Council (ECOSOC), consisting of seventy-​six UN member states, is authorized to made recommendations to promote respect for and observance of human rights and to draft conventions on the issue. Ibid., Art. 62. Pursuant to the directive in Charter, ECOSOC established the former UN Commission on Human Rights, replaced in 2006 by the Human Rights Council: GA Res. 60/​251. The Commission on the Status of Women, created in 1946, consists of forty-​five governmental representatives: ECOSOC Res. 2/​11, UN Doc. E/​RES/​2/​11 (June 21, 1946). See UN Charter, Arts. 9 and 23; GA Res. 60/​251. 32   The Commission on Human Rights created the Sub-​Commission at its 1st Session in 1946. UN Charter, Art. 68. The General Assembly abolished the Commission and replaced it with the Council in 2006. GA Res. 60/​251. 33   See GA Res. 48/​141, UN Doc. A/​RES/​48/​141 (December 20, 1993). The General Assembly created the post of High Commissioner for Human Rights in 1993, with a mandate to promote observance of the Charter of the UN, the Universal Declaration of Human Rights (UDHR), and other human rights instruments. Ibid., ¶¶ 1, 3. 34   UN Charter, Art. 100. 35   See Iain Guest, Behind the Disappearances (Philadelphia: University of Pennsylvania Press, 1999) (describing pressure placed on UN human rights machinery during the 1980s). 36 37   Statute of the International Court of Justice, Art. 1.  Ibid. 38   See, e.g., Application of Convention on Prevention and Punishment of Crime of Genocide (Bosn. & Herz. v Yugo.), 1993 ICJ 3 (October 7); Legal Consequences for States of Continued Presence of South Africa in Namibia, Advisory Opinion, 1971 ICJ 16 (June 21); Reservations to Convention on Prevention and Punishment of Crime of Genocide, Advisory Opinion, 1951 ICJ 15 (May 28). 39   See, e.g., Memorial of United States; United States Diplomatic and Consular Staff in Tehran (U.S. v Iran), 1980 ICJ Pleadings 182 (January 12, 1980) (asserting that the existence of fundamental rights for all human beings, with the existence of a corresponding duty on the part of every state to respect and observe them, are reflected in Arts. 1, 55, and 56 of the UN Charter). 31

 

human rights in the un charter and charter bodies    257

Human Rights Standard-​Setting Lawmaking is undoubtedly and deliberately a political process. The UN Charter did not define the term “human rights” but left the member states to give it meaning, which they began doing when the General Assembly adopted the Universal Declaration of Human Rights (UDHR) without dissent on December 10, 1948.40 The same year, the General Assembly also adopted the Convention on the Prevention and Punishment of Genocide.41 Standard-​setting continued with a focus on nondiscrimination and equality for disadvantaged groups. The 1965 Convention on the Elimination of All Forms of Racial Discrimination42 was the first of a series of treaties addressing equal rights.43 The UN subsequently adopted instruments concerning women, children, migrant workers, and the disabled.44 The UDHR became two Covenants, one on Civil and Political Rights (ICCPR), the other on Economic, Social and Cultural Rights (ICESCR).45 The standard-​setting process continues as member states place items on the agenda for action. Standard-​setting will not end, because new problems arise, and fears that human rights will become a “devalued currency” or lose importance are probably overstated given the need to obtain consensus before a new instrument can be adopted. From the beginning, the moral leadership of key states has been important,46 but, as John Humphrey has noted, “[t]‌he relatively strong human rights provisions in the Charter through which they run, as someone has said, like a golden thread, were

40   UDHR, GA Res. 217A (III), Art. 10, at 71, UN Doc. A/ 810 (December 10, 1948). The Vienna Convention on the Law of Treaties indicates that in interpreting treaties, any subsequent agreement or practice of the parties regarding its interpretation or the application of its provisions shall be taken into account to give meaning to its terms. Vienna Convention on the Law of Treaties, Art. 31(3), May 23, 1969, 1155 UNTS 331, 8 ILM 679. 41   Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, 78 UNTS 277. 42   International Convention on the Elimination of All forms of Racial Discrimination of March 7, 1966, 660 UNTS 195. 43   Thomas Buergenthal, Robert Norris, and Dinah Shelton, Protecting Human Rights in the Americas, 44 4th ed. (Kehl: N.P. Engel, 1995 [1982]), 20–21.  Ibid. 45   International Covenant on Civil and Political Rights (ICCPR), GA Res. 2200A, (XXI), Dec 19, 1966, 999 UNTS 171, 1057 UNTS 407, 6 ILM 368 (1967); International Covenant on Economic, Social and Cultural Rights, GA Res. 2200, UN Doc. A/​6316 (December 16, 1966). 46  The proposal to have the UN organization ensure respect for human rights and fundamental freedoms without discrimination was initially submitted by Brazil, the Dominican Republic, and Mexico. Amendments and Comments on Dumbarton Oaks Proposals, reprinted in The United Nations Conference on International Organization, San Francisco, California, April 25 to June 26, 1945: Selected Documents (Washington, DC: U.S. Government Printing Office, 1946), 87, 93. Uruguay proposed that the organization endorse the essential rights of mankind, internationally established and guaranteed. Ibid., 110. See also John P. Humphrey, The United Nations and Human Rights: A Great Adventure (Dobbs Ferry: Transnational Publishers, 1984), 14–​17 (acknowledging the key role of Panama in efforts to draft an international bill of rights); Lauren, supra note 27, at 217 (discussing the role of key states and specifically the role of Panama in drafting the International Bill on Human Rights).

 

258   human rights largely, and appropriately, the result of determined lobbying by non-​governmental organisations at the San Francisco Conference.”47 NGOs and international civil servants working exclusively on human rights issues are clearly a major factor in agenda-​setting. Felice Gaer has called human rights NGOs the engine for virtually every advance made by the UN in the field of human rights since its founding.48 One example is Amnesty International’s campaign on the death penalty,49 which led to the drafting of three treaties: the Second Protocol to the ICCPR,50 the Sixth Protocol to the European Convention on Human Rights (ECHR),51 and the Inter-​American Protocol to Abolish the Death Penalty.52 A  multiplicity of actors with divergent interests participate in any negotiations for new human rights norms. Successful negotiations on human rights issues thus typically involve coalition-​building among states and nonstate actors. Negotiators may make trade-​offs between the ideal and the possible; often the form and the content of the negotiated instrument reflect compromise and efforts to achieve consensus. The media also play a significant role in identifying human rights issues that need resolution.53 By documenting abuses, the media often generate public outrage that helps create coalitions of NGOs and others to mobilize action.54 Compelling media imagery can thus bring an issue forward.55 During the standard-​setting process one state may take a leadership role, sometimes out of conviction or sometimes because of domestic political pressure after national reforms have been instituted to address particular problems. Usually, however, governments are motivated by strategic and political considerations or historic rivalries. This can be useful; political motivation does not minimize real human rights problems. At the same time, the political motivation may create suspicion about the need for action, thereby undermining any effort to change state behavior. It also may

47   John P. Humphrey, “The International Law of Human Rights in the Middle Twentieth Century,” in The Present State of International Law and Other Essays, ed. Maarten Bos (New York: Springer, 1973), 75, 83. 48   Felice D. Gaer, “Reality Check: Human Rights NGOs Confront Governments at the UN,” in NGOs, the UN, and Global Governance, ed. Thomas G. Weiss and Leon Gordenker (Boulder: Lynne Rienner, 1996), 51–​3. 49   See generally Johanna K. Eyiolfsdottir, “Amnesty International: A Candle of Hope,” in International Human Rights Monitoring Mechanisms, ed. Gudmundur Alfredsson et al. (The Hague: Martinus Nijhoff Publishers, 2001), 855 (discussing generally the role of Amnesty International in influencing the drafting of treaties against the death penalty). 50   Second Optional Protocol to the ICCPR, Aiming at the Abolition of the Death Penalty, GA Res. 44/​128, UN Doc. A/​RES/​44/​128 (January 30, 1990). 51   Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty, Apr 28, 1983, Europ. T.S. 114. 52   Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990, OASTS No 73. 53   See Dinah Shelton, “Human Rights,” in Managing Global Issues, ed. P. J. Simmons and Chantal de Jonge Oudraat (Washington, DC: Carnegie Endowment for International Peace, 2001), 439–​40. 54 55  Ibid.  Ibid.

 

human rights in the un charter and charter bodies    259 make the target state more intransigent when hostile states or traditional enemies raise issues. For this and other reasons, states often are reluctant to raise human rights matters, which constitute only one of many matters of international concern for them. NGOs have nonetheless successfully aligned with medium and small powers to achieve considerable success. Groups representing torture survivors and other victims of abuse succeeded in obtaining provisions on victim compensation in the Statute of the International Criminal Court through alliance with key states, such as France and Canada.56 In subsequent human rights negotiations, leadership of “repeat players,” those with expertise and an impartial commitment to human rights, has enhanced the strategy of coalition-​building.57 Noteworthy, too, is the fact that the creation of regional human rights institutions has empowered local and regional NGOs throughout the world. In the twenty years of the African Charter, the number of NGOs accredited to the African Commission has grown to 370.58

Monitoring and Enforcement Politics supposedly disappear from enforcement and compliance; the fundamental principle of equality before the law demands fair and principled enforcement, with a hearing before an independent and impartial body.59 It is an ideal that not even the most advanced legal systems always fulfill. A perception of politicization and lack of standards eroded the credibility and legitimacy of the UN Human Rights Commission,60 leading to its replacement in 2006 by the Human Rights Council.61 The evolution is important to recall: Human rights governance started with a revolutionary concept—​that a government’s treatment of those within its power is a matter of international concern—​but it began with a   See Gaer, “Reality Check: Human Rights NGOs Confront Governments at the UN,” 55–​7.  See Leon Gordenker and Thomas G. Weiss, “Pluralizing Global Governance:  Analytical Approaches and Dimensions,” in NGOs, the UN, and Global Governance, ed. Thomas G. Weiss and Leon Gordenker (Boulder: Lynne Rienner, 1996), 17, 31. 58  Twenty-​ First Activity Report of the African Commission on Human and Peoples’ Rights, January 25–​6, 2007, ¶ 15, African Union Doc. EX.CL/​322 (X). 59   The United States Constitution guarantees due process of law. US Const. amend. V; amend. XIV, § 1. Additionally, international human rights instruments provide for the right, in full equality, to a fair and public hearing by an independent and impartial tribunal in the determination of rights, obligations, and criminal charges. See UDHR, supra note 40, Art. 10; ICCPR, GA Res. 2200A (XXI), UN Doc. A/​6316 (December 19, 1966). 60   See Joint NGO Statement on UN Reform—​Presented to the 61st Session of the UN Commission on Human Rights (April 12, 2005), http://​hrw.org/​english/​docs/​2005/​04/​12/​global10463_​.htm. 61   GA Res. 60/​251, UN Doc. A/​RES/​60/​251 (April 3, 2006). The Council consists of forty-​seven states elected by the General Assembly according to the principle of “equitable geographic distribution”: ibid., ¶ 7. Africa and Asia each has thirteen seats: ibid. There are six seats for Eastern Europe, eight for Latin America and the Caribbean, and seven for Western Europe and others: ibid. The Council is authorized to meet three times a year for ten weeks but can also hold special sessions, and it reports directly to the 56 57

 

260   human rights modest objective, declaring and defining a set of fundamental rights, leaving to states the choice of means and policies to implement the norms.62

Like standard-​setting, human rights compliance mechanisms and enforcement procedures have evolved over time and become gradually stronger, certainly at the regional level. The mechanisms for supervising the UN Charter obligations of member states were initially very limited, because the UN legal office insisted that the UN human rights bodies could not take action with respect to petitions alleging human rights violations.63 This left few options for enforcement. This section looks first at supervision of the UN Charter obligations, then at the UN treaty bodies, and finally at the regional mechanisms.

United Nations Charter-​Based Procedures Procedures to advance compliance with the UN Charter’s human rights obligations range from debates in the General Assembly to investigations of particular countries or issues to decisions of the Security Council.64 Most of these techniques have to be initiated by a member state or group of states and require the cooperation of other members.65 In quite a few instances, the debates have led to investigations or denunciations of human rights violations in member states, but the political pressure placed on states sitting on the Commission to vote for or against such actions has considerably increased in recent years and led to concerns about the entire process.66 The enforcement procedures must be considered in the context of the UN Charter as a multilateral treaty. The Charter contains numerous references to human rights but only expressly mentions two:  the right to self-​determination67 and the right General Assembly: ibid., ¶ 10. The Council’s mandate is to “be guided by the principles of universality, impartiality, objectivity and non-​selectivity, with a view to enhancing the promotion and protection of all”: ibid., ¶ 4. The Council is also to consider and make recommendations on situations of human rights violations, including gross and systematic violations: ibid., ¶ 3.   Dinah L. Shelton, “Human Rights,” 438–​9.   ECOSOC, Report of the Sub-​Committee on the Handling of Communications, UN Doc. E/​CN. 4/​14.Rev. 2 (February 6, 1947). 64   See Antonio Cassese, “The General Assembly: Historical Perspective 1945–​1989,” in The United Nations and Human Rights: A Critical Appraisal, ed. Philip Alston (New York: Oxford University Press, 1992), 25; Sydney D. Bailey, “The Security Council,” in The United Nations and Human Rights: A Critical Appraisal, ed. Philip Alston (New York: Oxford University Press, 1992), 304. 65   See Cassese, “The General Assembly”; Bailey, “The Security Council.” 66  See Anne Bayefsky, Editorial, “Ending Bias in the Human Rights System,” New  York Times, May 22, 2002, A27 (“A United Nations high commissioner for human rights will always need to withstand political pressure from member states to engage in a highly selective application of human rights norms.”); Jonathan Fanton, “Taking Human Rights Seriously,” Chicago Tribune, January 10, 2006, C17 (“Politics, which should not be a consideration, have come too often to dominate the [UN Human Rights] Commission’s work”). 67   UN Charter, Art. 1, ¶ 2; Art. 55. 62 63

 

human rights in the un charter and charter bodies    261 to nondiscrimination.68 The UN Charter states as one of its objectives “to develop friendly relations among nations based on respect for the principle of equal rights and self-​determination of peoples.”69 Furthermore, all but one time that the phrase “human rights and fundamental freedoms” appears in the Charter, appended to it are the words “without discrimination on the basis of race, sex, language or religion.”70 The combined focus on equality and self-​determination has directed much of the work of the UN political bodies on human rights issues.71 While it is an intensely political topic, the UN’s focus on equality and self-​determination has its roots firmly in the language of the treaty. The UN Charter references to equal rights allowed NGOs and governments to speak out against systematic discrimination from the outset.72 India, for example, criticized segregation in the United States, which responded by pointing to the caste system in India.73 During the First Session of the UN General Assembly, Egypt, supported by Latin American states, introduced a resolution, which passed unanimously, to condemn racial and religious persecution.74 India then sought a resolution to condemn South Africa for its policies of racial discrimination, accusing the government of gross and systematic human rights violations in breach of the principles and purposes of the Charter.75 The resolution passed with the required two-​thirds majority, despite opposition from Australia, Great Britain, Canada, and the United States, each of which had its own racial policies that contravened the Charter guarantees.76 The First Session of the General Assembly also produced action on genocide, declaring it to be a crime under international law.77 In fact, empirical studies indicate that racial discrimination has been the most discussed human rights topic, taking up almost as much time as all other rights combined.78 Certainly, South Africa was long a pariah state at the UN. The question of discrimination in South Africa was the first human rights issue taken up by the UN General Assembly, beginning in 1946.79 The General Assembly was originally concerned with the treatment of the Indian minority, but it expanded its examination after South Africa elected the nationalist government that officially   UN Charter, Art. 1, ¶ 2 (“without distinction as to race, sex, language, or religion”).  Ibid. 70 71   See UN Charter.   See Cassese, “The General Assembly,” 36–​7. 72 73   See Lauren, The Evolution of International Human Rights, 207.   See ibid. 74   GA Res. 103 (I), at 200, UN Doc. A/​RES/​1031 (November 19, 1946). 75   Letter from the Indian Delegation to the Secretary-General of the United Nations, UN Doc. A/​149 (June 22, 1946). 76   See GA Res. 44(I), at 69, UN Doc. A/​64/​Add.1 (December 8, 1946). The issue of South Africa’s racial policies remained on the agenda of the UN in every session until the end of apartheid. 77   GA Res. 96 (I), at 188–​9, UN Doc. A/​64/​Add.1 (December 11, 1946). 78  Jack Donnelly, “Human Rights at the United Nations, 1955–1985: The Question of Bias,” International Studies Quarterly 32 (1988): 275, 277–96, 282. 79   A list of all resolutions from the General Assembly’s 1st Session in 1946 is available at http://​www. un.org/​documents. 68 69

 

262   human rights instituted apartheid.80 In 1953 the General Assembly found that the racial policies of the government of South Africa and their consequences were contrary to the UN Charter, a finding that was repeated with increasing emphasis over the years.81 Nearly a decade after the first condemnation, in 1962, the General Assembly established a permanent organ, the Special Committee on the policies of apartheid of the government of South Africa, with the mandate to keep the racial policies of South Africa under review when the Assembly was not in session.82 In a 1971 advisory opinion concerning then South-​West Africa under South African authority pursuant to a League of Nations mandate, the ICJ found that South Africa had committed a material breach of its obligations, that the supervisory powers of the Council of the League of Nations had passed to the General Assembly, and that the General Assembly in terminating the Mandate had acted within the framework of its competence.83 The court noted that South Africa had pledged itself to observe and respect, in a territory having an international status as a League of Nations mandate, human rights and fundamental freedoms for all without distinction as to race.84 To deny those rights on the basis of race constituted “a flagrant violation of the purposes and principles of the Charter.”85 Member states pressed for action on sex discrimination as well: the Economic and Social Council (ECOSOC) voted to create the Commission on the Status of Women,86 and the General Assembly urged states to grant political rights to women.87 In 1949, the General Assembly declared that measures taken by the Soviet Union to prevent the wives of citizens of other nationalities from leaving in order to join their husbands was not in conformity with the UN Charter.88 In sum, human rights issues have always been on the agenda of the General Assembly. Personal security issues (e.g., right to life, freedom from torture, and protection against slavery) have been prominent on the agenda,89 not surprisingly given that

  See GA Res. 44 (I); GA Res. 616, at 8, UN Doc. A/​2361 (December 5, 1952).   See GA Res. 721 (VIII), at 6, UN Doc. A/​2630 (December 8, 1953); GA Res. 820 (IX), at 9, UN Doc. A/​2890 (December 14, 1954); GA Res. 917 (X), at 8, UN Doc. A/​3116 (December 6, 1955); GA Res. 1016 (XI), at 5, UN Doc. A/​3572 (January 30, 1957); GA Res. 1178 (XII), at 7, UN Doc. A/​3805 (November 26, 1957); GA Res. 1248 (XII), at 7, UN Doc. A/​4090 (October 30, 1958); GA Res. 1375 (XIII), at 7, UN Doc. A/​4354 (November 17, 1959); GA Res. 1598 (XIV), at 5, UN Doc. A/​4684/​Add.1 (April 15, 1961); GA Res. 1663 (XV), at 10, UN Doc. A/​5100 (November 28, 1961); GA Res. 1761 (XVII), at 9, UN Doc. A/​5217 (November 6, 1962). 82   GA Res. 1761 (XVII). 83   Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ 16, 46–​7 (June 21). 84 85  Ibid.   Ibid., 57. 86   ECOSOC, Resolution Establishing the Commission on the Status of Women, UN Doc. E/​RES/​2/​11 (June 21, 1946). 87   GA Res. 56 (I), at 90, UN Doc. A/​64/​Add.1 (December 11, 1946). 88   See GA Res. 285 (III). 89   Donnelly, supra n. 78. 80 81

 

human rights in the un charter and charter bodies    263 these are rights that cannot be suspended even during times of emergency,90 are accepted as customary international law, and are referred to by many as jus cogens or “peremptory rights.”91 These agenda items and discussions reflect the policies of the member states, some of which may lobby the UN, in order to avoid censure.92 As for the role of nonstate actors, until 1959 the UN received and considered only petitions from non-​self-​governing territories;93 other claims of violations were met with silence.94 ECOSOC began to open the door more widely with a resolution that permitted the UN Human Rights Commission to review summaries of communications received by the UN Secretary-General about human rights violations.95 The resolution, however, denied the Commission the power to take any action.96 After a controversial 1966 ICJ judgment concerning South Africa,97 ECOSOC changed its mind. In 1967, with Resolution 1235, it approved the Commission adding a new agenda item, “Question of the violation of human rights and fundamental freedoms, including policies of racial discrimination and segregation and of apartheid,  ICCPR, supra note 59.  See, e.g., Dinah Shelton, “Normative Hierarchy in International Law,” America Journal of International Law 100 (2006):  291, 302–​5. For a judicial declaration that the prohibition of torture constitutes jus cogens, see Prosecutor v Furundzija, No. IT-​95-​17/​1-​T, ¶¶ 153–​4 (December 19, 1998). 92  See Ann Kent, China, the United Nations, and Human Rights:  The Limits of Compliance (Philadelphia: University of Pennsylvania Press, 1999), 49–​83 (arguing that China used its political and economic power to defeat efforts to condemn its human rights record at the UN). 93   Art. 87(b) UN Charter provides that the Trusteeship Council has authority to accept and examine petitions concerning trust territories. The last trusteeship terminated in 1994 and the Council no longer meets regularly: Letter from the President of the Trusteeship Council to the President of the Security Council, UN Doc. S/​1994/​1234 (November 3, 1994). In 1961, the General Assembly created the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples: GA Res. 1654 (XVI), UN Doc. A/​RES/​1654(XVI) (November 27, 1961). The Special Committee may receive petitions from individuals and groups and, with the permission of the administering state, conduct on-​site visits to territories. See Dep’t of Pub. Info., United Nations and Decolonization (New York: United Nations, 2005), 6. Sixteen non-​self-​governing territories remain within its mandate. Press Release, General Assembly, “Decolonization United Nations Success Story, Albeit Unfinished One, Deputy Secretary-​General Tells Special Committee” (February 22, 2007), http://​www.un.org/​News/​Press/​docs/​2007/​gaco13151.doc.htm. 94   It is estimated that in the 1940s and 1950s, some 20,000 human rights complaints a year were received at the UN. Philip Alston, “The Commission on Human Rights,” in The United Nations and Human Rights: A Critical Appraisal, ed. Philip Alston (New York: Oxford University Press, 1992), 126, 146. In 1948, the “paradox” of individuals in trusteeships having the right to petition, while those in the administering territories lacked the right, was noted during discussions in the General Assembly’s Third Committee. See John Carey, “The United Nations’ Double Standard on Human Rights Complaints,” American Journal of International Law 60 (1966): 792, 792 (citing UN GAOR, 3d Sess., 3d Comm. at 699, UN Doc. A/​C.3/​SR.158 (1948)). 95   ECOSOC, Res. 728F, ¶¶ 1–​2, UN Doc. E/​3290 (July 30, 1959). 96  Ibid. 97   South West Africa Cases (Eth. v S. Afr.; Liber. v S. Afr.) (Second Phase), 1966 ICJ 4 (July 18). The court was evenly divided, and its president cast a deciding vote to reject the claims against South Africa because Ethiopia and Liberia lacked standing. Ibid., 49. This decision effectively terminated the litigation and allowed South Africa to escape condemnation on the merits. 90 91

 

264   human rights in all countries, with particular reference to colonial and other dependent countries and territories.”98 There was no doubt about the focus of attention, because the resolution expressly mentioned South Africa and Southern Rhodesia.99 The resolution also authorized the Commission and Sub-​Commission to examine information relevant to gross violations of human rights.100 The Commission could then “in appropriate cases, and after careful consideration … make a thorough study of situations which reveal a consistent pattern of violations of human rights, as exemplified by … apartheid … and racial discrimination” and report and make recommendations to ECOSOC.101 In 1970, ECOSOC further expanded the process when it adopted Resolution 1503 (XLVIII),102 which finally authorized the Commission and Sub-​Commission to examine communications submitted to the UN.103 Numerous restrictions were placed on this limited petition procedure:  the examination had to be taken in closed session;104 the consideration was limited to situations that appeared to reveal a consistent pattern of gross and reliably attested violations of human rights;105 no hearings or redress were afforded the petitioner; and the outcome was limited to a thorough study or an investigation “with the express consent of the state concerned.”106 Although the origins of the approval stemmed from efforts to combat colonialism and racism in Southern Africa,107 other victims of widespread violations began filing complaints. It is important to remember that the Sub-​Commission had no independent authority to identify violators, but depended on the communications brought to it.108 Despite the secrecy enjoined by ECOSOC, the names of the targeted countries quickly became public.109 The primary deficiency of many human rights procedures, especially at the UN, is that states elect themselves to bodies where they investigate and judge allegations against themselves for violating the norms they have adopted. The result is self-​ judging political bodies that inevitably reflect the policies of the governments that sit on them. Governments generally respectful of human rights take into account trade, security, ability to influence, and other issues of national interest in deciding what issues to examine and how to vote. Governments violating human rights seek to avoid condemnation, often by lobbying for election to the human rights bodies. Overall, the UN attention to human rights matters is “like a dog’s walking on his   ECOSOC Res. 1235, UN Doc. E/​4393 (June 6, 1967).    99  Ibid., ¶ 2.   100 Ibid. 102   Ibid., ¶ 3.   ECOSOC Res. 1503, UN Doc. E/​4832/​Add.1 (May 27, 1970). 103 104 105  Ibid.  Ibid.   Ibid., ¶ 1. 106   Ibid., ¶ 7(a). The procedure was revised in 2000 to reduce the role of the independent Sub-​ Commission and enhance the role of the political Commission. ECOSOC Res. 2000/​3, UN Doc. E/​2000/​99 (June 16, 2000). 107   See Alston, “The Commission on Human Rights,” 143–​4 (describing how international efforts to eliminate South Africa’s colonialism and racism in the 1960s led ECOSOC to adopt Res. 1503). 108 109   ECOSOC Res. 1503, ¶ 1.   See Alston, “The Commission on Human Rights,” 148. 98

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human rights in the un charter and charter bodies    265 hind legs. It is not done well. But you are surprised to find it done at all.”110 As Egon Schwelb noted in looking back over the first twenty-​five years of the UN practice, “neither the vagueness and generality of the human rights clauses of the Charter nor the domestic jurisdiction clause have prevented the UN from considering, investigating, and judging concrete human rights situations, provided there was a majority strong enough and wishing strongly enough to attempt to influence the particular development.”111 The Human Rights Council, like the former UN Human Rights Commission, is an elected body of state representatives chosen according to the principle of equitable geographic representation.112 The Secretary-General’s High Level Panel on Threats, Challenges and Change, which in part led to replacing the Commission with the Council, noted that states had sought membership on the Commission not to strengthen human rights but to protect themselves against criticism or to criticize others.113 It asserted that the Commission could not be credible if it was seen as maintaining double standards in addressing human rights concerns.114 Despite this critique, the new Council is not made up of independent experts, nor are there criteria governing membership.115 The political character and membership of the former Commission did affect its work when it came to targeting governments for violations. The United States typically sought resolutions against communist governments like China and Cuba, while ignoring widespread violations in countries with which it had economic or security ties, including Iraq in 1989.116 The presence of violators was not always negative, however. The Commission was the principal forum to confront governments with allegations of violations that demanded response.117 Nonetheless the election of states with egregious human rights records sometimes allowed them to escape condemnation and contributed to the perception of a double standard, damaging the Commission.118 A credible human rights system legally binds states to respect internationally guaranteed rights and holds governments accountable when they fail to fulfill their obligations. In this respect, the new Human Rights Council may not be a major   Samuel Johnson used this phrase in 1763 to describe a woman preaching: James Boswell’s Life of Johnson, I:  1709–​1765, ed. Marshall Waingrow (New Haven:  Yale University Press, 1994 [1791]), 325. Johnson’s attitude is not entirely absent from the modern scene. 111   Egon Schwelb, “The International Court of Justice and the Human Rights Clauses of the Charter,” American Journal of International Law 66 (1972): 337, 341 (emphasis added). 112   GA Res. 60/​251, ¶ 7. 113   Chairman, “Report of the High-​Level Panel on Threats, Challenges, and Change,” delivered to the General Assembly, UN Doc. A/​59/​565 (December 2, 2004), ¶¶ 282–​3. 114   Chairman, “Report of the High-​Level Panel on Threats, Challenges, and Change,” ¶¶ 282–​3. 115   GA Res. 60/​251. 116   Lawrence Moss, “Will the Human Rights Council Have Better Membership than the Commission on Human Rights?,” Human Rights Watch—​Backgrounders, http://​/​hrw.org/​backgrounder/​un/​un0406/​. 117  Ibid.   118 Ibid. 110

 

266   human rights improvement over the prior Commission. Governments with poor human rights records are eligible for election, as they were before. The mandate of the Council may be an improvement over the prior system, however. In addition to addressing gross and systematic violations, the Council is to scrutinize the human rights record of every member of the UN.119 This peer-​review process is akin to expanding the treaty-​based reporting system and “constructive dialogue” to all states. The Council is charged with assessing compliance with human rights obligations based on “objective and reliable information,” ensuring “universality of coverage and equal treatment” of all states.120 It is intended to be fair, transparent, and effective, but its workings will largely depend on the composition of the Council. Moreover, it is unlikely that the Council will have sufficient meeting time to fulfill its mandate. In contrast to the Charter-​based organs and procedures, each UN human rights treaty creates a specific monitoring body, usually a committee of independent experts that meets in two to three sessions a year.121 The procedures for reviewing state compliance are set forth in the treaties and almost always include state self-​reporting. Among the major UN treaties, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment,122 the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,123 the International Convention on the Elimination of All Forms of Racial Discrimination (CERD),124 and the ICCPR125 also provide for interstate complaints, but only for CERD is acceptance/​implementation of the procedure not optional.126 All of the other treaties require a separate acceptance of the possibility of interstate complaints.127 No interstate complaint has ever been filed under any of the treaties.128 The first UN human rights treaty containing a petition process, CERD, required a separate declaration by states parties to accept the procedure set forth in Article 14.129 The ICCPR, adopted one year later, was even less accepting of petitions in that it included the possibility of individual “communications” in an Optional Protocol requiring separate ratification.130 The independent Human   GA Res. 60/​251, Art. 5(e). 121  Ibid.   See generally Alston, supra note 29, at 337–​508. 122   European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, November 26, 1987, Europ. T.S. 126 (Torture Convention), Art. 21 123   International Convention on the Protection of the Rights of All Migrant Workers and their Families, Art. 76, GA Res. 45/​158, UN Doc. A/​RES/​45/​158 (December 18, 1990). 124   International Convention on the Elimination of All Forms of Racial Discrimination, Art. 11, GA Res. 2106 (XX), UN Doc. A/​RES/​2106 (December 21, 1965). 125 126 127   ICCPR, Art. 41(1)(a).   CERD, Art. 11.   See, e.g., ICCPR, Art. 41(1)(a). 128   The reluctance of states to file formal complaints is also attested to by the fact that the Constitution of the ILO established an inter-​state complaint mechanism that has been used only six times since 1919: ILO Const., Arts. 26–​34. 129   CERD, Art. 14. 130   Optional Protocol to the ICCPR, Art. 2, GA Res. 2200 (XXI), at 59, UN Doc. A/​RES/​2200(XXI) (December 16, 1966). 119

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other global organizations   267 Rights Committee has jurisdiction to receive communications from victims against a state that has accepted both the treaty and the Protocol, but its action is limited to reviewing the written record and issuing “views.”131 Many UN treaties were initially adopted without even this limited petition procedure, but some of them have been supplemented by later instruments allowing complaints.132 The Office of the High Commissioner for Human Rights provides secretariat services for all the treaty bodies and procedures.

Other Global Organizations The UN system extends beyond the main and subsidiary UN organs to include not only treaty bodies established pursuant to UN human rights agreements but also UN specialized agencies such as the ILO, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Health Organization (WHO), and the Food and Agriculture Organization, all of which have taken up human rights matters within their specific mandates. The strengthening of the UN’s human rights work is reflected in the growing “mainstreaming” that has taken place, bringing human rights into the work of many UN specialized agencies. Agencies like the WHO and UNESCO have addressed issues such as discrimination against those afflicted with HIV/​AIDS and guarantees of the cultural rights of indigenous peoples. The expertise of each agency helps to de-​politicize some of the human rights issues by rendering them more technical. With a few exceptions, such as the Pan American Health Organization, regional organizations have not created similar agencies. There are other organizations whose mandates do not include human rights, but whose work nonetheless may have a significant impact on the enjoyment of internationally guaranteed rights. These include the World Trade Organization (WTO), military alliances like NATO, and international financial institutions such as the World Bank group. The question of whether or not the mandate of each of these organizations allows human rights considerations to be taken into account is a matter of considerable controversy, but all of them have been pressed to consider the human rights impacts of their policies and programs.133   Ibid., Art. 5.    132  See, e.g., ibid.   The World Bank’s Articles of Agreement do not mention human rights, but during the past decade, the Bank has addressed social issues through the development of ten Safeguard Policies and through the work of the Inspection Panel established in 1993. In doing so, the Bank recognized the connection between economic issues and social issues. In 1998 the Bank decided to reorganize its Operational Manual around related themes. Key policies were grouped together, including Involuntary Resettlement 131

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268   human rights The problem of “fragmentation” or “regime conflict” has arisen in particular in considering the human rights implications of international trade or investment law.134 If a conflict is found to exist, the legal system may establish a hierarchy requiring priority be given to one body of law over another, allowing it to “trump.” This is most likely to occur when a specialized court has been established to enforce a particular body of law. Not surprisingly, human rights courts enforce human rights law and the WTO dispute settlement bodies apply trade law, each without great effort to accord deference to norms and jurisprudence of the other. National courts of general jurisdiction are more likely to find contradictory legislative or constitutional provisions of equal normative value and thus face the task of reconciling them or otherwise resolving the conflict. The problem of conflict has grown with the “fragmentation of international law” over time. The phrase has been used by the International Law Commission, which took up the topic, based on a feasibility study entitled “Risks Ensuing from Fragmentation of International Law” presented at its 52nd Session in 2000. The Commission subsequently established a Study Group to work on the issue between 2003 and 2006.135 As international law has expanded into new subject areas over the past century, with a corresponding proliferation of international treaties and institutions, conflicts increasingly have arisen between substantive norms or procedures within a given subject area or across subject areas, necessitating means to reconcile or prioritize the competing rules. This is especially the case with human rights, which is often asserted to hold a higher place in international law, at least in respect to the core nonderogable rights whose violation is considered an international crime. Some human rights institutions go further and assert the priority of

(OP 4.12, December 2001), Indigenous Peoples (OD 4.20, September 1991), Cultural Property (OP 11.03, September 1986), Safety of Dams (OP 4.37, September 1996), International Waterways (OP 7.50, October 1994), and Projects in Disputed Areas (OP 7.60, November 1994). Disclosure of Information applies to all ten safeguard policies according to the new Disclosure Policy which came into effect in January 2002. The integration of human rights concerns into economic and financial policies has been encouraged by the General Assembly, which has devoted considerable attention to the eradication of poverty, considered as a human rights issue. See, e.g., Report of the Independent Expert on the Question of Human Rights and Extreme Poverty, A/​HRC/​7/​15, February 28, 2008. In addition, the former UN Commission on Human Rights suggested that multilateral financial and trade institutions must conform their policies and practices to international human rights norms. For a general overview of the Bank’s approach to human rights, see IBRD/​World Bank, Development and Human Rights: The Role of the World Bank (Washington, DC: The World Bank, 1998), 2–​4, 5–​6, 8, 11, 12, 30. 134   J. Harrison, The Human Rights Impact of the World Trade Organisation: Studies in International Trade Law (Oxford: Hart, 2007); S. Joseph, Blame it on the WTO: A Human Rights Critique (Oxford: Oxford University Press, 2011); S. Joseph, D. Kinley, and J. Waincymer (eds.), The World Trade Organisation and Human Rights: Interdisciplinary Perspectives (Cheltenham: Edward Elgar, 2009); A. Lang, World Trade Law after Neoliberalism: Reimagining the Global Economic Order (Oxford: Oxford University Press, 2011); Report of the United Nations High Commissioner for Human Rights, “Human Rights, Trade and Investment” (July 2, 2003) UN Doc. E/​CN.4/​Sub.2/​2003/​9; J. E. Stiglitz and A. Charlton, Fair Trade for All (Oxford: Oxford University Press, 2005). 135   See Report of the International Law Commission, GAOR 60th Sess., Supp. No. 10 (A/​60/​10), Chapter XI.

 

regional organizations   269 human rights guarantees in general over other international law, without necessarily claiming that the entire body of law constitutes jus cogens.136

Regional Organizations Following World War II, the widespread movement for human rights also led newly created or reformed regional organizations to add human rights to their agendas. The stalled efforts of the UN on one or more human rights treaties to complete the international bill of rights137 revealed that global compliance mechanisms would not be strong. The regional systems, therefore, focused on the creation of procedures of redress, establishing control machinery to supervise the implementation and enforcement of the guaranteed rights.138 All of the regional institutions drew inspiration139 from the human rights provisions of the UN Charter and the UDHR,140 but different historical and political factors encouraged each region to focus on specific human rights issues.

The Americas The Organization of American States (OAS) referred to human rights in its Charter, opened for signature in Bogotá, Colombia, in 1948.141 In the Charter, “the American   The UN Committee on Economic, Social and Cultural Rights in a 1998 statement on globalization and economic, social, and cultural rights, declared that the realms of trade, finance, and investment are in no way exempt from human rights obligations. The Committee’s concerns were raised a second time in a statement urging WTO members to adopt a human rights approach to trade matters, asserting that the “promotion and protection of human rights is the first responsibility of Governments.” The claimed primacy of all human rights law has not been reflected in state practice. If eventually accepted, it will reject the notion of lex specialis for trade or other fields where states can claim to be free from human rig hts obligations. 137   See Human Rights Commission, Celebrating the Universal Declaration of Human Rights (2001) (noting that the UN Covenants were not completed for nearly two decades after adoption of the UDHR). 138  See Message to Europeans, adopted by the Congress of Europe, May 8–​10, 1948, quoted in Council of Europe, “Report of the Control System of the European Convention on Human Rights” (H(92)14) (December 1992), 4 (“We desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as the right to form a political opposition; We desire a Court of Justice with adequate sanctions for the implementation of this Charter.”). 139   See generally A.H. Robertson and J.G. Merrills, Human Rights in the World: An Introduction to the Study of the International Protection of Human Rights (Manchester: Manchester University Press, 1996). 140   GA Res. 217A (III). 141   Charter of the Organization of American States, April 30, 1948, 2 UST 2394, 119 UNTS 3. The Charter has been amended by several protocols:  the Protocol of Buenos Aires, February 27, 1967, OASTS No. 1, TIAS No. 6847, 721 UNTS 324; the Protocol of Cartagena de Indias, December 5, 1985, 136

 

270   human rights States proclaim the fundamental rights of the individual without distinction as to race, nationality, creed, or sex” among the principles to which they are committed.142 Former Article 13, now Article 17, declares that “each State has the right to develop its cultural, political and economic life freely and naturally,” but prescribes that “in this free development, the State shall respect the rights of the individual and the principles of universal morality.”143 The OAS Charter did not define “the fundamental rights of the individual,” nor did it create any institution to promote their observance.144 However, the same diplomatic conference that adopted the OAS Charter also proclaimed the American Declaration of the Rights and Duties of Man,145 some months before the UN completed the UDHR.146 Promulgated in the form of a simple conference resolution, this instrument proclaims an extensive catalogue of human rights and gives definition to the Charter’s general commitment to human rights.147 In 1969 the OAS adopted the American Convention on Human Rights.148 Other human rights treaties establishing standards for the region have followed.149 The OAS discharges its functions through various organs, including its two primary political bodies, the General Assembly and Permanent Council, both of which have jurisdiction to deal with human rights matters.150 In 1959, the OAS created the Inter-​American Commission on Human Rights,151 conferring on it responsibility

OASTS No. 66, 119 UNTS 3, 25 ILM 529; the Protocol of Managua, June 10, 1993, OEA/​Ser. A/​2 Add. 3, 33 ILM 1009; and the Protocol of Washington, December 14, 1992, OEA/​Ser. A/​2 Add. 3, 33 ILM 1005.   Charter of the Organisation of American States, Art. 3(1). 144   Ibid., Art. 17.   Ibid., Art. 3. 145   American Declaration of the Rights and Duties of Man, May 2, 1948, OEA/​Ser.L/​VI/​1.4, rev. 10, reprinted in Basic Documents Pertaining To Human Rights in The Inter-​American System (2014) (Basic Documents), available at http://​www.oas.org/​en/​iachr/​mandate/​basic_​documents.asp. 146   Basic Documents, supra note147145, at 6.   American Declaration of the Rights and Duties of Man. 148   American Convention on Human Rights, November 22, 1969, OASTS No. 36, 1144 UNTS 123, 9 ILM 673, reprinted in Basic Documents, supra note 145, at 27. 149   These treaties include the Inter-​American Convention to Prevent and Punish Torture, December 9, 1985, OASTS No. 67, 25 ILM 519, reprinted in Basic Documents, supra note 145, at 91; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, November 17, 1988, OASTS No. 69, 28 ILM 156, reprinted in Basic Documents, supra note 145, at 73; Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990, OASTS No. 73, 29 ILM 1447, reprinted in Basic Documents, supra note 145, at 87; Inter-​American Convention on the Prevention, Punishment, and Eradication of Violence against Women, June 9, 1994, 27 UST 3301, 33 ILM 1534, reprinted in Basic Documents, supra note 145, at 111; Inter-​American Convention on Forced Disappearance of Persons, June 9, 1994, 33 ILM 1429, reprinted in Basic Documents, supra note 145, at 101; Inter-​American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, June 7, 1999, reprinted in Basic Documents, supra note 145, at 123. 150  See Basic Documents, supra note 145, at 17. 151   Org. of Am. States, “Fifth Meeting of Consultation of Ministers of Foreign Affairs, Santiago, Chile, August 12–​18, 1959,” American Journal International Law 55 (1961): 537. The Statute of the Commission described it as an autonomous entity of the OAS functioning to promote respect for human rights. Statute of the Inter-​American Commission on Human Rights, Art. 1, reprinted in Basic 142 143

 

regional organizations   271 for promoting human rights in the hemisphere. The Commission began accepting communications and issuing reports on human rights violations.152 It continues these functions with respect to OAS member states but also has responsibility for monitoring compliance with the human rights treaties adopted by the OAS.153 The Inter-​American Court on Human Rights, along with the Commission, monitors compliance with the obligations of state parties to the American Convention on Human Rights.154

Europe The European system, the first to be fully operational, began when ten Western European states signed the Statute of the Council of Europe on May 5, 1949.155 After suffering the atrocities of World War II, Europe felt compelled to press for international human rights guarantees as part of European reconstruction. Faith in Western European traditions of democracy, the rule of law, and individual rights inspired belief that a regional system could avoid future conflict and stem post-​war revolutionary impulses supported by the Soviet Union.156 Article 3 of the Statute provides that “every Member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human Documents, supra note 145, at 131. In 1967, the Protocol of Buenos Aires amended the Charter to make the Commission a principal organ of the OAS. See Basic Documents, supra note 145, at 9.   In 1965, the Commission’s competence was expanded to accept communications, request information from governments, and make recommendations to bring about more effective observance of human rights. “Second Special Inter-​American Conference, Rio de Janeiro, Brazil, November 17–​30, 1965,” American Journal International Law 60 (1965): 445, 458. 153   Ibid., 459 (stating that the Commission must monitor compliance with human rights treaties). 154   Inter-​American Court of Human Rights Home Page, http://​oas.org/​OASpage/​humanrights.htm. 155   Statute of the Council of Europe, Art. 3, May 5, 1949, Europ. T.S. 1. The original members were Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom. 156   In the Preamble to the ECHR, the contracting parties declare that they are: 152

[r]‌eaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend. Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, Europ. T.S. 5. For a discussion of the ECHR’s history, see J. G. Merrills, “The Council of Europe (I): The European Convention on Human Rights,” in An Introduction to the International Protection of Human Rights, ed. Rhija Hanski and Markku Suksi (Turku: Institute for Human Rights, 1999), 287–​9 (“Many statesmen of the immediate post-​war epoch had been in resistance movements or in prison during the Second World War and were acutely conscious of the need to prevent any recrudescence of dictatorship in Western Europe.”). Merrills also views the emergence of the East–​West conflict as a stimulus to closer ties in Europe. Ibid., 287–​8.

 

272   human rights rights and fundamental freedoms.”157 The end of the Cold War enabled Central and Eastern European nations to join the Council of Europe after declaring their acceptance of the principles spelled out in Article 3;158 total membership now stands at forty-​six states.159 As the first human rights system, the ECHR initially contained a short list of civil and political rights.160 Over time, ECHR protocols161 and independent agreements have added additional guarantees.162 The Contracting Parties to the European Convention thus have repeatedly lengthened the list of guaranteed rights. The European system was also the first to create an international commission and court163 for the protection of human rights and to create a procedure for individual denunciations of human rights violations.164 The role of the victim was initially limited

  Statute of the Council of Europe, Art. 3.   Vienna Declaration of the Heads of State and Government of the Council of Europe, October 9, 1993, reprinted in D. Huber, A Decade Which Made History: The Council of Europe 1989–​1999 (1999), 247; see also Comm. of Ministers, Declaration on Compliance with Commitments Accepted by Member States of the Council of Europe, 95th Sess. (November 10, 1994), reprinted in Council of Europe, Information Sheet No. 35 (1995), 146. See Buergenthal, Norris, & Shelton, supra note 43, at 24. 159   About the Council of Europe, see http://​www.coe.int/​T/​e/​Com/​about_​coe. 160   See Convention for the Protection of Human Rights and Fundamental Freedoms, Nov 4, 1950 as amended by Protocol No. 11, Europ. T.S. 5, 213 UNTS 221. 161   The Council of Europe has adopted fourteen protocols to the ECHR, expanding the list of guaranteed civil and political rights. Protocol No. 1 ECHR, March 20, 1951, Europ. T.S. 9 (adding a right to property and a right to education; requiring the Contracting Parties to hold free and secret elections at reasonable intervals); Protocol No. 4 ECHR, September 16, 1963, Europ. T.S. 46 (prohibiting deprivation of liberty for failure to comply with contractual obligations, guaranteeing the right to liberty of movement, and barring forced exile of nationals and the collective expulsion of aliens); Protocol No. 6 ECHR, April 28, 1983, Europ. T.S. 114 (abolishing the death penalty except during wartime); Protocol No. 7 ECHR, November 22, 1984, Europ. T.S. 117 (according aliens various due process safeguards before they may be expelled from a country where they reside; providing for rights of appeal in criminal proceedings, compensation in cases of miscarriage of justice, protection against double jeopardy, and equality of rights and responsibilities between spouses); Protocol No. 12 ECHR, November 4, 2000, Europ. T.S. 177 (augmenting the nondiscrimination guarantee in Art. 14 ECHR by providing that “the enjoyment of any right set forth by law shall be secured without discrimination on any ground” and that “no one shall be discriminated against by any public authority”); Protocol No. 13 ECHR, May 3, 2002, Europ. T.S. 187 (abolishing the death penalty under all circumstances); Protocol No. 14 ECHR, May 13, 2004, Europ. T.S. 194 (envisaging a revision of judicial procedures). 162   See, e.g., European Social Charter, October 18, 1961, Europ. T.S. 35; the Torture Convention; European Charter for Regional or Minority Languages, November 5, 1992, Europ. T.S. 148; Framework Convention for the Protection of National Minorities, February 1, 1995, Europ. T.S. 15; Convention on Human Rights and Biomedicine, April 4, 1997, Europ. T.S. 164. 163  Dinah Shelton, “The Boundaries of Human Rights Jurisdiction in Europe,” Duke Journal of Comparative & International Law 13 (2003): 95, 100. The Commission acquired its competence to receive individual petitions in 1955, after six states accepted the right of petition. Ibid. Many states took decades to accept the right of individual petition. Ibid. The United Kingdom filed its first declaration on January 14, 1966. Ibid. France and Greece did not accept the right of petition until 1981; Turkey did not accept until 1987. Ibid. 164  Ibid. 157

158

 

regional organizations   273 and admissibility requirements were stringent.165 As the system has matured, however, the institutional structures and normative guarantees have been considerably strengthened.166

Africa In Africa, as states emerged from colonization, their human rights agenda focused on self-​determination and racism. The African Charter on Human and Peoples’ Rights, which entered into force October 21, 1986, established a system for the protection and promotion of human rights that was designed to function within the institutional framework of the Organization of African Unity (OAU), a regional intergovernmental organization that came into being in 1963 and was replaced in 2001 by the African Union.167 The main objectives of the OAU included ridding the continent of the remaining vestiges of colonization and apartheid; promoting unity and solidarity among African states; coordinating and intensifying cooperation for development; safeguarding the sovereignty and territorial integrity of member states; and promoting international cooperation within the framework of the UN.168 The end of colonialism and the ascent of democratic rule in southern Africa has led to a larger role for human rights issues in the new African Union and to the adoption of a Protocol for the establishment of an African Court of Human Rights.169

Evolution of the Regional Organizations Like the UN system, regional organizations have evolved over time, increasing the protections afforded and the rights guaranteed. The European, Inter-​American, and African systems have all expanded their guarantees through the adoption of protocols and other human rights instruments, each one building on the normative advances at the UN and in other regions.170 The Inter-​American system, for example, has concluded the Inter-​American Convention for the Prevention and Punishment of Torture;171 the Additional Protocol to the American Convention on Human Rights in  Ibid.   166 Ibid.   Thomas Buergenthal, Dinah Shelton, and David Stewart, International Human Rights (St. Paul: West Publishing, 2002), 282–​3. 168   Charter of the Organization of African Unity, Preamble, Arts. 2, 3, in Compendium of Key Human Rights Documents of the African Union (Pretoria: Pretoria University Law Press, 2005), 2–​3 169   Ibid., 32. 170   See Buergenthal, Norris, & Shelton, supra note 43, at 24–​31 (summarizing the development of regional human rights organizations throughout the world). 171   Inter-​American Convention to Prevent and Punish Torture, Dec 9, 1985, OASTS No. 67. 165

167

 

274   human rights the Area of Economic, Social and Cultural Rights;172 the Second Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty;173 the Inter-​American Convention on the Prevention, Punishment, and Eradication of Violence against Women;174 the Inter-​American Convention on Forced Disappearance of Persons;175 and the Inter-​American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities.176 It has drafted a Declaration on the Rights of Indigenous Peoples, but the text has not yet been adopted.177 It is notable that virtually all the legal instruments in the various regional systems refer to the UDHR and the UN Charter,178 providing a measure of uniformity in the fundamental guarantees and a reinforcement of the universal character of the American Declaration of the Rights and Duties of Man.179 The rights contained in 172   Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, November 17, 1988, OASTS No. 69, OAS Doc. OEA/​Ser A/​42 (SEPF). 173   Protocol to the American Convention on Human Rights to Abolish the Death Penalty, June 8, 1990, OASTS No. 73. 174   Inter-​American Convention on the Prevention, Punishment and Eradication of Violence against Women June 9, 1994, No. A-​61. 175   Inter-​American Convention on Forced Disappearance of Persons, June 9, 1994, No. A-​60. 176   Inter-​American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities, June 7, 1999, OAS Doc. AG/​RES. 1608 (XXIX-​O/​99). 177   Press Release V, Inter-​Am. Comm’n on Human Rights, Press Communiqué of 3/​97, OAS Doc. OEA/​Ser.L/​V/​II.98, Doc. 7 rev. (March 7, 1997), reprinted in OAS, Annual Report of the Inter-​American Commission on Human Rights (1997), 1081. 178   Only the American Declaration of the Rights and Duties of Man does not mention the UDHR, because it was adopted prior to the completion of the UDHR. The American Declaration indicates its origin in the “repeated occasions” on which the American States had “recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his personality.”American Declaration, Preamble. The European system, “considering the Universal Declaration of Human Rights,” provides that the “like-​minded” governments of Europe have resolved “to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.”ECHR, Preamble. The Preamble to the American Convention on Human Rights also cites the UDHR, as well as referring to the OAS Charter, the American Declaration of the Rights and Duties of Man, and other international and regional instruments not referred to by name. The drafting history of the American Convention shows that the states involved utilized the ECHR, the UDHR, and the Covenants in deciding upon the Convention guarantees and institutional structure. See Buergenthal, Norris, & Shelton, supra note 43, at 41–​3. The African Charter mentions the Charter of the UN and the UDHR in connection with the pledge made by the African States to promote international cooperation. African Charter on Human and Peoples’ Rights Preamble, reprinted in Ouguergouz, supra note 5, at 803. In the Charter’s Preamble, the African States also reaffirm in sweeping fashion “their adherence to the principles of human and peoples’ rights and freedoms contained in the declarations, conventions and other instrument adopted by the Organization of African Unity, the Movement of Non-​Aligned Countries and the United Nations.” Ibid. The Revised Arab Charter on Human Rights was adopted with a preamble “reaffirming the principles of the Charter of the United Nations, the Universal Declaration of Human Rights and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.” League of Arab States, Revised Arab Charter on Human Rights, May 22, 2004, available at http://​www. umn.edu/​humanrts/​instree/​loas2005.html. 179   See American Declaration of the Rights & Duties of Man, Preamble (“[T]‌he international protection of the rights of man should be the principal guide of an evolving American law.”).

 

regional organizations   275 the treaties also reflect the human rights norms set forth in other global human rights declarations and conventions, in particular the UN ICCPR180 and Covenant on Economic, Social and Cultural Rights.181 The most recently adopted regional treaty, the 2004 Revised Arab Charter,182 was drafted and approved in part to bring the regional norms more into conformity with global standards.183 In addition, as each successive system has been created it has looked to the normative instruments and jurisprudence of those systems founded earlier. Provisions regarding choice of law and canons of interpretation contained in the regional instruments have led to considerable convergence in fundamental human rights norms and their application. All of the systems have a growing case law detailing the rights and duties enunciated in the basic instruments. The jurisprudence of the regional human rights bodies has thus become a major source of human rights law. In many instances this case law reflects a convergence of the different substantive protections in favor of broad human rights protections. In other instances, differences in treaty terms or approach have resulted in a rejection of precedent from other systems.184 In general, the judges and the commissioners have been willing to substantiate or give greater authority to their interpretations of rights by referencing not only their own prior case law but also the decisions of other global and regional bodies. Some decisions cross-​ reference specific articles of other instruments. The European Court of Human Rights has utilized Article 19(2) ICCPR to extend the application of Article 10 ECHR to cover artistic expression.185 It has referred to the UN Convention on the Rights of the Child in regard to education.186 It has also referred to both the ICCPR and the American Convention in regard to the right to a name as part of Article 8 ECHR.187 Most well-​known is Soering v United Kingdom, where the court found that the obligation not to extradite someone who might face torture188 is implicit in Article 3 ECHR.189 181  ICCPR, supra note 45.  ICESCR, supra note 45.   Revised Arab Charter on Human Rights, supra note 178. 183   See Mervat Rishmawi, “The Revised Arab Charter on Human Rights: A Step Forward?,” Human Rights Law Review 5 (2005): 361. 184   e.g., the European and Inter-​American courts take very different approaches to their remedial powers based on the different language of their respective treaties. In case law, the Inter-​American court has also rejected the more stringent European restrictions on rights. See Compulsory Membership in an Ass’n Prescribed by Law for the Practice of Journalism, 5 Inter-​Am Ct HR (ser. A) No. 5 (November 13, 1985), 15, http://​www.corteidh.or.cr/​docs/​opiniones/​seriea_​05_​ing.pdf. 185  See Muller v Switz., 133 ECtHR (ser. A) (1988), 19. 186  See Costello-​Roberts v United Kingdom, 247C ECtHR (ser. A) (1993), 50, 58. 187  See Burghartz v Switz., 280B ECtHR (ser. A) (1994), 19, 28. 188   Torture Convention, Art. 3. 189  See Soering v United Kingdom, 161 ECtHR (ser. A) (1989), 35. (“The fact that a specialised treaty should spell out in detail a specific obligation attaching to the prohibition of torture does not mean that an essentially similar obligation is not already inherent in the general terms of Article 3 of the European Convention.” The former Commission stated that it found it useful in interpreting the ECHR to refer to provisions in other international legal instruments for the protection of human rights, especially 180 182

 

276   human rights The Inter-​American Court of Human Rights also frequently uses other international court decisions and international human rights instruments to interpret and apply Inter-​American norms. It has referred to the ECHR,190 the ICCPR, other UN treaties,191 and decisions of the European Human Rights Commission and the European Court.192 It has stated that it will use cases decided by the European Court of Human Rights and the Human Rights Committee when they augment rights protection193 and has indicated a commitment not to incorporate restrictions from other systems.194 Inter-​American Commission and court decisions in turn provide extensive jurisprudence on due process,195 conditions of detention and treatment of detainees,196 legality of amnesty laws,197 rape as torture,198 disappearances,199 obligations to ensure respect for rights,200 direct applicability of norms,201 exhaustion of local remedies,202 burden and standard of proof,203 admissibility of evidence,204 those that contain broader guarantees.); see also Gestra v Italy, App. No. 21072/​92, 80B Eur. Comm’n HR Dec. & Rep. (1995), 89, 93. 190   See, e.g., Compulsory Membership, Inter-​Am Ct HR (ser. A) No. 5, 11–​13; Enforceability of the Right to Reply or Corr., Inter-​Am Ct HR No. 7, (ser. A) (August 29, 1986), 6, available at http://​www.corteidh. or.cr/​docs/​opiniones/​seriea_​07_​ing.pdf. 191  See Compulsory Membership, Inter-​Am Ct HR (ser. A) No. 5, 11–​14; Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Inter-​Am Ct HR (ser. A) No. 4, (January 19, 1984), 13–​14, available at http://​www.corteidh.or.cr/​docs/​opiniones/​seriea_​04_​ing.pdf. 192  See Caballero Delgado & Santana Case (Preliminary Objections), Inter-​Am Ct HR (ser. C) No. 17 (January 21, 1994), 14, available at http://​www.corteidh.or.cr/​docs/​casos/​articulos/​seriec_​17_​ ing%5B1%5D.pdf; Gangaram Panday Case, Inter-​Am Ct HR (ser. C) No. 16 (January 21, 1994), 9, available at http://​www.corteidh.or.cr/​docs/​casos/​articulos/​seriec_​16_​ing%5B1%5D; The Word “Laws” in Article 30 of the Am. Convention on Human Rights, Inter-​Am Ct HR (ser. A) No. 6 (May 9, 1986), 5, available at http://​www.corteidh.or.cr/​docs/​opiniones/​seriea_​06_​ing.pdf; Compulsory Membership, Inter-​Am Ct HR (ser. A) No. 5, 11–​13, 19–​20; Proposed Amendments, Inter-​Am Ct HR (ser. A) No. 4, 15; Viviana Gallardo v Gov’t of Costa Rica, Inter-​Am Ct HR (ser. A) No. 101 (November 13, 1982), 3, 7–​8, available at http://​www.corteidh.or.cr/​docs/​opiniones/​seriea_​101_​81_​ing.pdf; The Effect of Reservations on the Entry into Force of the Am. Convention, Inter-​Am Ct HR (ser. A) No. 2 (September 24, 1982), 8, available at http://​www.corteidh.or.cr/​docs/​opiniones/​seriea_​02_​ing.pdf. 193  See Compulsory Membership, Inter-​Am Ct HR (ser. A) No. 5, 15 (“[I]‌f in the same situation both the American Convention and another international treaty are applicable, the rule most favorable to the individual must prevail.”). 194   See ibid., 14 (stating that the comparison of the “American Convention with the provisions of other international instruments” should never be used to read into the “Convention restrictions that are not grounded in its text”). 195  See Judicial Guarantees in States of Emergency, Inter-​Am Ct HR (ser. A) No. 9. 196  See Gangaram Panday Case, Inter-​Am Ct HR (ser. C) No. 16; Viviana Gallardo, Inter-​Am Ct HR (ser. A) No. 101. 197   See Enactment of the Amnesty Law and El Sal.’s Int’l Commitments, Inter-​Am CHR, OEA/​Ser.L/​ V/​II.85, Doc. 28 rev. February 11, 1994. 198   See Report on the Situation of Human Rights in El Sal., Inter-​Am CHR, OAS/​Ser.L/​V/​II.46, Doc. 23, Rev. 1, November 17, 1978. 199  See Velasquez Rodriguez Case, Inter-​Am Ct HR (ser. C) No. 4 (July 29, 1988). 200  See Gangaram Panday Case, Inter-​Am Ct HR (ser. C) No. 16. 201   See Buergenthal, Norris, & Shelton, supra note 43, at 365–​430. 202  See Caballero Delgado & Santana Case, Inter-​Am Ct HR (ser. C), No. 17, 15. 203 204  See Velasquez Rodriguez Case, Inter-​Am Ct HR (ser. C.) No. 4.   See ibid.

 

regional organizations   277 and the general doctrine of interpretation of human rights treaties.205 The African Commission has drawn upon these and other standards in deciding cases before it.206 The Commission has adopted several doctrines from European and Inter-​ American case law: presumption of the truth of the allegations from the silence of government,207 the notion of continuing violations,208 continuity of obligations in spite of a change of government,209 state responsibility for failure to act,210 and the presumption that the state is responsible for custodial injuries.211 In sum, standard-​ setting is a dynamic process of cross-​referencing and progression in the development of human rights norms; the standard appears to be a single one, although there is diversity outside the core of protections.  See Caballero Delgado & Santana Case, Inter-​Am Ct HR (ser. C), No. 17, 5–​8.  See Compilation of Decisions on Communications of the African Commission on Human and Peoples’ Rights (Banjul: Institute for Human Rights and Development, 1999) (Compilation of Decisions). 207   See, e.g., Communication Nos. 59/​91, 60/​91, 87/​93, 101/​93, and 74/​92. For example: 205

206

The African Commission … has set out the principle that where allegations of human rights abuse go uncontested by the government concerned, even after repeated notifications, the Commission must decide on the facts provided by the complainant and treat those facts as given. This principle conforms with the practice of other human rights adjudicatory bodies and the Commission’s duty to protect human rights. Communication Nos. 25/​89, 47/​90, 56/​91, and 100/​93, Free Legal Assistance Group, Lawyers’ Comm. for Human Rights, Union Interafricaine des Droits de l=Homme, Les Témoins de Jehovah v. Zaire, in Compilation of Decisions, 52–​8. Article 42 of the Regulations of the Inter-​American Commission allows it to presume the facts in the petition are true if the government fails to respond to the complaint. See Buergenthal, Norris, & Shelton, supra note 43, at 660. 208   See, e.g., Communication No. 142/​94, Njoka v Kenya, 13; Case No. 39/​90, Pagnoulle v Cameroon. 209   In a Communication against Malawi, the Commission held: Principles of international law stipulate … that a new government inherits the previous government’s international obligations, including the responsibility for the previous government’s mismanagement. The change of government in Malawi does not extinguish the present claim before the Commission. Although the present government of Malawi did not commit the human rights abuses complained of, it is responsible for the reparation of these abuses. Communication Nos. 64/​92, 68/​92, and 78/​92, Amnesty Int’l v Malawi, reprinted in Compilation of Decisions, 33; see Communication Nos. 83/​92, 88/​9, and 91/​93, Degli, Union Interafricaine des Droits de l’Homme, Comm. Int’l de Juristes v Togo (determining based on the findings of a Commission delegation to Togo that the acts of the prior regime were being remedied by the present government); see also Velasquez Rodriguez Case, Inter-​Am Ct HR (ser. C) No. 4. 210   In regard to Communication 74/​92, Commission Nationale des Droits de l’Homme et des Libertes v Chad, the Commission expounded on the state duty specified in Art. 1 to give effect to the rights and freedoms guaranteed by the African Charter. According to the Commission, “if a state neglects to ensure the rights in the African Charter, this can constitute a violation, even if the State or its agents are not the immediate cause of the violation.” The Commission found that “Chad ha[d]‌failed to provide security and stability in the country, thereby allowing serious and massive violations of human rights.” In language reminiscent of the Velasquez Rodriguez Case, the Commission said, “Even where it cannot be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens, and to conduct investigations into murders. Chad therefore is responsible for the violations of the African Charter.” Ibid. 211  See Communication Nos. 64/​ 92, 68/​ 92, and 78/​ 92, Amnesty Int’l v Malawi, reprinted in Compilation of Decisions, 33, 33–​5; Communication No. 74/​92; see also Tomasi v France, 241 ECtHR (ser. A) (1992), 3, 15–​16.

 

278   human rights In all the regional bodies, as in the global system, interstate cases are exceptionally rare. The European system has had fewer than two dozen cases filed by state parties.212 The African system has had submitted only one interstate case in its history,213 and the Inter-​American system declared inadmissible its first interstate case.214 States also show no inclination to denounce others before UN treaty bodies or the ICJ. Instead, human rights issues are generally raised for political reasons before political bodies. At the regional level, the European system reflects the evolution toward stronger international supervision of treaty obligations. The “default setting” for the original 1950 ECHR’s supervisory machinery was an interstate complaint brought to the European Commission on Human Rights. The Commission could investigate the situation, attempt a friendly settlement, and ultimately report the matter to the Committee of Ministers, a political body. The Committee of Ministers would then decide if a violation had taken place. The ECHR allowed submission of an individual petition only if the state in question had filed optional declarations accepting both the right of individual petition and the jurisdiction of the court. In such case, an individual petition could be brought before the former Commission, which would judge its admissibility and then report on its evaluation of admissible cases.215 If the contracting party had accepted the court’s jurisdiction, the state or the Commission could thereafter choose to bring the matter back before the court.216 The individual had no standing to refer the case. Over time, this procedure was supplanted by increasing acceptance of individual complaints and recourse to the court.217 Today, with the revisions of the Statute that require Member States to meet specific commitments on democracy, rule of law, and human rights, states could face suspension or revocation of membership through repeated commission of serious human rights violations.218 The European and other regional systems are in danger of becoming victims of their own success. The financial resources and personnel are inadequate to address the continually rising numbers of cases. The sheer volume of potential complaints from some of the new member states in Europe calls for a procedure to address systemic problems and prevent widespread violations from overwhelming the court. Part of the problem results from gross and systematic violations that cannot be remedied through the individual case system. It remains primarily the task of the UN to take action in response to the worst violations. 212   See European Court of Human Rights Home Page—​List of Judgments, http://​www.echr.coe.int (follow “Case-​Law” hyperlink; then follow “Lists of Judgments” hyperlink). 213   Communication No. 227/​99, Democratic Republic of Congo v Burundi, Rwanda & Uganda. 214   Nicaragua v Costa Rica, Inter-​state Case 01/​06, Inter-​Am CHR, Report No. 11/​07 (March 8, 2007), available at http://​www.cidh.oas.org/​annualrep/​2007eng/​interstatecase.eng.htm -​ 06/​10/​2008. 215 216   ECHR, Arts. 29–​30.   Ibid., Art. 44. 217   See Protocol No. 11 to the ECHR, May 11, 1994, Europ. T.S. 155 (restructuring the control machinery established therein). 218   Statute of the Council of Europe, Art. 8.

 

conclusion   279

Conclusion International organizations have no power as separate entities to develop policy; human rights law and its enforcement is in fact the combination of the foreign policies of the member states played out in multilateral forums. These policies are rarely neutral and altruistic; indeed, it has been argued that any human rights policy that does not enhance national security is unjustifiable.219 Extensive trade, aid, or political ties may allow greater pressure to be placed on violators, but they also risk political fallout from domestic interests that gain from ongoing economic relations. Allies are willing to hear criticism that adversaries would reject. Alternatively, a government may wish to disassociate itself from violators and perceive itself as losing little by voting for UN condemnation of violators. However, little may be gained in improved human rights performance without imposition of effective targeted sanctions, which expends political capital. Successfully raising human rights cases or issues in multilateral political bodies generally requires a coalition of NGOs, media coverage, and key state support. It also could be useful if the UN viewed itself as having a stake in the country, for example, because it monitored elections or sent peacekeepers. What remain debated and probably without resolution are questions about priorities of rights and countries. In general, though, it is increasingly acknowledged that there are different priorities and interpretations of substantive rights, as well as different definitions and appreciations of claimed violations.220 In the end, it is probably inevitable that each country accused of human rights violations will claim it is being unfairly singled out for political purposes. In “The Responsibility to Protect,” a Canadian government initiative concluded that there are criteria for when intervention by the international community is not just authorized but required.221 First, “there must be serious and irreparable harm occurring to human beings or imminently likely to occur.”222 The intervention should be for the purpose of preventing or halting such harm, it should be the last

  Alan Tonelson, “Human Rights: The Bias We Need,” Foreign Policy 49 (1982–​3): 52.   For example, determining that there is systematic religious persecution depends on deciding that certain groups constitute religions entitled to exercise religious liberty and not cults or criminal enterprises claiming the mantle of religion for other purposes. See Maria Hsia Chang, Falun Gong: The End of Days (New Haven: Yale University Press, 2004) (discussing the Falun Gong and the response of the Chinese government to its activities); Douglas Lee Donoho, “Autonomy, Self-​Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity within Universal Human Rights,” Emory International Law Review 15 (2001): 391. 221  Int’l Comm’n on Intervention & State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001), http://​responsibilitytoprotect.org/​ICISS%20 Report.pdf 222   Ibid., xii. 219

220

 

280   human rights resort, it should use proportional means, and it should have reasonable prospects of success.223 The consequences of action should not be worse than the consequences of inaction.224 The UN High Level Panel on Threats, Challenges and Change agreed that there is a norm emerging that imposes a collective international responsibility to protect people in the event of genocide, ethnic cleansing, other large-​scale killing, or other serious violations of international humanitarian law.225 Its criteria for intervention226 echoed those of the Canadian report.227 In an ideal world, this independent body would have jurisdiction to investigate allegations of gross and systematic violations of human rights. The recent emphasis on criminal prosecutions on the one hand and truth commissions on the other sometimes seems to overlook the needs of survivors. Attention to the needs of the victims of human rights is beginning to receive greater attention, but it remains inadequate. A difficult part of this discussion must concern how far back to go in redressing past abuses. This is critical because historical injustices have a way of returning and becoming present-​day conflicts. Another human rights issue of concern to international organizations today stems from the fact that violations of human rights are not always committed by dictatorial and abusive governments. They are as likely to be committed by nonstate actors in failed states, by powerful private interests taking over governmental functions through outsourcing and privatization, or by criminal enterprises. The UN and other intergovernmental organizations may themselves be implicated in human rights violations by individuals under their authority during peacekeeping missions or other exercises of power. The UN Charter-​based system does not afford a neutral examination of alleged human rights violations before an independent body. Global treaty bodies, in contrast to the UN Charter bodies, are made up of independent experts, but their investigative and other enforcement powers are generally constrained by states during the treaty-​drafting process. Only the regional human rights systems offer the equivalent of domestic enforcement procedures, by creating independent commissions and courts to which victims of human rights violations can complain. Even these procedures are limited, however, because cases can be filed only against the states, not against individual perpetrators, and remedies are restricted. In addition, all of the courts and commissions depend on the political organs of the region to ensure adequate personnel, financial support, and enforcement of their decisions and judgments. The system works well for individual cases but has grave limitations when it comes to addressing gross and systematic human rights violations. Other

 Ibid.   224 Ibid.   Chairman, “Report of the High-​Level Panel on Threats, Challenges, and Change,” 285, ¶ 201. 226   Ibid., ¶ 207. 227   Int’l Comm’n on Intervention and State Sovereignty, The Responsibility to Protect, xii–​xiii. 223

225

 

conclusion   281 regions remain dependent on the work of the UN to promote and protect human rights.228 The role of civil society, especially human rights NGOs, will remain critical in pressing for stronger human rights enforcement. During the next twenty-​five years, standard-​setting will not be concluded, but prevention, accountability, and redress will be the priority matters.

228   For a discussion of efforts to create a regional system in the Arab world, see Rishmawi, “The Revised Arab Charter on Human Rights,” 361–​2. For developments in Asia, see Vitit Muntarbhorn, “Asia, Human Rights and the New Millennium:  Time for a Regional Human Rights Charter?,” Transnational Law & Contemporary Problems 8 (1998):  407; Li-​ann Thio, “Implementing Human Rights in ASEAN Countries: ‘Promises to Keep and Miles to Go before I Sleep’,” Yale Human Rights & Development Law Journal 2 (1999): 1.

 

Chapter 13

CRIMINAL JUSTICE David J. Scheffer

Since the last decade of the twentieth century, the creation of international criminal tribunals of varied character has been one of the most dynamic developments in international organization theory and practice. Whereas in 1992 scholarly tracts on international organizations barely mentioned criminal tribunals (and then only to note the historical reality of the Nuremberg and Tokyo military tribunals immediately following World War II), the emerging reality thereafter is that such courts have arrived as powerful new institutions on the world stage. The establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in late 1994 heralded a new era of international criminal justice that required a novel institutional framework supported by existing international and regional organizations. Criminal tribunals of the new generation are, with novel features, international institutions, no two of which are identical, and yet they also are dependent on long-​established international and regional organizations like the United Nations (UN), the European Union, the African Union, and the North Atlantic Treaty Organization to support and enable their judicial operations. This intertwined relationship among organizations in the pursuit of international criminal justice will be the focus of this chapter. The most significant judicial institutions that arose on the world scene in recent decades are the ICTY,1 ICTR,2 the Special Court for Sierra Leone (SCSL),3 the The views expressed by Professor Scheffer in this chapter are strictly his personal views and should not be ascribed to any institution with which he is associated.   See the website of the ICTY, http://​www.icty.org.   See the website of the Mechanism for International Criminal Tribunals, http://​unictr.unmict.org/​. 3   See the website of the Residual Special Court for Sierra Leone, http://​www.rscsl.org/​. 1

2

 

criminal justice   283 Extraordinary Chambers in the Courts of Cambodia (ECCC),4 the Special Tribunal for Lebanon (STL),5 and the permanent International Criminal Court (ICC).6 The Residual Special Court for Sierra Leone is the successor institution for the SCSL and has overseen the continuing legal obligations of the SCSL after the latter’s closure in 2013. The Mechanism for International Criminal Tribunals (MICT)7 is the successor institution for the ICTY and ICTR to carry forth those tribunals’ completion strategies and thus should be examined in coming years as the source for the final work product of the original two tribunals. Key regional courts, such as the European Court of Human Rights8 and the Inter-​ American Court of Human Rights,9 have existed much longer (since 1959 and 1979, respectively) and established large and impressive bodies of jurisprudence pertaining to the enforcement of human rights norms. But these are not criminal courts per se and thus will not be examined here. Nor will the special UN courts created in East Timor10 and Kosovo11 following atrocities in those territories in 1999. As important as their role was in bringing justice to the peoples of East Timor (now Timor-​Leste) and Kosovo and the critical role the UN assumed in creating and operating them, these courts had quite limited and specialized jurisdictions falling largely outside the international or internationalized tribunals identified above. The African Court of Human and Peoples’ Rights (AfCHPR) is a body created in 2004, having achieved the necessary ratification of fifteen African states, for the purpose of enforcing the African Charter on Human and Peoples’ Rights.12 The AfCHPR began the process of merging with the African Court of Justice in 2008. But that merger had not, as of 2016, achieved the necessary ratifications by African nations. The AfCHPR remains a state responsibility court and thus cannot investigate and prosecute individuals for the commission of atrocity crimes.13 The African Union, expressing the political objections of many of its member states over the ICC’s early focus on Africa and some of its autocratic leaders, has viewed the AfCHPR as the alternative to ICC jurisdiction over Africa. There has been a process   See the website of the ECCC, http://​www.eccc.gov.kh and Cambodia Tribunal Monitor, http://​ www.cambodiatribunal.org. 5   See the website of the STL, http://​www.stl-​tsl.org. 6   See the website of the ICC, http://​www.icc-​cpi.int. 7   See the website of the MICT, http://​www.unmict.org. 8   See the website of the European Court of Human Rights, http://​www.echr.coe.int/​. 9   See the website of Inter-​American Court of Human Rights, http://​www.corteidh.or.cr. 10   See Caitlin Reiger and Marieke Wierda, The Serious Crimes Process in Timor-​Leste: In Retrospect (New York: International Center for Transitional Justice, 2006). 11   See Tom Perriello and Marieke Wierda, Lessons from the Deployment of International Judges and Prosecutors in Kosovo (New York: International Centre for Transitional Justice, March 2006), http://​ ictj.org/​sites/​default/​files/​ICTJ-​FormerYugoslavia-​Courts-​Study-​2006-​English_​0.pdf. 12   See the website of the AfCHPR, http://​www.african-​court.org/​en/​. As of February 2016, thirty African nations had joined the court. 13  “Atrocity crimes” encompasses genocide, crimes against humanity, serious war crimes, and aggression. See David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals (Princeton: Princeton University Press, 2012), 428–​37. 4

 

284   criminal justice underway within the African Union to broaden the jurisdiction of the AfCHPR to include individual criminal responsibility for atrocity crimes, but as of 2016 that had not yet been accomplished.14 The AfCHPR’s experience with atrocity crimes thus has been limited and will not be examined. This chapter studies two areas of inquiry regarding the criminal tribunals and relevant international and regional organizations. The first part examines the role of international organizations, particularly the UN, in the creation of the international and hybrid criminal tribunals since 1993 and each tribunal’s legal character under international law. The second part compares and contrasts the structural composition of the tribunals, which is a critical base of knowledge about their history, how they function, and the law they enforce.

The Role of International Organizations in the Creation of International and Hybrid Criminal Tribunals The UN played a central role in the creation of the international and hybrid criminal tribunals during the tribunal-​building era of 1993 through 2005. Without the UN’s direct participation as a legitimizing body, none of the tribunals could have been established with the speed and legal authority that they enjoyed during this period. The costs of UN engagement, particularly for reluctant or resistant governments, were most evident in how easy it became to isolate and shame deniers of international criminal justice in the public realm and within diplomatic circles. Of course, none of the tribunals escaped challenges (by certain governments, defense counsel, and scholars) to how they were created and the legal basis for their very existence. But each of them survived these challenges and while they are important to absorb, such criticisms are historical footnotes on the road to international criminal justice. The logical and universally acknowledged methodology for the creation of a new international institution requiring the support of and participation by governments would be a treaty negotiated and entered into among nations. This is particularly true for a court that would have the power to punish the criminal actions of individuals by depriving them of their freedom or even, if some governments

14

  “Jurisdiction,” AfCHPR website, http://​en.african-​court.org/​index.php/​about-​us/​jurisdiction.

 

creation of international and hybrid criminal tribunals    285 had their way, with the death penalty. Almost all major international organizations have been so constituted and it would be natural to approach the task of building an international criminal tribunal in the same manner. Such a method, namely, an international treaty signed and ratified by a large number of countries, would command automatic respect within the international legal and political communities and with individual governments as the number of states joining the tribunal grows. But the drafting and negotiations leading to a treaty that would create a new international institution, and then the years required before that treaty comes into force with sufficient ratifications, is a procedure ill-​suited to achieving justice in response to ongoing or recently committed atrocity crimes in the absence of International Criminal Court jurisdiction. Since the ICC did not enter into operations until July 1, 2002, and lacks any temporal jurisdiction for atrocity crimes committed prior to that date, a novel means of institutionalizing accountability for the atrocity crimes of the latter part of the twentieth century had to be found. When confronted with the mounting atrocities in the Balkans beginning in 1991, the international community initially reacted fairly conventionally with respect to a judicial option. The UN Security Council (UNSC) created a War Crimes Commission to investigate the situation,15 which accelerated into an investigation of gruesome waves of atrocity crimes through 1992. An independent initiative by the Conference for Security and Co-​operation in Europe (CSCE, the forerunner to the current Organization for Security and Co-​operation in Europe, OSCE), launched a study in August 1992 on how to investigate and prosecute atrocity crimes in the region.16 The latter group’s work concentrated on a treaty approach and proposed a structural framework for a tribunal that would be established once the treaty was adopted. It was a useful contribution by a regional organization that had a particular focus on the war erupting in the former Yugoslavia. But it proved insufficient to the task, which demanded a response sooner and with more potency than could be offered by the conventional proposal of the CSCE. Meanwhile, the UN International Law Commission, a body created by and reporting to the UN General Assembly, was seized with international criminal justice issues and the creation of a permanent international criminal court.17 But that effort in the early 1990s had nothing to do with breaking events in the Balkans.

  UNSC Res. 780, UN Doc. S/​RES/​780 (October 6, 1992). See UN Secretary-​General, Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), UN Doc. S/​1994/​674 (May 27, 1994). 16   William Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (New York: Cambridge University Press, 2006), 15; Rapporteurs (Corell-​Türk-​Thume), “Proposal for an International War Crimes Tribunal for the Former Yugoslavia,” CSCE Moscow Human Dimension Mechanism to Bosnia-​Herzegovina and Croatia, February 9, 1993. 17  Rep. of the Int’l Law Comm’n, “Establishment of an International Criminal Court:  Draft Resolution,” 46th Sess., UN Doc. A/​C.6/​49/​L.24; GAOR, 49th Sess. (November 29, 1994); James Crawford, “The Work of the International Law Commission,” in The Rome Statute of the International 15

 

286   criminal justice It was designed to launch an endeavor of many years’ duration to build a treaty-​ based international criminal court whose forward-​looking temporal jurisdiction was unlikely to cover crimes in Bosnia and Herzegovina and in Croatia during the early 1990s. The completion of the International Law Commission’s work in 1994 became the basis for further multi-​year UN negotiations leading to the 1998 Rome Statute of the International Criminal Court. But all of this had little relevance to what was required urgently by late 1992 and early 1993 to address the challenge of accountability in the Balkans. By early 1993 the UN Security Council seized the initiative and launched a novel means of tribunal-​building. As an international organization, the Security Council created the first international criminal tribunal, the ICTY, with authority derived from the UN Charter’s Chapter VII enforcement powers. Two Council members, the United States and France, took the lead in rapidly moving the concept through to a successful vote on February 22, 1993.18 One might regard the initiative as a shortcut to avoid the many years typically required of a treaty-​based procedure for creating a new institution, particularly such a novel one as an international criminal tribunal. But policymakers felt the public pressure to do something about the Balkans and saw judicial accountability for atrocity crimes in the region as at least one credible measure that could obtain relatively speedy approval. Following Security Council Resolution 808, the UN Secretary-​General and UN lawyers engaged in a three-​month exercise of drafting the Statute of the ICTY. They were informed by draft statutes submitted by ten governments and five intergovernmental organizations and nongovernmental organizations (NGOs).19 The draft that emerged from the UN Secretariat attracted numerous proposals to amend it. But ultimately interested governments that had submitted their own proposals agreed to let the Secretariat draft stand unchanged. They feared that to open it up for any revision could invite undesirable amendments that could severely undermine the tribunal’s legal authority and scope of jurisdiction. The Security Council approved creation of the ICTY as a nonmilitary measure to enforce the law in the Balkans and try to deter future atrocity crimes, although one can never guarantee deterrence. The Security Council is charged with maintaining and enforcing international peace and security, so the ICTY was conceived as a nonmilitary means under Article 41 of the UN Charter to help achieve that objective in the nations of the former Yugoslavia. Criminal Court, ed. Antonio Cassese, Paolo Gaeta, and John R.  W. D. Jones (New  York:  Oxford University Press, 2002), 23–​34. 18   UNSC Res. 808, UN Doc. S/​RES/​808(1993) (February 22, 1993). See also Scheffer, All the Missing Souls, 19–​27; Michael J. Matheson and David Scheffer, “The Creation of the Tribunals,” American Journal of International Law 110 (2016): 173–90. 19  See Virginia Morris and Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia:  A  Documentary History and Analysis (Irvington-​on-​Hudson, New York: Transnational Publishers, 1994), 209–​480.

 

creation of international and hybrid criminal tribunals    287 Some UN member states (including Mexico, Brazil, and China) objected to this formulation and believed that the Security Council had no legal authority to create a criminal tribunal.20 Defense counsel raised the same objection in the first case before the ICTY, Prosecutor v Dusko Tadic.21 But in February 1993 when the initial authorizing resolution was adopted and several months later when the operative resolution creating the structure and institutional character of the ICTY was adopted by the Security Council,22 the Council acted with resolve to chart a new course for how an international criminal tribunal could be established. Acting under Article 41 of the UN Charter, the Security Council created the ICTY as a subsidiary body of the Security Council and thus it also stood as an international institution. The unique features of the ICTY that derived from its origins as a Security Council entity rest primarily with the primacy and mandatory character of its jurisdiction. The Council endowed the ICTY with superior authority over national courts in adjudicating cases, meaning that ICTY judges can insist upon trying a case over the objection or appeal of national authorities.23 The Security Council resolution establishing the ICTY requires all member states of the UN to cooperate with the tribunal and to adhere to its judicial orders, as does the ICTY Statute.24 The judges of the ICTY are selected by the UN through action of the Security Council and the General Assembly,25 while the Prosecutor is appointed solely by the Security Council.26 The President of the ICTY (namely, one of the judges elected to that position by the other judges)27 may appeal to the Security Council for assistance in enforcing the tribunal’s orders and arrest warrants, and often did so when delivering the President’s annual report to the Council and to the General Assembly.28 The

  See Allison Marston Danner, “When Courts Make Law: How the International Criminal Tribunal Recast the Laws of War,” Vanderbilt Law Review 59 (2006): 1–​65. 21   Prosecutor v Tadic, Case No. IT-​94-​1-​T, Motion on the Jurisdiction of the Tribunal, ¶¶ 2–​3 (Int’l Crim. Trib. for the former Yugoslavia May 7, 1997). 22   UNSC Res. 827, UN Doc. S/​RES/​827(1993) (May 25, 1993). 23   Updated Statute of the ICTY, Art. 9(2) (“The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.”) (ICTY Statute), http://​www. icty.org/​x/​file/​Legal%20Library/​Statute/​statute_​sept09_​en.pdf. 24  UNSC Res. 827, May 25, 1993, sec. 4 (“Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute.”); ICTY Statute, Art. 29. 25   ICTY Statute, Art. 13bis. 26   Ibid., Art. 16(4). Since the beginning, there has been a de facto rule within the Security Council that each prosecutor of the ICTY (and ICTR) must receive unanimous consent by the fifteen members of the Security Council. 27 28   Ibid., Art. 14(1, 2).   Ibid., Art. 34. 20

 

288   criminal justice budget of the ICTY is covered by UN member states as a percentage of their annual dues for the regular budget of the organization.29 In late 1994 the ICTR was established in an identical manner by the Security Council30 and ultimately, by virtue of its role in electing the tribunal’s top officers and approving its budgets, the General Assembly. There were some variations in its statutory authorities, but the Security Council controlled the character of the tribunal and, at least on paper, supported it with the Council’s full enforcement authority under Chapter VII of the UN Charter. Thus in both instances, the former Yugoslavia and Rwanda, international criminal justice was propelled forward with stunning speed and legal authority in the early 1990s by the UN and its two most prominent organs, the Security Council and the General Assembly. The tribunals themselves were constituted as subsidiary organs of the Security Council and, in the result, joined the family of international organizations as uniquely crafted judicial institutions. At the UN the Security Council, General Assembly, Secretary-​General and his legal counsel played key roles in establishing the SCSL and ECCC. While still originating in significant degree from UN actions, these tribunals experienced vastly different circumstances and legal authorizations compared to the ICTY and ICTR. Fatigue had set in at the Security Council by the mid 1990s in terms of using the Council’s enforcement power under the UN Charter to create any more criminal tribunals. The annual expenses of the ICTY and ICTR were growing with each passing year. Therefore, when the waves of atrocities committed during the civil war in Sierra Leone during the late 1990s finally compelled the creation of a criminal tribunal to investigate and prosecute those “who bear the greatest responsibility” for atrocity crimes,31 negotiations quickly steered clear of the Security Council model used for the ICTY and ICTR and settled in the summer of 2000 on a treaty-​based court of unique character. On August 15, 2000, the Security Council directed the Secretary-​General to enter into negotiations with the government of Sierra Leone for the purpose of creating a criminal tribunal by treaty between the UN and the government.32 The trigger for UN engagement in May 2000 was the kidnapping of UN peacekeepers, which proved intolerable to contributor nations and the Security Council and invited questions of accountability for not only that action but the atrocities that were erupting   Ibid., Art. 32.   UNSC Res. 955, UN Doc. S/​RES/​955 (November 8, 1994) (ICTR Statute); see Scheffer, All the Missing Souls, 69–​86; Michael J. Matheson and David Scheffer, “The Creation of the Tribunals,” American Journal of International Law 110 (2016): 173–90. 31   Statute of the Special Court for Sierra Leone, Art. 1(1), April 12, 2002, 2178 UNTS 145 (SCSL Statute), http://​legal.un.org/​avl/​pdf/​ha/​icty/​legalinstruments.pdf. 32   UNSC Res. 1315, UN Doc. S/​RES/​1315 (August 15, 2000), sec. 1 (“Requests the Secretary-​General to negotiate an agreement with the Government of Sierra Leone to create an independent special court consistent with this resolution … ”). 29

30

 

creation of international and hybrid criminal tribunals    289 again following the Lomé Peace Accords of 1999. So the UN had a real stake in creating a means by which to hold perpetrators accountable. The Special Court for Sierra Leone was constituted as an international criminal tribunal legally tied to the government of Sierra Leone through both the treaty and a domestic statute authorizing the operation of the Court in Sierra Leone.33 In one of the first cases before the SCSL, defense counsel challenged the legitimacy of the SCSL as an international criminal tribunal and argued that it had not been properly approved as a domestic court by the Sierra Leone Parliament. But the judges ruled against these arguments and held that the UN had properly constituted the SCSL as an international criminal tribunal in which the UN stood shoulder to shoulder with the Sierra Leone government in creating a treaty-​based court governed by international criminal law and not by Sierra Leone law.34 The SCSL was not constituted with either the express Chapter VII enforcement power of the Security Council or the benefit of automatic funding derived from all UN member states. It stood as an independent tribunal (not as a subsidiary body of the Security Council) with the participation of the UN by treaty in how it was staffed and in framing the statute pursuant to which the Court would exercise its jurisdiction, but the UN was not administratively in control of the SCSL.35 Some Security Council member states had no appetite for establishing a criminal tribunal to investigate and prosecute the atrocity crimes of the Pol Pot regime of the late 1970s. The United States, as a permanent member of the Security Council, approached Council members in 1998 and 1999 with the proposal for either expanding the jurisdiction of the ICTY to embrace the Pol Pot regime crimes or creating a new tribunal under the Council’s Chapter VII authority. China and France in particular complained that Cambodia no longer fell under the scrutiny of the Security Council as a threat to international peace and security. Once Council action no longer was possible, and the Cambodians began to insist on a domestic court with UN assistance, the Secretary-​General explored the alternative path of negotiating the creation of a special Cambodian court, constituted under Cambodian law, but tied to the Secretary-​General through a treaty arrangement between the UN and the Royal Government of Cambodia. The negotiations took years to conclude but finally in 2003 an agreement was reached to establish the ECCC and in 2005 the treaty between the UN and the Cambodian government entered into force.36

  Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, January 16, 2002, 2178 UNTS 138, http://​legal.un.org/​avl/​pdf/​ha/​ icty/​legalinstruments.pdf (UN/​Sierra Leone Agreement); SCSL Statute. 34   Prosecutor v Morris Kallon et  al., Case No. SCSL-​2004-​16-​AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (March 13, 2004). 35  For further explanation, see William Schabas, The UN International Criminal Tribunals:  The Former Yugoslavia, Rwanda and Sierra Leone (New  York:  Cambridge University Press, 2006), 53–​6; Scheffer, All the Missing Souls, 322–​33. 36  Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea, Reach Kram 33

 

290   criminal justice In contrast to the SCSL, the ECCC is a national Cambodian court and not an international criminal tribunal. Yet like the SCSL, the relevant national government, in this case the Royal Government of Cambodia, entered into a treaty with the UN (the “UN/​Cambodia Agreement”), which was approved by the General Assembly,37 that provided for the Secretary-​General’s engagement in staffing the ECCC with international personnel and committed the UN to paying for the salaries of international personnel, defense counsel fees, and certain other expenses of the ECCC. Through its treaty arrangement with the Cambodian government, the UN participates intensively in the day-​to-​day management of the ECCC through the UN Assistance to the Khmer Rouge Trials supervisory staff, as well as the work of the UN Secretary-​General’s Special Expert on United Nations Assistance to the Khmer Rouge Trials. The government appoints Cambodian nationals to the majority of judgeships, while international personnel hold the minority in each judicial chamber. Cambodian nationals occupy positions of equal authority with their international counterparts as the Cambodian Co-​Investigating Judge and the Cambodian Co-​Prosecutor. The Secretary-​General appoints the senior international personnel of the ECCC and a UN Deputy Director of Administration supervises the UN-​appointed employees of the Court. The distinction between the SCSL as an international criminal tribunal and the ECCC as a national court lies in the intent of the parties to the treaty and how the respective national parliaments in Sierra Leone and Cambodia approved creation of the respective tribunal. The Sierra Leone Parliament acted to create an independent court with international character in the form of a majority of the judges being international, the sole Chief Prosecutor being appointed by the Secretary-​General, the sole Registrar being appointed by the Secretary-​General, and the entire staff being appointed by the Registrar and paid for through the resources of the Court and not the government. In contrast, the Cambodian National Assembly and Senate acted with the clear intent to create a domestic national court and were joined in that understanding by the UN. The majority of senior and subordinate staff positions are occupied by Cambodian nationals supervised by the Director of Administration, also a Cambodian national appointed by the government. The Cambodian government assumed responsibility in the UN/​Cambodia Agreement and the ECCC Law to pay the salaries of the national staff of the Court, who constitute the majority of the personnel.38 The ECCC is located in Phnom Penh with no option for moving it NS/​RKM/​0801/​12, August 10, 2001, with inclusion of amendments as promulgated on October 27, 2004 (NS/​RKM/​1004/​006), http://​www.eccc.gov.kh/​en/​documents/​legal/​law-​establishment-​extraordinary-​ chambers-​amended (ECCC Law); Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, June 6, 2003, 2329 UNTS 117 (UN/​Cambodia Agreement); see generally, Scheffer, All the Missing Souls, 341–​405. 37  GA Res. 57/​228, UN Doc. A/​RES/​57/​228B (May 22, 2003), http://​dacess-​dds-​ny.un.org/​doc/​ UNDOC/​GEN/​N03/​358/​90/​PDF/​N0335890.pdf?OpenElement. 38   ECCC Law, Art. 44new(1); UN/​Cambodia Agreement, Art. 15.

 

creation of international and hybrid criminal tribunals    291 outside of the country.39 The SCSL could be relocated outside of Sierra Leone for security reasons, and this in fact happened with the Charles Taylor trial, which was held in The Hague.40 The Special Tribunal for Lebanon, created in 2006, follows more closely the model of the SCSL, but there are differences. The STL, which is located in The Hague, is an international criminal tribunal (like the SCSL) and not a UN or domestic Lebanon court. A treaty between the UN and the government of Lebanon created the tribunal, but it is staffed entirely at the direction of the Secretary-​General, so that all of the judges, the sole Prosecutor, and the Registrar, who recruits the administrative staff, are all UN employees, as are the staff.41 In stark contrast to the other tribunals, however, the subject matter jurisdiction of the tribunal is drawn solely from the criminal code of Lebanon42 and not from international law. The Secretary-​General essentially is selecting individuals who are tasked with the responsibility to interpret Lebanese criminal law and apply it to the assassination of Prime Minister Rafiq Hariri and other officials in 2005,43 but to do so in compliance with international standards of due process. The international character of the STL also insulates it, at least in theory, from the influences of the Lebanese political and legal systems. But the government of Lebanon pays 49 percent of the budget of the STL while the international community, through voluntary funding only, must cover 51 percent of the budget each year.44 The UN played a key role in creation of the ICC. The International Law Commission, a subsidiary body of the General Assembly, prepared the initial draft statute of the ICC in 1994 and it served as the basis for negotiations among member states commencing in 1995.45 These talks were convened under UN General Assembly auspices before a series of committees attended by government delegates from 1995 through to the commencement of final talks at Rome in June 1998. Periodic meetings were held at the UN in New  York, where UN interpretation and Secretariat services and expertise were utilized on a daily basis. The five-​week 40   ECCC Law, Art. 43new.   UN/​Sierra Leone Agreement, Art. 10.   Agreement between the United Nations and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon, Arts. 2(5), 3(1), 4(1), January 22, 2007, 2461 UNTS 257, http://​treaties. un.org/​doc/​Publication/​UNTS/​Volume%202461/​v2461.pdf (UN/​Lebanese Republic Agreement). 42   UNSC Res. 1757, Art. 2, UN Doc. S/​RES/​1757 (May 30, 2007) (STL Statute). 43   STL Statute, Art. 1. The unique personal jurisdiction of the STL was established in Art. 1: “The Special Tribunal shall have jurisdiction over persons responsible for the attack of 14 February 2005 resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. If the Tribunal finds that other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005, or any later date decided by the Parties and with the consent of the Security Council, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005, it shall also have jurisdiction over persons responsible for such attacks. This connection includes but is not limited to a combination of the following elements: criminal intent (motive), the purpose behind the attacks, the nature of the victims targeted, the pattern of the attacks (modus operandi) and the perpetrators.” 44 45   UN/​Lebanese Republic Agreement, Art. 5(1).   See n. 17. 39 41

 

292   criminal justice conference of June–​July 1998, where the Rome Statute of the ICC was finalized, was held at the UN Food and Agriculture Organization Headquarters and administratively staffed by UN personnel. In subsequent years further negotiations on the supplemental documents that would be required for the ICC’s operation also were held under UN authority at its New York headquarters. So until the ICC actually began to operate independently on July 1, 2002, it was entirely reliant on the UN to convene meetings, interpret negotiations and translate documents, and provide expertise to manage the entire project for more than a decade. But there would be continued requirements for UN engagement with the ICC and a treaty was negotiated to address that issue. On October 4, 2004, the ICC and the UN entered into a Relationship Agreement setting forth the institutional arrangements and cooperation and judicial assistance between the two organizations.46 These include, for example, the rights of ICC officials to attend UN meetings, how the testimony of UN officials before the ICC would be handled, as well as cooperation by the UN with requests of the ICC Prosecutor relating, in particular, to investigations. Other organizations also contributed to the ICC’s rise, including the European Union which organized its members to speak with a unified voice whenever possible during the negotiations. The International Committee of the Red Cross (ICRC) weighed in on how to define war crimes in the Rome Statute and the rights of ICRC personnel in relation to the Court as provided in the ICC’s Rules of Procedure and Evidence. Women’s rights groups were intensively engaged throughout the years of negotiations in fashioning text that defined crimes relating to sexual violence and gender. The International Coalition for the International Criminal Court, in which hundreds of NGOs and entities were and remain members, proved to be a highly effective lobbying force from 1995 and continues to be so to the present day.47

Structural and Substantive Law Comparison of the Tribunals As institutions dedicated to criminal justice, the international and hybrid criminal tribunals have not only emerged from a varied set of originating circumstances, but 46  Relationship Agreement between the United Nations and the International Criminal Court, Part III, October 4, 2004, 2283 UNTS 196, http://​treaties.un.org/​doc/​Publication/​UNTS/​Volume%20 2283/​II-​1272.pdf. 47   See the website of the Coalition for the International Criminal Court, http://​www.iccnow.org/​.

 

structural and substantive law comparison of tribunals    293 they exhibit structural similarities and differences that define and influence the performance of their mandates. The similarities exemplify the common objectives of judicial integrity and compliance with international standards of due process. The differences acknowledge the particular demands of sovereign governments engaged in a tribunal’s work, the diverse character of the atrocity crimes under scrutiny, and resource constraints. All but one of the tribunals share a common enforcement of atrocity law, namely that part of international criminal law that penalizes the commission of genocide, crimes against humanity, and war crimes.48 (The Statute of the STL differs markedly, as already noted and discussed below.) There are variations in how each tribunal statute defines these crimes and their scope, but in general they subscribe to the same subject matter jurisdiction. The crime of genocide is defined with nearly identical precision in the tribunal statutes because it is drawn directly from the Genocide Convention definition of 1948,49 which most nations have joined. Governments readily agreed to replicate the Convention definition in the tribunal statutes, thus minimizing diplomatic negotiations over this particular atrocity crime.50 There was some difficulty settling on the definition of crimes against humanity until the Rome Statute provided a comprehensive formula. There the requisite chapeau requires that, “ ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”51 The ICTY Statute requires that the listed crimes against humanity be “committed in armed conflict” and further clarified that such conflict could be either “international or internal in character.”52 This understanding of crimes against humanity originated from the definition used at the Nuremberg Military Tribunal when it helped introduce such actions into the realm of criminal prosecution because of their useful association with aggression and war crimes in World War II. But during the intervening decades, the legalistic bond between crimes against humanity and armed conflict had been broken under customary international law and was no longer required. The ICTY judges

  For a discussion of “atrocity law,” see Scheffer, All the Missing Souls, 421–​37.  Convention on the Prevention and Punishment of the Crime of Genocide, Key Provisions, January 12, 1951, 78 UNTS 279, available at http://​treaties.un.org/​doc/​Publication/​UNTS/​Volume%20 78/​volume-​78-​I-​1021-​English.pdf. 50   The ECCC Statute definition of genocide records an anomaly, inverting the Genocide Convention’s reference to “as such” to read “such as”. It is believed this was a typographical error, but it was corrected in the subsequent UN/​Cambodia Agreement which invokes the Genocide Convention definition, and thus requires the intention to target an ethnic, national, racial, or religious group because of its group identity. 51   Rome Statute of the International Criminal Court, Art. 7(1), July 17, 1998, 2187 UNTS 90, https://​ www.icc-​cpi.int/​resource-​library/​Documents/​RomeStatuteEng.pdf (Rome Statute). 52   ICTY Statute, Art. 5. 48 49

 

294   criminal justice recognized this in their first judgment in the Tadic case53 and thereafter it became a virtual nonissue in ICTY jurisprudence. One and a half years later the ICTR Statute veered in a different direction when defining crimes against humanity. It omits any linkage to armed conflict but elaborates that the “widespread or systematic attack against any civilian population” must be on “national, ethnic, political, racial or religious grounds” and then lists the specific categories of crimes.54 The “widespread or systematic attack” language acknowledged characteristics of such crimes emerging from scholarly treatments since World War II, but the further categorization of specific grounds (“national, ethnic, political, racial or religious”) was gratuitous language almost mirroring the genocide categories. The Rwandan government wanted to emphasize the targeted character of the crimes against humanity inflicted on mainly Tutsis during the Rwandan atrocities of 1994. While this language was not replicated in either the Rome Statute or the Statute of the SCSL for crimes against humanity, the Cambodian government preferred to repeat it in the ECCC Law.55 There was a political objective at work in doing this, as the Cambodian negotiators saw parallels between their experience and that of Rwanda and wanted to demonstrate the targeted character, particularly on political grounds, of the Pol Pot regime’s attack on its own citizens. Since historians and lawyers had concluded already that the overwhelming majority of victims in Cambodia died as a consequence of crimes against humanity and not genocide,56 there was considerable incentive to adopt a more targeted definition for crimes against humanity. Nonetheless, in Article 9 of the UN/​Cambodia Agreement, a course correction occurred. The crimes against humanity falling within the jurisdiction of the ECCC are described solely as “crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court.”57 Such language overrides the ECCC Law’s novel articulation because the Rome Statute’s Article 7 definition of crimes against humanity omits the targeting language. The Statute for the SCSL provides for the simplest definition of crimes against humanity, namely the commission of any itemized criminal acts “as part of a widespread or systematic attack on a civilian population.”58 The Rome Statute of the ICC embodies the most expansive and defined set of crimes against humanity, elaborating with further definitions of the specific crimes, such as “torture,” “forced pregnancy,” and “persecution.”59 This ICC definition ultimately became the gold standard for defining crimes against humanity, and as noted above, this definition was invoked by the UN/​Cambodia Agreement to eclipse the domestic law’s definition. 54 55   Tadic, IT-​94-​1-​T at ¶ 4.   ICTR Statute, Art. 3.   ECCC Law, Art. 5.   See, e.g., Ben Kiernan, The Pol Pot Regime, Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975–​79, 2nd ed. (New Haven: Yale University Press, 2002), 460–​3. 57   UN/​Cambodia Agreement, Art. 9.    58  SCSL Statute, Art. 2.   59  Rome Statute, Art. 7. 53

56

 

structural and substantive law comparison of tribunals    295 The tribunals invoke similar provisions on war crimes but even here there are some variations. There is common reference in the tribunal statutes to grave breaches under the Geneva Conventions of 1949 or violations of Common Article 3 of those conventions, depending on whether international or noninternational armed conflicts are being addressed. The latter reference was path breaking as it criminalized Common Article 3 violations for the first time before an international or hybrid criminal tribunal. Previously, such violations had been regarded largely as issues of state responsibility only and not individual criminal responsibility, unless domestic criminal law had criminalized such conduct with respect to internal armed conflicts. But the tribunal statutes unambiguously criminalized three distinct actions that are associated with noninternational armed conflicts, namely violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture; committing outrages upon personal dignity, in particular humiliating and degrading treatment; taking of hostages; and the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. The ICTR and SCSL Statutes explicitly limit their war crimes liability only to noninternational armed conflicts given the largely domestic character of the Rwandan and Sierra Leonean atrocities. Only the Rome Statute sets forth extensive provisions on war crimes committed during either international or noninternational armed conflicts.60 Lengthy negotiations stretching over several years resulted in the Rome Statute provisions, which were intended by the summer of 1998 to reflect customary international law and thus be more easily embraced by governments. Relatively recent conduct deemed unacceptable by the international community made its way into the Rome Statute as accelerated expressions of customary international law. This includes “[i]‌ntentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the UN, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict.”61 Such attacks had occurred in Somalia and Bosnia and Herzegovina in the early 1990s. Also, a treaty to this effect had been rapidly negotiated and then concluded in 1994,62 although only a small number of states had signed it and fewer still had ratified it by 1998. But negotiators of the Rome Statute considered the issue too obvious in its character and too important to omit from the list of war crimes. Other examples include “enforced pregnancy” and “enforced prostitution,”63 which were freshly articulated sexual violence crimes for purposes   Rome Statute, Art. 8.    61  Rome Statute, Art. 8(2)(b)(3).   Convention on the Safety of United Nations and Associated Personnel, opened for signature December 15, 1994, 2051 UNTS 363, http://​treaties.un.org/​doc/​Publication/​MTDSG/​Volume%20II/​ Chapter%20XVIII/​XVIII-​8.en.pdf. 63   Rome Statute, Art. 7(1)(g). 60 62

 

296   criminal justice of war crimes prosecutions; they arose primarily from the recent experience of the Yugoslav wars of the early 1990s. In contrast, an obvious candidate for inclusion in the war crimes provisions of the Rome Statute was prohibited actions under the Chemical Weapons Convention (CWC), which came into force in 1997.64 The CWC provides a much-​needed modern articulation of prohibitions on the manufacture, storage, and use of the full range of chemical weapons, and is practically universally agreed to among nations. The treaty clearly states principles of customary international law. There was a strong effort leading up to Rome and during the Rome negotiations to include the CWC prohibitions as war crimes in the Statute but it was omitted at the last moment and only early twentieth-​century formulations relating to poisonous or other gases remained as part of a trade-​off to keep the use of nuclear weapons out of the Rome Statute.65 The Special Tribunal for Lebanon is markedly different in its enforcement of substantive law from the other tribunals. The STL Statute only embodies Lebanon criminal law because the crimes giving rise to the creation of the STL concern the February 14, 2005, assassination of then Prime Minister of Lebanon Rafiq Hariri and other persons, with scope afforded for pursuing other killings during a time period defined either by the Statute or by the Security Council. The tribunal’s applicable law is restricted to: (a) The provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences, including the rules regarding the material elements of a crime, criminal participation and conspiracy; and (b) Articles 6 and 7 of the Lebanese law of 11 January 1958 on “Increasing the penalties for sedition, civil war and interfaith struggle”.66

The ECCC and SCSL Statutes refer to particular domestic criminal laws that have special application to the atrocity crimes committed in Cambodia and Sierra Leone respectively.67 But in the case of the ECCC, the judges eliminated the domestic law liability in their finding that the statute of limitations, already expired by the time the ECCC was established, could not be extended as the ECCC Law and UN/​ Cambodia Agreement sought to do.68 Other structural similarities among the tribunals include the fact that none of them include the death penalty as the most extreme punishment following a guilty   Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and On Their Destruction, opened for signature January 13, 1993, 1974 UNTS 469 (entered into force April 29, 1997). 65 66   Rome Statute, Arts. 8(2)(b)(xvii-​xix), 8(2)(e)(xiii–​xv).   STL Statute, Art. 2. 67   ECCC Law, Art. 3new; SCSL Statute, Art. 5. 68   Prosecutor v Kaing Guek Eav alias Duch, Case File/​Dossier No. 001/​18-​07-​2007/​ECCC/​TC, Decision on the Defence Preliminary Objection Concerning the Statute of Limitations of Domestic Crimes (July 26, 2010). 64

 

structural and substantive law comparison of tribunals    297 verdict. Although a significant number of nations continue to apply the death penalty, at least in law if not in practice, there has never been any prospect of retaining such penalty in any of the international or hybrid war crimes tribunals. The death penalty is rejected as a matter of policy in the European Union and no member state of that regional organization is permitted to use it. Nor is the death penalty adopted anywhere in Latin America or Canada. Elsewhere its use is sporadic and concentrated within a relatively small group of countries. The UN, as an international organization, cannot support the death penalty because too many of its member states oppose it. Protocol II of the International Covenant on Civil and Political Rights seeks universal prohibition of it.69 There was no possibility in the talks orchestrated by the UN to create each of the tribunals that the death penalty could survive in the final drafting. During the Rome Statute negotiations, there was a concerted effort by Arab and Caribbean states to install the death penalty for the ICC, but it met such overwhelming opposition from primarily European and Latin American governments that it stood no chance of being adopted.70 It may transpire, as with the Iraqi High Tribunal, a domestic Iraqi court that had no UN or international organization participation in its work, that a domestic criminal tribunal prosecuting atrocity crimes in some part of the world will be created and impose the death penalty under that nation’s laws permitting such extreme punishment.71 But one can safely assume that the maximum penalty available before the international and hybrid tribunals of modern times will remain life imprisonment. The ECCC is the only tribunal that has investigating judges (one Cambodian, the other foreign), which is a reflection of the mixture of civil law with common law principles and practices in the Court. Cambodia’s legal system is civil in character, evolving primarily from French practice. The Cambodian government insisted on the use of such judges for the investigation of atrocity crimes in Cambodia. Nonetheless, the ECCC also has two prosecutors, one Cambodian and the other a foreigner appointed by the UN Secretary-​General. The manner in which the investigative work of the two co-​investigating judges (normally schooled in civil law and   Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, July 11, 1991, 1642 UNTS 414, http://​treaties.un.org/​doc/​Publication/​ MTDSG/​Volume%20I/​Chapter%20IV/​IV-​12.en.pdf. 70   See William Schabas, An Introduction to the International Criminal Court, 4th ed. (New  York: Cambridge University Press, 2011), 334–​6; Scheffer, All the Missing Souls, 206–​7. 71   Law of the Iraqi High Tribunal (IHT Statute), Official Gazette of the Republic of Iraq, No. 4006, October 18, 2005, English translation by the International Center for Transitional Justice, http://​gjpi. org/​wp-​content/​uploads/​2009/​02/​iraqstatuteengtrans.pdf; Iraqi Penal Code, Law No. 111 of 1969, Art. 406(1). Application of the death penalty was suspended by the CPA (Coalition Provisional Authority) by means of Order No. 7 of June 10, 2003, section 3(1): CPA Order Number 7: Penal Code, CPA/​ORD/​9 June 2003/​07, http://​www.iraqcoalition.org/​regulations/​20030610_​CPAORD_​7_​Penal_​ Code.pdf. The death penalty was reintroduced by the Iraqi Interim Government for a range of offenses by means of Order No. 3 of August 8, 2004. 69

 

298   criminal justice thus the inquisitorial tradition) intersects with the functions of the co-​prosecutors (who engage in common law tactics of adversarial character) has been a novel work in progress. No other tribunal dealing with atrocity crimes experiences this uniquely shared set of responsibilities because the entire investigative responsibility is undertaken by the prosecutor. Investigative processes in the civil law system may be more relevant and workable for common crimes than for atrocity crimes. The experience at the ECCC has been unfortunate delays in investigating the evidence of mass atrocity crimes and then further delays in integrating the work of the investigating judges with the adversarial tasks of the prosecutor and with defense counsel who focus on common law tactics to challenge procedures and delay the overall trial. The experience of other tribunal prosecutors who have organized their staffs properly and then entered into an adversarial process with what they have investigated under their own supervision may be a superior methodology where an adversarial trial in fact will be conducted. It is important, however, for there to be a Pre-​Trial Chamber, as found in the ICC, to impose discipline and judgment on the prosecutor’s decisions and practice in connection with investigations. The SCSL and the ICC are the only tribunals to address the issue of juveniles, their exposure to international criminal justice, and the liability of adults for the recruitment or use of child soldiers. The Rome Statute simply states, “The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.”72 The Rome Statute defines the war crime for either international or noninternational armed conflicts of “[c]‌onscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.”73 While there have been logical arguments to criminalize any such conscription, enlistment, or use of children who are 15, 16, or 17 years old, the standard of “under the age of fifteen years” is found in certain widely subscribed treaties and proved to be the least controversial age limitation for states to adopt. The SCSL alone has jurisdiction over children of 15, 16, 17, or 18 years of age at the time of commission of the crime. This anomaly in tribunal practice arose from the prevalence of frequently drugged teenagers being used by militia during the Sierra Leone civil war to mutilate and kill civilians. There also was the simple fact that gangs of teenagers were sometimes led by teenagers. Public anger with these individuals in the aftermath of the civil war was so great that the government considered it imperative, for its own political survival, to insist on holding such young people publicly accountable for their crimes before the SCSL. This request was resisted for months in 2000 by much of the international community during the negotiations leading up to the final text of the SCSL Statute.

  Rome Statute, Art. 26.   

72

  Ibid., Arts. 8(2)(b)(xxvi), 8(2)(e)(vii).

73

 

structural and substantive law comparison of tribunals    299 Finally a compromise of sorts was reached that recognized the special circumstances of dealing with juveniles. The SCSL Statute requires that if any person between the ages of 15 and 18: is brought before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.74

As for punishment, the statute effectively prohibits imprisonment of such juvenile offenders. In the alternative, the SCSL must choose any one of various rehabilitation options, including “care guidance and supervision orders, community service orders, counseling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies.”75 No juvenile offender was ever prosecuted before the SCSL. The first SCSL prosecutor, David Crane, decided that he would not bring charges against any person 18 years or younger because the statute’s personal jurisdiction only attaches to those “who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.”76 In fact, no teenager fit that description of “greatest responsibility,” at least in Crane’s view, and therefore there were none to be prosecuted. The small number of defendants who were brought to trial were much older militia and even pro-​ government leaders. The SCSL Statute includes another peculiar feature of personal jurisdiction that remained untapped through the life of the Court but is emblematic of a threshold issue that all tribunals confront: should all persons, of whatever rank and on whatever side in the armed conflict or domestic upheaval, be subject to investigation and prosecution by the tribunal? Article 1(2) of the SCSL Statute provides that peacekeepers of UN origin or, if one reads between the lines, from the Economic Community of West African States Monitoring Group (ECOMOG), the West African-​led peacekeeping force that operated in Sierra Leone in the 1990s, and “related personnel” should be subject to the primary jurisdiction of their respective sending states for alleged criminal acts, and were thus outside the reach of the SCSL. This approach coincides with status of forces and status of mission agreements that typically provide for a nation’s military forces or UN or regional

  SCSL Statute, Art. 7(1).   

74

  Ibid., Art. 7(2).   

75

  Ibid., Art. 1.

76

 

300   criminal justice organization peacekeepers deployed into a foreign country’s territory to be investigated and prosecuted under the sending state’s criminal law system, and not the host state’s national courts. This provision of near-​immunity for peacekeepers from SCSL jurisdiction was a controversial one to negotiate in 2000. NGOs, including within Sierra Leone, wanted ECOMOG soldiers held accountable before the SCSL for alleged atrocity crimes committed against Sierra Leone civilians. Instead, the SCSL Statute retained the conventional formula for sending state jurisdiction, particularly where, as in Sierra Leone, the foreign soldiers were on Sierra Leone territory with the consent of the government. However, Article 1(3) of the SCSL Statute offers one possibility of salvaging SCSL jurisdiction over such peacekeepers:  “In the event the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, the Court may, if authorized by the Security Council on the proposal of any State, exercise jurisdiction over such persons.” UN lawyers sought, during the negotiations of the SCSL Statute, to require only the authorization of the UN Secretary-​General to enable the SCSL to exercise jurisdiction over peacekeepers. But the Security Council insisted on retaining control, which itself could not be exercised in this instance unless there was a State request to that effect.77 Receiving such a request was highly improbable given the reality of sovereign interests over command and discipline of national soldiers. Nonetheless, at least the theoretical exposure of peacekeepers to the jurisdiction of an international criminal tribunal arose in explicit terms in the SCSL Statute. The Security Council never exercised the Article 1(3) power. Perhaps the most significant common feature among all of the international and hybrid criminal tribunals is their denial of leadership impunity for the commission of atrocity crimes. No one is spared the reach of the law and of accountability provided he or she falls within the personal jurisdiction of the relevant tribunal. Article 27 of the Rome Statute encapsulates the general principle, found in each of the tribunal statutes with similar wording: This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.78

Familiar shields from liability also are removed: “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national

  See Scheffer, All the Missing Souls, 335–​ 6.   78  Rome Statute, Art. 27(1).

77

 

conclusion   301 or international law, shall not bar the Court from exercising its jurisdiction over such a person.”79 These are powerful words that challenge the international community to uphold the law of the relevant tribunal even against the most powerful of political, military, or business leaders implicated in the commission of atrocity crimes. The first president of the Assembly of States Parties of the International Criminal Court, Prince Zeid Ra’ad Zeid al-​Hussein of Jordan, aptly remarked in 2007, when speaking of the Rome Statute’s Article 27, that: Never before in history have leaders sacrificed their customary right to sovereign immunity as have those who lead their countries into union with the International Criminal Court. This act of self-​denial, essential for the elimination of impunity for those who would unleash atrocity crimes, is the biggest step forward in law since the Magna Carta.80

Many leaders have not been spared the hand of justice for the atrocities they have created in recent decades. Indeed, the tribunals have focused almost exclusively on individuals of great power and egregious criminal character. Impunity will surely prevail for some leading perpetrators of atrocity crimes, but many have been and will be prosecuted for their complicity in or commission of atrocity crimes before the international and hybrid criminal tribunals. Between 1994 and May 2016, a total of 157 such individuals had been convicted by the tribunals.81

Conclusion This relatively brief explanation of how criminal justice has manifested itself in the creation of new international and hybrid tribunals during recent decades has not explained the significant jurisprudence of these institutions. That task would require far more space than afforded in a chapter designed to introduce the reader to the organizational attributes of the tribunals. But the growth of international criminal law since 1993 has been nothing short of phenomenal, as the definitional 80   Ibid., Art. 27(2).  Scheffer, All the Missing Souls, 437.   The specific numbers, drawn from the respective tribunal’s website as of May 11, 2016, and including those who are convicted but not yet sentenced and those who have appeals pending from trial chamber judgments, are  ICTY  –​81; ICTR  –​61; SCSL  –​9; STL  –​0; ECCC  –​3; and ICC  –​3.  For tabulations as of September 2013, see Daniel McLaughlin, International Criminal Tribunals:  A  Visual Overview (New  York:  Leitner Center for International Law and Justice at Fordham Law School, 2013), http://​w ww.leitnercenter.org/​files/​International%20Criminal%20 Tribunals_​Reduced.pdf. 79 81

 

302   criminal justice and enforcement characteristics of atrocity crimes emerge from the hundreds of cases, typically of leaders, being adjudicated. The scholarship explaining the substantive law of the tribunals has grown exponentially and is available to anyone who desires a deeper understanding. An excellent source with which to begin one’s inquiry is The Oxford Companion to International Criminal Justice.82 Each of the international and hybrid criminal tribunals has relied upon the support of international organizations, particularly the UN, and governments to conduct its operations successfully. In the absence of such support, the tribunals risk failure in the enforcement of criminal justice. So the essential role that the UN or any particular government has played in establishing each of the tribunals is only the beginning of the process of engagement. The occasional resistance to the reality that continued active assistance is required between the relevant body of organizations and governments and the tribunal in question, makes the daily work of the tribunals harder than it should be in a still violent and politically fractured world. This chapter has sought to accomplish an overview of the historical developments leading to the establishment of the tribunals and why there exist unique provisions and capabilities, as well as some similar approaches to justice, among them. The key role of the UN in forging the new era of international criminal justice has been of historic dimensions and deserves the focus given to it here. The UN will remain deeply engaged for the foreseeable future in this field of endeavor and for good reason. Wars and atrocities doubtless will continue to erupt. No other international organization has the credibility, legal authority, resources, or experience to create, sustain, and support the body of criminal tribunals that have, in the flash of a historical moment, ignited a revolution in the enforcement of international criminal justice.

82   Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice (Oxford: Oxford University Press, 2009).

 

Chapter 14

HUMANITARIAN ACTION Thomas G. Weiss

The composite portrait of international organizations in this handbook is a complex mosaic. The sheer proliferation in numbers and tasks is one of the reasons why “global governance” is now so widely used on the territory once occupied almost exclusively by scholars of international organization and law.1 It is especially challenging to briefly describe and analyze the bevy of actors that flocks to the scene of contemporary disasters in war zones2 These operations are now the bulk of what humanitarian organizations do and the focus here because the politics of reacting in natural disasters is relatively uncontroversial compared to the far more contested sphere of responding to armed conflicts. This chapter begins with some key definitions and a review of three historical periods before parsing who is coming to the rescue, a difficult task in what are supposedly “new wars.”3 The chapter concludes with the seemingly impossible task of effective coordination.

1   Thomas G. Weiss, Global Governance: Why? What? Whither? (Cambridge: Polity Press, 2013); and Thomas G. Weiss and Rorden Wilkinson (eds.), Global Governance and International Organization (London: Routledge, 2014). 2   This chapter draws on Thomas G. Weiss, Humanitarian Business (Cambridge:  Polity Press, 2013). 3  Mary Kaldor, New & Old Wars:  Organized Violence in a Global Era (Stanford, CA:  Stanford University Press, 1999); and Mark Duffield, Global Governance and the New Wars:  The Merging of Development and Security (London: Zed Books, 2001).

 

304   humanitarian action

Some Definitions Ambiguous language and contested concepts are ubiquitous. Yet defining humanitarian action is relatively straightforward:  the delivery of life-​saving succor and the protection of the fundamental human rights of endangered populations. These tasks are meant to catch in the global safety net those who are vulnerable because they are being whipped about in the vortex of human-​made disasters. The two tasks are mutually reinforcing although many humanitarians have sought to specialize and insulate one from the other lest the provision of life-​saving succor be held hostage to rights advocacy.4 As it is easier to quantify the former than the latter, much attention is often paid to the volume and value of goods and services and shelter when war is raging. What precisely is humanitarianism and who qualifies as a humanitarian? For many audiences, “humanitarian” retains great resonance, but one searches in vain for an unequivocal definition, in international law and elsewhere. The International Court of Justice (ICJ) was provided an opportunity in the Nicaragua v United States case, when it was asked to clarify what actions legitimately qualify. But in its 1986 decision that ruled in favor of Nicaragua and against the United States (which had laid mines in Nicaraguan territorial waters), the ICJ begged the legal question and avoided a sharp definition by stating that humanitarian action is what the International Committee of the Red Cross (ICRC) does. The Oxford English Dictionary—​whose 1819 edition had the first citation—​is not much more helpful in relying on derivatives and tautologies:  humanitarian is “having regard to the interests of humanity or mankind at large; relating to, or advocating, or practising humanity or human action.”5 In common conversation, humanitarianism (noun) consists of actions to improve human well-​being or welfare, a humanitarian (noun) is a person who actively promotes human welfare, and humanitarian (adj.) usually means philanthropic or charitable. The ICJ’s definition requires spelling out the gold standard formulated by the oldest of aid agencies, the ICRC. Jean Pictet identified seven defining principles for ICRC efforts: humanity, impartiality, neutrality, independence, voluntary service, unity, and universality. The first four arguably constitute the core.6 Humanity commands attention to all people. Impartiality requires that assistance be based on need 4  Larry Minear, The Humanitarian Enterprise:  Dilemmas and Discoveries (West Hartford, CT: Kumarian, 2002). 5   Oxford English Dictionary (Oxford: Oxford University Press, 1933). 6   Jean Pictet, The Fundamental Principles of the Red Cross (Geneva:  ICRC, 1979). See David P. Forsythe, The Humanitarians: The International Committee of the Red Cross (Cambridge: Cambridge University Press, 2005); and Thomas G. Weiss, “Principles, Politics, and Humanitarian Action,” Ethics & International Affairs 13 (1999): 1–​22.

 

some definitions   305 and not discriminate on the basis of nationality, race, religion, gender, or political affiliation. Neutrality demands that humanitarian organizations refrain from taking part in hostilities or from any action that either benefits or disadvantages the parties to an armed conflict. Independence necessitates that assistance not be connected to any of the belligerents or others (especially states) with a stake in the outcome of a war. The ICRC derived these principles after decades of experience about which principles were most effective in accessing war victims. They subsequently became the mantra of all humanitarians. And although many now treat them as sacred, these principles are enshrined because they have been useful not because they are chanted accompanied by a humanitarian drumbeat. Simply put, traditional principles have helped guide humanitarians to reach people in duress. If aid agencies are perceived as partial, favoring one side, or having a vested interest in the outcome, they have a difficult time getting access; or worse, they may be shunned or even attacked. If principles are followed and respected, both aid workers and victims have a sanctuary of sorts. Operating according to these principles and being perceived as apolitical are particularly important during times of armed conflict. In sum, humanitarianism is defined as the desire and ability to provide life-​saving assistance while honoring the principles of humanity, neutrality, impartiality, and independence. Yet the provision of relief and protection to victims of wars is distinct from the politics of helping when a natural disaster strikes, when principles are easier to respect. Political authorities temporarily overwhelmed by such unexpected catastrophes as earthquakes or hurricanes usually welcome with open arms external assistance from whatever the source. Every country, no matter how sophisticated and developed, can encounter a disaster resembling the 2011 tsunami and Fukushima nuclear meltdown; it would be unusual for Japan or any other country, rich or poor, not to seek outside help because the provision of life-​saving resources does not usually have an impact on the political status quo. Rather, not responding adequately might very well mark the end of the government. Helping in the midst of violence and especially in civil wars is quite another matter, far more fraught. Governments in the throes of armed conflicts, whether domestic or international, often view the acceptance of help as an all-​too-​visible sign of weakness. Moreover, political officials may look upon aid and protection as fungible resources that are part of the calculations of winning a war. Belligerents are not averse to employing assistance and civilians as weapons. Intra-​state armed conflicts are more freewheeling than international wars waged between professional armies with defined battle lines and rules. Humanitarian space is a useful way to conceptualize the physical arena in which humanitarians act. Such a sanctuary is ideally a safe area administered and occupied by international aid agencies where a war occurs. It is a physically secure environment in which humanitarians can assist victims. The image has the advantage

 

306   humanitarian action of implying that space can open and close, expand and contract. Space is customarily interpreted and tailored to fit particular situations or aspects of action: physical access by agencies; the ability within such space of agencies to adhere to traditional principles; and the ability of affected populations to have assistance and protection. So, it is important to specify whether the person or entity referring to “space” wishes to capture the objectives of aid agencies, their ability to respond, the context in which action takes place, or the ability of vulnerable populations to survive. The final definition concerns humanitarian intervention. Adam Roberts’ version is worth citing: “coercive action by one or more states involving the use of armed force in another state without the consent of its authorities, and with the purpose of preventing widespread suffering or death among the inhabitants.”7 Military interventions beginning in the 1990s—​against the wishes of a government, or without their genuine consent, and with substantial humanitarian justifications—​ figure prominently in the post-​Cold War era’s foreign policies. They also figure prominently in the Security Council’s work under the guise of the protection of civilians and the “responsibility to protect” as we see later.

Three Historical Periods The history of humanitarian action in wars is best understood through the lenses of three historical periods: the nineteenth century until World War I; the early twentieth century through to the end of the Cold War; the last quarter-​century. Michael Barnett’s treatment of the history of humanitarianism argues that its origins are found in transformations in the late eighteenth century, specifically the first rumblings of the abolitionist movement.8 The issue for these idealists was to alleviate suffering not from wars but from another human-​made tragedy, slavery. The most relevant contemporary forms of humanitarianism, Craig Calhoun argues, began in the nineteenth century as a consequence of the coming together of the forces of production and salvation.9 The perceived breakdown of society and emergence of moral ills from rapid industrialization, urbanization, and market expansion led

7   Adam Roberts, “The So-​Called ‘Right’ of Humanitarian Intervention,” in Yearbook of International Humanitarian Law 2000 (The Hague: T. M. C. Asser, 2002), 3–​51. 8  Michael Barnett, Empire of Humanity:  A  History of Humanitarianism (Ithaca, NY:  Cornell University Press, 2011). 9   Craig Calhoun, “The Imperatives to Reduce Suffering: Charity, Progress, and Emergencies in the Field of Humanitarian Action,” in Humanitarianism in Question: Politics, Power, Ethics, ed. Michael Barnett and Thomas G. Weiss (Ithaca, NY: Cornell University Press, 2008), 73–​97.

 

three historical periods   307 to Karl Polanyi’s seminal work about the perverse effects of capitalism on traditional social order; but social dislocation was accompanied by humanitarian efforts to protect society from the vagaries of laissez-​faire capitalism.10 Drawing on religious and Enlightenment ideas, various intellectuals, politicians, jurists, and clergy adopted the language of humanitarianism to describe their proposed reforms. The result was the formation of social movements to foster temperance, charity for the poor, regulations regarding child labor, and education. In addition to movements to counter slavery and free-​market capitalism, modern humanitarianism’s roots can be traced to efforts to mitigate colonial exploitation. The relationship between colonialism and humanitarianism is more complicated than the reductionist view that the latter was merely an outgrowth of and justification for imperial control.11 Missionaries frequently could be “civilizing” agents, advancing civilization and “humanitarianism,” and in so doing easing the way for external domination by the likes of King Leopold in the Belgian Congo. Yet even in this most egregious case, there were some instances in which missionaries called for reform and action that were at odds with imperial interests, while others went so far as to oppose colonial interventions12 The inauguration of war-​related international humanitarianism was in 1863 with the establishment of the ICRC and the emergence of international humanitarian law.13 During the 1859 Battle of Solferino, the Swiss businessman Henry Dunant witnessed wounded soldiers callously abandoned on the battlefield to die, which prompted him to propose the creation of relief societies with trained volunteers to assist injured combatants in times of war. Within a few years the grassroots campaign produced the ICRC and the Geneva Conventions; Dunant was awarded the first Nobel Peace Prize in 1901; and the ICRC has stood as the industry standard since. Humanitarianism’s next great leaps forward—​ironically but predictably—​resulted from the two world wars of the twentieth century. In terms of institution-​building, many familiar contemporary nongovernmental organizations (NGOs) and intergovernmental organizations (IGOs) emerged in reaction to the forces of destruction unleashed by those cataclysms. In response to the refugees caused by the Russian Revolution, the League of Nations established the High Commissioner for Russian

  Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 1944). 11   Craig Calhoun, Frederick Cooper, and Kevin Moore (eds.), Lessons of Empire: Imperial Histories and American Power (New  York:  New Press, 2006); and Lawrence Friedman and Mark McGarvie (eds.), Charity, Philanthropy, and Civility in American History (Cambridge:  Cambridge University Press, 2003). 12   Adam Hochschild, King Leopold’s Ghost: A Story of Greed, Terror, and Heroism in Colonial Africa (Boston: Houghton Mifflin, 1998). 13   See François Bugnion, The International Committee of the Red Cross and the Protection of War Victims (Geneva: ICRC, 2003), ch. 2. 10

 

308   humanitarian action Refugees (1920–​2), headed by Fridtjof Nansen, who subsequently expanded his mandate to include other suffering continental populations. NGOs were running ahead of states in refugee relief, and two sisters, Eglantyne Jebb and Dorothy Buxton, founded Save the Children to handle Russian flight. Later the Nazi regime led the famous refugee Albert Einstein to found the International Rescue Committee. Two holdovers from Nansen’s efforts, the Intergovernmental Committee for Refugees and the High Commissioner for Refugees, fused in 1943 to form the UN Relief and Rehabilitation Administration (UNRRA), the first operational agency of the United Nations (UN). Except for the ICRC and a handful of NGOs, few organizations thought of themselves as permanent. Instead, most came and went in order to respond to an emergency. However, after World War II a new generation of agencies arose to assist European victims; they subsequently developed a global reach, and many still exist. Their permanence introduced a new set of dynamics, including not only the economics of a growing industry and permanent bureaucracies but also a growing consideration of the purpose of humanitarianism, its proper relationship to states, and its principles. It was the specter of rampant inhumanity throughout World War II, not the triumph of humanitarian ideas, that led to hope for a different future. The Holocaust, massive displacements, fire bombings, and ultimately the use of nuclear weapons led diplomats and activists to call for protecting civilians. The search for human dignity led to the construction of such normative humanitarian pillars as the 1945 UN Charter, the 1948 Universal Declaration of Human Rights, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and the 1949 Geneva Conventions (and eventually the 1977 Additional Protocols). And growth in intergovernmental and nongovernmental machinery continued. UNRRA was disbanded in 1947 but revamped as the International Rescue Organization, which then became the Office of the UN High Commissioner for Refugees (UNHCR) in 1951; although it was supposed to be a temporary agency limited to European refugees, it soon became permanent. The United Nations Children’s Fund (UNICEF) had a similar institutional biography, established as a temporary “emergency fund” to help children after World War II but has become now one of the most well-​ known of humanitarian agencies. In 1942 a group of Quakers founded the Oxford Committee for Famine Relief (later shortened to Oxfam) to respond to the appalling famine in Greece during which perhaps half of the children died. Shortly after the end of World War II, Lutheran World Relief, Church World Service, and Caritas International came into being—​founded by Lutherans, the US National Council of Churches, and the Vatican, respectively. Many of the relief organizations established in response to the needs of European victims turned their attention to reconstruction and then development following the return or resettlement of the wounded and displaced. Oxfam, Cooperative for Assistance and Relief Everywhere (CARE), and Catholic Relief Services all got their start providing relief during World War II

 

three historical periods   309 but subsequently focused on poverty alleviation and development; they were ready and willing to respond to subsequent emergencies. The tectonic political shifts with the thawing and ultimate end of the Cold War opened the latest chapter in the history of the international humanitarian system. One of its key distinguishing characteristics is the dramatic expansion of “suppliers” in terms of numbers and diversity of organizations. The sheer growth in NGOs alone is nothing short of remarkable. Setting aside for the moment what is and what is not a truly humanitarian organization, there are at least 2,500 international NGOs in the business although probably only a tenth of them are truly significant in terms of budgets.14 In a no-​holds-​barred exposé, one journalist cites UN Development Programme (UNDP) estimates that there could be 37,000 international NGOs with some relevance for “the crisis caravan,” and that on average 1,000 international and local NGOs “swarm” to any contemporary emergency.15 A detailed survey of US-​based private voluntary agencies engaged in relief and development is undoubtedly indicative of more general patterns in today’s marketplace. In 1940, the number of US-​based organizations rose to 387 (from 240), but the numbers dropped to 103 in 1946 and 60 in 1948. They rose steadily thereafter and reached 543 in 2005. The growth was especially dramatic from 1986 to 1994 when the number increased from 178 to 506.16 Abby Stoddard and her colleagues hazard a guess of over 200,000 aid workers worldwide.17 But Peter Walker and Catherine Russ are undoubtedly closer to the mark when they confess: “We have no idea what size this population is.” Eliminating purely support staff (e.g., cleaning personnel and drivers) leads them to estimate some 30,000 humanitarian professionals (both local and expatriate) worldwide.18 Moreover, other actors have become increasingly involved in the delivery of assistance. Among them are virtually all UN agencies, military forces, and for-​profit firms that typically specialize in security, transportation, and logistics. The 2012 global bottom line that approached $18 billion would strike most Masters in Business Administration as a substantial business, especially in light of growth: a fivefold increase in humanitarian aid in the first War decade (from about $800 million in 1989 to some $4.4 billion in 1999) and a quadrupling

  These figures are drawn from a 2003 OCHA roster, which no longer is updated.   Linda Polman, The Crisis Caravan: What’s Wrong with Humanitarian Aid? (New York: Henry Holt, 2010), 10; and John Arquilla and David Ronfeldt, Swarming and the Future of Conflict (Washington, DC: Rand Corporation, 2000). 16   Rachel McCleary, Global Compassion:  Private Voluntary Organizations and U.S. Foreign Policy since 1939 (Oxford: Oxford University Press, 2009), 16, 3–​35. 17   Abby Stoddard, Adele Harmer, and Katherine Haver, Providing Aid in Insecure Environments: Trends in Policy and Operations, HPG Report 23 (London: Overseas Development Institute, 2006). 18   Peter Walker and Catherine Ross, Professionalizing the Humanitarian Sector: A Scoping Study, Report Commissioned by the Enhancing Learning and Research for Humanitarian Assistance (April 2010), 11–​12. 14 15

 

310   humanitarian action to $16.7 billion in 2010.19 After peaking at just over $20 billion in 2010, the figures drifted downward to $19.4 billion in 2011 and $17.9 billion in 2012 but then increased dramatically to $22 billion in 2013.20 Over the past decade, governments have spent an estimated $100 billion on humanitarian assistance. In 2010 they provided $12.4 billion, and private voluntary contributions reached $4.3 billion (a doubling in four years). The explosion of the sector in the post-Cold War Era can be explained by intertwined global phenomena. The diminished geostrategic significance of the Third World and the resulting decrease in military and economic aid meant that illegitimate governments could no longer count upon, as they had for decades, superpower patronage to prop them up. The impact of these political and economic trends was an increase in civil wars—​initially in both absolute terms and relative to international armed conflicts. Although they were dubbed the “new wars,” owing to a combination of characteristics, including mass civilian suffering, critics questioned how “new” they were. Nonetheless, the resulting humanitarian emergencies certainly were increasingly prominent on the international agenda and in the media spotlight.21 Much like the responses to the world wars, the growing number of crises in the turbulent 1990s helped catalyze efforts to rescue and protect vulnerable civilians. Several features stand out. Perhaps the most prominent was the growing internationalization and institutionalization of human rights, with the UN playing the signature role. In particular, the Security Council became more deeply involved in interpreting, protecting, promoting, and monitoring human rights as essential components of peace operations, a development made possible with the end of the East–​West rivalry. A distinctive feature of this period was the Security Council’s expansion of what it deemed as constituting a “threat to international peace and security,” the trigger for UN involvement, to include humanitarian catastrophes. During the Cold War, the council had limited its definition of such threats to disputes between states that might or had become militarized, conflicts involving the great powers, and general menaces to global stability.22

19   Global Humanitarian Assistance, Global Humanitarian Assistance Report 2011 (Somerset:  UK Development Initiatives, 2011); and Development Assistance Committee, Development Cooperation Report 2000 (Paris: Organisation for Economic Co-​operation and Development, 2001), 180–​1. 20   Global Humanitarian Assistance Report 2014 (Somerset: UK Development Initiatives, 2014), 4–​5, 21, http://​www.globalhumanitarianassistance.org/​wp-​content/​uploads/​2014/​09/​GHA-​Report-​2014-​ interactive.pdf. 21  OCHA (ed.), The Humanitarian Decade:  Challenges for Humanitarian Assistance in the Last Decade and into the Future, 2 vols. (New York: United Nations, 2004). 22   Michael Howard, “The Historical Development of the UN’s Role in International Security,” in United Nations: Divided World, ed. Adam Roberts and Benedict Kingsbury, 2nd ed. (Oxford: Oxford University Press, 1993), 69–​70.

 

three historical periods   311 One reason why the Security Council redefined peace and security was the significance of the domestic armed conflicts that left hundreds of thousands at risk, created mass flight, and destabilized entire regions. The council authorized coercive measures on the grounds that war-​induced disasters and mass atrocities imperiled international security. Thus, grave humanitarian crises and human rights abuses became part of an expanded definition of what states legitimately viewed as threats to international peace and security.23 Perhaps the most controversial expression of the Security Council’s new-​found interest in human rights and humanitarian welfare was its willingness to use military force for human protection purposes, or “humanitarian intervention.”24 No Cold War Security Council resolution mentioned the humanitarian dimensions of any armed conflict from 1945 until the Arab-​Israeli war of 1967, and the first mention of the ICRC was not until 1978.25 In the 1970s and 1980s, “the Security Council gave humanitarian aspects of armed conflict limited priority … but the early nineteen-​nineties can be seen as a watershed.”26 Resolution 792 in December 1992 broke records in making eighteen references to “humanitarian” in authorizing the US-​led action in Somalia. The growing involvement by the Security Council in the internal affairs of states and justification for that involvement on humanitarian grounds signaled a none-​ too-​subtle shift in the meaning of sovereignty. States were now expected to respect their citizens or face sanctions—​economic and judicial as well as military. Whereas once state sovereignty was essentially considered inviolable, now it became contingent on a modest respect for human rights and based on implied contracts between the state and its society and among other peace-​loving [sic] states. Although there had earlier been whispers of an international duty to protect civilians, most famously by advocates for the Genocide Convention and other human rights treaties and norms,27 the real momentum to actually protect populations from egregious infringements of their rights was a post-​Cold War phenomenon. Because of interventions taken (without UN approval in Kosovo) and not taken (Rwanda), in 1999 then UN Secretary-​General Kofi Annan articulated a doctrine of “two sovereignties.”28 The subsequent diplomatic uproar led to formation of the 23   Hugo Slim, Essays in Humanitarian Action (Oxford: Oxford Institute of Ethics, Law and Armed Conflict, 2012). 24   Thomas G. Weiss, Humanitarian Intervention: Ideas in Action, 3rd ed. (Cambridge: Polity Press, 2016). 25   Christine Bourloyannis, “The Security Council of the United Nations and the Implementation of International Humanitarian Law,” Denver Journal of International Law and Policy 20/​3 (1993): 43. 26   Th. A. van Baarda, “The Involvement of the Security Council in Maintaining International Law,” Netherlands Quarterly of Human Rights 12/​1 (1994): 140. 27   See Roger Normand and Sarah Zaidi, Human Rights at the UN: The Political History of Universal Justice (Bloomington: Indiana University Press, 2008). 28   Kofi A. Annan, The Question of Intervention: Statements by the Secretary-​General (New York: UN, 1999).

 

312   humanitarian action International Commission on Intervention and State Sovereignty,29 whose final report argued that when states cannot or will not protect their populations, the international “responsibility to protect” kicks in. The 2005 World Summit approved the notion, which states used to justify robust action against Libya in 2011, but which they would not do in Syria where the death and suffering were far worse. Controversy continues about the relationship between the expanding peace and security agenda, humanitarianism, and state interests. Arguably a calculation about the potential impacts of humanitarian disasters in an increasingly interconnected world drove an underlying concern to respond vigorously. The military thus became increasingly prominent in the humanitarian arena. Agencies in active war zones operated alongside troops with greater frequency than earlier and in the midst of belligerents that did not respect international humanitarian law. Moreover, since the terrorist attacks of 9/​11, many countries, especially the United States through its counterinsurgency doctrine, have viewed counterterrorism and humanitarianism as crime-​fighting partners, regarding failed states as sanctuaries and staging platforms for terrorists. Humanitarian organizations, in this view, can become part of wider “hearts and minds” campaigns, attempting to convince local populations of the righteousness of armies invading in the name of stability and freedom. Humanitarians, for their part, are well aware of how serious a potential breach of their principles such actions are. We continue today in the period that began with the end of the Cold War. We have not yet found a better label than “post-​Cold War.” In many respects the tensions and dilemmas from previous eras continue amidst new ones; the contemporary period is embedded in humanitarian history. Challenges that many observers treat as brand new are as old as humanitarianism itself. However, the post-​Cold War era exhibits enough distinctive features to warrant being treated as a separate period.

Who Comes to the Rescue? Among those that exert influence on the ground from outside a war zone are: international NGOs; the ICRC; the UN system; bilateral aid agencies; external military forces; for-​profit firms; and the media. Operating alongside, and sometimes 29   International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa:  International Development Research Centre, 2001); and Thomas G. Weiss and Don Hubert, The Responsibility to Protect: Research, Bibliography, and Background (Ottawa: International Development Research Centre, 2001).

 

who comes to the rescue?    313 in opposition to, external agents in a particular war zone are local actors, which include NGOs and businesses as well as the armed belligerents.

International NGOs NGOs are often envisioned as the quintessential humanitarian actor and are a crucial source of support for those suffering from wars. They include such familiar associations as CARE, Oxfam, Save the Children, World Vision, Médecins sans Frontières, and Catholic Relief Services; lesser-​known but important ones like the International Rescue Committee and Islamic Relief Worldwide; and largely unknown ones like Mercy Corps International. The delivery of emergency relief is dominated by about fifteen to twenty major international NGOs or federations of national NGOs that have annual budgets of at least $100 million and as large as $1+ billion and work in at least eight to ten countries. This group can be considered an oligopoly, with the largest spending as much in a given crisis as many UN organizations and governments. Other NGOs make far more modest contributions to a particular geographical area or a particular sector. Many NGOs have cultivated active and influential constituencies of individual donors, but the largest often receive the bulk of their funds from governments or subcontracts from UN organizations. Extreme heterogeneity, in the size of their operations and their approach to issues, makes generalizations about NGOs problematic.30 Across-​the-​board characterizations are difficult between giants like World Vision and CARE (with annual budgets over $1 billion) and much smaller operations (some qualifying as “mom-​and-​pop” efforts); between those that carry out operations themselves mainly with expatriate staff and those that work mainly through local counterparts; and between those that accept no funds from governments (e.g., Oxfam-​America) to underscore their autonomy and those that are essentially entirely financed by public resources (e.g., the Norwegian Refugee Council). Also, critics are increasingly aware of turf wars that can bedevil overall performance when organizational interests trump those of victims.31 Nonetheless, it is fair to say that the hallmark of NGOs is their link to the grassroots and their action orientation. Many are involved not just in the delivery of succor but also advocacy, legal protection efforts, and attempts at local conflict management. They are reputed to be more nonbureaucratic, flexible, and creative than their governmental or intergovernmental counterparts; and they certainly are less constrained by legal formalities and diplomatic niceties.   Peter Willetts, Non-​Governmental Organizations in World Politics (London: Routledge, 2011).   Dorothea Hilhorst, “Being Good at Doing Good? Quality and Accountability of Humanitarian NGOs,” Disasters 26/​3 (2002): 193–​212. 30 31

 

314   humanitarian action

ICRC The ICRC occupies an unusual position and thus is treated as a separate type of supplier—​in a category by itself. Founded in 1863, it is the oldest international humanitarian organization. It is also the largest outside of the UN system. A private organization with a board of governors of prominent Swiss citizens, the ICRC is like NGOs in that it receives both private and public contributions, but governments typically provide 90 percent of its annual budget, which in 2012 was about $ 1.2 billion with some 11,000 staff in eighty countries. Nonetheless, it considers itself neither an IGO nor an NGO because it is the custodian of the Geneva Conventions and has a specific recognition in international humanitarian law, for which it is the custodian. The ICRC, along with the International Federation (formerly League) of Red Cross and Red Crescent Societies and its national chapters in some 165 countries, constitute the “Red Cross movement.”32 The ICRC has its headquarters in Geneva and is staffed in key international posts largely by Swiss nationals. For specific assignments, it hires persons from national societies. Unlike most other humanitarian agencies, the ICRC has clear and carefully elaborated principles, and its disciplined staff is committed to abiding by them. Unlike most NGOs and IGOs that mount a range of activities from relief to reconstruction and development, the ICRC works only in war zones—​both international ones like Iraq–​Kuwait or civil wars (which the ICRC prefers to label “noninternational wars”) like Somalia and Rwanda.

UN System The three largest UN organizations with responsibilities in human-​made disasters are the UNHCR, UNICEF, and the World Food Programme (WFP). Their combined resources amounted in 2012 to some $11 billion. Also important for many operations are the UNDP and, since 1998, the Office for the Coordination of Humanitarian Affairs (OCHA). Because multilateral decision-​making dilutes the ability of major powers to get their way, most observers view UN initiatives as more acceptable than those sponsored by a single or even a few governments. Complicating rapid and robust decision-​making by the UN, of course, are the same states with differing perspectives and interests. The term “system” is a misnomer when applied to the entities of the UN.33 The Secretary-​General is not really the CEO of anything except the UN   Michael Ignatieff, The Warrior’s Honor: Ethnic War and the Modern Conscience (New York: Holt, 1997); and John F. Hutchinson, Champions of Charity:  War and the Rise of the Red Cross (Boulder, CO: Westview, 1996). 33   Thomas G. Weiss et al., The United Nations and Changing World Politics, 8th ed. (Boulder, CO: Westview, 2017). 32

 

who comes to the rescue?    315 Secretariat. The executive heads of the other agencies are responsible for their own programs and fundraising. OCHA is a recent acronym (1998–​) and was preceded by the Department of Humanitarian Affairs (1992–​7) established in response to donor dissatisfaction with the lack of coordination of diverse humanitarian inputs following the Persian Gulf War. OCHA is not an operational agency but has coordination tasks: consolidated appeals, information sharing, and humanitarian diplomacy. From its headquarters in Geneva, the UNHCR is guardian of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol.34 Its responsibilities include the protection of refugees, their resettlement into a country of first asylum or elsewhere, and their repatriation to their country of origin when possible. UNHCR contracts with other UN agencies and especially NGOs to implement programs. The UNHCR’s budget grew dramatically in the 1990s, peaking in 1994–​5 at some $1.3 billion, with about $500 million for the former Yugoslavia and $300 million for Rwanda. It has continued growing in the twenty-​first century with a 2012 budget of about $3.6 billion for its 7,700 staff in 126 countries. For the last two decades, the UNHCR has assisted not just refugees who have crossed an international border but also people in “refugee-​like situations” (most especially internally displaced persons, who have not crossed a border but are equally or more vulnerable). UNICEF—​officially the UN Children’s Fund and at first the UN International Children’s Emergency Fund, but now called almost always by its acronym—​provides food, clothing, and medical supplies in relief operations while keeping its eye turned toward longer-​term development for women and children.35 Established in 1946 to provide immediate relief to child victims of World War II and now headquartered in New  York, UNICEF receives the bulk of its resources from governments; but about 30 percent comes from private fundraising (still an unusual practice for intergovernmental organizations), including the popular sale of holiday cards and gifts. During the Cold War, UNICEF was unlike other organizations of the UN system and often able to deal with insurgent authorities because of its role in helping the most vulnerable victims. In 2012, UNICEF’s income approached $4 billion, about one quarter of which was devoted to emergency assistance to cover work in some 190 countries. The WFP is located in Rome and was established as a food-​surplus-​disposal organization following the World Food Conference of 1974.36 In 2011 the value of contributions to the WFP amounted to about $3.6 billion. The WFP began with a development orientation, but it now devotes about 80 percent of its efforts to emergencies. It coordinates food shipments with other UN agencies and NGOs; indeed, it is the logistics specialist within the UN system.   Gil Loescher, Alexander Betts, and James Milner, The UNHCR, 2nd ed. (London: Routledge, 2011).   Yves Beigbeder, The New Challenges for UNICEF: Children, Women and Human Rights (New York: Palgrave, 2001); and Richard Jolly, UNICEF (London: Routledge, 2015). 36   See John D. Shaw, Global Food and Agricultural Institutions (London: Routledge, 2009). 34 35

 

316   humanitarian action New York is the headquarters for the UNDP, which was established in 1966 as the central source of funding for technical assistance and pre-​feasibility projects within the UN system. With 129 offices around the globe and a presence on the ground in 177 countries, its program expenditures in the second decade of the twenty-​first century approached $5.4 billion.37 The senior UNDP official in a country is typically the “resident coordinator” who is supposed to be the point-​person for all UN activities. When war erupts, this official may remain to coordinate humanitarian aid but often is replaced by someone with a greater expertise in emergencies and political negotiations, who is sometimes given the additional title of emergency relief coordinator or the special representative of the Secretary-​General. After violence has settled down, the UNDP’s top official returns to assume overall responsibilities for reconstruction, rehabilitation, and development.

Bilateral Aid Agencies Governments not only make substantial financial contributions to UN agencies and to NGOs but also operate their own bilateral assistance programs. For example, the United States Agency for International Development and the United Kingdom’s Department for International Development field their own direct humanitarian assistance programs for many wars just as they have their development assistance efforts. The kinds of relationship and the resources employed by the major powers to pursue their geopolitical interests with recipient countries are customarily more openly self-​serving than those government-​to-​government commitments by middle powers like the Norwegian Agency for Development or the Canadian International Development Agency. Historical, diplomatic, economic, and political relationships of a government within a region may also make it more or less welcome as a bilateral partner when emergency strikes. Because of its traditions and resources, the United States usually plays a major role (financing a third or even a half of the bills). But Washington’s bilateral aid is often more suspect than that emanating from smaller neutral countries like Austria and Switzerland or such Nordic countries as Sweden and Finland. Former colonial powers, especially France and Britain, have historical links that affect their proclivity to intervene in a region as well as their acceptability to provide assistance—​both in positive and negative ways. European governments, in addition to having their own national aid agencies, have contributed since 1992 through the European Community Humanitarian Office (ECHO). Initially, the role of the former European Community and now European Union was relatively small, serving mainly as a channel for contributions 37

  Stephen Browne, The UN Development Programme and System (London: Routledge, 2011).

 

who comes to the rescue?    317 to other European organizations by member states. However, ECHO has continually grown, posted its own staff, and asserted an important financial role in complex emergencies (some $1.3 billion annually). Channeling funds through IGOs and NGOs does not mean the disappearance of political concerns by governments. Donors are able to push their own agendas because of the power of the purse. It is rare for IGOs or NGOs to say “no” to “tied” financing (linked to a specific activity or group) because competitors can readily agree. In the contemporary competition for resources, for instance, the UNDP—​ the central coordinating mechanism for development that also is increasingly operational in the humanitarian arena—​is illustrative as over the last two decades its core (or untied) resources have gone from 80 to 20 percent of its budget.

Outside Military Forces Prior to the end of the Cold War, foreign military personnel (even those in UN operations) played an ancillary role in delivering relief or protecting human rights. The five permanent and ten rotating members of the Security Council rarely addressed humanitarian concerns; the narrowest interpretations of nonintervention in the domestic affairs of states, especially with regard to outside military forces, was the rule. Beginning with the creation of space in northern Iraq for victimized Kurds in 1991 following Saddam Hussein’s invasion of Kuwait and his expulsion by a UN-​ approved coalition, outside military forces regularly have been pressed into service and are often an essential component of the humanitarian supply network. It is important to distinguish two distinct roles: logistics and security. Armed forces often possess an abundance of precisely those resources that are in the shortest supply when disaster strikes: transport, fuel, communications, commodities, building equipment, medicines, and large stockpiles of provisions. In addition, the military’s “can-​do” mentality, self-​supporting character, rapid response capabilities, and its hierarchical discipline are essential assets within the turmoil of acute catastrophes. The military’s direct exercise of security capacities, in contrast, is related to its primary function: war-​ fighting and using superior force to overwhelm hostile forces. Such military humanitarianism should be carefully distinguished from military deployments after natural disasters or as traditional peacekeeping forces. Deployments for limited point relief during active armed conflicts, let alone large-​scale humanitarian interventions, deploy military capabilities and assets for which there is no civilian substitute. The routine and large-​scale deployments of third-​party military forces in humanitarian efforts is a remarkable phenomenon of the post-​Cold War era—​especially for Africa where 70 percent of UN forces were deployed in 2013.38 The use of military   Adekeye Adebajo, UN Peacekeeping in Africa: From the Suez Crisis to the Sudan Conflicts (Boulder, CO: Lynne Rienner, 2011). 38

 

318   humanitarian action forces for such purposes is not completely new, however, because the earliest recorded instances date back centuries, and a dramatic albeit temporary expansion of the military into the humanitarian arena took place after World War II. The task of occupying Germany and Japan, as well as reconstructing as quickly as possible their economies, required new types of personnel within the armed forces: administrators, planners, and logisticians. Such forces can gain access to suffering civilians, when insecurity makes it impossible or highly dangerous, and can foster a secure enough environment to permit relief and protection for civilians. Such forces can also succeed in enforcing regime change that in turn permits civilian humanitarians to act. Traditional humanitarians sometimes view “humanitarian intervention” or “humanitarian war,” or especially the “humanitarian bombing” of Kosovo or Libya, as an oxymoron.39 The potential political blowback from body bags or from boots on the ground in never-​ending humanitarian quagmires has led to something akin to a zero-​casualty foreign policy for military efforts justified in basically humanitarian terms. Nonetheless, the prevalence of what the International Commission on Intervention and State Sovereignty called “military intervention for human protection purposes” has become an integral component for the supply of humanitarianism and an important explanation for the size of the current marketplace.

For-​Profit Firms A brief discussion is merited of actors not commonly considered part of the international humanitarian system, private military and security companies (PMSCs) and for-​profit transnational corporations (TNCs).40 Mercenaries and the more contemporary corporatized version of PMSCs are playing a growing role in contemporary war zones. Despite the UN’s 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, hired guns have appeared throughout the world, mostly in Africa but also in the Balkans, Latin America, and Southeast Asia. The war zones in which PMSCs tend to be deployed are also those in which belligerents ignore international humanitarian law—​such as in Bougainville and Borneo.41 A well-​publicized early case was the government of Sierra Leone’s use of

39   Adam Roberts, “Humanitarian War: Military Intervention and Human Rights,” International Affairs 69 (1993): 429–​49; and David Rieff, A Bed for the Night: Humanitarianism in Crisis (New York: Simon & Schuster, 2002). 40   Peter J. Hoffman, Humanitarian Agencies and Private Security Companies: The Politics of Protecting Aid Workers (London: Routledge, forthcoming). 41   Michael T. Klare, Resource Wars: The New Landscape of Global Conflict (New York: Henry Holt, 2002), 190–​212.

 

who comes to the rescue?    319 Executive Outcomes from 1995 to 1997 to repel insurgents, and since then there has been mounting interest in the topic.42 In Afghanistan and Iraq, PMSCs became partners for regular military forces and for humanitarian organizations as well. Few people realized that the US Defense Department had more contracted employees than troops in both countries; indeed, with troop withdrawals accelerating, the fatalities for contractors in Iraq were already higher than for soldiers in 2011. Specific humanitarian tasks are subject to pressures to privatize. Budgetary as well as ideological influences have resulted in the increased use of private, market-​based approaches for logistics, transportation, and security. The belief that the private sector can provide services more cost-​effectively than the public sector originally led to the increased use of multilateral organizations and NGOs rather than bilateral aid agencies; but the same logic spurred some donors to consciously funnel aid through for-​profit channels rather than value-​driven institutions. Profit motives sometimes offend those with heartfelt charitable sentiments, and many object on philosophical grounds to companies that profit from misery. Contracts with for-​profit organizations suggest the need for critical reflections about the conditions under which subcontracts can be justified. Stephen Hopgood pushes humanitarians to ask themselves about the commodity of humanitarianism, and whether or not the beneficiaries should be “Saying ‘No’ to Wal-​Mart?”43 If humanitarians are following duty-​based ethics (i.e., a moral obligation to help) or virtue-​based ethics (i.e., the world will be a better place to live), they could justify and defend their privileged place within the marketplace. If humanitarian action is only about cost-​effective delivery, then calling upon Wal-​Mart may be irresistible.

The Media The media is another for-​profit business although it traditionally has also provided a public service in keeping citizens informed. In war zones, it can supply publicity and give a voice to victims who might otherwise be silent. On occasion media coverage has led to the mobilization of political will to act and of resources to make a difference and save lives. To be sure, there were important precursors to what became

  Doug Brooks, “Messiahs or Mercenaries? The Future of International Private Military Services,” International Peacekeeping 7/​4 (2000): 129–​44; Christopher Spearin, “Private Security Companies and Humanitarians: A Corporate Solution to Securing Humanitarian Spaces?,” International Peacekeeping 8/​1 (2001): 20–​43; and Tony Vaux et al., Humanitarian Action and Private Security Companies: Opening the Debate (London: International Alert, 2002). 43   Stephen Hopgood, “Saying ‘No’ to Wal-​Mart? Money and Morality in Professional Humanitarianism,” in Humanitarianism in Question: Politics, Power, Ethics, ed. Michael Barnett and Thomas G. Weiss (Ithaca, NY: Cornell University Press, 2008), 98–​123. 42

 

320   humanitarian action the “CNN effect” or the “BBC effect,”44 but real-​time media coverage can pluck the heartstrings of donors or push their elected officials to act and even to deploy military force. Portraying humanitarian disasters has inherent difficulties. The media seeks the drama for a good lead story; humanitarians hope for a message that opens pocketbooks; and analysts look for insights and truth in packaging about the impacts of local and international actors. Narratives typically are laden with massive suffering and failed responses in visible disasters. Earthquakes, hurricanes, and tsunamis readily make headlines for a short time, but human-​made emergencies are markedly different especially when national or other important geopolitical interests are threatened. If boots are on the ground, the media from those countries are pushing on an open door for a public keen about coverage. If a particular war zone is peripheral, the media will have an uphill battle to interest diplomats and parliamentarians. Andrew Natsios insists that we keep media influence in perspective: “the so-​called CNN effect has taken on more importance than it deserves … The truth is most complex emergencies get little media attention at any stage.”45

Local Actors in the Marketplace It is important not to lose sight of local actors: governments, insurgents, aid recipients, NGOs and other members of civil society, and businesses. They are generally less studied than their international counterparts although local NGOs and businesses are hard to ignore as important parts of the supply chain. UN, bilateral, and private organizations alike often rely on them, whether it is in the form of contracting for their services or buying necessary goods such as foodstuffs. Local NGOs and businesses may have a comparative advantage in communicating with recipient populations and providing goods and services. Smaller and less financially resourced than their international counterparts, their first-​hand knowledge of language and customs can make them indispensable. As with other civilians in war zones, they are vulnerable to violence by belligerents, who may view collaboration as antithetical to their interests. While both the government and armed insurgents create the overall conditions and perpetuate violence that requires outsiders as well as local humanitarians to 44   Nik Gowing, Media Coverage:  Help or Hindrance in Conflict Prevention? (New  York:  Carnegie Commission on the Prevention of Deadly Conflict, 1997); Warren Strobel, Late Breaking Foreign Policy: The News Media’s Influence on Peace Operations (Washington, DC: United States Institute for Peace Press, 1997); and Larry Minear, Colin Scott, and Thomas G. Weiss, The News Media, Civil War, and Humanitarian Action (Boulder, CO: Lynne Rienner Publishers, 1996). 45   Andrew S. Natsios, U.S. Foreign Policy and the Four Horsemen of the Apocalypse: Humanitarian Relief in Complex Emergencies (Westport, CT: Praeger, 1997), 124.

 

conclusion: coordination, a fool’s errand?    321 come to the rescue, belligerents often have responsibility for the welfare of the people who live within the areas that they control. Pursuing their war strategies and tactics savage entire populations, but belligerents also compete for the loyalty of people residing within areas that they control or seek to control. Governments and armed insurgents have an obvious interest in ensuring that basic humanitarian needs are met in their respective strongholds because it strengthens their backing and standing. At the same time, they may obstruct humanitarian access to enemy areas.

Conclusion: Coordination, a Fool’s Errand? The preceding descriptions of the various moving parts of the international humanitarian system are undoubtedly confusing to the casual or even seasoned reader. Indeed, “system” is a misnomer unless the adjective “feudal” accompanies it. Every organization within the business ferociously guards its independence. The UN is composed of agencies focusing on a substantive area with headquarters often located in a different country or continent from other relevant partners and with separate budgets, governing boards, and organizational cultures as well as independent executive heads. For the NGO “scramble,”46 the numbers are even greater and the decentralization as well, with even the partners in a common federation having differing views depending on their country affiliation. Calls for enhanced “coordination” are usually sung by a passionate chorus of bureaucrats whose actual behavior reflects administrative inertia and the dominant economic incentives pushing in the direction of going-​it-​alone. The widespread shorthand of international humanitarian “system” disguises the fact that overall performance reflects the sum of individual actions rather than inputs from a planned and coherent whole. The international humanitarian “family” might be more apt because, like many such units, this one is dysfunctional in terms of its interagency competition and strife. Everyone is for coordination as long as it implies no loss of autonomy or decision-​ making authority. Antonio Donini draws distinctions among three broad categories of coordination within the UN, but they apply equally to the rest of the humanitarian business:  coordination by command—​in other words, coordination where strong leadership is accompanied by some sort of leverage and authority, whether  Alexander Cooley and James Ron, “The NGO Scramble:  Organizational Insecurity and the Political Economy of Transnational Action,” International Security 27/​1 (2002): 5–​39. 46

 

322   humanitarian action carrot or stick; coordination by consensus—​where leadership is essentially a function of the capacity of the “coordinator” to orchestrate a coherent response and to mobilize the key actors around common objectives and priorities; coordination by default—​where, in the absence of a formal coordination entity, only the most rudimentary exchange of information and division of labor takes place among the actors.47 So-​called reforms—​called variously “lead agency” or “clusters” or “integrated missions”—​involve changes in name or packaging but not in the actual turf-​ conscious behavior of the individual agencies within the “system.” The feudal nature of the UN system and the ferocious independence of international NGOs are accompanied by the desire of donor governments as well to wave their own national flags and receive appropriate publicity for any donations. However desirable, coordination by command is unrealistic. Ad hoc agreements may emerge from the personalities on the ground; but there is no structural explanation for it. Coordination at present is a “fool’s errand” because autonomy, not meaningful coordination, is the key goal of proprietary UN agencies and market-​share-​oriented NGOs. This familiar collective action problem will endure until donors put their money where their supposed mouths are and insist upon consolidation in the marketplace. As Linda Polman tells us, “if the aid industry is left to control itself instead of being controlled, then reforms aren’t going to happen any time soon.”48 Humanitarian action has saved countless lives. But the urgent requirement is for fewer outsiders with far better orchestration and more professionalism among those coming to the rescue—​the military, IGOs and especially the members of the UN system, international NGOs, private contractors, and the ICRC.

47  Antonio Donini, The Policies of Mercy:  UN Coordination in Afghanistan, Mozambique and Rwanda, Occasional Paper #22 (Providence, RI: Watson Institute, 1996), 14. 48  Polman, The Crisis Caravan, 176.

 

Chapter 15

REFUGEES AND INTERNALLY DISPLACED PERSONS Gil Loescher

One of the most complex and difficult issues confronting the international community today is the problem of forced migration.1 At the beginning of 2016, 65.3 million had been uprooted by persecution and conflict, the largest number since World War II. Among this number were approximately 19.5 million refugees and asylum seekers worldwide and this number certainly increased during 2015 and 2016 in particular as a result of the refugee crisis in Syria and other countries.2 In addition there were some 5.2 million Palestinian refugees residing in some sixty camps throughout the Middle East and registered with the United Nations (UN) Relief and Works Administration and constituting one of the world’s largest protracted refugee situations. Because refugees find themselves in a situation in which their own government is unable or unwilling to ensure their physical safety and most fundamental human rights, they are forced to cross borders to seek protection from the international community.   This chapter draws on Gil Loescher, “UNHCR and Forced Migration,” in The Oxford Handbook of Refugee and Forced Migration Studies, eds. Elena Fiddian-​Quasiyeh, Gil Loescher, Katy Long and Nando Sigona (Oxford: Oxford University Press, 2014), 215–​26. 2  UNHCR, Global Trends: Forced Displacement in 2015 (Geneva: UNHCR, June 2016). 1

 

324    refugees and internally displaced persons While the refugee crisis is global, some regions of the world are more affected than others. For example, most of the world’s refugees are located in the poorest developing countries. As a general rule, more than 85 percent of refugees are housed in countries neighboring their own and less than 5 percent of the world’s refugees seek asylum in the advanced industrialized countries of the North. Although the number of refugees is large, the great majority of forcibly displaced people remain within the borders of their own countries and are known as internally displaced persons (IDPs). IDPs are defined as persons in a refugee-​like situation who have not crossed the borders of their country. At the beginning of 2016, there were over 40.8 million IDPs.3 Most refugee movements and internal displacements are caused by war, persecution, ethnic strife, weak governmental institutions, and sharp socioeconomic inequalities or a combination of these factors. The difficulty in building durable state structures in the context of deep ethnic divisions and economic underdevelopment in failed and fragile states often leads to domestic conflict and political instability. In addition, forced migrations are generated by actions of both governments and nonstate actors, ranging from decrees and overt use of force to more covert persecution, intimidation, discrimination, and inducement of an unwanted group to leave. Governments and nonstate actors alike take steps to effect ethnic cleansing in their areas of control, forcing out perceived enemy social classes and ethnic groups in order to consolidate political control. In recent years there has been an upsurge in violent armed conflicts in countries such as Burundi, the Central African Republic, Iraq, Libya, South Sudan, Syria, Ukraine, and Yemen. In addition, protracted conflicts in Afghanistan, the Democratic Republic of Congo, and Somalia among others remain unresolved and have sparked new displacements. Forced displacement caused by armed conflict often lasts a very long time and typically continues well beyond the end of actual hostilities. The task of finding solutions for refugees and IDPs has become increasingly difficult and a significant majority of refugees and IDPs typically remain in displacement for five, ten, or even twenty years and more. By 2016, almost three-​ quarters of the global refugee population under UN High Commissioner for Refugees (UNHCR) protection was in a protracted refugee situation and the majority of the world’s refugees and IDPs had spent more than twenty years in exile or internally displaced.4 A number of international organizations both inside and outside the UN system play a role in responding to forced migration. These include at the UN level: the United Nations Children’s Fund (UNICEF), the World Food Programme (WFP), 3   For current figures see Internal Displacement Monitoring Centre, http://​www.internal-​displacement. org/​global-​figures. 4   James Milner, “Protracted Refugee Situations,” in The Oxford Handbook of Refugee and Forced Migration Studies, ed. Elena Fiddian-​Quasiyeh et al. (Oxford: Oxford University Press, 2014), 151–​62.

 

refugees and idps: similarities and differences    325 the UN Development Programme (UNDP), the Office for the Coordination of Humanitarian Affairs (OCHA), and the International Organization for Migration (IOM), and outside the UN, the International Committee for the Red Cross (ICRC) and numerous other international organizations and nongovernmental organizations (NGOs).5 This chapter examines the roles, functions, achievements, and failures of the principal international organization, the Office of the UNHCR, to protect refugees and IDPs and to find solutions to their plight. It begins by outlining some of the similarities and differences between refugees and IDPs. It then discusses the complex history, development, and limitations of the legal, normative, and institutional regimes for both refugees and IDPs. Finally the chapter outlines some of the current challenges and emerging issues for responding to both kinds of forced displacement before assessing the overall successes and failures of the international regime for forced displacement.

Refugees and IDPs:  Similarities and Differences Refugees and IDPs are both victims of forced migration. The common conceptual feature that connects both is the unwillingness or inability of the country of origin to ensure the protection of its own citizens. Because both categories of people face threats to their personal safety and security, they seek access to protection outside their home community. Hence both groups need international protection. Despite these similarities, from a legal perspective, refugees are fundamentally different than IDPs. Refugees cross borders to seek safety and protection either in neighboring countries or travel across continents to seek asylum. Because refugees are individuals who have fled their home country and no longer enjoy the legal protections afforded to citizens of a state, the 1951 Refugee Convention stipulates that refugees should have access to national courts, the right to employment and education, and a host of other social, economic, and civil rights on a par with nationals of the host country. In addition, the Convention grants the right of non-​ refoulement: the right not to be returned to a country where a person risks persecution which is now a principle of customary law.6 Most importantly, refugees enjoy the protection of a UN agency, the UNHCR. 5   For a discussion of the roles of many of these organizations see Chapter 14 in this volume: Thomas Weiss, “Humanitarian Action.” 6  Guy Goodwin-​ Gill and Jane McAdam, The Refugee in International Law (Oxford:  Oxford University Press, 2007).

 

326    refugees and internally displaced persons In contrast, IDPs do not cross borders to seek protection and assistance abroad. Because they have not left their own country they remain under the jurisdiction of their own government even in cases where government forces or authorities are responsible for their displacement. State sovereignty prevents the international community from intervening without the permission of the home country, unless the UN Security Council authorizes such action under Chapter VII of the UN Charter. Hence UN agencies and other international actors must seek permission of national authorities and at most play a subsidiary role of supporting government action even in situations where a government has withdrawn its presence from areas of displacement. Despite these differences, in recent years the international community has accepted that IDPs are a specific category of international concern.7 At the universal level, states regularly reaffirm their recognition of an international framework for the protection of IDPs, namely the “Guiding Principles on Internal Displacement.” Similarly, the adoption of the Kampala Convention strengthened cooperation on this issue at the regional level. Finally, the adoption of a number of specific laws, protection-​oriented strategies, and policies at the national level further illustrates the growing importance of state concern for IDPs. While these are encouraging developments and will be discussed later in this chapter, the implementation of these norms remains slow and uneven and their effectiveness will depend on the degree of compliance by states affected by internal displacement and on monitoring by the international community.

Refugees: The UNHCR and the Evolution of the Refugee Regime While forced migration has been a feature of international society for a long time, international institutional concern for refugees only began in 1921 when the League of Nations appointed Fridtj of Nansen as the first High Commissioner for Refugees to respond to the outflow of Russian refugees after World War I. Over the next twenty years, the scope and functions of assistance programs for refugees in Europe gradually expanded, as efforts were made to regularize the status and control of stateless and denationalized peoples. During and after World War II, the United Nations

  Walter Kalin, “Internal Displacement,” in The Oxford Handbook of Refugee and Forced Migration Studies, ed. Elena Fiddian-​Quasiyeh et al. (Oxford: Oxford University Press, 2014), 163–​75. 7

 

the unhcr and the evolution of the refugee regime    327 Relief and Rehabilitation Agency and the International Refugee Organization, further developed the international organization framework.8 Since 1951, an international refugee regime composed of the UNHCR and a network of other international agencies, national governments, and voluntary organizations or NGOs have developed a response strategy that permits some refugees to remain in their first countries of asylum, enables others to be resettled in third countries, and arranges for still others to be repatriated to their countries of origin. Although unevenly applied, international laws that designate refugees as a unique category of human rights victims, who should be accorded special protection and benefits have been signed, ratified, and in force for over six and a half decades. In addition to its work for refugees, since 2005 the UNHCR has been the lead agency for protection, shelter, and camp maintenance for conflict-​induced internally displaced persons around the world. The Office’s Statute sets out a clear mandate, defining the UNHCR’s core mandate as focusing on two principal areas: to work with states to ensure refugees’ access to protection from persecution and to ensure that refugees have access to a range of durable solutions. The UNHCR has also become the principal organization within the global refugee regime. The centerpiece of the regime is the 1951 Convention relating to the Status of Refugees, which provides a definition of who qualifies for refugee status, namely any person who is outside their country of origin due to a well-​founded fear of persecution due to their race, religion, nationality, or political opinion. Because refugees are individuals who have fled their home country and no longer enjoy the protections afforded to a citizen of a state, the 1951 Convention also sets out the rights to which all refugees are entitled, namely that refugees should have access to national courts, the right to employment and education, and to a host of other social, economic, and civil rights on a par with nationals of the host country. The 1951 Convention also explicitly identifies the UNHCR as having supervisory responsibility for its implementation. The Office, therefore, has responsibility for monitoring and supporting states’ compliance with the norms and rules that form the basis of the global refugee regime.9 Despite these provisions in its Statute and in the 1951 Convention, at its creation states ensured that the UNHCR had a limited role.10 They originally restricted the Office’s work to individuals who were refugees as a result of events in Europe occurring before 1951. The refugee instruments also focused exclusively on refugees to the exclusion of other displaced persons. Furthermore, states originally required

8   Phil Orchard, A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: Cambridge University Press, 2014); and Claudena Skran, Refugees in Inter-​War Europe: The Emergence of a Regime (Oxford: Clarendon Press, 1995). 9  Guy Goodwin-​ Gill and Jane McAdam, The Refugee in International Law (Oxford:  Oxford University Press, 2007). 10   Gil Loescher, UNHCR and World Politics: A Perilous Path (Oxford: Oxford University Press, 2001).

 

328    refugees and internally displaced persons UNHCR to be a small, low-​ budget, and temporary organization that would play an exclusively legal advisory role rather than in engage in the provision of material assistance. Yet, from these inauspicious beginnings, the Office has over time expanded and adapted to become a permanent global organization with an annual budget in 2016 of $6.5 billion and 9,700 staff in 126 countries, offering protection and assistance not only to refugees but also to IDPs, stateless persons, and other displaced people. At key turning points in the past six and a half decades, the Office has responded to changes in the political and institutional environment within which it works by reinterpreting and broadening its role and mandate.11 From the 1960s on, using UN General Assembly “Good Offices” resolutions, the UNHCR expanded beyond its original focus on providing legal protection to refugees fleeing communist regimes in Eastern and Central Europe to becoming increasingly involved in refugee situations in the Global South. The passage of the 1967 Protocol eliminated the temporal and geographical limitations of the 1951 Convention. During the 1960s, violent decolonization and post-​independence strife generated vast numbers of refugees in Africa, which required it to take on an ever greater role in providing material assistance. The 1969 Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, which applies to Africa only, broadened the refugee definition further to include those fleeing “occupation, conflict and serious public order disturbances.” During the 1970s, mass exoduses from East Pakistan, Uganda, and Indochina; highly politicized refugee crises in Chile, Brazil, and Argentina; and the repatriation of refugees and IDPs in southern Sudan expanded the UNHCR’s mission around the globe. Following the refugee exoduses in South and Central America, the 1984 Cartagena Declaration on Refugees expanded the regional refugee definition to include those fleeing “generalized violence, foreign aggression, internal conflicts or massive violations of human rights.” The 1980s also saw the Office shift away from its traditional focus on legal protection and assume a growing role in providing assistance to millions of refugees in camps and protracted situations in Southeast Asia, Central America and Mexico, South Asia, the Horn of Africa, and Southern Africa. During the post-​Cold War era, the UNHCR assumed a wider role in providing massive humanitarian relief in intrastate conflicts and engaging in repatriation operations across the Balkans, Africa, Asia, and Central America. The late 1990s and early twenty-​first century have seen the UNHCR take on ever greater responsibility for the victims of some major natural disasters and to assume formal responsibility for the protection of conflict-​induced IDPs. The expansion of the Office’s work to include these new areas has often been 11   Alexander Betts, Gil Loescher, and James Milner, UNHCR: The Politics and Practice of Refugee Protection (Abingdon:  Routledge, 2016); and Anne Hammerstad, The Rise and Decline of a Global Security Actor: UNHCR, Refugee Protection and Security (Oxford: Oxford University Press, 2014).

 

the unhcr’s normative agenda    329 controversial, and there have been concerns that the UNHCR has sometimes acted in ways that contradicted or undermined its refugee protection mandate.12

The UNHCR’s Normative Agenda Within this process of adaptation and expansion, the UNHCR has had limited political power. States remain the predominant actors in the international refugee regime. Nevertheless, the UNHCR is not entirely without means either to uphold its normative agenda or exercise a degree of autonomy. The UNHCR has at times assumed power beyond what states originally intended upon its creation.13 In the past, most High Commissioners realized that in order to shape state behavior they had to exert their moral authority and leadership skills and use the power of their expertise, ideas, strategies, and legitimacy to alter the information and value contexts in which states made policy. The Office has tried to project refugee norms into an international system dominated by states who are, in turn, principally driven by concerns of national interest and security. Successful High Commissioners have convinced states that they can ensure domestic and interstate stability and can reap the benefits of international cooperation by defining their national interests in ways compatible with protection norms and refugee needs. In promoting its normative agenda, the UNHCR is further supported by NGOs, who not only act as the Office’s main operational partners but also as norm entrepreneurs. The UNHCR not only promotes the implementation of refugee norms; it also monitors compliance with international standards. Both the UNHCR Statute and the 1951 Convention authorize the organization to “supervise” refugee conventions. This opens up the possibility for the UNHCR to make judgments or observations about state behavior under refugee law and to challenge state policies when they endanger refugees. For example, in recent years, the UNHCR has given legal opinions on matters such as access to protection and detention of asylum seekers before

12  Gil Loescher, “UNHCR at Fifty:  Refugee Protection and World Politics,” in Problems of Protection: The UNHCR, Refugees and Human Rights, ed. Niklaus Steiner, Mark Gibney and Gil Loescher (New York: Routledge, 2003), 3–​18; Guy Goodwin-​Gill, “UNHCR and Internal Displacement: Stepping into the Legal and Political Minefield”, in World Refugee Survey 2000 (Washington, DC: US Committee for Refugees, 2000), 26–​31; Hammerstad, The Rise and Decline of a Global Security Actor. 13  Michael Barnett and Martha Finnemore, Rules for the World:  International Organizations in World Politics (Ithaca, NY: Cornell University Press, 2004); Alexander Betts and Phil Orchard (eds.), Implementation and World Politics:  How International Norms Change Practice (Oxford:  Oxford University Press, 2014); Loescher, UNHCR and World Politics.

 

330    refugees and internally displaced persons regional and international courts such as the EU Court of Justice and the European Court of Human Rights and elsewhere. For most of its history, the Office has also acted as a “teacher” of refugee norms and has sought to shape the conduct of states by its legitimacy and expertise. The majority of the UNHCR’s tactics have mainly involved persuasion and socialization in order to hold states accountable to their previously stated policies or principles. For example, High Commissioners have frequently reminded Western states that as liberal democracies and open societies they are obliged to adhere to human rights norms in their asylum and refugee admissions policies. Because the UNHCR possesses specialized knowledge and expertise about refugee law, states at times have deferred to the Office on asylum matters, for example when the Office has played a role in the refugee determination process in some states in Europe and elsewhere, particularly during the early period of its history.14 In recent decades, however, states have often questioned the UNHCR’s moral authority or simply ignored it in the interest of pursuing more restrictive asylum and refugee policies. As the scope of the global refugee regime has increased, efforts to ensure international solidarity and burden-​sharing have been more problematic, particularly in recent times as European states confronted a mass influx of asylum seekers and migrants from Syria, Iraq, Afghanistan, Eritrea, and elsewhere in the Middle East, Africa, and Asia. In response to these and other refugee crises, states have often sought means of pursuing their interests in the global refugee regime by attempting to shift responsibility to other actors and by avoiding additional responsibilities. Nevertheless, while its authority and legitimacy has consequently declined, during the past decade and a half the Office has tried to influence how states respond to refugees. During 2001–​2, for example, the UNHCR initiated the Global Consultations on International Protection, which resulted in the adoption of an Agenda for Protection. Moreover, since 2007 the High Commissioner’s annual dialogues on Protection Challenges have provided a forum for states, NGOs, and experts to discuss action plans on issues such as mixed migration, burden-​sharing, durable solutions, protracted refugee situations, IDPs, urban refugees, environmental displacement, and protection at sea. In response to the Syrian refugee crisis in 2016 the UNHCR played an important role in several conferences to address the financial dimensions of the crisis, to encourage new offers of resettlement places for Syrian refugees and to take part in a summit meeting on refugees at the UN General Assembly. Finally, the UNHCR continuously provides training and  Loescher, UNHCR and World Politics; Gil Loescher and James Milner, “UNHCR and the Global Governance of Refugees,” in Global Migration Governance, ed. Alexander Betts (Oxford: Oxford University Press, 2011), 189–​209; Arthur Helton, “What Is Refugee Protection? A Question Reconsidered,” in Problems of Protection: The UNHCR, Refugees and Human Rights, ed. Niklaus Steiner, Mark Gibney and Gil Loescher (New York: Routledge, 2003), 19–​36. 14

 

political and financial constraints on the unhcr    331 promotes guidelines and standards for the international protection of refugees in handbooks, manuals, and in a variety of forums involving not only states but also experts, NGOs, and regional and local actors around the world.

Political and Financial Constraints on the UNHCR The UNHCR is dependent on voluntary contributions to carry out its work. This gives significant influence to a limited number of states in the Global North who have traditionally funded the bulk of its operational budget.15 At the same time, the Office works at the invitation of states to undertake activities on their territories and must therefore negotiate with a range of refugee hosting states, especially in the Global South. The UNHCR is consequently placed in the difficult position of trying to facilitate cooperation between donor states in the Global North and host states in the Global South. At the same time, the Office works within changing global contexts, with changing dynamics of displacement, and with a range of partners, both within and outside the UN System. The humanitarian world is now characterized as a competitive marketplace that involves a vast range of actors each with their own mandate, institutional identity, and drive to protect their own interests.16 These political and institutional constraints affect the functioning of the global refugee regime and in some situations the ability of the UNHCR to fulfill its mandate. Since the end of the Cold War, Western states have largely limited the asylum they offer to refugees and have focused on efforts to contain refugees in their region of origin.17 Deterrence policies are aimed at physically or legally preventing refugees from reaching the territory of asylum states. These measures include nonarrival policies, such as pre-​departure checks of boarding passengers by immigration liaison officers in key transit countries, strict visa requirements, sanctions against airlines carrying asylum seekers, and the deployment of warships to intercept illegal boats carrying asylum seekers on the high seas.18   In recent years the top ten donor states are the United States, the European Commission, Japan, Sweden the Netherlands, Norway, the United Kingdom, Germany, Denmark, and Canada. 16   Martin Gottwald, “Competing within the Humanitarian Marketplace: UNHCR’s Organizational Culture and Decision-​Making Process,” New Issues in Refugee Research, Working Paper 190 (2010). 17   Andrew Shacknove, “From Asylum to Containment,” International Journal of Refugee Law 5/​4 (1993): 516–​33. 18   For a discussion of these measures see Thomas Gammeltoft-​Hansen, “International Refugee Law and Refugee Policy: the Case of Deterrence Policies,” Journal of Refugee Studies 27/​4 (2014): 574–​95. 15

 

332    refugees and internally displaced persons From the 1990s, states in the developing world also began to place restrictions on asylum.19 Some states closed their borders to prevent arrivals, pushed for the early and often unsustainable return of refugees to their country of origin, and, in exceptional cases, forcibly expelled entire refugee populations. More generally, states have been placing limits on the quality of asylum they offer to refugees, by denying them the social and economic rights contained in the 1951 Convention, such as freedom of movement and the right to seek employment. Many states in the South now require refugees to remain in isolated and insecure refugee camps for protracted periods, cut off from the local community, and fully dependent on international assistance.20 Even greater numbers of refugees and IDPs are residing in overcrowded and unsafe urban areas mostly without international protection and assistance and with different needs and livelihood opportunities. The crisis of asylum in both the North and South has confronted the UNHCR with a nearly impossible task. As the global crisis of asylum emerged, states largely devised their own responses to insulate themselves from the growing number of refugees seeking access to their territories. The lack of cooperation by states, coupled with a long-​standing global impasse over cooperation between Northern donor countries and Southern host states, has significantly frustrated the UNHCR’s activities.21

IDPs: The Evolution of an International Institutional Framework While there has been global institutional concern for refugees since the early 1920s, IDPs have only recently attracted the attention of the international community. At the creation of the UNHCR in December 1950, governments debated whether “internal refugees”—​ internally displaced people—​ should be included in the refugee definition and decided to exclude these groups from the UNHCR mandate despite the opposition of some developing countries such as  James Milner, Refugees, the State and the Politics of Asylum in Africa (Basingstoke:  Palgrave Macmillan, 2008). 20   Amy Slaughter and Jeff Crisp, “A Surrogate State? The Role of UNHCR in Protracted Refugee Situations,” in Protracted Refugee Situations: Political, Human Rights and Security Implications, ed. Gil Loescher et al. (Tokyo: UN University Press, 2008), 123–​40. 21   Gil Loescher and James Milner, “The Missing Link: The Need for Comprehensive Engagement in Protracted Refugee Situations,” International Affairs 79/​3 (2003): 595–​613; Antonio Guterres, “Millions Uprooted: Saving Refugees and the Displaced,” Foreign Affairs 87/​5 (September–​October 2008): 90–​9. 19

 

idps   333 Pakistan.22 Throughout the Cold War internal displacement was widely regarded to belong to states’ internal affairs. For the most part, the UNHCR did not challenge the traditional notions of sovereignty and the principle of nonintervention in the domestic affairs of states. Thus, the Office refused to become involved in some of the major internal conflicts of the 1960s such as the Indonesian coup of October 1965 and the 1967–​70 conflict in Biafra. During the 1970s and 1980s the High Commissioner was occasionally asked to assist IDPs, but only on an ad hoc basis. Furthermore, the UNHCR only undertook such activities when the operation was closely linked to refugee protection, the work fell within the Office’s expertise, and the UNHCR had the permission of the host state. For the most part, the UNHCR focused its activities on refugees who had crossed national borders and avoided taking responsibility for IDPs. IDPs only began to gain international attention at the end of the Cold War. The Iraqi Kurdish crisis of 1991, the political and ethnic conflicts following the breakup of the former Yugoslavia and former Soviet Union, and the emergence of new intrastate conflicts throughout Africa and Asia generated huge numbers of IDPs. The global number of IDPs ballooned from an estimated 1.2 million in 1982 to 20 to 25 million people in 1995. The rapid growth of IDPs and humanitarian emergencies led to a widespread recognition that there was a need to develop a coherent and effective legal basis for protecting IDPs and to establish a reliable institutional basis to provide them with protection and assistance.23 In order to highlight this problem and to generate support for IDPs, the UN Secretary-​General appointed Francis Deng to become his Representative for IDPs in 1991. The following year the UN Human Rights Commission created the mandate for the position. At the same time, a group of NGOs drew attention to the fact that IDPs were a human rights problem requiring international focus and attention as well as a change of view and policy toward state sovereignty. These developments, along with the tragedies of Rwanda, Srebrenica, and NATO’s intervention in Kosovo, contributed to the adoption of the “Responsibility to Protect” (R2P) doctrine by the UN General Assembly in 2005. In subsequent years, R2P was used selectively to assist refugees and displaced people in situations such as Libya in 2011. However, in Syria, UNHCR and humanitarian agencies have been largely restricted to working outside borders.24

 Loescher, UNHCR and World Politics. The United States in particular opposed the incorporation of IDPs in the refugee definition in order to forestall an assistance mandate being extended to the newly created UNHCR. See Phil Orchard, “The Contested Origins of Internal Displacement,” International Journal of Refugee Law (forthcoming). 23   Thomas Weiss and David Korn, Internal Displacement: Conceptualization and its Consequences (Abingdon: Routledge, 2006); Phil Orchard, “The Perils of Humanitarianism: Refugees and IDP Protection in Situations of Regime-​Induced Displacement,” Refugee Studies Quarterly 36/​2 (2010): 281–​303. 24   For analysis of R2P see Chapter  14 of this volume by Thomas Weiss:  “Humanitarian Action”; Thomas Weiss, Humanitarian Intervention: Ideas in Action, 2nd ed. (Cambridge: Polity Press, 2012); 22

 

334    refugees and internally displaced persons Throughout the 1990s, however, existing international organizations, including the UNHCR, resisted assuming formal responsibility for IDPs. While the Office had acted with UN support as lead agency in providing in-​country protection in IDP emergencies in northern Iraq and in the former Yugoslavia there was little enthusiasm within the Office for formally expanding the organization’s mandate to include the internally displaced.25 In 1993, the UNHCR published a set of broad and flexible guidelines concerning the organization’s activities on behalf of IDPs, allowing the Office to avoid a formal commitment to IDPs but also giving it the flexibility to get involved in IDP emergencies the agency considered appropriate or politically important to address. Most importantly, however, the guidelines did not resolve the problem of how the international community should deal with IDPs nor did they clarify the scale, scope, or duration of the UNHCR’s operational involvement.26 In the face of resistance from the UNHCR and other international organizations to take formal responsibility for IDPs, Deng and his colleagues took a series of steps to increase the international visibility of IDPs and to develop a legal and normative framework for their protection.27 This culminated in 1998 in the creation of the “Guiding Principles on Internal Displacement” which drew upon states’ existing obligations under international human rights law and international humanitarian law to create a soft law framework defining states’ obligations to IDPs. Since 1998, international bodies have welcomed and explicitly referred to these principles when monitoring the implementation of international law. In 2005, the UN World Summit of heads of states and government unanimously recognized the Guiding Principles as an important international framework for the protection of IDPs. The Guiding Principles have also been included in the policies of many UN agencies, of regional organizations, and of individual states. For example, in 2006, the International Conference on the Great Lakes Region adopted the Great Lakes Protocol on the Protection and Assistance to Internally Displaced Person which obliged the ten states parties to fully incorporate the Guiding Principles into their domestic legal order and thus provide them with the force of law.28 In 2009 the and Jennifer Welsh, “Implementing the Responsibility to Protect:  Catalyzing Debate and Building Capacity,” in Implementation and World Politics:  How International Norms Change Practice, ed. Alexander Betts and Phil Orchard (Oxford: Oxford University Press, 2014), 124–​43. 25   On the history and risks of linking refugee crises with military intervention see: Adam Roberts, “Refugees and Military Intervention,” in Refugees in International Relations, ed. Alexander Betts and Gil Loescher (Oxford: Oxford University Press, 2011), 213–​35; and Hammerstad, The Rise and Decline of a Global Security Actor. 26   UNHCR’s Role with Internally Displaced Persons, IOM-​FOM 33/​93 of April 28, 1993; and Gil Loescher and Jeff Crisp, “UNHCR’s Role in Protecting and Assisting Internally Displaced People,” Central Evaluation Section, Discussion Paper, UNHCR, Geneva, November 1993. 27   Weiss and Korn, Internal Displacement. 28   Regarding the history and status of the Guiding Principles in international law see Francis Deng, Protecting the Dispossessed: A Challenge for the International Community (Washington, DC: Brookings Institution, 1993); Roberta Cohen and Francis Deng, Masses in Flight: The Global Crisis of Internal

 

idps   335 African Union adopted the Kampala Convention addressing internal displacement in a comprehensive manner and requiring states parties to enact appropriate domestic legislation and to create an institutional framework for the coordination of IDP-​ related activities and allocation of funds to ensure implementation. In December 2012, the Kampala Convention entered into force. Alongside the creation of these principles, an international institutional framework for the protection of and assistance to conflict-​induced IDPs emerged. From 1998, the Internal Displacement Monitoring Center has gathered and published data on conflict-​induced internal displacement, which led to an increase in attention to the plight of IDPs and a steadily growing involvement in the issue by the international community. The UN Inter-​Agency Standing Committee (IASC), the primary mechanism for interagency coordination of humanitarian assistance by UN agencies, attempted to coordinate the responses to IDP emergencies through a so-​called “collaborative” approach in which agencies jointly engaged in the protection of IDPs. Despite these efforts, various gaps in humanitarian assistance persisted resulting in inconsistent policy and programmatic responses to IDP crises and a glaring disparity between the assistance provided by the UNHCR to refugees and the ad hoc assistance afforded to IDPs. Consequently, in 2005, the IASC undertook a review of the international response to IDPs that called for better coordination of the delivery of humanitarian assistance by both intergovernmental actors and NGOs. Antonio Guterres, the UNHCR High Commissioner, strongly supported greater engagement by his Office with the issue of IDPs. A new division of responsibility emerged under the so-​called “cluster” approach in which different UN and international agencies share responsibility for responding to different aspects of the needs of IDPs.29 Since 2006, the UNHCR has taken responsibility for IDP protection and the provision of shelter and camp management in conflict situations. The ICRC plays a major role in the protection of civilians and IDPs in the midst of internal armed conflict and in negotiations with both governments and nonstate actors, such as rebel armies.30 Other agencies, such as the IOM, assumed responsibility for Displacement (Washington, DC: Brookings Institution, 1998); Catherine Phuong, The International Protection of Internally Displaced Persons (Cambridge: Cambridge University Press, 2005); Simon Bagshaw, Developing a Normative Framework for the Protection of Internally Displaced Persons (Ardsley, NY: Transnational Publishers, 2005); Walter Kalin, Guiding Principles on Internal Displacement: Annotations, 2nd ed. (Washington, DC: American Society of International Law, 2008); Walter Kalin et al., Incorporating the Guiding Principles on Internal Displacement into Domestic Law (Washington, DC: American Society of International Law, 2010); Phil Orchard, “Implementing a Global Internally Displaced Persons Protection Regime,” in Implementation and World Politics: How International Norms Change Practice, ed. Alexander Betts and Phil Orchard (Oxford: Oxford University Press, 2014), 105–​23; Phil Orchard, Protecting the Internally Displaced: Rhetoric and Reality (Abingdon: Routledge, 2016). 29   Inter-​Agency Standing Committee, Guidance Note on Using the Cluster Approach to Strengthen Humanitarian Response, November 24, 2006. 30   Miriam Bradley, Protecting Civilians in War:  The ICRC, UNHCR and their Limitations in Internal Armed Conflict (Oxford:  Oxford University Press, 2016); and David Forsythe and

 

336    refugees and internally displaced persons camp coordination and camp management for disaster IDPs, the WFP for IDPs’ food and nutrition, and UNICEF for child protection.

Key Policy Challenges: Failure of Durable Solutions and the Rise of Protracted Displacement The UNHCR was created with two core functions: to protect refugees and to solve refugee problems. However, in recent years the three durable solutions that can bring refugees’ exile to an end—​voluntary repatriation and reintegration (return to the country of origin), local integration (permanent residency or naturalization in the first country of asylum), and resettlement (ordered migration to a third country)—​have failed to resolve most refugee situations and refugees have consequently spent longer times in exile. By the beginning of 2016, over half of the global refugee population under the UNHCR mandate, had been in exile for more than five years. In fact, the average duration of a refugee situation is now about twenty years.31 Since the late 1980s, repatriation or return to countries of refugees’ origin has been the preferred durable solution of states and the UNHCR. With the return home of refugees, asylum countries are relieved of the financial, political, and security costs of providing a haven for refugees. Donor countries prefer repatriation to the expenses of maintaining long-​staying refugees in camps or to bearing a greater resettlement burden themselves. Countries of origin sometimes welcome the return home of their citizens as a visible sign of confidence in a change of regime. For many refugees, return to their homes is a highly prized ideal and aspiration. For many years the UNHCR has tried to create conditions for sustainable return to countries of origin by encouraging collaboration with development actors such as the World Bank and UNDP with mixed results.32 However, repatriation is not always possible or preferable. In situations where there are ongoing conflict or human rights violations the prospects for sustainable return and reintegration are slim. In several situations in recent decades, involving Burmese Rohingya in Bangladesh, Rwandese

B. Rieffer-​Flanigan, The International Committee of the Red Cross: A Neutral Humanitarian Actor (Abingdon: Routledge, 2007).  UNHCR, Global Trends; and Milner, “Protracted Refugee Situations.”   Jeffrey Crisp, “Mind the Gap! UNHCR, Humanitarian Assistance and the Development Process,” International Migration Review 35 (Spring 2001): 168–​91. 31

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failure of durable solutions    337 Hutu in the Democratic Republic of the Congo, and Somalis in Kenya, to name only a few, the UNHCR has faced considerable pressures to push for involuntary repatriation. In mid 2016, the UNHCR reported that during the previous year only 201,400 refugees were repatriated. Compared to the 1990s when returns exceeded a million or more most years, in 2015 large numbers of unresolved violent conflicts in the Middle East, Africa, and Asia kept repatriations at very low levels.33 The UNHCR has also encouraged local integration through providing integrated community development assistance to both refugees and host communities. In recent years, a limited number of states have adopted programs for the naturalization and integration of refugees but these programs have encountered domestic political constraints and diminishing support from donor states. In reality, many host countries are politically unstable and have weak economies. Thus, relatively few host states are prepared to allow refugees freedom of movement and the right to work, let alone provide them with the opportunity to integrate fully, acquire residency, and work toward citizenship. Resettlement efforts, too, have been disappointing in recent years with state willingness to resettle refugees declining. While some twenty-​seven countries now have resettlement programs, the United States, Canada, and Australia resettle over 90 percent of the total. During the Cold War, very large numbers of refugees were resettled in the West reaching a peak during the Vietnamese boat-​people crisis. Subsequently, however, the major resettlement states, particularly the United States, significantly reduced their annual intake of resettled refugees. In the aftermath of 9/​11, refugee and immigrant entry controls have become increasingly securitized in the United States and elsewhere. In addition, the challenge and cost of integrating refugees makes many states wary of promoting large resettlement programs. In 2015, a total of 107,100 refugees were admitted by resettlement countries.34 While these numbers are important, they pale in significance compared to the more than 4 million Syrians given refuge by host countries in the Middle East. The decline in the effectiveness of the traditional durable solutions in recent years has resulted in a dramatic rise in the number of protracted refugee situations. Many of today’s long-​ staying refugees were originally displaced in the early 1990s during conflicts in the Balkans, the Horn of Africa, West Africa, Central Africa, Colombia, and Southeast and Southwest Asia. Today many of these situations remain unresolved and many of these refugees now find themselves in protracted exile. In recent years, these long-​staying refugees have been joined by millions of newly displaced refugees and IDPs uprooted by conflicts in Africa, the Middle East, Southwest Asia, and Ukraine. The UNHCR has been unable to leverage sufficient solutions for refugees many of whom are stranded in increasingly restrictive situations in host countries. Many are either confined to camps or are

 UNHCR, Global Trends.   34 Ibid.

33

 

338    refugees and internally displaced persons stranded in urban areas and are denied the opportunity to be self-​reliant or to pursue a solution through local integration or resettlement. At the same time, the challenge of finding solutions for protracted refugee situations has coincided with the decline of donor state support for long-​term refugee assistance and repatriation programs. These developments coincide with the outbreak of new refugee crises on the high seas, most vividly illustrated in recent times by the boat-​ people crises in the Mediterranean Sea and the Gulf of Aden as well as in the seas around Southeast Asia and Australia. At the same time, large numbers of refugees continue to be confined in camps across the Global South and provided with declining levels of food, shelter, and other needs by long-​term “care and maintenance” programs by the UNHCR and NGOs. Even larger numbers of forcibly displaced people find their own way to one of the burgeoning cities of the Global South where they live alongside equally deprived local citizens and often receive insufficient support from the host state or the international community. Despite the close linkage between protracted conflict and protracted displacement, peace and security actors have largely failed to adequately address the conflict and human rights issues in countries of origin, and development agencies have not sufficiently engaged with finding solutions to long-​staying refugee populations, particularly through repatriation and local integration. In light of the failure of the traditional durable solutions to resolve protracted exile, many refugees are increasingly seeking their own solutions through irregular onward migration outside their region of origin. In the future the UNHCR and states will need to address the problems of chronic and unresolved exile with policies based increasingly on the capacities, interests, and aspirations of the displaced populations themselves.

Key Policy Challenges: The UNHCR’s Dependence on Funding and Cooperation from States The UNHCR’s relationships with states have changed significantly over time. The most important of these is the Office’s relationship with donor states, who control the direction of its work through the tight control of the organization’s resources. Contributions from the UN regular budget now account for less than 3  percent of the UNHCR’s Annual Budget. As a result, the UNHCR today is almost exclusively dependent on voluntary contributions from states to carry out its programs.

 

dependence on funding and cooperation from states    339 This dependence is compounded by the fact that funding has tended to come from a relatively small number of so-​called traditional donors in the industrialized world, with around three-​quarters of its budget coming from its top ten donors. The unpredictability of funding and the concentration of donorship have placed the UNHCR in a precarious political position. While the Office has attempted to safeguard the integrity of its mandate by being seen as politically impartial, its ability to carry out its programs depends upon its ability to respond to the interests of a relatively small number of donor states. The influence of donor states is increased through their ability to specify how, where, and on what basis their contributions may be used by the UNHCR. This practice, known as “earmarking,” remains commonplace. The practice of earmarking allows donors to exercise considerable influence over the work of the UNHCR as programs considered important by donors receive considerable support, while those deemed less important receive less support. During recent years, the numbers and needs of refugees have been growing considerably faster than the level of funding available globally for humanitarian aid. Thus currently more than half of the needs of refugees and other populations of concern to the UNHCR remain unaddressed further exacerbating their vulnerability. The Office needs significantly more secure funding to address the most basic needs of the people it is mandated to care for. The interests of a relatively small number of northern states have been highly influential in determining the UNHCR’s activities. Perhaps the most damaging effect of a concentration of donors is the perception by southern states that the UNHCR is beholden to a relatively small number of northern donors and therefore is tied to their interests. These perceptions have further frustrated efforts at ensuring international cooperation within the global refugee regime in recent years. The UNHCR depends on cooperation and guidance from states in both the Global North and South. The Office’s Executive Committee (ExCom) currently has 98 states as members. ExCom is responsible for approving the Office’s budget and program, for setting standards and reaching conclusions on international refugee protection policy issues, and for providing guidance on the UNHCR’s management, objectives, and priorities. It is the only specialized multilateral forum at the global level responsible for contributing to the development of international standards relating to refugee protection. Excom Conclusions are authoritative statements both on refugee rights and standards and on what states and other stakeholders should do to guarantee them. In recent years, ExCom has become too large and politicized, and operates less effectively as a decision-​making body.35 Not only are there too many participants, but the issues are complex, divisive, and numerous and 35   Betts, Loescher, and Milner, UNHCR:  The Politics and Practice of Refugee Protection, 108–​12; Marion Fresia, “Building Consensus within UNHCR Executive Committee: Global Refugee Norms in the Making,” Journal of Refugee Studies 27/​4 (2014): 514–​33.

 

340    refugees and internally displaced persons meetings are seldom a forum for organizational guidance. In addition, the increasing divide between industrialized states and developing countries makes international consensus on refugee matters exceedingly difficult to achieve. In recent years, most of the substantive discussions between the UNHCR and governments have taken place during side meetings outside the formal sessions of Excom, for example on issues such as naturalization of Burundian refugees in Tanzania, approaches to livelihoods, and new partnerships with the World Bank.

Key Policy Challenges: The Refugee Regime Complex In recent decades the work of the UNHCR has been further complicated by the dramatic increase in new forms of international cooperation at the bilateral, regional, and international levels in the areas of labor migration, international travel, human rights, humanitarianism, security, development, and peacebuilding. A  “refugee regime complex”36 has emerged in which these different institutions overlap, exist in parallel to each other, and influence states’ policies toward refugees. With this proliferation of new actors, the UNHCR has had to compete for funds, visibility, and territory. Many of the new institutions offer states the opportunity to bypass the UNHCR and the 1951 Convention when addressing their concerns with asylum. For example, new forms of interstate cooperation on irregular migration enable many states to limit the access of asylum seekers and migrants to their territory. Within the international travel regime, regional forums have been established which enable states to develop bilateral agreements on issues such as visa control, readmission agreements, international zones at airports, and extraterritorial border management. These mechanisms allow states to collectively manage who reaches their territory thereby enabling states to reduce asylum seekers’ access to spontaneous arrival without overtly violating the norms of the refugee regime. While competition has clearly complicated the UNHCR’s work and effectiveness, the emergence of overlapping institutions has also enabled the Office to develop new partnerships that permit the Office to better fulfill its mandate. For example, a number of international human rights instruments provide sources of protection for refugees fleeing persecution that come from outside of international refugee

  Alexander Betts, “The Refugee Regime Complex,” Refugee Studies Quarterly 29/​1 (2010).

36

 

changing trends in forced migration    341 law.37 With only a few exceptions, refugees are entitled to rights set out in international and regional human rights treaties and customary international law. Human rights treaties such as the International Convention on Civil and Political Rights and the Convention Against Torture provide protection against refugees being forcibly returned to situations where they would face a real risk of death, torture, or cruel, inhumane, or degrading treatment. At times, the Office has also collaborated with other institutions such as the UNDP or IOM in ways that enabled it to engage with the development and migration implications of forced displacement. Much of the Office’s recent work, particularly on behalf of conflict induced IDPs, is premised upon interagency collaboration through the UN’s Inter-​Agency Standing Committee. The UNHCR’s participation in the cluster framework is a step forward in greater coordination with other agencies. To date, however, apart from its work on IDPs, the Office has resisted fully committing itself to the new focus within the UN on interagency integrated missions and to fully participating in unified responses to new humanitarian emergencies and crises. The UNHCR remains concerned that by sharing its mandated functions with other agencies it risks losing its lead status for protection, assistance, and solutions for refugees. However, in order for it to become more effective, UNHCR will likely have to overcome its resistance to international coordination and will have to further expand its international links by establishing stronger complementary overlap with other institutions such as the Office of the High Commissioner for Human Rights, the World Bank, and the UN Peacebuilding Commission (PBC).

Key Policy Challenges: Changing Trends in Forced Migration While the refugee problem remains as relevant as ever, the range of forced displacement challenges has become increasingly diverse. Today the UNHCR faces the most rapid period of change in the nature of forced displacement in the more than six and a half decades of its existence. In addition to assuming the lead in protecting IDPs in conflict situations, climate change, state fragility, food insecurity, and rapid urbanization all raise fundamental questions for new understandings of the Office’s mandate and role in providing protection for populations displaced by these new developments.

  Jane McAdam, Complementary Protection (Oxford: Oxford University Press, 2007).

37

 

342    refugees and internally displaced persons International migration has increased rapidly in recent decades. The UNHCR now works in a context in which asylum seekers and other groups of migrants are increasingly hard to distinguish. Both groups move for a variety of reasons including persecution, escape from violence, and human rights violations, as well as in the search for employment and a better standard of living. Asylum seekers and migrants often use the same traffickers and migration routes and states often fail to differentiate between them. Refugees and IDPs increasingly settle in city centers or along the outskirts of urban areas where they are difficult to access. Thus, mixed migration poses a huge challenge for how the UNHCR protects refugees. Moreover, as new drivers of cross-​ border displacement continue to emerge with the complex interaction of state fragility, environmental change, and food insecurity, the Office faces the dilemma of how to respond to other categories of vulnerable migrants who have protection needs.38 As new challenges emerge, the UNHCR will face the question of how to adapt and how to define the boundaries of its “population of concern.” It will need to judiciously decide when and when not to take on new activities. And when new challenges are recognized as requiring an international response, it will need to carefully judge whether to take on such tasks or to encourage other actors to assume responsibility.

IDPs: Current Challenges and Emerging Issues Since the adoption of the cluster approach in 2005, the UNHCR’s involvement with the protection of conflict induced IDPs has grown significantly.39 In the decade before the cluster approach was introduced the number of IDPs “of concern” to the UNHCR was in the range of 4 to 6 million. By 2007 that number had jumped to 13.7 million; by the end of 2011 the Office was engaged with 15.5 million IDPs in thirty-​one countries.40 At the beginning of 2016, the UNHCR was working with more than 37.5 million conflict-​induced IDPs out of a total 40.8 million IDPs around the world.41 The prolongation of old internal conflicts and the emergence of 38  Alexander Betts, Survival Migration:  Failed Governance and the Crisis of Displacement (Ithaca: Cornell University Press, 2013). 39  Simon Russell and Vicky Tennant, “Humanitarian Reform:  From Humanitarian Reform to Clusters and Beyond,” in The Oxford Handbook of Refugee and Forced Migration Studies, ed. Elena Fiddian-​Quasiyeh et al. (Oxford: Oxford University Press, 2014), 302–​16. 40  UNHCR, UNHCR Global Report 2007 (Geneva: UNHCR, 2008). 41  UNHCR, Global Trends.

 

idps: current challenges and emerging issues    343 new ones in the Middle East, North Africa, South Sudan, Somalia, Central Africa, Afghanistan, and Ukraine indicate that the number of IDPs will grow even larger in future years. The cluster approach has resulted in a number of positive and negative outcomes for the protection of IDPs. The UNHCR’s own early evaluations claimed that the new approach had fostered a common strategic vision at country level, had clarified roles and responsibilities, had strengthened the mobilization of resources, and had improved coordination among agencies. Later evaluations were less positive. The protection cluster was consistently singled out as one of the least effective and least resourced of all the clusters.42 Major criticisms are that international, national, and local NGOs have not been regarded as equal partners by the UNHCR and that the system is not sufficiently grounded in accountability to crisis-​affected communities. In several instances, the clusters “excluded local and national actors and failed to link with, build on, or support existing coordination and response mechanisms thus weakening national and local ownership and capacities.”43 While many states affected by internal displacement have domestic laws and policies, implementation of these by states hosting IDPs are frequently hampered by security problems and by a lack of capacity on the part of national and local authorities.44 Many IDPs are still unaware of their rights and are inadequately consulted and advised by national and international agencies. More effort is required by the UNHCR to improve coordination and ensure IDP protection can be delivered not only as a legal framework but also in practice. Among other things, this will require closer cooperation, consultation, and partnership with regional, national, and local authorities, greater engagement and consultation with displaced populations and local communities, and greater commitment by the UNHCR to train larger numbers of staff with appropriate skills and to provide greater financial resources to more adequately fulfill its role in the IDP protection cluster. The UNHCR activities regarding IDPs are largely shaped by the Guiding Principles. The primary focus of its work with IDPs is to work with governments to ensure that they do not discriminate against IDPs and that they observe their responsibilities to their citizens as set out in the Guiding Principles. The Office’s activities include assisting governments to observe these rights, to advocate on behalf of IDPs, to inform IDPs of their rights, and to assist in building capacity in IDP communities. Unlike the work for IDPs undertaken by the ICRC and by peacekeeping operations, however, the UNHCR does not usually engage in the physical protection of the internally displaced in conflict zones or intervene with nonstate actors, such as warlords, militias, rebel groups, criminal networks, or   Russell and Tennant, “Humanitarian Reform.”   A. Street et al., Review of the Engagement of NGOs with the Humanitarian Reform Process: Synthesis Report (Geneva: International Council of Voluntary Agencies, 2009). 44   Phil Orchard, “Implementing a Global Internally Displaced Persons Protection Regime,” 105–​23. 42 43

 

344    refugees and internally displaced persons other paramilitary forces to prevent physical abuse or other human rights violations. Thus, the UNHCR has at best a very limited role in the physical protection of IDPs and is neither well trained nor equipped to deal with the armed violence and physical insecurity that characterizes many of these situations. Consequently, in many IDP crises, the UNHCR’s protection role is quite limited and often can only mitigate slightly, if at all, the very dangerous situation most IDPs find themselves in.45 Most IDP situations, like refugee situations, are protracted crises lasting many years if not decades. Neither the UNHCR nor any single intergovernmental agency can handle on their own the complex, diverse, and interconnected protection needs and vulnerabilities of displaced people caught in protracted displacement. Responding effectively to IDPs requires not only protection but peacebuilding and post-​conflict reconstruction and a range of developmental strategies that require greater collaboration between the UNHCR and developmental and peacebuilding agencies such as the World Bank, the UNDP, and the UN PBC.

Toward a More Effective Response to Refugees and IDPs The expansion of the UNHCR’s programs and populations of concern has allowed the organization to grow and maintain its relevance both to the interests of key donor states and to some host states in the south. However, it has also led to a continuous growth of its activities in often potentially contradictory ways. In fact, taking on an expanded role has sometimes had negative consequences for protection and for finding solutions for refugees and IDPs. The Office has struggled to ensure that refugees have access to international protection and the range of rights contained in the 1951 Convention. States’ unpredictable financial contributions and increasingly restrictive responses to refugees in their territories mean that protection needs are often inadequately met. As noted earlier, the UNHCR has often failed to fulfill the solutions aspect of its mandate. Particularly alarming is the fact that the average duration of a refugee situation has nearly doubled in the past decade. At present more than 20 million refugees and IDPs live in extended and chronic exile. These facts vividly demonstrate that existing approaches to solving displacement have failed. However, these challenges also further demonstrate the ongoing

 Bradley, Protecting Civilians in War.

45

 

toward a more effective response to refugees and idps    345 relevance of the UNHCR’s core mandate and the need to reinvigorate its focus on its central responsibilities. The prevalence of protracted displacement highlights the need to ensure refugees’ and IDPs’ timely access not only to durable solutions but also to encouraging states to adopt a more flexible approach to offering protection and more opportunities for long term residency and citizenship to displaced people.46 One promising development has been the adoption of regional citizenship and freedom of movement accords in West Africa in recent years. Following the end of violent civil wars in the region, some refugees from Sierra Leone and Liberia in West Africa were not only reissued with national passports but also were permitted by regional agreements to remain in their host communities in neighboring countries where they were allowed to legally work and reside.47 Recent initiatives in California permit noncitizens to sit on juries, monitor polls in elections, and even practice law. This is part of a trend in some US states to open up legal residency and possibly future citizenship for some illegal immigrants.48 In the future, the international community needs to work harder to remove obstacles that prevent refugees and IDPs being able to exercise choice, including restrictions on movement, citizenship, residency, employment, and education. Such strategies and approaches that build on the capacities, interests, and aspirations of displaced persons themselves require more institutional flexibility from international organizations like the UNHCR and IOM. Finally, these initiatives need to take place within broader development and peacebuilding strategies aimed at resolving protracted refugee and IDP situations.49 While the relevance of the UNHCR’s core mandate therefore remains as salient as ever, the nature of displacement is fundamentally changing in the twenty-​first century. The Office has moved beyond its original focus on refugees to an involvement with other groups, including asylum seekers, returnees, stateless persons, IDPs, and victims of natural disasters. The UNHCR’s work and policy concerns are interconnected in complex ways with broader issue areas such as migration, security, development, and peacebuilding. Protecting and finding solutions for refugees and IDPs are not just UNHCR issues but cut across a wide range of international organizations’ work and mandates. In order to fulfill its core mandate of achieving protection and solutions for refugees, the UNHCR cannot avoid engaging proactively in response to these developments. However, this is not an argument for the 46   Katherine Long, Permanent Crises? Unlocking the Protracted Displacement of Refugees and IDPs (Oxford: Refugee Studies Centre, 2011); and Katy Long, “Rethinking Durable Solutions,” in The Oxford Handbook of Refugee and Forced Migration Studies, ed. Elena Fiddian-​Quasiyeh et al. (Oxford: Oxford University Press, 2014), 475–​87. 47   International Federation of Red Cross (IFRC), World Disasters Report 2012:  Focus on Forced Migration and Displacement. 48   New York Times, September 21, 2013, 1. 49  IFRC, World Disasters Report 2012; and “Protracted Displacement: The Challenge of Protection,” Refugee Survey Quarterly 30/​4 (2011).

 

346    refugees and internally displaced persons Office to infinitely expand its mandate and become a migration organization or a development organization. Rather, it is an argument for a UNHCR that plays a facilitative and catalytic role in mobilizing other actors to fulfill their responsibilities with respect to refugees. The Office will also need to become more focused and strategic in the advocacy, coordination, and facilitation role that it plays. To be able to play such a role, it will need to overcome some key challenges—​its governance, transparency, and ability to secure funding—​while developing ways of engaging more effectively with the UN system, regional organizations, states, and with refugees and IDPs themselves. The UNHCR is a unique international organization, which has adapted and changed over time in order to balance its own institutional interests, the interests of states, the protection of refugees and other displaced people, and the need to uphold its normative agenda. The history of the UNHCR highlights the significant role that an international organization can play as the guardian of an institutional framework over time in spite of changing configurations of interests and power relations. However, it also highlights how the tensions and contradictions implicit in this role can shape the trajectory of the organization itself and even affect its central role of the protection of refugees and IDPs. It is only by confronting and responding effectively and creatively to these tensions and readjusting its structures and tactics that the UNHCR will be able to fully realize its mandate of protecting refugees and IDPs and finding solutions to their plight.

 

Chapter 16

TRADE Joel P. Trachtman

Since the early part of the twentieth century, there has been much growth in international treaty law addressing international trade. The main function of this body of law is to provide rights of market access for foreign goods and services and to restrain other trade practices deemed unfair. Early trade treaties did not create organizations. However, since the 1940s, increasing numbers of organizations have been established. The major multilateral trade organization, the World Trade Organization (WTO), was established in 1995 as a successor organization to the General Agreement on Tariffs and Trade (GATT), which evolved as an organization over time under a 1947 treaty. Other organizations have been established in connection with plurilateral free-​trade agreements or customs unions. Free-​trade areas eliminate tariffs on substantially all trade in goods, and often also seek to reduce nontariff barriers and barriers to trade in services. Customs unions have an additional feature: they create a common external tariff. As of June 3, 2013, the WTO database listed 258 plurilateral trade agreements in force.1 The purpose of this chapter is to explain the functions of international organizations for trade, and the corresponding structures. I focus on the structure of the WTO, and in this chapter I can only make brief comments about the structures of other international trade organizations. Of course, the European Union (EU), the successor to the European Economic Community established in 1957, began its life, and still has a central character, as a trade organization. However, it now addresses a broad range of economic and political integration issues, and has an extensive and sui generis organizational structure.   http://​rtais.wto.org/​UI/​PublicAllRTAList.aspx.

1

 

348   trade This chapter will describe the functions of the law of international trade, and explain how international organizations may be designed to advance these functions. Then it will describe the organizational structure of the WTO. It will briefly address the issue of overlap between the concerns of the WTO and those of other international organizations. Finally, it will briefly explain the functions and structure of free-​trade areas and customs unions.

Functions of International Law of Trade and Functions of International Organizations for Trade This section will examine the basic functions of the international law of trade, and how international organizations may contribute to the performance of these functions. The perspective of this chapter is that organizations are formed in order to contribute to the formation and implementation of international law, to the extent desired by the states responsible for forming the relevant international law. It is important to recognize that in connection with international trade, the law came first, and the institution developed to service the law.2 The functions of trade law addressed in this section include (i) tariff reduction and prohibition of quotas, (ii) control of other nontariff barriers, (iii) harmonization and mutual recognition in connection with domestic regulation, and (iv) control of anti-​dumping, anti-​subsidies, and safeguards measures. I will explain each of these trade law functions, and explain what organizational structures may be appropriate in connection with each type of law. Since 1995 the WTO has also been responsible for multilateral liberalization of trade in services, as well as multilateral agreement on minimum levels of intellectual property protection, but I  will not address these responsibilities in this chapter.

Tariff Concessions Tariffs are taxes charged on imports of goods, ordinarily as a percentage of the value of the goods. Bilateral tariff-​reducing treaties date back hundreds of years. In the nineteenth century, there was a move toward linking various bilateral treaties through a “most-​favored nation” (MFN) clause, which would state that if either 2   See Gilbert Winham, “The World Trade Organization:  Institution Building in the Multilateral Trading System,” The World Economy 21/​3 (1998): 349–​68.

 

international law of trade and ios for trade    349 party provided more favorable tariff reductions to a third state, it would provide the benefit of those reductions to its present treaty partner. The 1947 GATT was the first multilateral trade treaty, but it did not begin its life as a multilateral organization. Rather, the GATT was intended as an interim measure to implement multilateral tariff reduction agreements that had been negotiated in connection with the proposed, but never formed, International Trade Organization (ITO). The ITO was to be the third Bretton Woods organization, along with the World Bank and International Monetary Fund (IMF), but when it was not ratified by the US Senate, other countries declined to ratify it and it never came into existence. So, interestingly, the GATT was merely a treaty and not an organization when it began life. However, organizational elements were added according to functional requirements over time until, by the time the GATT organization was replaced by the WTO organization, the GATT was a fully fledged international organization. Tariff reduction commitments are relatively simple commitments not to charge a tariff higher than a specified percentage. Tariffs ordinarily differ from product to product, and each country has its own schedule of tariffs. There are three parameters that must be determined in order to administer a tariff: (i) how is the good classified, (ii) what is the value of the good, and (iii) where the MFN rule has an exception, what is the origin of the good? So, agreements on tariff reduction need some subsidiary rules regarding the determination of classification, value, and origin. What are the functions of international organizations in relation to tariff concessions? First trade liberalization is often described, from the standpoint of the political support of governments, as a prisoner’s dilemma. Under this description, each individual state has an incentive to engage in protectionism, but all states are better off as a group if they liberalize. Unless the incentives are changed by international legal rules with consequences, each state will have incentives to defect, reducing the welfare of all states. Under these circumstances, a legal rule can improve global welfare by reducing the incentives of states to engage in protectionism, with negative consequences for violation. In this context, an international organization can administer and enforce legal rules that modify the incentives to produce an efficient, or more efficient, equilibrium. Second, under a multilateral MFN system, it seems useful to have coordinated negotiations. These negotiations can be housed within an international organization. Coordinated negotiations are important because otherwise there would be strong incentives, provided by the MFN principle, for individual states to avoid making any concessions and “free-​ride” on reciprocal concessions made by other states. Once this incentive is recognized, states might free-​ride generally, with the result that little tariff reduction takes place. So, while an organization is not strictly necessary for coordinated negotiations, it may house these negotiations and its secretariat may facilitate negotiations. Third, although tariff concessions are intrinsically fairly clear, and violations are obvious and can implicate reputational incentives for compliance, there is less clarity regarding classification, valuation, and rules of origin. Therefore, an institutionalized third-​party decision-​maker—​a court—​may become useful in order

 

350   trade to determine whether these parameters are applied correctly. However, even these are not overly difficult or momentous, and so, despite the fact that they can be the subject of litigation under GATT and WTO law, they seldom are litigated. So, tariff concessions by themselves do not seem to give rise to a critical need for adjudication administered by an international organization.

State Contingent Control of Nontariff Barriers Since 1947, the GATT, and now the WTO, have been remarkably successful at reducing average tariffs, at least among developed countries. However, as tariffs have declined, their protective effect has to some extent been replaced by a variety of nontariff barriers. While the variety of nontariff barriers is great, there are three types that are most important. One is discriminatory internal taxation. A  second is discriminatory or excessively burdensome regulation. A third involves so-​called administered protectionism, comprising three different types of measures: (i) anti-​ dumping duties, (ii) countervailing duties against subsidies, and (iii) safeguard measures against import surges. In this subsection, I address discriminatory taxation and discriminatory or excessively burdensome regulation. In the next subsection I will discuss harmonization and recognition as a response to the trade restrictive effect of regulatory diversity. After that I will discuss administered protectionism. By internal taxation, we mean taxation other than tariffs. It is obvious that a tariff reduction commitment will be useless if states reserve the right to apply their internal taxation in a manner that discriminates against imported goods. So, international trade law generally prohibits discrimination in internal taxation. However, while de jure discrimination is easy to recognize, it is also possible for states to engage in de facto discrimination. Domestic regulation is similar: de jure discrimination is easy to recognize, but de facto discrimination is more difficult. For example, is it discrimination if the EU prohibits imports of all asbestos-​based insulation? Is it discrimination if the Philippines taxes alcoholic beverages made with certain ingredients at a higher rate than alcoholic beverages made with sugar cane? In order to distinguish between ordinary internal taxation and regulation, on the one hand, and discriminatory internal taxation and regulation, on the other, it is necessary to exercise some judgment. This is where a dispute settlement mechanism can play an important role in allowing appropriate domestic autonomy while identifying unacceptable protectionism. In the WTO, under Article III of GATT, member states are required to provide national treatment to imported products. In addition, since the advent of the WTO in 1995, the WTO Agreement on Technical Barriers to Trade (TBT Agreement) has required that domestic technical regulations of products be proportionate in light of the legitimate objective that they serve. Also since 1995, the WTO Agreement on Sanitary and Phytosanitary Measures (SPS

 

international law of trade and ios for trade    351 Agreement) has required not only that sanitary and phytosanitary measures be proportionate, but that they also have a scientific basis. Henrik Horn notes that a complete contract that specifies permissible policies in all possible states of the world is simply infeasible: the costs of writing and enforcing any such agreement are prohibitive even assuming heroically that governments are able to specify ex ante all the regulatory needs that may arise in the future.3 The provisions of international trade agreements that require national treatment, proportionality,4 or a scientific basis can be regarded as components of a state-​contingent contract, delegating to the dispute settlement process the task of determining the state of the world—​that is, whether there is sufficient justification for the national measure. But these provisions refer to a state that is described by virtue of conditions such as like products, less favorable treatment, lack of scientific basis, etc. The implication is that adjudication will be required on a case-​by-​case basis to determine the degree to which state contingencies result in beneficial internalization of externalities. Horn explains that information about government preferences is at the core of the problem that national treatment is intended to solve: whether domestic regulators are engaging in first-​best regulation, or instead are engaging in protectionism. How do we determine the intent behind de facto discrimination—​how do we get closer to a requirement to set internal regulation at its first-​best level? While there is no international trade law requirement that domestic regulators set internal regulations to their first-​best levels, the national treatment requirement seems to seek to approximate this condition. Proportionality or scientific basis requirements may be added in order to achieve a closer approximation of this test than mere national treatment. National treatment, proportionality, or scientific basis requirements with respect to national regulation or taxation would normally require an organizational structure, such as a dispute settlement mechanism, to determine whether a national measure complies with the applicable standards. This is a critical function for an international organization such as the WTO.

Harmonization and Recognition Even if domestic regulation is not judged to be discriminatory, or even disproportionate, it can still burden international trade. Simple variation of standards across countries can make commerce difficult. Therefore, in the EU, a regime for essential harmonization and mutual recognition has been developed. Under the EU regime, states generally agree by qualified majority voting on a minimal or essential level of harmonization of regulatory standards in connection with goods or services, as   Henrik Horn, “National Treatment in the GATT,” American Economic Review 96/​1 (2006): 394, at 394.   A proportionality requirement in this context would ask whether the national measure is the least restrictive means to achieve the purported goal. 3

4

 

352   trade a predicate for accepting mutual recognition. Mutual recognition requires states to accept the home state’s regulation in satisfaction of the host state’s regulatory requirements. The WTO TBT Agreement and SPS Agreement provide important incentives for states to harmonize their regulation with relevant international standards, and provide permission for states to engage in recognition arrangements. For example, under the SPS Agreement, certain quasi-​legislative authority was referred to certain other functional organizations. That is, the definition of “International standards” contained in Annex A to the SPS Agreement appoints the Codex Alimentarius Commission (Codex), World Organization for Animal Health (WOAH) (formerly the Office International des Epizooties), and International Plant Protection Convention (IPPC) as “quasi-​legislators” of these standards in relevant areas. What do I mean by “quasi-​legislators”?5 First, the standards developed by Codex, WOAH and IPPC for human, animal and plant health, respectively, are, under the terms of their own constitutive documents, nonbinding. However, Article 3.1 of the SPS Agreement, which of course is binding law, provides that “Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3.” Moreover, Article 3.2 states that SPS measures of WTO Members that are in conformity with international standards, guidelines, or recommendations shall be “presumed to be consistent with the relevant provisions of this Agreement.”

State Contingent Control of Administered Protectionism Another important category of nontariff barriers is that of “administered protectionism.” This includes anti-​dumping duties that purport to respond to international price discrimination in which goods are offered in export markets at lower prices than those charged in home country markets; countervailing duties that purport to respond to subsidization of exported products; and safeguard measures that respond to unanticipated surges of imports. Each of these types of administered protectionism is characterized by a set of parameters that must be met in order for states to impose import restrictions. While importing states make the first determination of whether these parameters are met, these determinations are subject to review in WTO dispute settlement. This is another important function of the WTO as an international organization: to facilitate the establishment of state-​contingent international law, by providing a dispute settlement system to supervise determinations made by states as to whether the conditions for their action are met or not.

5   Note the difference with the TRIPS Agreement, discussed later in this chapter, where pre-​existing norms developed in World Intellectual Property Organization treaties are explicitly cross-​referenced and made WTO law.

 

structure of the wto    353

Prisoner’s Dilemma of Trade Liberalization Trade liberalization is often described, from the standpoint of the political support of governments, as a prisoner’s dilemma. Under this description, each individual state has an incentive to engage in protectionism, but all states are better off as a group if they liberalize. Unless the incentives are changed by international legal rules with consequences, each state will have incentives to defect, reducing the welfare of all states. Under these circumstances, a legal rule can improve global welfare by reducing the incentives of states to engage in protectionism rendered illegal, with negative consequences for violation.

Structure of the WTO The organizational structure of the WTO responds to its functions as a facilitator of trade liberalization negotiations, as an occasional forum for secondary lawmaking through consensus decision-​making or amendments to its treaty, as a monitor of national openness to trade, and as a forum for mandatory dispute settlement. As noted earlier, the WTO is a successor organization to the GATT, which was not intended at its inception to be an international organization at all. Rather, the organizational features of the GATT were developed over time, largely without specific articulation in treaty text, in response to demands of states over time. For example, while GATT did have treaty language providing for amendment, waiver, and decision-​making, the practice of making all decisions and amendments by consensus evolved over time. Perhaps more importantly, GATT had only the most minimal provisions for dispute settlement, but a highly articulated practice developed and came to be seen as legally established over time. The WTO was formed in 1995, pursuant to the Marrakesh Agreement Establishing the World Trade Organization (the WTO Charter),6 which has as annexes a number of sub-​agreements, including a new GATT, called the GATT 1994, which is identical in language to the original GATT (GATT 1947), as the latter was amended up through 1994. The WTO Charter specifies that “The WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters related to the agreements and associated legal instruments included in the Annexes to this Agreement.” The Punta del Este declaration commencing the Uruguay Round of trade negotiations in 1986, specified that the negotiations would result in a “single undertaking.” And indeed, other than a few so-​called plurilateral agreements that do not include the   Marrakesh Agreement Establishing the World Trade Organization, April 15, 1994, 1869 UNTS 401.

6

 

354   trade full membership of the WTO, the WTO Charter provides for a single undertaking—​ no state was permitted to opt out of any of the agreements. Some states found the intellectual property agreement negotiated in the Uruguay Round unattractive, and sought to avoid being bound by that agreement. Indeed, some states would have settled for the status quo of GATT 1947, and refrained from entering into the WTO Charter, which included the Agreement on Trade-​Related Intellectual Property Rights (TRIPS). However, the GATT 1994 was devised specifically to foreclose this option: the GATT 1947 would be abandoned, and only those states that joined the WTO would have the benefit of a multilateral agreement on liberalization of trade in goods.

Membership and Accession The WTO is a multilateral organization, but not a universal organization. As of September 2016, there were 164 members of the WTO. The few nonmembers are clustered in the Middle East, North Africa, and Southwest Asia. At the time of writing, some of these states were actively pursuing accession, moving the WTO closer to universal membership. All states that were members of the GATT 1947 in 1994, plus the EU, became original members of the WTO. Since the formation of the WTO, there have been a number of important accessions, including those of China and Russia. These accessions are negotiated between existing members and the acceding state, with the acceding state required to establish a set of tariff and services liberalization commitments deemed acceptable by the existing members. Although the WTO Charter provides for approval of accession by vote of a two-​thirds majority of members, the consistent practice is to require consensus for approval of accession. The negotiations can be quite arduous, and, as in the case of China, may result in special obligations of the acceding state pursuant to a protocol of accession.

Decision-​Making Structure of the WTO The WTO is comprised of states and separate customs territories such as Hong Kong. Its decisions are made by the members as a group, and the Secretariat has practically no decision-​making authority. “In a rules-​based organization, there is much less need for the [Director-General] and the secretariat to play ‘activist’ roles such as those played by the head of the World Bank and the IMF and their respective secretariats …”7 The members are organized into a variety of groups, as illustrated in Figure 16.1. 7  Richard Blackhurst, “The Role of the Director-​General and the Secretariat,” in The Oxford Handbook on the World Trade Organization, ed. Amrita Narlikar, Martin Daunton, and Robert Stern (Oxford: Oxford University Press, 2012), 150.

 

structure of the wto    355 Ministerial Conference General Council meeting as

General Council meeting as

Trade Policy Review Body

Dispute Settlement Body General Council Appellate Body Dispute Settlement panels

Committees on Trade and Environment Trade and Development Sub-Committee on LeastDeveloped Countries Regional Trade Agreements Balance of Payments Restrictions Budget, Finance, and Administration

Council for Trade in Goods

Council for Trade in Services Committees on Trade in Financial Services Specific Commitments

Committees on Market Access Agriculture Sanitary and Phytosanitary Measures

Working parties on Domestic Regulation GATS Rules

Technical Barriers to Trade Subsidies and Countervailing Measures

Working parties on Accession Working groups on Trade, debt and finance Trade and technology transfer (Inactive: Relationship between Trade and Investment Interaction between Trade and Competition Policy Transparency in Goverment Procurement)

Council for Trade-Related Aspects of Intellectual Property Rights

Anti-Dumping Practies Customs Valuation

Plurilaterals Trade in Civil Aircraft Committee Government Procurement Committee

Rules of Origin Import Licensing Trade-Related Investment Measures Sageguards Working party on State-Trading Enterprises

Plurilateral Information Technology Agreement Committee

Doha Development Agenda: TNC and its bodies Trade Negotiations Committee Special Sessions of Services Council/TRIPS Council/Dispute Settlement Body/Agriculture Committee and Cotton subCommittee/Trade and Development Committee/ Trade and Environment Committee Negotiating groups on Market Access/Rules/Trade Facilitation

Key Reporting to General Council (or a subsidiary) Reporting to Dispute Settlement Body Plurilateral committees inform the General Council or Goods Council of their activities, although these agreements are not signed by all WTO members Trade Negotiations Committee reports to General Council

Figure 16.1  WTO Structure Source: WTO 2013

The important thing to keep in mind about this structure is that each of the committees, councils, and working parties includes all members that wish to attend. So the structure relates more to division of agendas than to division of responsibilities among members. Each of these bodies has a group of secretariat personnel responsible for servicing that body. However, all decision-​making is effected by members.

 

356   trade With such a large group of members, with diverse interests, it is difficult to reach consensus or unanimity on new rules or organizational features. This is especially so in light of the WTO’s broad single-​undertaking approach which generally requires all states to be party to all sub-​agreements, except for a limited set of plurilateral agreements. In addition, each country specifies its own schedule of tariff bindings and services commitments. The WTO is characterized by the consensus approach to decision-​making.8 Consensus regarding a proposal exists when no member objects to the proposal. Several seemingly inconsistent statements are true: (i) The WTO Charter provides for majority decision-​making in a number of contexts. (ii) Decisions so far have only been taken by consensus. (iii) Despite the requirement of consensus, some decisions are taken that some members would prefer not to be taken. While the WTO generally eschews majority voting, it engages in what might be understood as “package deals,” in which a state accepts a package that includes from its perspective some desirable components and some undesirable components, but which presumably is on the whole better for that state than no agreement. For example, in the Uruguay Round negotiations, some described the outcome (not without sarcasm) as a “grand bargain” in which the developed states gave commitments on agriculture and textiles in exchange for the developing states accepting commitments with respect to TRIPS and services. From the developing states’ standpoint, broadly speaking, the TRIPS and services agreements were unattractive, while the liberalization of agriculture and textiles were attractive.

Secretariat and Director-General The WTO Secretariat is located in Geneva, and employs about 600 individuals. The Secretariat and its personnel are required to be international in their perspective. They are not permitted to seek or accept instructions from any government or any other authority external to the WTO. The Secretariat is led by the Director-General. The Director-General is appointed by consensus among the member states of the WTO, and serves for a term of four years, which is renewable once. According to the process for selection of a new Director-General agreed to in 2002, candidates are nominated by member states, and a consultation process is led by the chairs of the General Council, the Dispute Settlement Body, and the Trade Policy Review Body. The process includes meetings

 See Richard Steinberg, “In the Shadow of Law or Power:  Consensus-​Based Bargaining and Outcomes in the GATT/​WTO,” International Organization 56/​2 (2002). 8

 

structure of the wto    357 between the candidates and representatives of the member states, consultations, and a decision by consensus. There is no specific statement of the responsibilities of the Director-General or the Secretariat. The Director-General has been responsible for implementing the WTO agreements, assisting with continuing negotiations of the so-​called “built-​in agenda” prescribed in the WTO agreements, and launching and conducting the first round of WTO negotiations: the Doha Development Agenda (DDA), which began in 2001 and at the time of writing had not concluded. The Director-General has chaired the principal body of members involved in negotiating the DDA, the Trade Negotiations Committee, at nonministerial level meetings. The DirectorGeneral has some informal authority to set agendas, propose compromises, and convene meetings of groups of states, in particular in the so-​called “Green Room” informal negotiating meetings. The Secretariat is divided into divisions, such as the development, external relations, accessions, legal affairs, trade and environment, economic research, market access, and trade in services divisions. Deputy Director-Generals are assigned responsibility for clusters of divisions. Other than in connection with dispute settlement, the role of the Secretariat and of the Director-General of the WTO is largely to assist member states and promote the goals of the WTO through research, agenda-​setting, public relations, and technical assistance to developing countries. The WTO Secretariat emphasizes that the WTO is a “member organization,” by which it means that the members are the decision-​makers. Even in connection with dispute settlement, most decision-​making is formally in the hands of the members, although it is informally in the hands of WTO panels and the Appellate Body, as discussed in connection with dispute settlement below.

The Structure of Rounds The GATT had a remarkable success in reducing tariffs among developed country members. It did so through tariff negotiation “rounds,” which involved focused and coordinated negotiations toward treaty amendments by which states agreed to ratchet down their bound level of tariffs. These rounds were structured so that no agreements were final until all agreements were final. They were strongly influenced by the MFN rule, expressed in Article I of GATT, requiring that any liberalization commitments made to one member were also to be unconditionally accorded to all other members. From the standpoint of negotiations, each member examined each other member’s proposed commitments in order to determine whether the other member provided an acceptable level of reciprocal liberalization. It is in this sense that reciprocity is a principle of GATT and WTO practice.

 

358   trade

Plurilaterals and Variable Architecture The current WTO system, as this chapter is written, is one characterized by a “single undertaking,” with only two remaining exceptions. By “single undertaking,” we mean that each member is bound by each agreement. The exceptions are the Government Procurement Agreement and the Agreement on Trade in Civil Aircraft, which only bind a minority of WTO member states. However, within many of the agreements, and in particular within the GATT and the General Agreement on Trade in Services, each state specifies its own tariff schedule or schedule of services commitments, so the obligations of the different states are not all the same. A  single-​undertaking approach to negotiations may under some circumstances make it more difficult to conclude a round of trade negotiations, so there may be increasing pressure to depart from the single-​undertaking approach to negotiations. In the 1979 Tokyo Round, a number of plurilateral “codes” were agreed, and this process was criticized by some as a “Balkanization” of the multilateral trading system, and as promoting a kind of forum-​shopping between the codes and the GATT itself.

Trade Policy Review Surveillance is often a necessary, and sometimes a sufficient, tool by which to induce compliance with international legal rules, or other cooperative behavior. The GATT and WTO have developed a “Trade Policy Review Mechanism” (TPRM), introduced in 1989, that goes beyond legal requirements, and provides a mechanism for transparency of member trade policy. Although the TPRM is “not intended to serve as a basis for enforcement of specific obligations,”9 it can play an important role in inducing compliance. Transparency of trade policy can affect policy through domestic political mechanisms or through international political mechanisms. The TPRM operates through WTO Secretariat reports, prepared in consultation with the member under review, that examine the consistency of national trade measures with multilateral principles. These reports are the subject of review and discussion in meetings of the Trade Policy Review Body. The four largest members (by trade volume) are reviewed every two years, while the next sixteen largest members are reviewed every four years, and the rest of the members are reviewed every six years.

Dispute Settlement The WTO dispute settlement system represents a central institutional feature of the WTO, and one of the most important judicial forums in international 9   Trade Policy Review Mechanism, para. A(i), April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 3, 1869 UNTS 401.

 

structure of the wto    359 law generally. It performs two critical functions. First, it assists in completing the otherwise incomplete contract of WTO law. While the formal mandate to panels and to the WTO Appellate Body is to “clarify” the provisions of WTO law, there is no doubt that in order to actually decide cases these tribunals must engage in interpretation, and that the choice of interpretative tools and priorities can affect the outcome of the interpretation in important ways. It is noteworthy that Article IX:2 of the WTO Charter provides WTO ministerial conferences exclusive authority to adopt interpretations of the WTO agreements by a three-​ fourths majority. So, the first function of dispute settlement is to interpret the WTO treaty. The second function is dependent on the first: it is to promote compliance with WTO obligations by declaring the correct understanding of the obligations contained in the WTO treaty, and providing the basis for successful complainants to suspend their own concessions or other obligations in retaliation, or perhaps more correctly, in “re-​balancing,” for noncompliance. The third function of WTO dispute settlement is potentially somewhat inconsistent with the first two: it is to settle disputes, and a number of features of WTO dispute settlement are oriented toward encouraging settlement of disputes through consultation and negotiation. Settlement of disputes may be inconsistent with compliance, because a settlement might be based on agreement to accept continued noncompliance. In some respects, the WTO dispute settlement system represents a continuation of the developments in dispute settlement during the GATT period (1947–​94), and many of the critical features of WTO dispute settlement were developed during the GATT period. The original GATT treaty contained only two cursory articles regarding dispute settlement, but during the GATT period a body of practice and decisions served to establish a complex and somewhat effective mechanism for dispute settlement. However, the GATT system was seen by many as limited by the rule of consensus: in order to establish a panel, in order to accept the report of a panel, and in order to authorize suspension of concessions or other obligations upon failure by the respondent to bring a national measure into compliance, a decision was required to be taken by consensus. This consensus included both the complainant and the respondent, so it was formally quite simple for a respondent to block dispute settlement action against any of its measures. Indeed, the more interesting question in connection with GATT-​era dispute settlement is that it happened at all. Dispute settlement did occur, and it met with a good record of compliance, in part because of the selection effect due to the ability of respondents to block dispute settlement. However, some members became frustrated with the inability to enforce their treaty rights within the GATT legal system, and began to take unilateral measures to do so. This type of unilateralism, practiced most notably by the United States, provided a significant impetus toward the more multilateral system that was established in the WTO. The United States agreed to relinquish its unilateral option, and formally did so in Article 23 of the

 

360   trade Dispute Settlement Understanding (DSU), in exchange for the elimination of the requirement of consensus. The DSU provides a rule of “reverse consensus.” This means that in order to block establishment of a panel, to block the grant of legal effect to the panel’s report by adoption, and to block authorization of retaliatory suspension of concessions or other obligations, there must exist a consensus to do so, including the complainant. This has never occurred. Only members may bring cases. There are no private rights of action in WTO law, and there is no standing for nongovernmental organizations or other nonmember persons, although a practice has developed of allowing amicus briefs by nonmember persons under limited circumstances. Standing to bring cases is broadly available for any member. The complaining member must provide enough specificity in its claims of violation so that the respondent will be able to understand and defend the case. A consultation period is required prior to moving forward to dispute settlement. Cases can only be brought under the “covered agreements,” which includes practically all WTO agreements. There are two main types of case: violation cases and “nonviolation” cases. Violation cases allege a violation of a provision of a covered agreement. Nonviolation cases allege that there has been an act by one state that nullifies or impairs the rights of the complaining state under a provision of a covered agreement. Nonviolation cases have only been successful in connection with subsidies provided by importing states after making a trade liberalization concession. In the early days of GATT dispute settlement, disputes were addressed by working parties composed of diplomats representing their governments—​a much more diplomatic and less legalistic means of settling disputes. Today, panelists serve independently and in an individual capacity, not as government representatives. Panels are established for each case on an ad hoc basis. There is no standing panel, although some members have proposed that there should be. The process begins, after a required period of consultations, by the establishment of a three-​member ad hoc panel. The WTO Secretariat will propose possible panelists, and the disputants have a right to reject any proposed panelist. However, if agreement on a panel does not occur within twenty days, either disputant may request the WTO Director-General to appoint the panel. The Director-General often carries out this function. The panel, assisted by representatives of the Secretariat’s Legal Affairs Division, conducts an investigation and hearing in connection with the dispute and prepares a report determining the relevant facts and evaluating the application of WTO law, in order to determine whether a violation has occurred. The panel provides its report to the parties to the dispute for review before the report is finalized. Once the report is finalized, either party may appeal, or the report may be submitted for adoption by the Dispute Settlement Body. As noted, the report will be adopted unless there is a

 

structure of the wto    361 consensus not to adopt it. If an appeal is taken, then the report is not adopted until after the appeal, as it may be modified by the Appellate Body. The Appellate Body is a standing body of seven members, served by its own Secretariat. Members of the Appellate Body are independent of their home states. The Appellate Body’s review is limited to matters of law, leaving matters of fact to the panel’s determination. There is no further appeal from the Appellate Body’s determination, and because of the reverse consensus rule, all Appellate Body determinations can be expected to be adopted. If a panel or Appellate Body report finding violation is adopted, then the respondent is given a “reasonable period of time” (usually fifteen months) to bring its measure into conformity with WTO law. If it fails to do so, the complainant may be authorized to suspend concessions or other obligations in an amount equivalent to the level of nullification or impairment imposed by the measure. This is generally a prospective system of remedies, meaning that no compensation is provided for damages prior to the expiry of the reasonable period of time.

Trade and Other Areas of International Law The growth of international law, including trade law, in a number of areas since the early twentieth century has resulted in a number of circumstances of overlap, in which international law formed in one context may impede, or conflict with, international law formed in another context. This type of overlap may occur between international trade rules, and between international trade organizations. Because of natural overlaps between different functional concerns, no rule of international law can be viewed in complete isolation from other rules of international law. Furthermore, no subject within the remit of one international organization can be isolated from other rules of international law, or from the remits of other international organizations. While only the covered agreements may be the basis for claims in WTO dispute settlement, other international law may be taken into account in interpretation of WTO law, in accordance with the rules of the Vienna Convention on the Law of Treaties. The DSU does not explicitly specify the body of applicable law that WTO adjudicators are assigned to interpret and apply, although it does provide that the mandate to panels and the Appellate Body is “to clarify the existing provisions of the [WTO covered agreements],” which are listed in Appendix 1 to the DSU.10 The Appellate Body has said clearly that WTO adjudicators are not empowered to interpret non-​WTO international law for purposes of applying non-​WTO international   Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 2.2., April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 UNTS 401. 10

 

362   trade law. In the Mexico—​Soft Drinks case, the Appellate Body stated that it would be inappropriate for a panel to make a determination whether the United States had acted inconsistently with its North American Free Trade Agreement (NAFTA) obligations.11 It declined to accept “Mexico’s interpretation [which] would imply that the WTO dispute settlement system could be used to determine rights and obligations outside the covered agreements.”12 While the Appellate Body determined that it could not “determine rights and duties outside the covered agreements,” it did not explicitly state that it could not give effect to rights and duties outside the covered agreements in assessing claims based on WTO law. Thus, in theory, if the rights and duties are otherwise perfectly clear, the door may be open to apply those rights and duties in WTO dispute settlement. Article 31.3(c) of the Vienna Convention on the Law of Treaties specifically instructs that interpreters shall “take into account … any relevant rules of international law applicable in the relations between the parties.” In the EC—​Biotech case, the Panel determined that “Article 31(3)(c) should be interpreted to mandate consideration of rules of international law which are applicable in the relations between all parties to the treaty which is being interpreted.”13 Therefore, only those international legal rules to which all WTO members are party, such as general customary international law or treaties that include all WTO members, would be required to be taken into account. In light of the limited ability of the WTO to deal with issues of overlap within WTO dispute settlement, it will be incumbent upon negotiators of international law of all types to take account of potential overlaps, and to address them directly as appropriate, when they formulate new rules of international law or revise existing rules. This may be an increasingly important task for international organizations: to coordinate with other international organizations in order to minimize conflict.

Free Trade Areas and Customs Unions Regional integration agreements (RIAs), like other forms of international economic institutionalization or law, are generally aimed at economic integration: the reduction of barriers to movement of economic factors across borders. However, there 11   Appellate Body Report, Mexico—​Tax Measures on Soft Drinks and Other Beverages, WT/​DS308/​ AB/​R, adopted March 24, 2006, ¶ 56. 12  Ibid. 13   Panel Report, European Communities—​Measures Affecting the Approval and Marketing of Biotech Products, WT/​DS291/​R, WT/​DS292/​R, WT/​DS293/​R, Add.1 to Add.9, and Corr.1, adopted November 21, 2006, ¶ 7.70.

 

conclusion: relating structure to function    363 can be other aims: the original European Economic Community and European Coal and Steel Community were famously motivated by a desire to make war between Germany and France impossible. The great majority of these RIAs are free-​trade areas (FTAs), rather than customs unions (CUs). An FTA provides zero tariffs among its members, but each member maintains its own tariff schedule for application to the products of other states, whereas a CU is a free-​trade area with a common external tariff. Among the best known RIAs are the EU, NAFTA, the Southern Common Market, the Association of Southeast Asian Nations Free Trade Area and the 2004 Central American Free Trade Area. New RIAs, such as the proposed (at the time of writing) Trans-​Pacific Partnership and Trans-​Atlantic Trade and Investment Partnership, may address many different types of domestic policy, such as product and services standards and regulation, competition policy, intellectual property protection, and investment. These types of international legal rule will often be rather nuanced, state-​contingent rules, requiring complex dispute settlement by RIA dispute settlement mechanisms for their application. Some types of harmonization or recognition arrangement for standards and regulation will be facilitated by coordination among smaller groups within RIAs, as compared to larger multilateral groups. RIAs have diverse organizational structures. Because CUs have common external tariffs or broader common external trade relations, they must have a governmental mechanism by which to coordinate their trade policy, including their WTO negotiations. Both FTAs and CUs ordinarily contain a dispute settlement system, as well as a process for treaty amendment. The EU is sui generis in the scope of its legislative and adjudicative capacity, but it is worth noting that its legislative and adjudicative capacity grew as a consequence of the desire to engage in harmonization and mutual recognition of regulation in order to reduce barriers to internal free movement of goods, services, money, and people.

Conclusion: Relating Structure to Function In order for an assignment of authority to an international organization to be justified, states must first wish to regulate the relevant subject matter under international law. Once it is decided to regulate a subject matter under international law, an organization may be useful in order to manage, to enforce, and to develop an international agreement. An international organization may perform information and agenda-​setting functions, may house adjudication, or may be a forum for

 

364   trade decision-​making. Of course, the type of international organization that will be useful, the desirable structure, and the types of functions that it would perform are dependent upon the types of international legal rules that are determined to be desirable. One theoretical justification for international organizations is to reduce the transaction costs of international cooperation. This is the Coasean story of the market versus the firm, with the international organization playing the role of firm.14 In the Coasean theory of the firm, the reason for firms (in our case, organizations) is dependent on transaction cost reduction. The best way to think about this model is in terms of cost–​benefit analysis. There are gains to be achieved from cooperation. Where the net gains from cooperation exceed the transaction costs of cooperation, we would expect to observe cooperation. States would be expected to seek to maximize their net benefits from cooperation by utilizing the institutional structure, from case-​by-​case cooperation to organizationally structured cooperation (analogous to the continuum between the market and the firm), that maximizes the transaction benefits, net of transaction costs. In connection with international cooperation regarding trade, transaction costs arise from two main sources. First, they are occasioned by the cost of establishing mechanisms to promote cooperation and avoid strategic behavior. If an organization can reduce these costs by, for example, supplying information, certifying information, or changing the structure of retaliation and the payoff from defection, then the organization may be justified. A second channel of transaction costs is the complexity of identifying, evaluating, and negotiating a Pareto-​improving transaction. It is not possible to determine with any certainty whether an international organization would have greater net transaction benefits than those resulting from a simple treaty without a specific organization formed around the treaty. In important dimensions, the question of which would have greater net benefits is dependent on the question of the structure of the international organization. However, given the complexity of trade, especially when it seems useful to reduce nontariff barriers, with many opportunities for uncertainty and defection, it is certainly possible that an organization may provide certain useful services. To the extent that the strategic context in which states find themselves maps into a prisoner’s dilemma or another strategic model that could be resolved efficiently by a change in the payoffs effected through legal rules, an international organization might be useful. It would allow states to cooperate where cooperation is beneficial, and where it otherwise would not be possible.

14  Joel P. Trachtman, “The Theory of the Firm and the Theory of the International Economic Organization: Toward Comparative Institutional Analysis,” Northwestern Journal of International Law & Business 17 (1997): 470.

 

Chapter 17

INTERNATIONAL FINANCE Manuela Moschella

Today’s international financial architecture (IFA) can be characterized as a landscape crowded with several types of international bodies that share responsibilities for the prevention of global financial instability.1 These bodies include international organizations (IOs), such as the international financial institutions (IFIs) (e.g., the International Monetary Fund (IMF) and the World Bank), intergovernmental forums (e.g., the G7, G10, and G20), and transnational networks of regulators and supervisors, such as the Bank for International Settlements (BIS), the Basel Committee on Banking Supervision (BCBS), and the International Organization of Securities Commissions (IOSCO) to mention a few.2 In short, several international bodies contribute to the governance of international finance.

  In addition to functions that aim to preserve financial stability, which are analyzed at great length below, global financial governance includes arrangements that aim to restore stability after a crisis (i.e., crisis management and resolution). For purposes of this chapter, however, I will focus solely on the first set of functions (i.e., crisis prevention functions). 2   Next to the public sector bodies that constitute the object of investigation of this analysis, private sector bodies may also perform governance functions. This is, for instance, the case of the International Accounting Standards Board (IASB), whose membership consists of accounting, service, and commercial representatives and which is responsible for the development of globally accepted financially reporting standards. For an examination of private actors in the governance of global finance see Tony Porter, Globalization and Finance (Cambridge: Polity Press, 2005). 1

 

366   international finance This chapter examines the dispersion of governance functions in the IFA by drawing attention to the challenges that derive from the concomitant exercise of powers by supranational public administrations. As in domestic systems where the coordination of several departments, ministries, and analogous organizations is required to avoid duplication of work and gaps in services provision,3 so the lack of coordination among the bodies tasked to ensure financial stability may undermine the efficacy and accountability of the international financial architecture. Specifically, political fragmentation contributes to an environment in which potential problems slip through the cracks and thus fall off the radar screen until it is too late. This is, for instance, what happened in the run-​up to the latest crisis. According to an IMF report, “This crisis was a story of fragmented surveillance in silos of expertise; of a policy debate dispersed in numerous fora (BIS, Gs, FSF, IMF); of limited collaboration among national financial regulators.”4 Political fragmentation is also problematic because it loosens public accountability: when several bodies are involved in performing the same function with no clear hierarchy among them, identifying omissions and responsibilities becomes extremely complicated. The political fragmentation that characterizes the IFA is thus an issue that calls for careful examination. This is especially so in light of the increasing examples of interinstitutional tensions. The skirmishes between the IMF, the European Commission and the European Central Bank over the handling of the 2010 Troika program for Greece is an apt case in point.5 But other recent examples include the BIS–​IMF divergent assessment of unconventional monetary policy in the advanced economies, with the former more concerned about the financial stability implications of a too accommodative monetary policy than the latter. The creation of the New Development Bank and the Contingent Reserve Arrangement by the major emerging economies (Brazil, Russia, India, China and South Africa, also known as BRICS), whose financial activities stand in competition with the traditional lending of the World Bank and the IMF is just the latest example of growing interinstitutional tensions that are emerging within the international financial architecture. The IO literature in global finance has been puzzlingly silent on the issue of interinstitutional coordination thus far, despite the important contributions on explaining the activities that international bodies perform in global financial governance, the mechanisms through which they develop and diffuse financial rules and norms of conduct, and the drivers that guide their behaviors and decision-​making processes (as discussed later). 3  e.g., G. B. Peters, “Managing Horizontal Government. The Politics of Coordination. Ottawa: Canadian Centre for Management Development,” Research Paper No. 21 (1998). 4   Eric Helleiner, States and the Reemergence of Global Finance:  From Bretton Woods to the 1990s (Ithaca and London:  Cornell University Press, 1994); Ethan B. Kapstein, Governing the Global Economy: International Finance and the State (Cambridge MA: Harvard University Press, 1994). 5   IMF, Greece: Ex Post Evaluation of Exceptional Access under the 2010 Stand-By Arrangement (Washington, DC: International Monetary Fund, 2013).

 

political fragmentation   367 To fill this knowledge gap and to chart areas for future research, this chapter focuses on the relationship between two key bodies in the governance of international finance—​the Financial Stability Board (FSB) and the IMF—​and applies the insights of the IO literature to illuminate the sources of organizational conflict between the two bodies. Specifically, this chapter illustrates how the prospects for inter-institutional cooperation are affected by variation in the terms of delegation, memberships, and organizational cultures. These factors, in turn, can be mapped into the rationalist, realist, and constructivist explanations of IO behavior. The chapter is organized as follows. In the second section, I discuss the sources of political fragmentation in the IFA and introduce the main crisis prevention activities that are critical to the stability of the global financial system. The third section focuses on the IMF–​FSB working relationship. Specifically, this section examines the modalities through which the two bodies cooperate and discusses the areas of potential overlap and duplication of responsibilities. The fourth section considers which factors help account for the problems in interinstitutional cooperation. The insights of rationalist, realist, and constructivist scholarship are developed to explain the sources of organizational conflict in the FSB–​IMF relationship. The fifth section concludes by reflecting on the efficiency and accountability problems that derive from interinstitutional cooperation.

Political Fragmentation: Who Does What in Global Financial Governance It may seem paradoxical that while financial markets have grown increasingly integrated, the political system that has been developed over time to govern them has moved to the opposite direction. However, this outcome can largely be explained in light of the unfolding of at least three forces. The first force is structural: the evolution of the IFA has been driven by factors such as financial innovation, capital mobility, and market integration.6 As new

  On the importance of the changes in the structure of international production and financial intermediation, see David M. Andrews, “Capital Mobility and State Autonomy: Toward a Structural Theory of International Monetary Relations,” International Studies Quarterly 38/​2 (1994): 193–​218; John B. Goodman and Louis W. Pauly, “The Obsolescence of Capital Controls? Economic Management in an Age of Global markets,” World Politics 46/​1 (1993): 50–​82. 6

 

368   international finance collective action or coordination problems arose from the development of new financial markets and products—​and from increased levels of exchange—​new international bodies were created to address these emerging challenges. For scholars who emphasize the importance of structural factors, the current configuration of the IFA can be interpreted as a functional response to new problems: states have created different international bodies over time and delegated multiple responsibilities to them to best serve their interests in changing environments.7 The second force that has shaped the IFA is power politics. The decades-​long evolution of the current institutional framework has been driven by political battles over the underlying principles, rules, and norms that are expected to inform governance structures and practices. The outcomes of these battles reflect either the preferences of a group of leading states or compromises reached in highly politicized negotiations.8 This indicates that certain actors gain advantages from the existing institutions and have a vested interest in their survival in international financial governance.9 In this context, it is less politically demanding to redirect the activities of old institutions to new purposes than to dismantle old institutions and the interests they represent. An alternative to dismantling institutions is to create new and parallel institutions, particularly when institutional transformation protects the common interests of a limited group of leading countries.10 Finally, the institutional profile of the IFA can be interpreted as the result of the autonomous activity of the bodies that contribute to the governance of global finance. From this perspective, the activities that occur within the organizations that make up the IFA are as important as the activities that occur outside of them.11 In particular, these organizations develop distinct cultures and normative orientations that exert a strong influence on their behavior and provide them with the means to influence the external environment.12 By diffusing their normative orientations, international bodies shape the IFA as they stabilize actors’ expectations by defining the parameters of “appropriate” behavior for states and nonstate actors.13 That is, these normative orientations help define the intersubjective 7   See Darren G. Hawkins et al., Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006). 8  Helleiner, States and the Reemergence of Global Finance; Kapstein, Governing the Global Economy. 9  Manuela Moschella and Eleni Tsingou (eds.), Great Expectations, Slow Transformations: Incremental Change in Post-​Crisis Regulation (Colchester, UK: ECPR Press, 2013). 10   Daniel W. Drezner, All Politics Is Global: Explaining International Regulatory Regimes (Princeton: Princeton University Press, 2007). 11   See Catherine Weaver, “The World’s Bank and the Bank’s World,” Global Governance 13/​4 (2007): 493–​512. 12   Michael N. Barnett and Martha Finnemore, Rules for the World: International Organizations in Global Politics (Ithaca, New York: Cornell University Press, 2004). 13   See Rawi Abdelal, Capital Rules: The Construction of Global Finance (Cambridge, MA: Harvard University Press, 2007); Sarah Babb, “The Washington Consensus as Transnational Policy Paradigm: Its Origins, Trajectory and Likely Successor,” Review of International Political Economy 20/​2 (2013): 268–​97; Susan Park and Antje Vetterlein (eds.), Owning Development: Creating Global Policy Norms in the World Bank and the IMF (Cambridge: Cambridge University Press, 2010).

 

political fragmentation   369 understandings of how the financial system functions and legitimize both the goals that actors pursue and the instruments employed to solve financial problems.14 However, normative change in global financial governance is typically a protracted process because dominant ideas have a remarkable tendency to survive even the severest of shocks.15 The institutional evolution of the IFA reflects such ideational inertia and has resulted in existing institutions that slowly adapt to changing contexts by converting their current activities to new purposes or by layering responsibilities onto new institutions.16 The impact of these three forces on the IFA has thus led to the current architectural configuration where several types of international bodies are involved in performing governance functions. These functions, which share the common objective of ensuring financial stability, include information collection and analysis, monitoring (or surveillance), and formulation of prudential rules and standards.

Information Gathering The collection and analysis of information is a primary pillar of global financial stability because it allows for the early identification of potential risks. The problem, however, is that the collection of information is far from unproblematic. Providing adequate information is a demanding task because of the many sources of financial instability (which range from macroeconomic mismanagement to weak corporate governance) and the analytical skills that are required to understand the wide range of data that help identify impending risks. Given these difficulties, and applying the insights from the rationalist literature on delegation, states will expect 14   Mark Blyth, Great Transformations. Economic Ideas and Institutional Change in the Twentieth Century (Cambridge: Cambridge University Press, 2002); Rawi Abdelal, Mark Blyth, and Craig Parsons, “Introduction: Constructing the International Economy,” in Constructing the International Economy, ed. Rawi Abdelal, Mark Blyth, and Craig Parsons (Ithaca: Cornell University Press, 2010); Manuela Moschella and Catherine Weaver, “Introduction: Global Economic Governance Under Stress,” in Handbook of Global Economic Governance, ed. Manuela Moschella and Catherine Weaver (London: Routledge, 2013). 15  Eric Helleiner, “A Bretton Woods Moment? The 2007–​08 Financial Crisis and the Future of Bretton Woods,” International Affairs 86/​ 3 (2010): 619–​ 36; Moschella and Tsingou (eds.), Great Expectations, Slow Transformations; John Quiggin, Zombie Economics: How Dead Ideas Still Walk among Us (Princeton: Princeton University Press, 2010); Colin Crouch, The Strange Non-​Death of Neo-​ Liberalism (London: Polity, 2011). 16   Conversion and layering are among the processes of institutional change that the Historical Institutionalist literature has identified in domestic political economies. Recent attempts have been made to apply the insights of this literature to international political economy. See, e.g., Orfeo Fioretos, “Historical Institutionalism in International Relations,” International Organization 65/​2 (2011): 367–​99; Manuela Moschella and Antje Vetterlein, “International Organizations and Organizational Fields: Explaining Policy Change in the IMF,” European Political Science Review 6/​1 (2014): 143–​65.

 

370   international finance to benefit from delegating these demanding functions to an international agent; the agent will be assigned the organizational structure and resources to collect and analyze information more effectively than any single principal could. The leading role that international bodies play in the collection and analysis of information on financial vulnerabilities has been addressed in the constructivist scholarship too. In particular, scholars in the constructivist research tradition have emphasized that international bodies contribute to global financial stability by assigning meaning to the available data and interpreting the uncertain environment around them.17 They have also highlighted the mechanisms through which IOs use their authority to establish operational templates that become the common-​sense understanding of a given issue and set of data.18 Virtually all the organizations that contribute to the governance of global finance perform information collection and analysis. For instance, both the IFIs and the BIS collect a wide variety of data from their member countries, from which statistical databases on various elements of the global financial system are typically developed.19 In addition, international bodies interpret their data in their regular reports and publications. The flagship publications of the IMF—​ the World Economic Outlook (WEO) and the Global Financial Stability Report (GFSR)—​and the BIS Annual Report are among the most authoritative. As with other IFIs, a key task of the FSB is collecting information about vulnerabilities that may negatively affect the international financial system; as part of this task fulfillment, it provides a forum for information exchange among regulators and supervisors. Information exchange functions are also scattered across several standard-​setting bodies (SSBs). For instance, the BCBS has worked closely with securities and insurance supervisors who are members of the IOSCO and the International Association of Insurance Supervisors (IAIS) to examine common challenges such as those presented by the development of diversified financial conglomerates. Initially, this cooperation occurred through an informal tripartite group of supervisors; this group was later formalized into the Joint Forum on Financial Conglomerates in 1996 and given the mandate to enhance supervisory coordination.

17  Jacqueline Best, The Limits of Transparency: Ambiguity and History of International Finance (Ithaca: Cornell University Press, 2005). 18   André Broome and Leonard Seabrooke, “Seeing Like an IO,” New Political Economy 17/​1 (2012): 1–​16. 19   For example, the BIS international financial statistics include data on cross-​border lending and borrowing of internationally active banks in key financial centers, activities in international and domestic securities markets, and operations in derivatives and foreign exchange markets.

 

political fragmentation   371

Monitoring In addition to providing information on financial risks and vulnerabilities, the other key function of international bodies is monitoring adherence to international recommendations that emerge from data collection and analysis—​namely, surveillance. After information is collected and analyzed, the results are typically summarized as reports and recommendations to national authorities on how to address the identified problems and risks. The purpose of surveillance is to encourage policymakers to take remedial political action before financial instability becomes a crisis. This process is critical to the stability of the system; even the best analyses are insufficient to avert a crisis if countries do not attend to the findings.20 As with the collection and analysis of information, surveillance activity is scattered across several international bodies. Because of its long-​standing mandate in this area, the IMF offers a particularly well-​developed example of supranational monitoring of domestic economies.21 Specifically, the IMF fulfills its mandate through bilateral, regional, and multilateral surveillance according to the geographic scope of its assessments. Recently, the IMF’s monitoring activities have expanded to include assessment of the compatibility of the G20 countries’ national economic policies with the objective of achieving strong, sustainable, and balanced growth in the framework of the Mutual Assessment Program (MAP). The IMF also shares financial surveillance responsibility with the World Bank, most notably in the conduct of the Financial Sector Assessment Program (FSAP) and the Reports on the Observance of Standards and Codes (ROSC) that assess the stability of domestic financial sectors and adherence to global financial standards, respectively. Surveillance functions have also been assigned to the FSB; these functions are exercised primarily through two types of peer-​review analyses: country and thematic reviews, which focus on the implementation of agreed-​upon policies in a given area. The other key surveillance activity of the FSB—​the Early Warning Exercise—​is conducted jointly with the IMF. The BIS also exercises surveillance functions by providing a forum in which to discuss the world economy and financial markets and by organizing meetings of senior central bank officials that focus on developments 20   While few doubt the credibility gains that stem from international monitoring, disagreement exists over which instruments increase the effectiveness of such an activity. At the most basic level, differences of views exist among those that emphasize material incentives to induce compliance and those that stress the socialization effects of international institutions on compliance. Whereas the former emphasize coercive factors such as the power of international bodies to provide material incentives for states to pursue particular policies, the latter emphasize normative factors such as the influence of particular economic ideas on the choice of policies. 21   For an historical account of the evolution of the IMF’s surveillance, see Harold James, “The Historical Development of the Principle of Surveillance,” IMF Staff Papers 42/​4 (1995). For a more focused analysis of the evolution of the IMF’s financial sector surveillance, see Manuela Moschella, “Lagged Learning and the Response to Equilibrium Shock: The Global Financial Crisis and IMF Surveillance,” Journal of Public Policy 31/​2 (2011): 1–​21.

 

372   international finance in international financial markets, among other issues. Furthermore, a number of other governmental forums currently conduct their own surveillance assessments (including the Eurozone and the Asean+3 Macroeconomic Research Office, which support the Chiang Mai Initiative).

Rulemaking Finally, international bodies ensure financial stability by creating rules, particularly those that aim to prevent the growth of financial vulnerability and to strengthen the institutional foundations of financial stability. Since the Asian financial crisis, the process of rule creation has revolved around the so-​called international financial standard initiative to develop and diffuse internationally agreed upon principles, practices, and guidelines for the establishment of sound economic and financial systems.22 The ultimate goal was to strengthen the IFA after the market crises of the 1990s by promoting economic and financial stability at both the domestic and international levels. The financial standard initiative captures the horizontal distribution of rulemaking responsibilities in the current IFA. Indeed, several bodies are involved in the development of standards in three broad areas of activity: macroeconomic policy and data transparency, financial regulation and supervision, and institutional and market infrastructure. These bodies include the IFIs, IOs (such as the Organisation for Economic Co-operation and Development), and a number of transnational committees of regulators and supervisors (such as the BCBS, the Committee on the Global Financial System, the Committee on Payment and Settlement Systems, the Financial Action Task Force on Money Laundering, the International Association of Deposit Insurers, the IAIS, the IASB, and the IOSCO). The FSB plays a key role in the framework of the initiative; it coordinates the work of various institutions to develop and implement effective regulatory, supervisory, and other financial sector policies (Art. 1 of the FSB Charter). In short, achieving international financial stability is the shared responsibility of several bodies that perform the same set of functions, including data collection and analysis, surveillance, and rules creation. This functional overlap raises the question of the extent to which different bodies can successfully coordinate their actions, avoiding duplication of work and mitigating the risk of institutional conflicts. In what follows, I tackle these issues by shedding light on the cooperative mechanisms   On the logic that underpins the international financial standard initiative and its diffusion, see, among others, Layna Mosley, “Regulating Globally, Implementing Locally: The Financial Codes and Standards Effort,” Review of International Political Economy 17/​4 (2010): 724–​61; Andrew Walter, Governing Finance: East Asia’s Adoption of International Standards (Ithaca: Cornell University Press, 2008). 22

 

financial stability as a shared responsibility    373 that underpin the working relationship of two key international financial bodies, namely the Financial Stability Board and the IMF.

Financial Stability as a Shared Responsibility The previous section highlights some of the areas in which the FSB and the IMF have similar responsibilities. In particular, both the FSB and the IMF assess vulnerabilities that affect the global financial system, promote coordination and information exchange among members, and advise and monitor members’ policies through surveillance and peer-​review mechanisms. They are also required to collaborate to conduct the Early Warning Exercise (EWE). In short, the FSB and the IMF perform similar activities and share joint responsibilities in certain areas. This circumstance raises the risk of duplicative efforts and bureaucratic turf battles. The potential for problems arising because the two organizations have similar responsibilities has long been acknowledged. For instance, an internal IMF publication explicitly noted that the responsibilities of the FSB’s predecessor, the Financial Stability Forum (FSF), “overlap[ped] in large part with the core financial tasks of the IMF.”23 The division of labor between the two bodies with respect to global financial stability issues had not yet been clearly established when the FSF was created in 1999, and it is not surprising that the IMF reacted with some hostility to the creation of a new body with similar responsibilities to those over which it had a long-​standing mandate.24 The potential for conflict in the FSB–​IMF relationship has increased on the heels of the 2008 crisis and the transformation of the FSF into the FSB. Since the beginning of the crisis, the G20 has assigned these two organizations primary responsibility for ensuring the stability of the global financial system, increased the range of

23   Leo Van Houtven, Governance of the IMF: Decision Making, Institutional Oversight, Transparency and Accountability, Pamphlet Series No. 53 (Washington, DC: IMF, 2002), 41. 24   For example, Blustein reports that the appointment of the general manager of the BIS, Andrew Crockett, as the FSF’s first chairman infuriated Stanley Fischer, who was then the IMF Deputy Managing Director. Indeed, Fischer forcefully believed that the new body’s responsibilities were within the IMF’s purview. Paul Blustein, How Global Watchdogs Missed a World of Trouble, CIGI Papers No. 5, June (CIGI, 2012), 9.

 

374   international finance powers of both organizations, and asked them to increase the level of their interinstitutional cooperation.25 In order to manage their shared responsibilities, a number of principles and operating procedures have been developed to guide the workings of the two institutions. These coordination mechanisms build on a joint letter to the G20 finance ministries in November 2008 from the heads of the FSF/​FSB and IMF.26 Specifically, the letter clarified that the IMF should be deemed responsible for surveillance of the global financial system and the assessment of countries’ implementation of international supervisory and regulatory policies through the FSAPs, ROSCs, and Article IV consultations. The FSF/​FSB, in turn, should be deemed responsible for elaborating international financial regulatory and supervisory standards and for fostering collaboration across the various international bodies involved in financial rulemaking. Furthermore, the heads of the two bodies stipulated that both organizations should share responsibility to prevent vulnerabilities through the EWE.27 The joint letter reveals the basic principle upon which the working relationship between the FSB and the IMF was expected to develop: the pragmatic leveraging of each organization’s comparative advantages.28 This principle has been operationalized in a number of coordinative procedures, which are here briefly illustrated. To start with, although there is no standing liaison committee that manages the FSB–​IMF working relationship, the IMF participates actively in the FSB by attending the meetings of the FSB Plenary as a full member.29 Attendance at these meetings is particularly important because the FSB Plenary makes all decisions regarding the FSB’s work program, including expansion of membership; adoption of FSB reports, principles, standards, and recommendations; appointment of the FSB Chairman; amendments to the Charter; and other matters related to the activities of the FSB. IMF staff members also attend a number of standing committee meetings that the FSB holds for organizational purposes. For instance, an IMF staff member is a member of the FSB Steering Committee, which provides operational guidance between plenary meetings. IMF staff members also participate in the meetings of the FSB Standing Committee on Standards Implementation and Assessment of Vulnerabilities and the Standing Committee on Standards Implementation, which 25   For example, at the April 2009 London summit, the G20 agreed to triple resources available to the IMF, and in creating the FSB, the decision was made to distinguish the new body from the FSF by providing the former with a strengthened mandate and an expanded membership. G20, Declaration on Strengthening the Financial System, London Summit, April 2, 2009. 26   In November 2008, the FSB had not yet been created; the letter thus refers to the activities of the FSF. Dominique Strauss-​Khan and Mario Draghi, Joint Letter by Heads of IMF and FSB, available at http://​www.financialstabilityboard.org/​publications/​r_​081113.pdf. 27   In clarifying the division of labor, the joint letter also specified that the implementation of policies in the financial sector is the responsibility of national authorities. 28  IMF, IMF Membership in the Financial Stability Board (Washington, DC: IMF, 2010), 9. 29   The Plenary includes all members of the FSB. The Plenary meets at least twice a year and makes decisions by consensus.

 

financial stability as a shared responsibility    375 are the units responsible for identifying vulnerabilities that affect the financial system, preparing FSB peer reviews of its members, and reporting members’ commitments to and progress in implementing international financial standards.30 IMF staff members have also participated in key FSB peer review processes and analyses, such as those pertaining to the implementation of standards on resolution regimes. Furthermore, the FSB and IMF collaborate on country peer reviews to leverage the findings of IMF surveillance. In particular, “the [FSB] reviews are supposed to take place in-​between FSAP assessments, draw on their findings, and monitor progress in implementing their recommendations.”31 Consultation with IMF staff during FSB peer reviews is expected to minimize the overlap and maximize the collaboration between the monitoring exercises conducted by the two bodies.32 In addition to the IMF’s participation in the internal workings of the FSB and the consultation process between the two organizations, the two institutions cooperate in the joint development of reports and analyses related to specific policy issues, such as the 2010 Recommendations on Supervisory Intensity and Effectiveness, the 2011 Joint Fund/​FSB/​BIS paper on Macroprudential Policy and Tools, and the report on Financial Stability Issues in Emerging Markets and Developing Economies. Finally, the FSB–​IMF working relationship includes joint leadership in a number of initiatives aimed at strengthening the foundations of global financial stability. For instance, the FSB and the IMF have taken the lead in the development of the Data Gaps Initiative (DGI), which is an attempt to fill the data gaps exposed by the global financial crisis, including risks in the financial sector, cross-​border financial exposures, vulnerabilities of domestic economies to financial shock, and communication among supervisors.33 Furthermore, the FSB and the IMF are jointly responsible for the EWE. In the DGI, each body leads discussion of the issues over which it enjoys an analytical comparative advantage. Likewise, in the EWE, the IMF leads the assessment of macroeconomic and macro-​financial vulnerabilities, whereas the FSB leads the identification of vulnerabilities and regulatory challenges in the financial sector.34 In short, there are several mechanisms through which the FSB and the IMF manage their joint responsibility to maintain global financial stability. These mechanisms include participation of the staff of one organization in the decision-​making of the

  FSB, ‘Financial Stability Board Holds Inaugural Meeting in Basel’, Press Release, June 27, 2009, http://​www.financialstabilityboard.org/​press/​pr_​090627.pdf. 31 32  IMF, IMF Membership in the Financial Stability Board, 9   Ibid., 3. 33   IMF and FSB, Report to the G-​20 Finance Ministers and Central Bank Governors, October 29, 2009; Liam Clegg and Manuela Moschella, “The Managers of Information: International Organizations, Data, and Financial Stability,” in The Fate of Transnational Financial Regulation in the Wake of the 2007/​ 8 Global Financial Crisis, ed. Tony Porter (London: Routledge, 2013). 34  IMF, The IMF–​FSB Early Warning Exercise: Design and Methological Toolkit (Washington, DC: IMF, 2010). For a detailed analysis of the EWE, see Skylar Brooks et al., “Coordination Critical to Ensuring the Early Warning Exercise Is Effective,” CIGI Policy Brief No. 4, April 2013. 30

 

376   international finance other, consultation on and joint production of reports and analyses, and shared leadership responsibility for specific policy initiatives. The principle that guides the division of labor is the comparative advantage of each organization. Although the division of labor appears straightforward (at least theoretically), cooperation is not without challenges. It is thus important to focus attention on the challenges that bedevil the FSB–​IMF working relationship and attempt to explain them from the perspective of the IO literature in global financial governance.

Where Does Interinstitutional Conflict Come From? Although important efforts have been made to improve interinstitutional cooperation, challenges remain in managing the relationship between the FSB and the IMF. For example, the division of labor within areas of joint responsibility has not always been clearly delineated.35 In addition, the cooperative mechanisms that have been implemented thus far have not always functioned predictably. For instance, IMF staff members have sometimes lamented the almost nonexistent level of coordination between the two bodies during the EWE.36 This example is emblematic of the problems that plague horizontal coordination and collaboration in global financial governance. It is thus worth exploring which factors account for the problematic aspects of interinstitutional cooperation. To address this matter, the IO literature in global financial governance provides a number of notable (but not fully developed) insights that help theorize on (and empirically investigate) the prospect of interinstitutional cooperation. Specifically, the latter can be explained by differences in delegation, membership, and organizational culture according to the insights of the principal–​agent, realist, and constructivist perspectives. Using the principal–​agent lenses, problems of interinstitutional cooperation can be read in light of the powers that principals decide to delegate to an international agent (i.e., the terms of delegation) and the degree of operational autonomy that is granted to the latter (i.e., discretion). From this perspective, a plausible hypothesis would be that the larger the discretionary gap between the two bodies, the more

  On the argument that a clear separation of responsibility between the IMF and the FSB is warranted, see, in particular, Garry J. Schinasi and Edwin M. Truman, “Reform of the Global Financial Architecture,” Working Paper Series of the Peterson Institute for International Economics WP 10-​14 (2010), 46. 36   Brooks et al., “Coordination Critical to Ensuring the Early Warning Exercise Is Effective,” 5. 35

 

where does interinstitutional conflict come from?    377 complicated institutional cooperation will be. Indeed, we can expect that the less independent agent will be more reluctant to address certain issues directly and less able to act because of the limitations of its organizational structure. This pattern is exemplified by the FSB–​IMF relationship. Although the two bodies have been delegated similar responsibilities to assess financial vulnerabilities, the discretion accorded to each within the terms of their respective delegations varies in a number of important respects. The IMF was created in 1945 as an intergovernmental organization whose terms of delegation were set forth in a formal international agreement that was ratified by its member countries. The intergovernmental nature of the IMF is reflected in its decision-​making structure. The Board of Governors, which consists of member countries’ representatives, is the ultimate decision-​making body.37 The other important decision-​making unit is the Executive Board, which includes twenty-​ four directors; certain countries have their own representative (China, France, Germany, Japan, Russia, China, Saudi Arabia, the United Kingdom, and the United States), whereas other members are organized into constituencies. The Executive Board is the main decision-​making body and conducts the day-​to-​day operations of the IMF; it discusses and decides virtually all aspects of the IMF’s activities, from financial assistance programs to administrative and budgetary matters. It is in continuous session—​that is, it meets as often as the business at hand requires.38 Although the Executive Board is the IMF’s main policy-​making body, IMF staff members are critical to the pursuit of organization goals. Indeed, the staff of the IMF is a textbook example of a well-​developed and autonomous international bureaucracy because of the informational advantages the staff enjoys over member countries and the technical expertise the staff commands.39 The highly technical backgrounds of its staff, whose members are primarily PhD economists recruited from Anglo-​ American universities,40 makes the IMF well-​placed to act as a research organization, as illustrated by the number of publications that it regularly produces. A common educational background, combined with the hierarchical organization of IMF staff 37   The Board of Governors consists of one representative for each member country and normally meets twice a year. For a quick but thorough introduction to IMF governance, see Van Houtven, Governance of the IMF. 38   The Executive Board exercises all powers for conducting IMF business except those that the Articles of Agreement have reserved for the Board of Governors. 39   On private information as a channel for organizational autonomy, see Lisa L. Martin, “Distribution, Information, and Delegation to International Organizations: The Case of IMF Conditionality,” in Delegation and Agency in International Organizations, ed. Darren G. Hawkins, et al. (Cambridge: Cambridge University Press, 2006). On technical expertise as a source of authority for IOs, see Barnett and Finnemore, Rules for the World. 40   On the characteristics of the IMF’s bureaucracy, see Jeffrey M. Chwieroth, “Testing and Measuring the Role of Ideas: The Case of Neoliberalism in the International Monetary Fund,” International Studies Quarterly 51/​1 (2007): 5–​30; Bessma Momani, “Recruiting and Diversifying IMF Technocrats,” Global Society 19/​2 (2005): 167–​87.

 

378   international finance members,41 has contributed to the development of a cohesive and autonomous voice on most of the economic issues relevant to the IMF’s activities. Autonomy is particularly evident when staff members do not solely speak on behalf of the organization; for instance, “staff are also free, subject to quality controls, to publicize their professional research, analyses, and policy judgments on matters of concern to the IMF and its membership, of course with the appropriate disclaimers.”42 In addition to the intellectual independence of its staff, another important source of autonomy for the IMF is its funding. Although an important part of the IMF’s regular activity is financed from the paid-​in capital contributed by member countries, the IMF administers this pool of usable resources and has its own gold holdings.43 Furthermore, the discretion that the IMF enjoys vis-​à-​vis its member countries is demonstrated by the legal obligations that the Articles of Agreement create for its member countries. For instance, Article IV creates specific obligations for member countries within the framework of the IMF’s surveillance. In particular, these obligations include promoting economic and financial policies that avoid erratic disruptions and balance of payments adjustments in the global economy and that foster orderly economic growth.44 Unlike the IMF, FSB staff members face substantial constraints in expressing their views on the topics that fall within their purview. Specifically, the FSB Chair and Secretariat represent the FSB and its official views and do not express views independent of its members.45 Furthermore, whereas the IMF has a large staff (approximately 2,400 members), the FSB was assigned only a small Secretariat in Basel (with approximately twenty members).46 In addition to its limited size, the members of the FSB Secretariat are technically employees of member countries or of bodies other than the FSB itself. In other words, the FSB staff are on loan from other organizations (currently, from the BIS, the IMF, and the World Bank) and continue to be paid by these organizations, whereas staff from member countries are temporarily on the BIS payroll. Unlike the IMF charter, the FSB charter is silent about the allocation of resources to support the Secretariat. Furthermore, by contrast to the IMF, FSB discretion is limited because its charter creates no legal obligation for its members. Indeed,

 Ian Clark, “Inside the IMF: Comparisons with Policy-​ Making Organizations in Canadian Governments,” Canadian Public Administration 39/​2 (1996): 175. 42   Schinasi and Truman, “Reform of the Global Financial Architecture,” 4. 43   However, the IMF’s Articles of Agreement strictly limit the use of gold holdings. 44  For a detailed analysis of members’ obligations under Art. IV, see Michael Mussa, “IMF Surveillance,” The American Economic Review 87/​2 (1997): 28–​31. 45   Schinasi and Truman, “Reform of the Global Financial Architecture,” 5. 46  Domenico Lombardi (ed.), The Governance of the Financial Stability Board, Issues Paper (Washington, DC: Brookings Institution, 2011), 14. The FSB’s predecessor, the FSF, did not even have a permanent secretariat. 41

 

where does interinstitutional conflict come from?    379 the FSB was explicitly intended not to create any new obligations for its members (Art. 16 FSB Charter). In short, the different organizational structures that derive from differences in the respective terms of delegation of the FSB and the IMF may affect the prospects for interinstitutional cooperation. In particular, the body with the less developed organizational structure and the lowest level of discretion should be expected to be more cautious in its activities (so as not to alienate its principals) and more constrained in its operations (because of limited organizational resources). This situation might create frictions with the other organization. This line of thinking emerges in the comments of the former IMF Deputy Managing Director, Stanley Fischer, according to whom organizational characteristics of the FSB—​in particular, its small Secretariat and its reliance on collegial decision-​making—​may undermine the surveillance activities of the FSB compared to the IMF.47 This does not mean that IMF surveillance is always more effective than the FSB; in fact, several mistakes mark the history of IMF surveillance.48 However, Fischer’s observation offers an interesting insight that requires future empirical testing: variation in the terms of delegation and discretion may interfere with interinstitutional cooperation by affecting what international bodies do (and how well they do it). An alternative to the PA explanation of the problems of interinstitutional cooperation can be distilled from a more state-​centric, realist-​inspired explanation. In particular, this second explanation would draw attention to the constituencies to which the two bodies are accountable. From this perspective, the difficulties entailed in interinstitutional cooperation lie in the organizational differences that derive not from the terms of delegation but rather from the fact that the two organizations answer to different sets of political interests. This diversity is, in turn, a function of membership characteristics. Again, these insights can be illustrated in the FSB–​IMF case. For example, whereas the IMF is an intergovernmental organization whose members are states, the FSB includes the national authorities responsible for financial stability.49 As Schinasi and Truman put it, “the IMF is dominated by the views of governments as articulated by more politically responsible finance ministries. In the FSB the views of independent central bankers and supervisors have substantially greater influence.”50 Given these differences, it is plausible to expect that 47   Stanley Fischer, “Preparing for Future Crises,” Revised version of the paper presented at the Annual Symposium of the Federal Reserve Bank of Kansas City, Jackson Hole, Wyoming, August 21, 2009. 48   For a thorough analysis of the failure of IMF surveillance in advance of the global financial crisis, see Independent Evaluation Office, IMF Performance in the Run-​Up to the Financial and Economic Crisis: IMF Surveillance in 2004–​2007 (Washington, DC: IMF, 2011). 49   The original members of the FSB were the national authorities of the G7. Australia, Hong Kong, the Netherlands, and Singapore became members after its creation, and Switzerland was added in 2007. 50   Schinasi and Truman, “Reform of the Global Financial Architecture,” 39.

 

380   international finance the two bodies might find it difficult to cooperate if political and technical considerations are difficult to be reconciled—​as would be the case, for instance, if action against global financial instability requires the political condemnation of a country’s fiscal policy. The memberships of the FSB and IMF also differ in sheer numerical terms. Whereas the IMF is a quasi-​universal IO with 187 member countries, the FSB remains a club-​like organization with twenty-​four members, even after the 2009 enlargement.51 This difference implies that the degree of economic and financial heterogeneity is greater in the IMF than in the FSB, because a broader range of developed, developing, and emerging market countries constitutes the IMF’s political constituency. This heterogeneity helps explain why IMF decision-​making is often considered more politicized than that of the FSB and is a factor that encouraged the advanced economies to privilege club organizations of the likes of the FSB for the governance of global finance.52 Different degrees of membership heterogeneity may thus have important implications for interinstitutional cooperation. In particular, a working hypothesis for future research is that the more the political actors are involved in the decision-​making process, the more likely it is for veto actors to affect the process of interinstitutional cooperation.53 Finally, interinstitutional conflict can be explained by drawing attention to the role of the bureaucratic cultures of the bodies seeking to cooperate. From this theoretical perspective, the most important explanatory factor is the compatibility between the two organizational cultures. Specifically, the more diverse the organizational cultures, the more difficult it will be to coordinate and reconcile activities. Indeed, the underlying assumption is that different types of expertise lead to different interpretations of the outside world and, consequently, to different behaviors when addressing problems.54 Once again, this hypothesis can be illustrated through the FSB–​IMF relationship. For instance, there are well-​known aspects of the IMF organizational culture that are likely to create frictions with the FSB, such as the dominant macroeconomic culture of IMF staff members and the organization’s hierarchical internal organization. These aspects contrast with certain defining features of the FSB whose staff 51   The transformation of the FSF into the FSB was marked by the expansion of its membership from eleven countries (eight Western countries plus Japan, Hong Kong, and Singapore) to twenty-​four countries, of which ten are emerging economies in addition to Hong Kong, Singapore, and South Korea. 52  Drezner, All Politics Is Global, 147. 53   Although the FSB has a more homogenous membership than the IMF, the FSB membership expansion has introduced an element of heterogeneity in supervisory and regulatory preferences that may complicate the body’s decision-​making, particularly in light of the consensus rule that governs the workings of the Plenary. Eric Helleiner, “The Financial Stability Board and International Standards,” The Centre for International Governance Innovation, CIGI Papers No. 1, June (CIGI, 2010), 6. Manuela Moschella, “Designing the Financial Stability Board: A Theoretical Investigation of Mandate, Discretion, and Membership,” Journal of International Relations and Development 16/​3 (2013): 380–​405. 54   Broome and Seabrooke, “Seeing Like an IO.”

 

conclusions   381 expertise is primarily financial and whose organizational structure is informal and nonhierarchical by design.55 For instance, the IMF’s dominant macroeconomic culture has been one of the main obstacles to the development of its financial sector responsibilities; in particular, the IMF’s traditional focus on macroeconomic variables has affected the development of a full-​fledged financial sector surveillance.56 This limited involvement with financial sector issues, in spite of the reforms of the late 1990s, has also been evident until recently.57 For instance, in advance of the 2007–​8 crisis, “the IMF was drawing the membership’s attention to the risk that a disorderly unwinding of global imbalances could trigger a rapid and sharp depreciation of the dollar, and later on the risks of inflation from rising commodity prices.” By focusing on these macroeconomic developments, however, “the IMF gave too little consideration to deteriorating financial sector balance sheets, financial regulatory issues … and to the credit boom and emerging asset bubbles.”58 The problems that had bedeviled the Fund’s surveillance speak to the advantages that derive from a sustained cooperation with the FSB. Specifically, financial governance will benefit from integrating findings that relate to macroeconomic and macro-​financial vulnerabilities (as developed by the IMF) and those that pertain to vulnerabilities and regulatory challenges in the financial sector (as developed by the FSB). Conversely, the distance between the organizational cultures of the two bodies may negatively affect this desirable development; the FSB and the IMF may find it difficult to engage in dialogue, exchange information, and synthesize their analytical findings because the bureaucratic culture of each does not permit it to fully incorporate and appreciate the contribution of the other.

Conclusions The international financial architecture reflects long-​drawn-​out political efforts to cope with the increasing complexity of the world’s financial markets within a context of power politics and ideational battles. The result of these efforts is the current architectural design, which is characterized by the dispersion of governance

  Also Lombardi (ed.), The Governance of the Financial Stability Board, 13.   Moschella, “Lagged Learning and the Response to Equilibrium Shock.” 57   On the IMF financial sector reforms, see Carlo Gola and Francesco Spadafora, “Financial Sector Surveillance and the IMF,” IMF Working Papers, WP/​09/​247(2009). 58   Independent Evaluation Office, IMF Performance in the Run-​Up to the Financial and Economic Crisis, 5. 55

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382   international finance functions across different types of international bodies. These bodies are often tasked with performing a similar set of functions, such as collecting and analyzing information, monitoring, and rule creation. Although there is a generally accepted division of labor among the bodies that contribute to ensure global financial stability, with each of these bodies performing its functions within its respective sphere of technical competence, the political fragmentation of the IFA is nonetheless problematic: in a highly integrated financial system, a fragmented political system may be ineffective in preventing a financial crisis if potential risk factors fall through the cracks of institutional responsibility or if the joint efforts of multiple agencies are required for these risks to be detected or removed. Furthermore, political fragmentation risks weakening accountability because it makes it more difficult to identify who is responsible for omissions and policy failures. In this chapter, I suggested that more attention should be devoted to exploring the implications of the fragmented institutional design that characterizes the current international financial architecture. Specifically, I started charting a research agenda to explore the conditions that are likely to support interinstitutional coordination or nurture conflict. Building on the contributions of the IO scholarship, I suggested that potential sources of conflict may be traced to different terms of delegation and discretion, political constituencies, and organizational cultures consistent with the expectations developed from rationalist, realist, and constructivist studies, respectively. These arguments were illustrated in the working relationship of the FSB and the IMF, which have both been given important financial governance roles in the aftermath of the global financial crisis of 2007–​8. The analysis of the FSB–​IMF relationship will of course require further empirical testing; however, it sets out an initial attempt at accounting for a problem that has received scarce systematic attention and that might provide a fruitful area for future research beyond the specific case under examination here. Indeed, although I focused on the IMF–​FSB collaboration, in recent years, opportunities for tensions in interinstitutional cooperation in global economic and financial governance have increased following the launch of new initiatives or the creation of new bodies. To mention just a few recent examples of governance arrangements based on the sustained interaction of several international bodies, these include the creation of the Troika, which brings together the IMF, the European Central Bank, and the European Commission in the design and monitoring of financial assistance programs; the launch of the MAP, which calls on the IMF to cooperate with the G20 in order to achieve strong, sustainable, and balanced growth; and the setup of the BRICS development bank, whose lending activity will largely overlap with that of the Bretton Woods institutions. These (and other) cases are thus a wake-​up call for scholars to explore the origins and consequences of interinstitutional coordination at the international level. In concluding, two broad considerations warrant further reflection. To start with, although I suggested a number of factors that are likely to affect the pattern

 

conclusions   383 of interinstitutional cooperation, it is plausible to think of other factors that may impinge on the specific case under investigation. For instance, it is plausible to expect that the current reforms to the IMF governance, which will affect the balance between developed and developing countries within the Fund, are likely to alter the way in which the IMF interacts with other states and nonstate actors. For instance, it is worth recalling that in December 2010 the IMF Executive Board approved a quota and governance reform package. The reforms include a proposed amendment to move to a more representative, all-​elected Executive Board, a doubling of IMF quotas under the 14th General Review of Quotas, and a shift in quotas to dynamic emerging markets and underrepresented countries. These reforms, which are now accepted by the Fund’s membership,59 are important not only for their likely consequences within the IMF but also for those outside it. A reformed IMF, with a different balance of power between developed and developing countries, might work differently with the FSB and the other bodies it usually cooperates with. Finally, it is notable that the process of increased interinstitutional coordination is occurring exactly at a time when the financial system is undergoing a process of fragmentation. Indeed, following the crisis, there has been a marked decline in cross-​border capital flows that has been accompanied by muted growth in global financial assets. Almost five years after the beginning of the crisis, cross-​border capital flows are 60 percent below their pre-​crisis peak, and global financial assets have grown by just 1.9 percent annually since the crisis, which is lower than the 7.9 percent average annual growth from 1990 to 2007.60 In short, whereas the historical evolution of the IFA has been mostly characterized by the combination of financial integration with political fragmentation, today’s situation inverts previous trends. The result is a shift toward greater political integration, but under conditions of increasing financial disintegration. These are largely uncharted waters for global financial governance and will test the IFA’s ability to preserve the level of financial integration reached over recent decades and to mitigate potential instability.

59   In order to enter into force, the reform package needed to be accepted by three-​fifths of the Fund’s members having 85 percent of the Fund’s total voting power. 60  Martin N. Baily and Susan Lund, “Financial Globalization in Reverse?,” Project Syndicate, April 12, 2013, http://​w ww.project-​syndicate.org/​commentary/​t he-​p ost-​crisis-​decline-​in-​cross​border-​capital-​flows-​by-​martin-​n-​-​baily-​and-​susan-​lund.

 

Chapter 18

ECONOMIC RELATIONS AND INTEGRATION Frank Schimmelfennig

The comparative study of regional economic integration boomed first in the 1960s and early 1970s under the theoretical aegis of neofunctionalism.1 It declined due to the failure or stagnation of many regional organizations founded in the post-​war and decolonization period and the self-​declared ‘obsolescence’ of neofunctionalism.2 In the 1990s, regional economic organizations have grown dynamically, but the revival of the theory and analysis of regional integration focused strongly on the European Union (EU).3 The comparatively oriented ‘new regionalism’4 has been more interested in the global embedding and social, cultural, and economic underpinnings of regions than in the study of institutions. As a result, theory-​guided and comparative analysis of the institutional design and development of regional 1  e.g., Ernst B. Haas and Philippe Schmitter, “Economics and Differential Patterns of Political Integration: Projections about Unity in Latin America,” International Organization 18/​4 (1964): 705–​37; Leon N. Lindberg and Stuart A. Scheingold (eds.), Regional Integration. Theory and Research (Cambridge: Harvard University Press, 1971); Joseph S. Nye, Peace in Parts: Integration and Conflict in Regional Integration (Boston: Little, Brown, 1971). 2  Ernst B. Haas, “Turbulent Fields and the Theory of Regional Integration,” International Organization 30/​2 (1976): 173–​212. 3   e.g., Andrew Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (Ithaca: Cornell University Press, 1998); Alec Stone Sweet and Wayne Sandholtz, “European Integration and Supranational Governance,” Journal of European Public Policy 4/​3 (1997): 297–​317. 4   e.g., Björn Hettne and Frederik Söderbaum, “Theorising the Rise of Regionness,” New Political Economy 5/​3 (2010): 457–​72.

 

regional economic integration   385 economic integration has remained scarce.5 In part, the gap between the EU and other regional organizations may have appeared too large for European integration theories to travel. Moreover, research has suffered from a lack of comparative data. This shortcoming is being redressed thanks to several new datasets that capture the variety of institutional designs and developments.6 The availability of comparative data will allow researchers to test institutional and integration theories developed within the European context in a broader setting. This chapter has a conceptual and a theoretical part. The conceptual part starts with a definition and typology of economic integration. It then presents features of institutional design that capture the institutional variation and development of regional economic integration. This conceptual apparatus has been used recently to map regional economic organizations and describe their variation and development. The theoretical part of this article begins with economic theories of integration, which have, however, little to say about the political process of integration and the role and effects of institutions and organizations. I  then move on to political theories of economic integration, which have mainly been developed in the context of European integration: intergovernmentalism, supranationalism, and constructivism.

The Design and Development of Regional Economic Integration Conceptualizing Institutional Design In a seminal article, Bela Balassa defined economic integration as the abolishment or absence of ‘discrimination between economic units belonging to different

  e.g., Amitav Acharya and Alastair Iain Johnston, Crafting Cooperation: The Design and Effectiveness of Regional Institutions (Cambridge: Cambridge University Press, 2007); Walter Mattli, The Logic of Regional Integration. Europe and Beyond (Cambridge: Cambridge University Press, 1999). 6  e.g., three titles by Yoram Z. Haftel: “Designing for Peace: Regional Integration Arrangements, Institutional Variation, and Militarized Interstate Disputes,” International Organization 61/​1 (2007): 217–​37; Regional Economic Institutions and Conflict Mitigation: Design, Implementation, and the Promise of Peace (Ann Arbor: University of Michigan Press, 2012); and “Commerce and Institutions: Trade, Scope, and the Design of Regional Economic Organizations,” Review of International Organizations 8/​3 (2013): 389–​ 414. See also Kathy Powers and Gary Goertz, “The Economic-​Institutional Construction of Regions: Conceptualisation and Operationalisation,” Review of International Studies 37/​5 (2011): 2387–​415; Liesbet Hooghe and Gary Marks, “Delegation and Pooling in International Organizations,” Review of International Organizations 10/3 (2015): 305–28; Edward D. Mansfield and Jon Pevehouse, “The Expansion of Preferential Trade Agreements,” International Studies Quarterly 57/​3 (2013): 592–​604. 5

 

386    economic relations and integration national states’ and distinguished it from mere economic cooperation, namely the ‘lessening’ rather than the abolition of such discrimination.7 He further established a rank order of types of economic integration, in which each step of integration is a subset of the integration achieved by the higher types. A free-​trade area (FTA) abolishes internal tariffs and trade restrictions among the members of the FTA; a customs union establishes a common external tariff in addition; a common market adds further economic freedoms (movement of labour, services, and capital) to the free movement of goods; economic union includes the harmonization of macroeconomic and social policies; and total economic integration entails the unification of such policies under a supranational authority making binding rules and decisions for the member states.8 This is still a useful and widely used basic classification of economic integration. Three qualifications need to be borne in mind, however. First, economic integration is often sectoral—​that is, limited to certain policies. For instance, the European Free Trade Agreement (EFTA) excludes agriculture and fisheries, and the EU has established monetary without fiscal integration. Second, each integration type usually goes together with partial integration in the other dimensions. By the time the European Economic Community established an FTA in 1968, it had also moved ahead with the harmonization of agricultural policy. Finally, the ordering of types of integration is not as strict as Balassa suggests. For instance, the European Economic Area (EEA) (including the EU and most EFTA countries) is a common market without a customs union. Moreover, economic integration is predominantly a regional phenomenon. At the global level, we find arrangements of economic cooperation such as the World Trade Organization (formerly General Agreement on Tariffs and Trade), which has achieved a considerable reduction in tariffs and non-​tariff barriers in various rounds of negotiations and broadened its scope from industrial goods to agriculture, textiles, and services—​but it has not established an FTA among its members. At the other extreme, we find FTAs between distant countries such as the United States and Australia or between Switzerland and Japan. Economic integration between distant countries is, however, generally bilateral and does not go beyond free trade, the weakest form of integration. For these reasons, the study of economic integration has focused on regional organizations. The difference in numbers between bilateral and regional agreements is striking. Estevadeordal and Suominen count 13562 trade-​related international agreements for the time period 1875 to 2006, 94 per cent of which are bilateral.9 Mansfield and Pevehouse count between 250 and 300  ‘preferential trading agreements’ in   Bela Balassa, “Towards a Theory of Economic Integration,” Kyklos 14/​1 (1961): 1–​17, 4–​5.   Ibid., 5–​6. 9  Antoni Estevadeordal and Kati Suominen, “Sequencing Regional Trade Integration and Cooperation Agreements,” World Economy 31/​1 (2008): 112–​40. 7

8

 

regional economic integration   387 the post-​2000 period of which around 150 to 200 are bilateral FTAs or preferential trade agreements.10 Although datasets of regional economic integration use different definitional criteria, they agree on the rough numbers. Haftel finds twenty-​eight ‘regional economic organizations’ from the 1980s to the late 2000s;11 Powers and Goertz count thirty-​four ‘regional economic institutions’ in 2005;12 and Mansfield and Pevehouse arrive at less than fifty multilateral trading agreements, some of which may, however, not qualify as either regional or integration agreements.13 For the purposes of this article and in line with most of the literature, the minimum threshold for regional economic integration is defined as an international organization involving three geographically proximate member states, joint decision-​making, and the purpose of establishing transnational economic freedoms (normally starting with the establishment of free trade for at least one category of goods). These three attributes refer to the basic dimensions of integration:  territorial extension, level of centralization, and functional scope.14 In order to capture the institutional variation and institutional development of regional integration, definitions and measurements build on measures of integration in the EU literature (starting with Schmitter15) or the general literature on the design of international institutions.16 Schmitter introduced two basic measures of integration: scope, namely the number of integrated policy areas, and level, namely ‘the extent of commitment to mutual decisionmaking’,17 which have been widely used and adapted in the study of European integration.18 Leuffen et al. add territorial extension—​that is, the number of members or the coverage of the region—​as a third dimension of integration to functional scope and level of centralization.19 These three dimensions mirror the concepts of deepening (level), widening (extension), and broadening (scope), which are widely used to describe the multidimensional process of integration in the EU. In addition, Leuffen et al. include differentiation20—​exemptions and opt-​outs of member states

  Mansfield and Pevehouse, “The Expansion of Preferential Trade Agreements.”   Haftel, “Commerce and Institutions.” 12   Powers and Goertz, “The Economic-​Institutional Construction of Regions.” 13   Mansfield and Pevehouse, “The Expansion of Preferential Trade Agreements.” 14  Dirk Leuffen, Berthold Rittberger, and Frank Schimmelfennig, Differentiated Integration. Explaining Variation in the European Union (Basingstoke: Palgrave, 2013). 15  Philippe C. Schmitter, “Three Neo-​Functional Hypotheses about International Integration,” International Organization 23/​1 (1969): 161–​6. 16  e.g., Barbara Koremenos, Charles Lipson, and Duncan Snidal, “The Rational Design of International Institutions,” International Organization 55/​4 (2001):  761–​99; Acharya and Johnston, Crafting Cooperation. 17   Schmitter, “Three Neo-​Functional Hypotheses about International Integration,” 163. 18   e.g., Leon N. Lindberg and Stuart A. Scheingold, Europe’s Would-​Be Polity. Patterns of Change in the European Community (Englewood Cliffs: Prentice Hall, 1970); Tanja A. Börzel, “Mind the Gap! European Integration between Level and Scope,” Journal of European Public Policy 12/​2 (2005): 217–​36. 19 20   Leuffen, Rittberger, and Schimmelfennig, Differentiated Integration.  Ibid. 10 11

 

388    economic relations and integration from policies and the selective integration of non-​members—​as an important feature of integration.21 Moreover, the basic dimension of ‘level’ has been elaborated further. Several authors have proposed decision-​making rules—​mainly the distinction between unanimity, super-​majority and majority rules—​as a separate dimension.22 In addition, Hooghe and Marks make an important distinction between delegation—​the transfer of authority from principals (states) to a non-​state agent (a secretariat, a commission, or a court)—​and the pooling or joint exercise of authority by a body of states.23 Organizations can furthermore be distinguished according to the degree of legalization. High legalization is characterized by legally binding rules, in particular if they take direct effect (i.e. do not need to be ratified and transposed into domestic law by states before becoming binding), and by third-​party rule enforcement, above all independent courts. Conversely, organizations that make predominantly declaratory or only politically binding rules and leave dispute settlement to diplomatic procedures show a low level of legalization.24 Haftel combines the autonomy of the regional bureaucracy and the degree of legalization into a measure of ‘institutional independence’.25 Finally, Haftel distinguishes between designed and implemented features of regional economic organizations because many organizations envisage institutions and policies in their constitutive treaties that are never put into practice.26 In sum, decision-​making rules, delegation and pooling of authority, differentiation or flexibility, legalization, membership, and policy scope (both designed and implemented) are the six key dimensions that describe the institutional design, variation, and development of organizations of regional economic integration.

  “Extension” and “differentiation” are similar to “membership”/​“inclusiveness” and “flexibility,” which Koremenos, Lipson, and Snidal (2001) and Acharya and Johnston (2007) list as key dimensions of the design of international institutions. 22   Koremenos, Lipson, and Snidal, “The Rational Design of International Institutions”; Acharya and Johnston, Crafting Cooperation; Hooghe and Marks, “Delegation and Pooling in International Organizations.” 23   Hooghe and Marks, “Delegation and Pooling in International Organizations.” 24   Kenneth W. Abbott et al., “The Concept of Legalization,” International Organization 54/​3 (2000): 401–​19. 25  Haftel, “Commerce and Institutions”; see also Yoram Z. Haftel and A. Thompson, “The Independence of International Organizations: Concept and Applications,” Journal of Conflict Resolution 50/​2 (2006): 253–​75. 26   Haftel, “Commerce and Institutions.” 21

 

regional economic integration   389

Mapping Institutional Development and Variation In the study of the EU, these measures have been used to map the development of European integration over time and across policies.27 The mapping shows that European integration has been characterized by gradual growth in all dimensions of integration. A  period of stagnation from the mid 1960s to the mid 1980s was followed by two decades of intensive deepening and widening. After starting with trade and agriculture, the EU has broadened its policy scope over time and now possesses competencies in all policy areas. It has increased both the pooling and delegation of formerly national policy competences. Some policies are fully delegated to the Union: for instance, competition policy to the European Commission and monetary policy (and now banking supervision) to the European Central Bank. Most other policies are pooled. The standard decision-​ making procedure of the EU (the ‘ordinary legislative procedure’) combines qualified majority voting among the governments in the Council with co-​decision of the European Parliament. From the beginning, European integration has been highly legalized. EU rules are legally binding, take direct effect in the member states, and are adjudicated by an independent supranational court (the European Court of Justice). The EU has expanded its membership from six to twenty-​eight countries and now covers roughly three-​quarters of the countries of the region. Widening and deepening have moved largely in parallel, and the integration of policies and countries has never been reversed ahead of the 2016 British vote to leave. At the same time, widening and deepening have been accompanied by an increase in differentiation.28 Most policy areas are now characterized by either the selective exclusion or ‘opt-​outs’ of member states (e.g. from the Eurozone) or the selective inclusion of non-​member states (as in the EEA). In addition, the level and timing of integration varies across policy areas. Early and far-​reaching integration in market-​making and market-​correcting policies contrasts with comparatively late integration of internal security policies (home affairs) and low-​level integration of external security policies.29 Whereas European integration has been subject to intensive research for a long time, systematic comparative analysis of regional integration is a more recent phenomenon. On the basis of measures for scope and level, Haftel shows that the dynamic growth of regional integration since the 1980s has not been limited to the EU.30 Both the number of regional economic organizations and their level of integration have steadily increased since. The same is true for the membership of regional organizations.31 This seems to suggest that deepening and widening   Börzel, “Mind the Gap!”; Leuffen, Rittberger, and Schimmelfennig, Differentiated Integration. 28   Leuffen, Rittberger, and Schimmelfennig, Differentiated Integration. 29   Börzel, “Mind the Gap!”.    30  Haftel, “Commerce and Institutions.” 31   Powers and Goertz, “The Economic-Institutional Construction of Regions,” 16.

27

 

390    economic relations and integration generally go hand in hand in regional organization. The proliferation of regional economic integration has been strongest in Africa (between fifteen and twenty organizations depending on the count) whereas the numbers for Europe, Asia, and Latin America are roughly equal (around five each). Yet the EU remains by far the most institutionally integrated regional economic organization. According to Haftel’s analysis, the implemented level and scope of integration has remained low for 70 per cent of the organizations. The EU is the only organization scoring ‘high’ on implementation. In addition, Haftel’s data reveal a significant gap between design and implementation for most organizations. The Association of Southeast Asian Nations (ASEAN), the South African Customs Union, and the EFTA match a medium level of design and implementation. By contrast, the Arab–​Maghreb Union and the Economic Community of Central African States combine an institutional ambition that is higher than those of the aforementioned organizations with almost no implementation at all.32 Moreover, Haftel finds that the correlations between level and scope features are positive but only weakly so. The relationship between policy scope and organizational independence is as modest as the one between legalization and autonomy. This suggests that regional integration does not follow a single model but is realized in multiple ways. This variety also frustrates simple explanations of regional economic integration that may have been suggested by the EU experience: regional economic integration is not a European or Western phenomenon, and it is not predominantly an instrument of wealthy or democratic countries. How can we explain regional economic integration, its design, and its development? Why do states enter into regional economic integration? How do they decide on its level, scope, membership, legalization, and differentiation? And why and how do regional economic organizations expand their tasks, competencies, and members once they have been established? These are the questions that integration theories try to answer. The remainder of the chapter starts with economic theories of integration, which focus on the consequences of economic integration but have little to say about the role and effects of institutions and organizations. It then moves on to political theories of economic integration, which have mainly been developed in the context of European integration: intergovernmentalism, supranationalism, and constructivism.

  Haftel, “Commerce and Institutions,” 402.

32

 

economic theory   391

Economic Theory Economic theory focuses on the welfare effects of regional economic integration. Following Jacob Viner’s seminal analysis of the ‘customs union issue’,33 the core debate has been about trade creation versus trade diversion effects. On the one hand, regional economic integration removes customs and other trade barriers between the members of the integration arrangement. It thereby removes the protection of inefficient industries and enables efficient producers to play out their comparative advantage, thereby enhancing collective welfare. On the other hand, the external customs and trade barriers of the integration arrangement discriminate against non-​members by adding to the price of their goods. This may crowd out imports that were cheaper before economic integration was established. Depending on the net balance between these two effects, regional economic integration may either create a net surplus of trade and collective welfare or it may divert efficient trade and reduce collective welfare. In addition, whereas neoclassical economic theory is in agreement about global free trade as the optimal arrangement, it is unclear whether regional arrangements are best understood as stepping stones towards, or obstacles in the way of, the optimal solution. The empirical record is indecisive:  whether regional economic integration has trade-​diverting or trade-​creating effects appears to depend on the historical period, the participating states, and the concrete terms of integration. Late nineteenth-​century regionalism was more welfare-​enhancing than arrangements during the interwar period; and arrangements with low costs of transport among their members, low barriers of entry for new members, and low external tariffs are likely to create rather than divert trade.34 Moreover, economists have detected additional benefits of regional economic integration over time—​at least for their members. Integration arrangements improve the terms of trade and market power of insiders; they provide economies of scale; and they have proven to eliminate non-​tariff trade barriers in addition to customs.35 The theory of optimal currency areas (OCA) is an economic theory relevant to advanced forms of regional economic integration going beyond customs unions. Following the path-​breaking theoretical contribution by Robert Mundell,36 economists have analysed the conditions under which it is efficient for countries to enter into a system of fixed exchange rates or a currency union. That high economic 33   Jacob Viner, The Customs Union Issue (New York: Carnegie Endowment for Peace, 1950).  Edward D. Mansfield and Helen V. Milner, “The New Wave of Regionalism,” International Organization 53/​3 (1999): 589–​627, 595; Mattli, The Logic of Regional Integration, 32. 35   Mansfield and Milner, “The New Wave of Regionalism”; Alfred Tovias, “A Survey of the Theory of Economic Integration,” Journal of European Integration 15/​1 (1991): 5–​23. 36   Robert Mundell, “A Theory of Optimal Currency Areas,” American Economic Review 51/​4 (1961): 657–​65. 34

 

392    economic relations and integration integration of the region is one such condition vindicates Balassa’s claim that currency union comes on top of free trade and a common market. In particular, OCAs are assumed to require high-​factor mobility, which takes over the adjustment tasks of flexible exchange rates in case of asymmetric shocks to the members of a currency union. In addition, a common currency reduces transaction costs and exchange rate risks. OCA theory plays an important role in the discussion about the Economic and Monetary Union (EMU) in Europe. Economic theories of regional economic integration are mainly concerned with efficiency. Assuming that states are willing and able to realize the most welfare-​ enhancing integration scheme, such theories can be used not only to evaluate integration but also to predict the conditions under which economic integration will come about and persist. Yet economic theories tend to disregard political and institutional factors. First, even if integration enhances collective welfare, it creates losers who may be sufficiently powerful to lobby successfully against integration. Theories of economic integration therefore need to take the political economy and the political process of establishing regional economic organizations into account. Second, regional economic integration establishes institutions and organizational actors that may produce effects under-​theorized in economic theories such as the harmonization of policies, transfers among the participating states, and unique institutional interests. Third, economic theories tell us little about the variation in institutional design across regional economic organizations. Finally, regional economic integration may be motivated or supported by non-​economic factors from the start. Political (science) theories of regional integration expand (or even substitute) the economic motives and conditions of integration to political and institutional conditions. Political theories of regional integration can be grouped into three broad ‘schools of thought’:  intergovernmentalism, supranationalism, and constructivism. These theories have used the process of European integration as their main empirical reference and ‘testing ground’. Neofunctionalism, belonging to the supranationalist school of thought, was the dominant theory of integration in the early periods of integration theorizing. It assumed that various spillover mechanisms would produce incremental growth of regional integration. The mid 1960s saw the birth of intergovernmentalism to mark a counterpoint to neofunctionalism. Since the mid eighties, both theory families have undergone a process of internal diversification. While Andrew Moravcsik’s liberal intergovernmentalism was the major new innovation within the intergovernmentalist camp,37 supranational institutionalism38 marked a major refinement of neofunctionalism.

37  Andrew Moravcsik, The Choice for Europe:  Social Purpose and State Power from Messina to Maastricht (Ithaca: Cornell University Press, 1998). 38   Stone Sweet and Sandholtz, “European Integration and Supranational Governance.”

 

intergovernmentalism and rationalist institutionalism    393 Constructivism has travelled more recently from international relations to the study of regional integration.39

Intergovernmentalism and Rationalist Institutionalism Intergovernmentalism is a variant of rationalist institutionalism specifically tailored to explain European integration. As the name indicates, it puts national governments and national interests centre stage in the explanation of integration. Integration decisions are made in intergovernmental negotiations in which national governments bargain to further the national interest and in which the most powerful governments prevail. Andrew Moravcsik’s ‘liberal intergovernmentalism’ (1998) has replaced earlier realist accounts as the dominant intergovernmentalist account of integration.40 Mattli starts from similar assumptions and expands the analysis to comparative regional integration and enlargement.41 Realist-​intergovernmentalist accounts of integration regard geostrategic motives and overall power relations as core factors in regional integration. In general, states are assumed to be autonomy-​maximizing actors and therefore reluctant to transfer competences to a regional organization—​especially if the scope of integration affects policies that are relevant to state sovereignty and state power.42 Regional integration may, however, work as an autonomy-​enhancing instrument of balance-​ of-​power politics. In external relations, it joins the region’s forces against superior extra-​regional powers.43 In the region’s internal relations, it serves to tame regional hegemons.44 In line with hegemonic stability theory, however, regional integration may also be facilitated by a powerful leading state acting as a focal point, paymaster, and enforcer.45 In line with economic theorizing, liberal intergovernmentalism starts with international economic interdependence as the fundamental driver of integration.   This section draws on Leuffen, Rittberger, and Schimmelfennig, Differentiated Integration. 41  Moravcsik, The Choice for Europe.  Mattli, The Logic of Regional Integration. 42   Stanley Hoffmann, “Obstinate or Obsolete? The Fate of the Nation State and the Future of Western Europe,” Daedalus 95/​4 (1966): 861–​98. 43   Sebastian Rosato, Europe United. Power Politics and the Making of the European Community (Ithaca: Cornell University Press, 2011). 44   Joseph M. Grieco, “State Interests and International Rule Trajectories: A Neorealist Interpretation of the Maastricht Treaty and European Economic and Monetary Union,” Security Studies 5/​3 (1966): 261–​306. 45  Mattli, The Logic of Regional Integration. 39

40

 

394    economic relations and integration Interdependence creates demand for international cooperation to avoid externalities and benefit from efficiency gains. In an anarchical international setting, cooperation is hampered, however, by high transaction costs and severe enforcement problems. Rationalist institutionalism offers four substantive theories that specify how and under which conditions rational state actors cooperate in an anarchical, interdependent international system. First, endogenous trade theory accounts for the divergent policy preferences of economic actors and states under interdependence.46 Whether or not states prefer FTAs has mainly to do with the state’s economic endowments and structure. According to the Heckscher-​Ohlin model, trade liberalization benefits the relatively abundant factor—​that is, capital-​owners gain and workers lose when capital is abundant, whereas workers gain but capital-​owners lose in labour-​ abundant countries. If we assume that the factors are specific to industries (the Ricardo-​Viner model)—​for instance, capital cannot easily move from one industry to another in pursuit of higher returns—​it is industries rather than factors that gain or lose from trade liberalization. Export-​oriented industries gain from trade liberalization whereas import-​competing industries lose. In both cases the winners will lobby for free trade, whereas the losers will lobby for protection.47 The success of lobbying depends on how well the groups can organize. Small groups with concentrated gains or losses are better able to organize and lobby than large groups with dispersed gains or losses. This is the reason why producers are usually better lobbyists than consumers and why highly concentrated industries do better than those with a large number of small enterprises. In line with endogenous trade theory, Moravcsik claims that national interests in European integration emerge ‘from a process of domestic conflict’ and reflect ‘primarily the commercial interests of powerful economic producers’.48 However, domestic economic interests most clearly shape state preferences, the ‘more intense, certain, and institutionally represented and organized’ they are and the less ‘uncertainty there is about cause-​effect relations’.49 This applies, for instance, to agricultural policy with its concentrated, well-​organized, and well-​informed producer lobby. Second, bargaining theory explains the substantive outcomes of international negotiations—​that is, how the gains from international cooperation are distributed among the actors. Bargaining power results from the asymmetrical distribution of   See Douglas Nelson, “Endogenous Tariff Theory: A Critical Survey,” American Journal of Political Science 32/​3 (1988): 796–​837 for an overview. 47   Gene M. Grossmann and Elhanan Helpman, “The Politics of Free Trade Agreements,” American Economic Review 85/​4 (1995): 667–​90. 48  Moravcsik, The Choice for Europe, 3 49  Ibid., 36; Andrew Moravcsik, “The Choice for Europe:  Current Commentary and Future Research:  A  Response to James Caporaso, Fritz Scharpf, and Helen Wallace,” Journal of European Public Policy 6/​1 (1999): 169–​79, 171. 46

 

intergovernmentalism and rationalist institutionalism    395 (i) information and (ii) the benefits of a specific agreement (compared to those of alternative outcomes or ‘outside options’). Generally, actors that have more and better information are able to manipulate the outcome to their advantage.50 In addition, actors that are less in need of a specific agreement, because they are more satisfied with the status quo or have alternative options, have more bargaining power: they are able to threaten the others credibly with non-​agreement and thereby force them to make concessions. Provided that all actors benefit from cooperation, those with the highest bargaining power can impose their preferred distribution of the costs and gains of cooperation on the others. In economic integration, market size is a good basic predictor of bargaining power. Large countries can affect the international market unilaterally with their domestic policies and are less in need of integration than small countries. In line with bargaining theory, Moravcsik argues that ‘credible threats to veto proposals, to withhold financial side-​payments, and to form alternative alliances excluding recalcitrant governments carried the day. The outcomes reflected the relative power of states—​more precisely patterns of asymmetrical interdependence.’51 In addition, bargaining power in European integration depends on the governments’ ratification constraints.52 Governments facing powerful domestic opposition to integration are able to extract concessions in intergovernmental negotiations in order to facilitate agreement. Third, the functional theory of institutions (not to be confounded with neofunctionalism) shows how international institutions help states overcome the transaction costs and enforcement problems of international cooperation. States establish international institutions because they are functional in dealing with fundamental problems of international cooperation.53 Efficient, welfare-​ maximizing solutions to international interdependence require reliable information on the state of the world, cause–​effect relationships, and other actors’ preferences and capabilities. International organizations are often better at providing this information than governments alone. They furthermore reduce transaction costs by offering a forum for multi-​actor negotiations and services for effective and efficient communication. Finally, the enforcement problem requires effective monitoring and sanctioning. Again, international institutions

  Gerald Schneider and Lars-​Erik Cederman, “The Change of Tide in Political Cooperation: A Limited Information Model of European Integration,” International Organization 48/​4 (1994): 633–​62. 51  Moravcsik, The Choice for Europe, 3. 52   Andrew Moravcsik, “Preferences and Power in the European Community: A Liberal Intergov­ ernmentalist Approach,” Journal of Common Market Studies 31/​4 (1993):  473–​524, 514–​17; Schneider and Cederman, “The Change of Tide in Political Cooperation”; Simon Hug and Thomas König, “In View of Ratification:  Governmental Preferences and Domestic Constraints at the Amsterdam Intergovernmental Conference,” International Organization 56/​2 (2002): 447–​76. 53   Robert O. Keohane, After Hegemony:  Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984). 50

 

396    economic relations and integration are established because they fulfil these tasks more effectively and efficiently than individual states. Different institutional designs then reflect the need to deal with different problems of collective action.54 On the one hand, there are issues of coordination: here, actors need to agree on a common standard but have no incentive to defect unilaterally once this standard is in place. In these cases, governments delegate decisions to common decision-​making or supranational organizations mainly in order to reduce transaction costs. By contrast, when states do have an incentive to defect and an enforcement problem exists, governments are willing to centralize decision-​ making and delegate more extensive powers of monitoring and compliance to supranational organizations.55 By transferring sovereignty to international institutions, governments furthermore remove issues from the influence of domestic actors, which might build up pressure for non-​compliance if their costs deriving from integration increase. They also remove them from decentralized intergovernmental control, which may be too weak to secure compliance, in particular if powerful member states violate the rules. The degree to which governments favour the pooling (voting by procedures other than unanimity) and the delegation of sovereignty to supranational institutions depends on the value they place on the issues and substantive outcomes in question and on their uncertainty about the future behaviour of other governments.56 Finally, club theory deals with the issue of organizational size.57 A  club is a voluntary association deriving mutual benefit from producing and sharing collective goods such as a common market or currency. Membership in clubs can be limited—​and often needs to be because new members are not only additional contributors to the club goods but can also become rival consumers (causing crowding costs). When states integrate their markets and economies, they produce external effects for non-​member countries (e.g. by diverting trade and investments away from them). However, third countries can also produce externalities for the integrated states. For example, lower taxation or less social and environmental regulation may attract business away from the integrated market and thus bring its rules and policies under pressure. If this is the case, it is useful to enlarge the club. In addition, a larger size might produce economies of scale and increase the budget of the organization. The core hypothesis of club theory posits that a club will expand (only) until the marginal costs of admitting a new member equal the marginal benefits. Since clubs are voluntary associations,   Koremenos, Lipson, and Snidal, “The Rational Design of International Institutions.”   Andrew Moravcsik and Frank Schimmelfennig, “Liberal Intergovernmentalism,” in European Integration Theory, ed. Antje Wiener and Thomas Diez, 2nd ed. (Oxford: Oxford University Press, 2009), 67–​87, 72. 56  Moravcsik, The Choice for Europe, 486–​7. 57   For a survey, see Todd Sandler and John T. Tschirhart, “The Economic Theory of Clubs:  An Evaluative Survey,” Journal of Economic Literature 18/​4 (1980): 1481–​521. 54 55

 

intergovernmentalism and rationalist institutionalism    397 all old and new members must derive a positive utility from expansion lest they use their veto. Mattli shows that outside countries typically seek membership in order to close an economic ‘performance gap’ with the insiders; insiders, however, are unlikely to admit new members that do not make a net contribution to the organization.58 To lower the costs of admission, the old members therefore often exclude new members temporarily from policies with negative distributional implications.59 In sum, intergovernmentalism stipulates that the extent of regional economic integration depends fundamentally on the extent of regional interdependence and is further subject to the homogeneity of state preferences, the structure of bargaining power, and the severity of compliance problems. Scope and membership depend on the extent of interdependence and preference convergence across policies and countries, respectively. The level of pooling, delegation, and legalization varies with the value of the agreement and the risks of noncompliance. Differentiation reflects issue-​specific heterogeneity in interdependence and preferences across countries. Liberal intergovernmentalism provides the most elaborate theory of European integration and a convincing explanation of major integration decisions. It is particularly strong in accounting for integration negotiations and decisions in economic policy areas characterized by interest-​group conflict and at an early stage or low level of centralization. These strengths make intergovernmentalism a useful candidate for the comparative analysis of regional integration because economic organizations beyond the EU usually focus on the establishment of free trade, customs unions, and common markets and operate at a low level of pooling, delegation, and legalization. Indeed, Haftel finds trade interdependence (and the economic development of the participating countries) to be significantly correlated with the implemented level and scope of regional economic organizations.60 In contrast to Mattli,61 however, he does not find regional power concentration to be conducive to integration; rather, powerful countries appear to be reluctant to delegate or pool authority in regional economic organizations.62 Similarly in line with liberal intergovernmentalism, Mansfield and Pevehouse find that preferential trade agreements with more trade-​open members (and larger market size) are more likely to expand—​and that they preferentially admit politically and economically similar countries.63 By contrast, power concentration has a negative effect on enlargement.

 Mattli, The Logic of Regional Integration.  Christina J. Schneider, Conflict, Negotiations, and EU Enlargement (Cambridge:  Cambridge University Press, 2009). 60 61   Haftel, “Commerce and Institutions.”  Mattli, The Logic of Regional Integration. 62   Haftel, “Commerce and Institutions,” 409. 63   Mansfield and Pevehouse, “The Expansion of Preferential Trade Agreements.” 58

59

 

398    economic relations and integration As European integration has progressed beyond low levels of integration and trade-​related economic policies, however, it has featured several developments that move beyond intergovernmental bargaining and control and are difficult to explain by economic power and cost–​benefit calculations. Supranationalism and constructivism seek to account for these developments.

Supranationalism and Historical Institutionalism In contrast with intergovernmentalism, supranationalism assumes that the process of integration has a transformative and self-​reinforcing effect. Even though the beginnings of integration may well reflect the constellation of state preferences and bargaining power, its further development is the result of a self-​reinforcing dynamic of institutionalization that is beyond the control of the member states. To theorize the dynamics of European integration, supranationalist integration theory draws on historical-​institutionalist assumptions and mechanisms.64 Historical institutionalism questions the rationalist assumption that states can design institutions to perform efficiently and reliably according to their preferences. It doubts that political actors are as far-​sighted as suggested by functional theorists: political actors have rather short time horizons, they cannot foresee all possible contingencies and consequences of their actions, and they are often unable to correct the unintended consequences of institutional developments. Supranationalists argue that the process of integration creates ‘gaps’65 in subsequent treaty settlements, which prove to be enabling for transnational interest groups and supranational actors, while they are difficult to reverse for others (most notably the member state governments). Supranationalism is similar to intergovernmentalism in that it assumes (boundedly) rational actors in a situation of international interdependence, who establish international organizations to facilitate and stabilize international cooperation, but extends the list of relevant actors. In addition to states and domestic business actors, supranationalism includes transnational and supranational actors. Multinational corporations and transnational interest groups proliferate in the course of

64  Paul Pierson, “The Path to European Integration:  A  Historical Institutionalist Analysis,” Comparative Political Studies 29/​2 (1996): 123–​63; Stone Sweet and Sandholtz, “European Integration and Supranational Governance.” 65   Pierson, “The Path to European Integration.”

 

supranationalism and historical institutionalism    399 integration and act autonomously from the states. They demand supranational rules and the abolition of national rules to promote their business interests. The potential for transnational exchanges among these groups further increases if the pluralistic structures displayed by different countries resemble each other, a condition Mattli refers to as ‘symmetrical regional heterogeneity’.66 Parallel pluralistic structures (or socio-​economic cleavages) in a region greatly facilitate the potential that social and political interest groups can join forces with their transnational counterparts to foster economic ties and hence promote integration. In addition, supranationalism regards supranational organizations as actors in their own right rather than mere instruments of the member states. They not only monitor the rules that member states have agreed on but also reformulate and reshape these rules, and in doing so seek to pursue their individual and collective interests in an instrumental fashion. According to principal–​agent theory, several problems arise from the delegation of decision-​making authority from governments, acting as political ‘principals’, to international organizations, acting as ‘agents’.67 In the case of adverse selection, principals are uncertain about the true motives of the agent prior to establishing the contractual relationship. In the case of moral hazard, the principal is uncertain about the activities of the agent once the contractual relationship is in place. The ‘incomplete’ nature of contracts, such as international treaties, tends to exacerbate this problem of agency slippage and bureaucratic drift. The notion of an ‘incomplete contract’ stipulates that the process of contracting is fraught with uncertainties, since it is hard for the contracting parties to anticipate contingencies arising in the future, which could prompt parties subject to the contract to offer conflicting interpretations over the initial contract. Moreover, asymmetric or incomplete information raises the costs of negotiating and may result in a contract or treaty that represents a second-​best option for the parties involved. As a result, contractual imperfections tend to force the contracting parties to renegotiate aspects of the initial bargain.68 Moreover, contractual incompleteness tends to increase agents’ discretion and hence their autonomy vis-​à-​vis the principals. Supranationalist integration theory further argues that states are often unable to correct the unintended consequences of their integration arrangements. Institutional path dependence refers to the idea that institutions are difficult to reform once they have been created—​even if they develop in unintended ways,

66   Walter Mattli, “Ernst Haas’s Evolving Thinking on Comparative Regional Integration: Of Virtues and Infelicities,” Journal of European Public Policy 12/​2 (2005): 327–​48, 330. 67  e.g., Darren Hawkins et  al. (eds.), Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006). 68   Alexander Cooley and Henrik Spruyt, Contracting States:  Sovereign Transfers in International Relations (Princeton: Princeton University Press, 2009), 26.

 

400    economic relations and integration become inefficient due to changing circumstances, or contradict the preferences of the principals.69 In order to stabilize institutions, political actors often introduce strong constraints on change (e.g. super-​majority or unanimity decision rules), which can block institutional reforms even if they are desired by a majority. Over time, institutional changes may further lose their attractiveness due to the existence of sunk costs: when new institutions are introduced, actors make personal investments to adapt to the new institutions and these investments are often so high that, as a consequence, actors ‘stick’ to these institutions even if new and more efficient alternatives appear. Unless there are major ‘exogenous shocks’ (such as wars, revolutions, economic crises), the institutional route once taken becomes increasingly hard to leave. In the medium term, the growth of integration is the unintended result of a series of incremental decisions to shift competences from the national to the regional level, each of them motivated by the imperfections and inefficiencies of previous integration steps and by the calculation that, at the end of the day, preserving the status quo, cutting back integrated competences, or exiting from the economic integration arrangement would be more costly than moving ahead. Supranationalism distinguishes several types of ‘spillovers’ driving this process.70 Functional spillovers are caused by the externalities between integrated and non-​integrated policies or by cooperation and compliance problems in already integrated policies. They give rise to the further broadening and deepening of integration. The same is true of political and institutional spillovers according to which transnational interest groups demand and supranational organizations facilitate more integration. Finally, geographical spillovers are caused by the externalities between integrated and non-​ integrated countries. As a regional organization deepens its economic integration, it increases its market power, diverts trade and investments away from nonmembers, and imposes its regulatory choices on them—​thus increasing the gains and lowering the costs of joining. Geographical spillovers produce the widening of integration. To sum up, supranationalism assumes that spillovers and path dependencies regularly push the integration process beyond the initial integration outcomes based on intergovernmental preference constellations and bargaining processes. To what extent this occurs depends on the scope and intensity of transnational exchanges, the externalities created by previous integration steps, and the capacity and discretion of supranational actors. Scope expands as a result of functional spillover across policies, membership as a result of geographical spillover across the borders of the regional economic organization. The level of pooling, delegation, uniformity, and legalization increases as governments come under functional and political pressure 69   Pierson, “The Path to European Integration”; Paul Pierson, “Increasing Returns, Path Dependence, and the Study of Politics,” American Political Science Review 94/​2 (2000): 251–​67. 70   Ernst B. Hass, The Uniting of Europe: Political, Social, and Economic Forces 1950–1957 (Stanford: Stanford University Press, 1968); Schmitter, “Three Neo-​Functional Hypotheses about International Integration.”

 

constructivism and sociological institutionalism    401 to improve the efficiency of decision-​making, policy implementation, and dispute settlement—​and as supranational actors make use of their autonomy. In European integration, legalization (including the direct effect and supremacy of European law) is a famous case of institutional spillover driven by an activist Court of Justice. The expansion of the EU’s functional scope from the common market to several flanking policies—​such as environmental and social policy, to the free movement of persons, and to currency union—​also shows indications of endogenous interdependence and functional spillover. So does the extension of scope from the free movement of persons to justice and home affairs and from the currency union to banking union. It is an open question whether such dynamics are also at play in other regional economic integration contexts. The rather low level of integration and the considerable design-​implementation gap seem to suggest otherwise.

Constructivism and Sociological Institutionalism Constructivism in the study of regional integration is based on yet another variant of institutional theory: sociological institutionalism. From a sociological institutionalist perspective, states interact in a highly institutionalized and culturally dense international environment, which is structured by collectively held ideational schemes and rules. Consequently, institutions are not just instruments to efficiently solve collective action problems. They are ‘community representatives’.71 Their origins, goals, and procedures are shaped by the standards of legitimacy and appropriateness of the international community they represent (and which constitutes their cultural and institutional environment)—​rather than by the utilitarian demand for efficient problem-​solving. Regional integration is tightly linked to a process of community-​building. Regions are social constructions, and regional organizations play an important role in this construction process.72 In this respect, constructivism resembles the ‘transactionalist’ integration theory of Karl Deutsch who defined an emerging ‘sense of community’—​that is, a transformation of identities—​as the

71  Kenneth W. Abbott and Duncan Snidal, “Why States Act through Formal International Organizations,” Journal of Conflict Resolution 42/​1 (1998): 3–​32, 24. 72   Powers and Goertz, “The Economic-​Institutional Construction of Regions.”

 

402    economic relations and integration essence of integration.73 Over time, (ideational) community-​building and (institutional) integration mutually influence and potentially reinforce each other. The constructivist account of integration starts with ideas. At least in the beginning of the integration process, the ideas that shape integration preferences mostly stem from the national political and cultural environment. National policy paradigms regarding economic and other policies, national constitutional values and norms, and national identities and images of the region inform preferences on the desirability, form, and substance of regional integration. The most general hypothesis stipulates that integration depends on the strength of transnational community: the stronger the collective, regional identity and the larger the pool of common or compatible beliefs, values, and norms, the more integration is possible. Whereas exclusive national identities undermine support for regional integration,74 community values and norms support regional integration. They provide legitimacy to integration steps and institutional designs, and delegitimize others, beyond what cost–​benefit calculations and functional exigencies alone would suggest.75 Moreover, dense interactions in a regional institutional context socialize state representatives to these values and norms. Such social learning processes have the potential to overcome conflicts about integration, restructure discourses, and transform identities.76 Both the density of exposure and the legitimacy of the community are core conditions of regional socialization at the levels of governments, individual officials participating in integrated policy-​making, and citizens. Constructivist integration theory claims that the extent of regional economic integration fundamentally depends on the extent of consensus and community among the actors participating in the integration process, the legitimacy of the regional organization, and the density of interactions it promotes. Policy scope increases with consensus on policy ideas and is constrained by how sensitive a policy is to national identity. Membership increases with the dissemination of the community identity, values, and norms in the region. The level of centralization and the decision-​making procedures depend on the collective identity and the standards of legitimacy of the regional community. Differentiation is an expression of the differential identity and legitimacy of integration across policies and countries. From a constructivist perspective, the EU is a liberal democratic international community; the political systems of the member states and the EU treaties stipulate liberal 73   Karl W. Deutsch, Political Community and the North Atlantic Area: International Organization in the Light of Historical Experience (Princeton: Princeton University Press, 1957), 5. 74  Liesbet Hooghe and Gary Marks, “Calculation, Community and Cues:  Public Opinion on European Integration,” European Union Politics 6/​4 (2005): 419–​43; and “A Postfunctionalist Theory of European Integration: From Permissive Consensus to Constraining Dissensus,” British Journal of Political Science 39(1) (2008), 1–​23. 75   Acharya and Johnston, Crafting Cooperation. 76  Jeffrey T. Checkel (ed.), International Institutions and Socialization in Europe (Cambridge: Cambridge University Press, 2007).

 

constructivism and sociological institutionalism    403 democracy as a fundamental and uncontested norm of legitimacy. This norm has influenced both the deepening and the widening of the EU. First, governments have felt compelled to strengthen the competences of the European Parliament on various occasions in order to uphold the democratic legitimacy of the EU—​even though doing so reduced the power of governments and the decision-​making efficiency of the EU.77 Second, the EU has admitted democracies in Central and Eastern Europe as new member states even though a majority of old member states were concerned about the economic and institutional costs and opposed enlargement initially.78 In a different critique of intergovernmentalism and supranationalism, Hooghe and Marks argue that their focus on elite interest groups and their economic preferences was justified in the first three decades of the Community when European integration had a narrowly economic focus and a limited impact on people’s everyday lives, and could therefore operate in the context of a permissive popular consensus.79 Since the 1990s, however, European integration has become a salient issue of mass-​level politics and identity-​based mobilization in the member states and operates in the context of a ‘constraining dissensus’ leading to failed referendums on treaty reform and ‘opt-​outs’ of Eurosceptic member states. Given the lower level of integration in other regional economic organizations, the analysis of a ‘constraining dissensus’ is probably not immediately relevant in a comparative perspective. The same is true for the institutional democratization of the EU, which has been a response to the deepening of integration. Constructivism can, however, tell us something about the gap between ambitious designs and weak implementation in many other regional organizations. In the recent wave of regionalism, the EU served as a legitimate and successful model of regional integration that institution-​ builders around the world emulated but were often unwilling or unable to implement.80 In addition, regional organizations in developing countries have developed their own styles of regional integration rooted in regional culture (the ‘ASEAN way’) or politics.81 In sum, whereas intergovernmentalism offers a useful starting point for analysing the geopolitical and geo-​economic context, national interests, and intergovernmental relations of bargaining power that have shaped the big initial decisions on economic integration in Europe, supranationalism and constructivism shed light on subsequent developments in European integration, which are difficult to explain by the original state preferences and bargaining power and have escaped the control

  Berthold Rittberger, Building Europe’s Parliament. Democratic Representation Beyond the Nation-​ State (Oxford: Oxford University Press, 2005). 78  Frank Schimmelfennig, “The Community Trap:  Liberal Norms, Rhetorical Action, and the Eastern Enlargement of the European Union,” International Organization 55/​1 (2001): 47–​80. 79   Hooghe and Marks, “A Postfunctionalist Theory of European Integration.” 80   Tanja A. Börzel and Thomas Risse, “When Europeanisation Meets Diffusion:  Exploring New Territory,” West European Politics 35/​1 (2012): 192–​207. 81   Acharya and Johnston, Crafting Cooperation. 77

 

404    economic relations and integration of national governments: functional, institutional, and geographical spillovers of the integration process; and the normative and political constraints and drivers of integration in a community of liberal democracies.

Conclusion This chapter has dealt with conceptual and theoretical issues of regional economic integration in a comparative perspective. Rather than presenting the major regional economic arrangements individually, its focus has been on generalizable concepts, explanations, and findings. Even though the study of regional economic integration has been dominated by research on the EU and the European experience, recent concept-​formation and data collection efforts abstract from the EU case, and theorizing on European integration is now based on general political economy and institutionalist theories. There is thus an opportunity for theory-​oriented medium-​ N comparative analysis. The data shows, however, that the EU is still an outlier in the population of regional economic organizations due to its combination of a high level of centralization and a large functional scope—​and due to its high degree of implementation of formal agreements. This fact limits the transferability of several mechanisms and explanations of current developments in European integration, which presuppose significant supranational integration. The rational-​institutionalist theoretical building blocks of intergovernmentalism, which have proven particularly powerful in explaining the early intergovernmental decisions on economic integration in Europe, appear to be suitable for analysing regional economic integration more broadly and have found initial empirical support: international interdependence, transnational interactions, domestic economic structures and actors, state preferences, and bargaining power. By contrast, the additional mechanisms of integration highlighted by supranationalism and constructivism require a high degree of real economic integration, considerable supranational delegation, and a degree of international norm development and socialization that is absent in other regions and unlikely to develop in the near future.

 

Chapter 19

DEVELOPMENT David M. Malone Rohinton P. Medhora*

Notions of development have varied over time, and so an account of the international organizations concerned with its advancement must be accordingly elastic. The roots of international organizations concerned with development lie in two aspects of global interconnectedness. The first is the propagation and management of a nascent technology for the global good. Thus were born the International Telegraph Union (now the International Telecommunication Union) in 1865 and the General Postal Union (now the Universal Postal Union) in 1874. The second driver of international cooperation to achieve prosperity, articulated during the early 1940s, was the failure of the Treaty of Versailles and the League of Nations to protect the peace due to the ruinous economic reparations the Treaty imposed on Germany. This led to the severe economic and social distress that would lay the foundation for the rise to power of Hitler’s National Socialism and its revanchist agenda in Germany, which precipitated World War II. Until the end of World War II, the principal intergovernmental organizations were not concerned with the poorest countries in the world, but with the consequences of poverty and marginalization among the warring nations of Europe. The Bretton Woods Conference toward the end of World War II foresaw the creation of three organizations, the third of which, the International Trade Organization (ITO), was stillborn, with the General Agreement on Tariffs and Trade (GATT) signed in 1947 to take on some of its functions. Here the imperative was to create and protect global *  We wish to thank, without implicating, Keith Bezanson, Barry Carin, Gerry Helleiner, and Ravi Kanbur for their comments on earlier versions of this chapter, and Liliana Araujo and Kevin English at CIGI for excellent research assistance.

 

406   development economic gains that would underpin a lasting peace. The idea of alleviating material poverty in the poorest countries (mostly still colonized in 1945) came only later. The desired content of development in the Global South (those continents lagging the industrialized countries in economic prosperity as of the 1950s and 1960s) has been greatly contested, as have been the methods advocated and deployed to achieve it, not least in the preferred balance between poverty alleviation and social empowerment (although for many, these at times have seemed synonymous). This may account for the proliferation of international organizations purporting to promote some aspect of development, each with a strong constituency, at least for a time. Recently, the success of the first wave of Asian “tigers” and the phenomenon of the “emerging economies” and Brazil, Russia, India, China, and South Africa (the BRICS) have resulted in fluidity in the client base of the principal postwar development organizations. Meanwhile, the funding base of these institutions and resistance to change in their internal governance continues to evolve. Nonofficial actors (mainly the American philanthropic foundations and the international nongovernmental organizations or NGOs) and newer formations (the vertical Funds related to health and nutrition, CGIAR—​the international agricultural research system) and even new mechanisms (such as social or development-​impact investment vehicles) have re-​enforced the notion that poverty alleviation programming in poor countries has to be situated in the larger context of global cooperation and well-​being, and lend itself to a variety of approaches. In the wake of the international financial and economic crisis that has gripped much of the industrialized world since 2008, with sometimes delayed knock-​on effects for some developing and emerging countries, the development landscape looks starkly different. Many of the traditional development donors of the industrialized world experience declining interest in development. In straitened circumstances, donor treasuries, exhausted from battling domestic banking and other systemic financial failures and in Europe more recently, from the exigencies of refugee resettlement, are not much focused on aid. Many developing countries, particularly in Africa, have performed better through this crisis period than might have been expected. This has called into question not so much the imperative of development, but the mechanics and the institutional infrastructure through which it has been pursued in the developing world. Thus, the “golden age” of international development organizations may be coming to a close, in part perhaps as victims of their own success. Even if they do not disappear, a recasting away from traditional poverty alleviation in poor countries to provision of global public goods (financial stability, climate change mitigation, and more controversially, security) is likely to accelerate. We develop this hypothesis only partly in chronologic fashion. The second section of the chapter covers the results of the immediate postwar period, in particular the Bretton Woods organizations, the United Nations (UN) system, and the regional development banks. Their governance and (not coincidentally) the ideas and policies they favor merit special attention. The third section covers the parallel emergence of the foundations, the large NGOs with a global reach, and the more recent ancillaries to the

 

the un and bretton woods    407 established official organizations, such as the vertical funds and trust funds. The fourth section examines a constellation of international developmental actors, highlighting the transition that each subgroup within it is undergoing. The fifth section concludes that the prognosis for organizations caught in this transitional stage in global economic governance can only be uncertain. The challenge will be for the global community to craft what the 2013 Human Development Report calls “coherent pluralism.”1

The UN and Bretton Woods The period between 1950 and 1975 has been termed the “golden age” of economic growth. During this period the world economy grew continuously and almost everywhere at an unprecedented rate, which seemed to prove that “development” was not only possible, but indeed achievable for the world as a whole, especially as the welfare state in European countries indicated that state intervention could lead to vast social improvements. This was the period when the “development cooperation experiment” took off and the mean annual economic growth across developing countries as a whole averaged over 5 percent, which was higher than the comparable rate in the industrial world. During this period, many international organizations were either created or expanded and came into their own. The focus of the UN Charter is on peace, human rights, and freedom. These words are generously used starting in the Preamble and then throughout the document. Chapter IX (on international economic and social cooperation) and Chapter X (on the Economic and Social Council) enshrine the view held strongly by Roosevelt and Churchill that peace had to be supported by economic cooperation arrangements that had teeth. But the work to create the related institutional architecture and ordain the means to bring these arrangements to life formally began a year earlier at the United Nations Monetary and Financial Conference, at Bretton Woods, New Hampshire.2

The UN Article 57 of the UN Charter, agreed at San Francisco in 1945, urged that pre-​ existing “specialized agencies” with a role in the economic, cultural, and several other spheres be “brought into relationship” with the UN. One such agency was the   UN Development Programme (2013), see especially ch. 5.   There was extensive prior preparation, and even precedent in US–​Latin American relations, as described by Eric Helleiner, Forgotten Foundations of Bretton Woods: International Development and North-​South Dialogue in the Making of the Postwar Order (Ithaca, NY: Cornell University Press, 2014). 1

2

 

408   development International Labour Organization, founded in 1919 in association with the League of Nations, which had, on request, provided advice to a variety of governments, with “technical assistance” (an early form of UN support for development). Nevertheless, the first major development program outside of the industrialized world to follow the creation of the UN, the Colombo Plan (1950, initially assisting several countries of South Asia, eventually coming to include some others), impelled at the outset by the Commonwealth, had nothing to do with the world organization. But as decolonization proceeded, bringing to independence a welter of very poor states during the 1950s and early 1960s, the UN was deluged with calls for support and assistance. Beyond the (initially modest) help, largely advisory, provided by several UN specialized agencies, the UN General Assembly in 1948 set aside $300,000 (even then hardly a princely sum) for “technical assistance” for economic development, soon followed in 1949 by the creation of a UN institutional umbrella, bringing together specialized agencies and programs known as the “Expanded Program of Technical Assistance.” By the end of the 1950s, this program was spending close to $35 million. But, much more was required, and in 1966 the UN Development Programme (UNDP) came into being through the merger of two other UN entities, eventually becoming the UN’s largest broad-​brush development actor which also nominally serves a coordinating role and most often underpins UN country representation throughout the developing world. Its 2012 funding levels, today under some pressure from donors, reached nearly $5 billion. The specialized agencies also provide developing countries with considerable program assistance. With an ever growing array of UN institutional actors, generating oft-​derided “UN sprawl,” competition among these entities for shrinking overall levels of traditional donor dollars, tends to generate counterproductive programmatic stampedes in whatever direction the donors seem to favor (however briefly), often forsaking their core mandates. The donors, in theory committed to high-​minded principles enshrined in such worthy but nearly instantly discarded statements as the Paris (2005), Accra (2008), and Busan (2011) declarations, have rarely remained committed to strategies and priorities for long enough to establish basic proof of concept. Not surprisingly, during the current economic crisis, development assistance has become increasingly contested in parliaments of several formerly steadfast donors. Further, the 1990s and 2000s witnessed a growing trend among donors to fund telegenic emergency situations with many lives at immediate risk, rather than longer-​ term development that could benefit many more over time.3 UN agencies are more vulnerable to disruption in funding than are the Washington-​based International Financial Institutions (IFIs) which generally enjoy support from donor Treasuries and aid ministries. In sum, donors and UN agencies make for unhappy bed-​fellows, 3   This syndrome came to be known as the “CNN effect” due to that global television network’s introduction of nonstop news cycles often focusing on famine, war as pestilence of various sorts, impelling publics to exert pressure on their governments, and the governments in turn on the UN to “do something” in response. The 2010 earthquake in Haiti is an example of this syndrome at play, with very little lasting impact of international intervention to relieve the suffering and rebuild.

 

the un and bretton woods    409 with the UN often spread too thin to achieve serious impact, with the exception of some narrowly focused, often innovative, and well-​managed agencies such as the United Nations Children’s Fund (UNICEF). The greatest contribution of the UN and its many agencies and programs almost certainly does not lie in the outcome of its “operational activities.” As argued by the superb UN Intellectual History Project, in its most vivid volume, UN Voices, it is in the field of ideas that the UN has most greatly distinguished itself, doubtless in part because of its plurality and because of the dogged attachment to them of a number of past and present staff members and national representatives.4 At the UN, ideas are constantly under challenge. This is healthy for them. Not coincidentally, it was at the UN that the concept of human development was embraced, as indeed were “sustainable development” and “democratic governance.” Both were more widely and enthusiastically embraced than were the tenets contained in the “Washington Consensus” centered on the International Monetary Fund (IMF) and World Bank, urging structural adjustment and other forms of retrenchment on countries. Related work on the Arab world, led by Rima Khalaf Hunaidi, foreshadowed the Arab Spring and documented the deficits and frustrations that led to this massive regional upheaval. The Millennium Development Goals, the most comprehensive statement on development and the global compact required to achieve it, are the net result of the UN system at work. That there is an active post-​2015 agenda under construction is largely a testament to the power of ideas at the UN, and its capacity to convene global leaders.

The International Financial Institutions The Bretton Woods Conference consciously avoided distinguishing between developed and developing countries (or indeed any other grouping of attendees); but in so doing it reinforced this distinction since nondistinction was not value-​neutral.5 Preoccupation with material poverty in poor countries was underplayed at the Bretton Woods Conference held during three weeks in July 1944. The International Trade Organization, had it been created, was primarily intended to focus on the rules governing trade in wealthy countries. Of the twenty-​three initial signatories to the GATT, only ten were developing countries. Only three more developing countries joined in the next ten years. The main reason was that Article XVIII, the only part of the accord concerning developing countries, which granted them exemption   Thomas G. Weiss et al. (eds.), UN Voices: The Struggle for Development and Social Justice (Bloom­ ington, IN: Indiana University Press, 2005). 5  Helleiner, Forgotten Foundations of Bretton Wood, is an important exception to this view. He argues that developing countries, particularly Latin American countries, had strong representations at the conference and previously, in their dealings on this subject with the Americans. However, once the conference was over, “the world changed quite dramatically in the immediate aftermath of the Bretton Woods conference. Very quickly after the war, US officials turned their backs on much of the development content of the Bretton Woods agreement … ” In any case, the end result remains that developing countries were a disaffected group after the Bretton Woods order was established. 4

 

410   development from certain obligations, was deemed to be too onerous to actually implement. Instead, the developing countries joined their richer counterparts in using the balance of payments exception when they wished to apply trade restrictions. In trade as in finance, the aim of the Bretton Woods negotiators was to reconstruct war-​torn Europe and ensure a liberal economic order within it and with the United States. The International Bank for Reconstruction and Development (IBRD) was also geared toward supporting the recovery of the industrialized world from the ravages of war, but lending at market and near-​market interest rates put IBRD resources out of the reach of most developing countries. Accordingly, its main clients remained European for the first few years after the Bretton Woods Conference ended (see Figure  19.1). Even the first major organizational change here, the creation of the International Finance Corporation (IFC) in 1956, was geared to identifying investible projects in the private sector, and thus complicated lending to developing countries during a period when a strong government hand in industry and enterprise prevailed there. It wasn’t until the creation of the Bank’s soft loan arm, the International Development Association (IDA) in 1962, that development concerns truly became preeminent in the operations of what was now The World Bank Group.6 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

1946–49

1950–59

1960–69

1970–79

1980–89

1990–99

2000–2009 2010–2012

Sub-Saharan Africa Middle East & North Africa Latin America & Caribbean Europe & Central Asia South Asia, East Asia & Pacific

Figure 19.1  Regional Distribution of IBRD/​IDA Lending Commitments 6   The early years of the World Bank are covered in Devesh Kapur, John P. Lewis, and Richard Webb, The World Bank: Its First Half Century, 2 vols. (Washington, DC: Brookings Institution Press, 1997); for the evolution in lending patterns see Table 1-​1 therein.

 

the un and bretton woods    411 The IMF was initially even further removed from the development realm than were the GATT/​ITO and the IBRD. This organization was created to address the twin issues of the availability of international liquidity for trade and investment, and adjusting to balance of payments difficulties. The pivotal debate between John Maynard Keynes and Harry Dexter White on whether the core of the IMF’s functions should be driven by the hybrid bancor or the American dollar was a technical debate about the relative efficiency of various adjustment mechanisms and a political one about the cementing of status of the United States as the global hegemon.7 A suggestion by the delegation from India that an additional purpose of the IMF as set out in Article I be “to assist in the fuller utilization of the resources of economically under-​developed countries” was rejected.8 With such roots, two things followed in all three Bretton Woods organizations. First, time, trends, and events related to decolonization and the wretched state in which the colonial powers left their former dependencies ensured that development concerns came to the fore dramatically during the early 1960s in all three cases. Second, they did so within institutions seen very much as creatures of the developed countries. Despite the disappointment around the results of the Kennedy Round (1964–​ 7), developing country membership within the GATT continued to grow. More importantly, the global trading regime was increasingly seen as a vehicle that could benefit developing countries disproportionately if appropriately reformed. The creation in 1964 of the UN Conference on Trade and Development (UNCTAD) was meant to buttress the voice and capabilities of developing countries in trade policy and implementation matters. The Uruguay Round (1986–​94) provided a perverse impetus to the development agenda by yielding disappointing results for developing countries in a range of issues—​intellectual property, investment, agriculture, and services—​that went well beyond the emphasis in previous Rounds on simple tariff reduction. These concerns and the creation of the World Trade Organization (WTO) with its dispute settlement mechanism set the stage for the Doha (“Development”) Round, launched in November 2011 in the shadow of the 9/​11 attacks. But if this Round was supposed to be about winning “hearts and minds” by demonstrating the inherent advantages to developing countries of belonging to the liberal global economic order, it has failed. While the definitive assessment of why this is the case has yet to be completed, it appears that the rich countries could not bring themselves to make the sorts of changes to the status quo that the post-​Uruguay Round development agenda implied, while developing countries, now with a clear set of “emerging” 7   Although accounts of the discussion at the conference abound, see Raymond F. Mikesell, The Bretton Woods Debates: A Memoir, Essays in International Finance No. 192 (Princeton, NJ: Princeton University, 1994), for a readable, first-​hand memoir. 8   Harold James, “History and Nature of the Role of the IMF in Low-​Income Countries,” in James M. Boughton and Domenico Lombardi (eds.), Finance, Development, and the IMF (Oxford: Oxford University Press, 2009), 16.

 

412   development 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%

1946–49

1950–59 Agriculture

1960–69

1970–79

Finance and Industry

1980–89

1990–99

Infrastructure

2000–2009 2010–2012 Social

Other

Figure 19.2  Sectoral Distribution of IBRD/​IDA Lending Commitments

countries among them, still saw themselves as uniformly poor and deserving of concessions likely due only to a small number among them. Developing countries are increasingly using the WTO’s dispute resolution system to litigate cases against developed countries and each other. But developing countries are also leaders in negotiating the approximately 550 regional trade and investment agreements in force or under negotiation which, whatever the rhetoric about their being WTO-​conformant, suggests countries are hedging their bets when it comes to their reliance on the WTO. In the World Bank Group (which in addition to the IBRD, IDA, and IFC also includes the Multilateral Investment Guarantee Agency, and the International Centre for Settlement of Investment Disputes) there is less ambiguity than there is in the cases of the WTO and the IMF about it being a developmental organization. Following the dominance of postwar reconstruction in Europe and Japan in the IBRD’s operations at its creation, and the success of the Marshall Plan and its Japanese counterpart, it appeared self-​evident that the same route of infrastructure financing and policy development was the key to overcoming poverty in the poor countries of the world as well.9 The sectoral pattern of lending by the World Bank reflects the evolution of thinking on the development paradigm over time, from agriculture and infrastructure in the early years to the “soft” sectors including governance (see Figure 19.2). Soon complementing the Washington-​based IFIs were a range of Regional Development Banks (RDBs), starting with the Inter-​ American Development Bank, created in 1959, which, with the Asian Development Bank (1964) offers the greatest lending capacity among the RDBs. The African Development Bank, which   Kapur, Lewis, and Webb, The World Bank, Table 1-​1.

9

 

the un and bretton woods    413 in 2009 made total commitments of $12.6 billion, not far behind the others, has for the past decade been on an upswing of credibility and effectiveness, after years of internal wrangling and management dysfunction. These banks—​lower-​key, better integrated in their regions, and less preachy than the IMF and the World Bank—​ tend to attract less attention and to court less controversy than have the latter, sometimes unwittingly. Put another way, despite successive waves of management reform to turn them into “knowledge institutions,” the RDBs have not succeeded in breaking the dominance of the World Bank and the IMF in the arena of ideas, research, and outreach. Some of the regional economic commissions of the UN have been more successful in this regard, with the UN Economic Commission for Africa and that for Latin America and the Caribbean (ECLAC) renowned for their “think tank” and technical assistance roles. Ever since the pioneering leadership of Raul Prebisch, ECLAC, in particular, has come to define the “structuralist” school of thinking and more broadly the notion of a locally owned and credible institution that produces ideas that are counterpoints to externally driven visions of development.10 The question of how “development-​oriented” the IMF is has persisted throughout its history. Controversy around the IMF does not center on whether it is a “development organization,” but on charges that it has imperfectly integrated such concerns into its approach to financial and macroeconomic policy and its operations. Although its external critics are legion,11 it is the IMF’s own arms-​length evaluation office that has produced the most telling critiques of the organization. A report of the IMF’s relations with its member countries published in 2013 concludes thus: “The degree to which the Fund is viewed as a trusted advisor is found to differ by region and country type, with authorities in Asia, Latin America, and large emerging markets the most skeptical, and those in large advanced countries the most indifferent.”12 In the aftermath of the current economic crisis, the IMF has become more flexible—​ for example, on the degree of fiscal restraint that is required during adjustment, and in its historic antipathy to capital controls. But flexibility has come in the face of crisis in Western Europe, not the developing world, where the IMF is the junior partner in the troika of organizations addressing the rescue effort. The research programs at the IMF and the World Bank, nominally the drivers for the tone and content of these organizations’ lending and technical assistance activities, have also recently come under criticism for being varied in their technical   For an account of the interplay between leadership, ideas, and organizational development at ECLAC and UNCTAD, see Edgar J. Dosman, The Life and Times of Raul Prebisch, 1901–​1986 (Montreal: McGill-​Queen’s University Press, 2008), especially chs. 12, 13, and 18. 11   The G24 Research Program has produced the longest-​standing (since 1971) and most compelling critical analyses of the IMF and the World Bank. A representative compendium is Ariel Buira, The IMF and the World Bank at Sixty (London: Anthem Press, 2005). 12  Independent Evaluation Office (IEO) of the IMF, The Role of the IMF as Trusted Advisor (Washington, DC: International Monetary Fund, 2013), 1. 10

 

414   development merit, “message-​driven,” and often lacking in their understanding of local context.13 This contrasts with an earlier era when these institutions were seen as leaders in areas like the framework for macroeconomic analysis, cost–​benefit analysis, and the interplay between growth and distribution.14 Both the IMF and IBRD were tarnished by backlash against the so-​called Washington Consensus of the late 1980s and early 1990s that paid too little attention to local conditions, income distribution, regional differences, and what disciplines other than economics might have added to their analysis. Both institutions were unprepared for the international storm they unleashed. The narrow-​bore economistic outlook of the IMF is hardly surprising or inappropriate, but as several of the IBRD’s recent presidents have noted, the World Bank Group’s staff, enjoying a wider remit, has not been sufficiently multidisciplinary. Paradoxically, the Bank and the Fund were right at the level of principle and practice in arguing that sound financial management needed to be restored as a cornerstone of any long-​range development plan. And while their staffs can be assessed in many ways, flattering and otherwise, it is worth noting that many of the most impressive leaders of the developing world have served on the staff of one or the other, sometimes both. Indeed, perhaps the greatest contribution of the IBRD to development has been in shaping several generations of technocrats and leaders who brought evidence-​based policy to bear on the challenges of their countries when given an opportunity to do so. Complicating any attempt to evaluate the performance of the IFIs lies their unbalanced and increasingly controversial governance structure—​effectively the power relationships—​at the apex of the IMF and the World Bank, heavily favoring the industrialized countries (which explains the preference of the latter for these institutions over UN agencies and programs in which the developing countries have greater voice). Each organization is run by a board comprised of countries that are allocated voting shares based on a formula that combines size of GDP, wealth, and openness. Quota reform has been contentious throughout the history of these organizations, and not surprisingly, requires the assent of both gainers and losers. As a result of the inherent inertia in this process, and the anxiety aroused in key Western capitals over the emergence of serious competition for international influence, the United States and (particularly) Western Europe continue to be overrepresented at the expense of the emerging economies in the developing world. With some nods toward a more open and transparent selection process, the headship of 13   See IEO of the IMF, Research at the IMF: Relevance and Utilization (Washington, DC: International Monetary Fund, 2011); and Angus Deaton, An Evaluation of World Bank Research, 1998–​ 2005 (Washington, DC: The World Bank, 2006). 14   For a recent account of the heyday of intellectual leadership at the IMF and World Bank see Danny Leipziger, “The Role and Influence of International Financial Institutions,” in International Development: Ideas, Experience, and Prospects, ed. Bruce Currie-​Alder et al. (Oxford: Oxford University Press, 2014).

 

nontraditional actors   415 each organization is still determined as if it were 1950, and at the end of the day, the World Bank head is reliably an American national, and that of the IMF a Western European. In today’s world, particularly in the wake of the financial crisis of 2008 originating in and severely damaging the industrialized world, this state of play undermines the global standing of the IFIs. Indeed, it demeans both institutions.15 Further irritating the sensitivities of countries rapidly emerging from poverty to global significance (while often still harboring many poor individuals) was the trend established in the 1970s for the meetings of the consultative Group of Five, then Seven, then Eight to establish, subtly and otherwise, policy priorities for the IFIs and to commission work from them. The creation of the Group of 20 (including a number of “emerging” powers) at the country leader level in the heat of financial and economic crisis in 2008, intended to play a similar role, has produced disappointing results after a promising start, but serves as a signal of accommodation with the Global South not yet reflected in such bodies as the UN Security Council.16

Nontraditional Actors Although private money—​meaning the combination of investment, philanthropy, and remittances—​has always operated alongside official flows to developing countries, its size and impact has grown in recent years. Technically, it surpassed official flows during the 1990s,17 but this is mostly due to the growth in remittances and investment, which responds to an invisible hand relative to the deliberate programming of development institutions. However, the activities of the major American Foundations do bear mention as they have been impactful, albeit during certain periods and in certain sectors, in a manner that is disproportionate to the size of their operations. 15   There exists one salient case from a previous generation of an imperfect but not failed attempt to deal with changing global power structures. The still well-​regarded International Fund for Agricultural Development was created in 1977 largely to recycle petrodollars to the developing world and, in its governance structure and operations, to provide a large role for the oil-​producing world. A less desirable development in this regard is the growth in the number and size of Trust Funds at the IFIs. They are an inefficient way to account for the rise of “other” powers as they multiply objectives, funders, and procedures. 16   Ironically, further to severe financial strains within the EU in the run-​up to 2012, emerging countries agreed then to contribute additional funds to the IMF (for the second time since 2009) in order to meet any contingencies that the institution might face in supporting crisis-​riven countries, while Canada and the United States declined to do so, arguing that European actors had done too little to help themselves to warrant further outside support. 17   Hudson Institute, Index of Global Philanthropy and Remittances 2012 (Washington, DC: Hudson Institute, 2012), 15 and Figs. 4 and 5.

 

416   development The activities of philanthropic organizations domiciled in developing countries and operating nationally are increasingly important but beyond the purview of this chapter. Although reliable data is scarce, it is unlikely that they yet compete seriously with the funding levels of other actors such as the IFIs and the American Foundations. Of $39 billion in total US philanthropic flows for development in 2010, Foundations accounted for $4.6 billion or about 12 percent.18 But unlike the atomized nature of the other 88 percent of nonofficial American international assistance, a few well-​ organized, determined, and effective organizations have been instrumental in creating the “brand” that this stream of aid and impact has come to represent. The Carnegie Corporation (established in 1911), the Rockefeller Foundation (1913), the Ford Foundation (1936), and the MacArthur Foundation (1970) have broad remits to advance human welfare, unconstrained by strictures on the geographic or thematic scope of operations. The Bill and Melinda Gates Foundation, initiated in 1994, eventually building the largest endowment of any private Foundation, is motivated by the ethos embodied in its slogan “all lives have equal value,” and with its bold approach to programming allied to the quest for quantifiable results, is today a field leader influencing also the views of government donors. In practice, this has resulted in sustained investments in a limited number of well-​defined program areas, supported by strong staff and management and excellent governance structures at the apex. During its formative years, the Rockefeller Foundation supported research on malaria, hookworm, and yellow fever, starting with pilot sites in Arkansas and Mississippi, and soon expanding to twenty-​five sites across the developing world. In China, it created the China Medical Board to modernize the health system in that country. This seminal work still has echoes in current efforts to eradicate tropical and neglected diseases. Similarly, the first Green Revolution that saw agricultural productivity rise in Mexico and South Asia, particularly in the late 1960s, began twenty-​five years earlier as a series of initially uncoordinated and later coordinated investments by the Ford and Rockefeller Foundations. A second generation of this effort, this time focused on Africa, is being led by the Bill and Melinda Gates Foundation and the Rockefeller Foundation. The Ford and Rockefeller Foundations, along with the World Bank, the Food and Agricultural Organization (FAO) and Canada’s International Development Research Centre (IDRC), were also instrumental in the creation of the Consultative Group on International Agricultural Research (now known just by its acronym CGIAR), a network of fifteen research centers around the world working on the science and policy of agriculture. Such donors and some aid ministries have worked hard to support the creation and expansion of indigenous capacity for policy formulation in developing countries across a wide range of

  Ibid., 8 and Table 1.

18

 

nontraditional actors   417 fields, including economics, for example through the African Economic Research Consortium and the Economic Research Forum of the Arab world in Cairo. The CGIAR is emblematic of a number of hallmarks of the Foundations’ role in international development. One—​a start via a farsighted well executed pilot investment—​has already been noted. The other is the capability to attract larger less agile players (in this case the FAO, the World Bank, the US government and later a host of other official bilateral funders) to bring an initiative to true scale. A third is for the creation to become its own entity, not just through its financial strength but through its own operations and ideas. In many parts of the world, the CGIAR is seen as a “funder” and/​or international organization just like its procreators. Finally, the activities of the Foundations are known to value and draw on local participation and ownership in ways that many projects of the bilateral funders and the IFIs are not. This local institutional development is largely what the Foundations are valued for most in countries such as Brazil and India in which they have established a long track record. In addition to investments in health and agricultural research, some Foundations have come to be known—​and sometimes criticized—​for their support for liberal visions of society and democracy. Through subtle modalities such as scholarships in Western universities and support for future leaders but also through more explicitly political means such as the creation of or support for existing civil society organizations dedicated to human rights, freedom of speech, and democracy, the Carnegie Corporation and the Ford and MacArthur Foundations (and more recently the Soros Foundation/​Open Society Institute) have nurtured communities that hold liberal Western mores on social and political matters.19 Their offices in many parts of the developing world are hubs for the small though influential elite preoccupied with such concerns. A classic example of this facet of the Foundations’ activities is the support the Ford Foundation (along with the IDRC) provided to academics and civil society leaders and their organizations in the Southern Cone of Latin America during the years of dictatorship there in the 1970s and 1980s, support experienced personally and later recalled by several presidents who came to power in the region after the dark years.20 19   They are today joined by local philanthropists with similar aims such as Mo Ibrahim in Africa and Nandan Nilekani in India. 20   Bruce Muirhead and Ronald N. Harpelle, IDRC: 40 Years of Ideas, Innovation and Impact (Waterloo, Canada: Wilfrid Laurier University Press, 2010), 147–​52. For an account of the evolution of the main Foundations see Carol Adelman and Yulya Spantchak, “Foundations and Private Actors,” in International Development: Ideas, Experience, and Prospects, ed. Bruce Currie-​Alder et al. (Oxford: Oxford University Press, 2014); Verne S. Atwater and Evelyn C. Walsh, A Memoir of the Ford Foundation: The Early Years 1936–​1968 (New  York:  Vantage, 2012); Edward H. Berman, The Influence of the Carnegie, Ford and Rockefeller Foundations on American Foreign Policy: The Ideology of Philanthropy (Albany, NY: State University of New York Press, 1983); John Bresnan, At Home Abroad: A Memoir of the Ford Foundation in Indonesia 1953–​1973 (Jakarta:  Equinox, 2006); John Farley, To Cast Out Disease:  A  History of the International Health Division of the Rockefeller Foundation 1913–​1951 (Oxford: Oxford University Press,

 

418   development In recent years the Foundations have been parties to organizational innovation in development in two other instances that bear mention. The first is in the creation of the so-​called “vertical” or “global” funds, of which the two largest are the GAVI Alliance (formerly the Global Alliance for Vaccines and Immunization) and the Global Fund to Fight AIDS, Tuberculosis, and Malaria. These funds have accounted for much of the increase in foreign aid in recent years and almost all of it in health. In keeping with principles on aid coordination and effectiveness agreed to by the world’s major development funders, these funds bring together a variety of funding organizations to work on a particular sector or subsector in a limited number of countries. By its very nature, such a fund is both a complement to and in competition with the more established multilateral development organizations, and typically bypasses existing national governments and agencies. Their newness and their nature has meant that it would be premature to place any weight on the early evaluations of these endeavors which, not surprisingly, highlight the tentative nature of successes, if any, and the teething pains of a new organizational forum superimposed on rather than genuinely integrated with an existing one.21 A second innovation is the bringing to proof-​of-​concept stage of an idea first proposed in 2004 by Michael Kremer,22 to use public funds to “pre-​create” a market for advances in health where the risks to invest in R&D without such a guarantee are too high for private sector firms. The first such Advance Market Commitment (AMC)—​for pneumococcal vaccines—​was funded by five countries and the Bill and Melinda Gates Foundation. Initial reports indicate that vaccines suited to developing country conditions have indeed been forthcoming, and that the main constraint is excess demand relative to supply. The principle underlying the AMC approach is a broad one and can be applied to other areas, for example agriculture and energy, both of which have featured in commentary on the subject. To be sure, the question is one of the availability of resources, but the more fundamental question is organizational. The first two conclusions of Bezanson et al.’s review of the vertical funds bear mention here too—​(1) “Think twice: global action does not necessarily mean a new vertical fund” and (2) “Use existing institutional capacity.” With such a changing ecology, the Organisation for Economic Co-​operation and Development’s (OECD) Development Co​operation Directorate (DAC), comprising 2004); Raymond B. Fosdick, The Story of the Rockefeller Foundation (Piscataway, NJ:  Transaction, 1988); and Inderjeet Parmar, Foundations of the American Century: The Ford, Carnegie & Rockefeller Foundations in the Rise of American Power (New York: Columbia University Press, 2012). 21  See Keith Bezanson, Paul Isenman, and Alex Shakow, “Scaling Up in Agriculture, Rural Development and Nutrition, Learning From the Experience of Vertical Funds,” IFPRI Brief No. 18 (Washington, DC, 2012); and Paul Isenman and Alex Shakow, Donor Schizophrenia and Aid Effectiveness: The Role of Global Funds, IDS Practice Paper 5 (Brighton, UK: Institute for Development Studies, 2010) for a meta-​assessment of evaluations of the individual funds. 22   Michael Kremer, Strong Medicine: Creating Incentives for Pharmaceutical Research on Neglected Diseases (Princeton, NJ: Princeton University Press, 2004).

 

transitions   419 twenty-​seven official donor agencies from the traditional, rich countries, is anachronistic as a forum for anything more than the generation of data on development assistance. No “table” exists that brings together the traditional players with the new official and established nonofficial funders and, if it were required, it is not obvious that the OECD would be the obvious host. The DAC’s credibility has suffered from the whiplash-​inducing correctives to aid policy its members advocated in Paris (2005), Accra (2008), and Busan (2011), suggesting incoherence at best and near-​panic at worst, perhaps brought about by the relentless short-​term (and often domestically driven) perspective that OECD political figures have brought of late to debates on aid.

Transitions That the world, including and especially the developing world, is a different place today than it was when the world’s economic statesmen convened at Bretton Woods in 1944, let alone in 1913 when the Rockefeller Foundation started work in China, is an axiom. The ecosystem of international organizations that address development has also evolved, though the evolution has been additive not integrative. Although examples abound of changing priorities and even “exits” from a certain line of work or region, few of the major organizations have “gone out of business.” And this is a serious problem, confusing publics, dispersing resources, and often underperforming relative to the potential impact of leaner and more focused machinery, such that in much of the developing world (and elsewhere) “internationals” are often seen as essentially a privileged parasitical class profiteering from the poverty of others, a frequently unfair caricature, but one rooted in inescapable perceptions. Increasingly, these perceptions attach also to some humanitarian NGOs.23 This is mainly because after sixty years in the business of fighting poverty, poverty remains (albeit less severe and in relatively smaller concentrations within countries and developing continents). With increases in private capital inflows and remittances, the financial resources of the organizations cited in this chapter (effectively the items marked IMF and public multilateral debt in Figure  19.3) form a dwindling proportion of international flows into developing countries. This, coupled with the increase in developing countries’ own capacity to mobilize finance, suggests that the leverage international organizations possess derives not mostly from money but from their ideas and their way of pursuing outcomes.   The title of a recent piece by Kathie Klarreich and Linda Polman on the subject is telling: “The NGO Republic of Haiti,” The Nation, November 19, 2012. 23

 

420   development 11.00% 10.00% 9.00% 8.00% 7.00% 6.00% 5.00% 4.00% 3.00% 2.00% 1.00% 0.00% –1.00%

1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 Short-term debt (public and private)

Private Debt (non-guaranteed)

Public Debt, Bilateral Creditors

Public Debt, Multilateral Creditors

IMF Public Debt, Private Creditors

Portfolio Equity

FDI

Personal Remittances (net)

Private Grants

Total Net Financial Inflows

Figure 19.3  The Evolving Magnitude and Composition of Developing World Financial Inflows (Low and Middle Income Countries, Net % of Regional GDP, 1970–​2012)

Consider the Bretton Woods twins. So far, the World Bank has successfully transformed itself numerous times, from financing infrastructure and leading in the intellectual contributions to development thought to managing debt relief to sector-​ specific lending and policy advice and more recently, to harnessing information and communications technologies for development and adapting to climate change. But it is not clear where exactly the World Bank dominates relative to its varied competitors, or what its comparative advantage is and will be going ahead. The regional development banks, the private financial sector, the Foundations, other official bilateral funders, and developing countries themselves all have considerably more financial and intellectual capacity (thanks in part to the World Bank) than they did when the Bank was created sixty-​five years ago. It might be the very success of the development enterprise that has created this state of affairs. If current President Jim Yong Kim’s prediction that, save for a core 3 percent afflicted by war and natural disasters, global poverty (defined as living on $1.25 or less per day) can be ended by 2030 comes to fruition, then the question about the organization’s future is already a live one. The IMF is in a similar existential situation though for different reasons. Unlike decreasing poverty levels that make the World Bank’s remit shrink, the frequency and magnitude of financial crises is not decreasing unambiguously.24 But following 24   Two titles by Carmen M. Reinhart and Kenneth S. Rogoff, namely This Time Is Different: A Panoramic View of Eight Centuries of Financial Crises (Princeton, NJ: Princeton University Press, 2009) and From

 

transitions   421 the crisis in Asia in 1997, many countries have been “voting with their feet” and self-​ insuring by ramping up their own reserve holdings rather than relying on the IMF to tide them over through a similar event in the future. They are augmenting this capacity with regional reserve pooling and currency-​swap arrangements such as the Chiang Mai Initiative in East Asia, an additional cushion before they might ever have to access IMF resources in future. In Europe, it is not clear what meaningful contribution the IMF can make as the guardian of the global financial system when it plays third fiddle there to the European Commission and the European Central Bank, and telegraphs publicly both its resentment of, but also its powerlessness to seriously influence, these larger players.25 Both the IMF and the World Bank experienced their heyday in the aftermath of the fall of the Soviet Union and its satellite countries in the late 1980s. Fraught as that period was—​and discussion of it remains contentious—​money and ideas flowed from them early and effectively to transform the region. No such global grand challenges remain where the IMF and the World Bank can or do play a central role in transformation. This includes such contenders as climate change and global inequality, where the nature of the problems and the level and type of resources required to address them obviate any single institution taking the lead in resolution. As Leipziger points out, “intellectual leadership has migrated away from the IFIs” just as “the development paradigm offered by both IFIs has lost its glamour.”26 A 1997 study of the World Bank and the regional development banks, aptly titled “Titan or Behemoths?,” prophetically reached a similar conclusion: “The banks were created, after all, as means to certain desired ends. The question, What are the desirable outcomes of development? is no longer as simple as it used to be, and thus, does not command the same degree of consensus.”27 Regaining past prominence will require a regression in poverty of epic proportions or an insight into development that is both unique and not amenable to “borrowing” by other organizations. None of these is a likely scenario. If poverty did suddenly and universally increase, it is not clear that the world would turn back the clock and vest its financial resources in one or two institutions. And the advances in development practice and in financial management have not come from the World Bank or the IMF but, in keeping with a multipolar world, from everywhere. The role of marshaling these for the global good and adapting them for local needs requires a global institution, but this would be a far cry from what currently exists. Financial Crash to Debt Crisis, NBER Working Paper 15795 (Cambridge, MA: NBER, 2010), contain the most comprehensive historical analysis of financial crises currently available. 25   The discussion of this plays out daily in the financial press—​and will for some time. For a snapshot, see “Eurozone Should Relieve the IMF,” Financial Times, August 1, 2013. 26   Leipziger, “The Role and Influence of International Financial Institutions.” 27   Roy Culpeper, The Multilateral Development Banks, Titans or Behemoths? (Boulder, CO and Ottawa: Lynne Rienner Publishers and the North-​South Institute, 1997), 166.

 

422   development Never having been a primarily financial institution, the WTO is in a happier space, providing a forum for multilateral trade liberalization (though this too competes with the plethora of regional trade initiatives) and, more solidly, the creation of a basis for global case law via the dispute settlement body. Perhaps a lesson from the WTO is that it is easier to gain global consensus around facilitation of the use of a new technology or norm than it is to “bring about” development via a master plan. By dint of their smaller size (though at about $2.6 billion the annual outlays of the Bill and Melinda Gates Foundation rival those of some mid-​sized national foreign aid budgets) and innovative corporate culture the Foundations might well continue to thrive internationally, and indeed spawn counterparts in the developing world. This would be in keeping with the notion that it is ideas not money that matters most to development, currently and in the future.

Conclusion Our discussion of IOs focusing on development has necessarily been primarily institutional. But we should point out that transformational individuals can galvanize organizations, indeed whole communities, well beyond organizations. Even the most hidebound organizations can yield to a strong drive for change and reform, as the UNDP did under the energetic leadership of Mark Malloch-​Brown. Sadako Ogata was a superb advocate, and defender of principle, when serving in the thankless position of UN High Commissioner for Refugees. Government leaders of all types quailed at her approach and she admirably energized a seriously overworked team. Melinda Gates complements with independent insight her husband’s technocratic drive, and together they take impressive risks for development supported by their admirable philanthropic investment. Robert McNamara largely redeemed his tarnished reputation as a dangerously indecisive US Secretary of Defense with a superb, thoughtful run as World Bank President. Jim Grant’s fifteen years at the helm of UNICEF are still considered the agency’s “golden age.” All down the line, in international organizations as elsewhere, individuals matter crucially. The familiar world of IOs principally devoted to development has been upended by two phenomena: the emergence of sustained economic success in the developing world (mostly in Asia, but increasingly also in Africa and, in a less spectacular way, in Latin America), amidst compelling continuing need among the world’s poor, many of them located in India, a rising power. Also, the slow-​moving and very serious financial and economic crisis of the industrialized world since 2008, which has

 

conclusion   423 reordered priorities in many of their capitals toward domestic spending and away from costly international projects, has abetted this process of upending. The basic needs of the remaining poorest countries will continue to command support globally, but calls from the industrialized countries for increased burden-​ sharing from emerging powers, for example in mitigating climate change, have not yet been answered while several industrialized powers continue to cling to outdated privileges within a number of international forums that should open up to reflect a new world order. A new set of institutions (the BRICs Bank if and when it comes into being, the Chiang Mai Initiative, new philanthropic foundations centered in developing countries) will complement but not soon supplant the activities of traditional multilateral actors. Failure to reform governance in traditional international organizations is bound to lead to the rise and strengthening of the alternatives. The prognosis for institutions caught in this transitional stage in global economic governance can only be uncertain. One challenge for the field of development, as for national governments, is that policy success responding to a given set of ideas simply yields new policy challenges requiring new ideas and methodologies. This is one of several reasons that the project of development is often viewed by cynics as perpetually disappointing. A  new interest in quantifying development outcomes relating to specific spending in part arises from a desire to effectively challenge critics of the “development biz.” However, in our experience, development is somewhat mysterious, responding in different ways to the same therapies in different parts of the world and in different circumstances. The quest for certainty favors a “deep drill” approach (often an expensive one) to development research informing policy, but one that may be relevant only to a small area or community and thus potentially misleading more widely.28 Informing this insight is the reality that the globe’s development success stories are very different from each other. During their boom years, China and India had little in common, and each of them even less in common with Brazil. Consequently, the quest for a single “model of development” may always have been a fool’s errand, one too often indulged within development organizations devoid of sufficiently robust internal challenge functions. Overarching statements, such as the Millennium Development Goals (MDGs), put a spotlight on the issue. But what issue? The MDGs ignore important elements of the development enterprise, such as freedom and technological innovation, while framing a mostly basic needs agenda. With the objective itself contested, little wonder that neither an overarching statement about development like the MDGs nor a common table à la OECD-​DAC is 28   The current vogue for Randomized Control Trials (RCTs) as a means of establishing developmental “proof ” and “truth” may prove ephemeral, particularly if the zeal of its proponents succeeds in marginalizing other research instruments and methods. RCTs are a valuable asset in the research tool-​kit but reliance only on them would seem shortsighted if not narrow-​minded.

 

424   development likely to be central to the discourse and action around international development in the future.29 Development organizations doubtless face a significant shakeout generated by traditional donor governments’ intent on cutting their contributions to international causes while they tend to their fellow citizens on the domestic front.30 Emerging countries, themselves beset by varying degrees of economic uncertainty, are unlikely to pick up the slack for now. Logically, this shakeout should take on a Darwinian edge, with many smaller, weaker institutions disappearing or merging with others while the stronger ones hunker down and retool as best they can. In the long run, the outcome of such a rationalization may be a positive one, even if, for now, anxiety and fear stalk the international sections of the development community. If the dysfunction of excessive sprawl in the institutional architecture of international development research, policy, and programming is effectively addressed in years ahead, few beyond those immediately affected will complain.

29   Equally deleterious has been the tendency of aid organizations to stampede in whatever directions are temporarily favored by funders (who tend to run in a pack, influenced by one or two field leaders). This has provoked organizations to overlook their core mandate and to invade each other’s turf, with, for example, a large number of UN agencies whose mandates have little to do with humanitarian relief claiming a mission to provide it. 30   Even some US Foundations chose, during the recent crisis, to accentuate domestic rather than international grant-​making.

 

Chapter 20

ENVIRONMENT David A. Wirth

This chapter surveys settings under the auspices of international organizations and institutions that address the environment and highlights a number of underappreciated structural attributes of international environmental governance. A variety of approaches to treating the environment on the multilateral level are categorized, resulting in a typology of both international institutional structures and the diversity of international instruments and policy tools available for promoting substantive international environmental policy. Utilizing examples that are intended to be illustrative of specific aspects of the challenges presented by international environmental policy and law rather than exhaustive,1 the chapter concludes by examining the extent to which form effectively follows function on a variety of subject matter areas from the point of view of multilateral governance. A number of conclusions emerge from this analysis. First, many international organizations whose functional orientation is not primarily environmental, including the Organisation for Economic Co-operation and Development (OECD) and the World Trade Organization (WTO), are very active on environmental issues. Further, only one international institution—​ the United Nations Environment Programme (UNEP), which is not even formally an international organization—​is charged with the environment as its primary mission. Third, the treatment of the   This chapter considers only actions taken within the context of public international organizations and institutions and does not address concerted action by private actors in an international context, such as in the International Organization for Standardization (ISO), which lies beyond the scope of this analysis. 1

 

426   environment environment is highly compartmentalized and fragmented, distributed among multiple multilateral institutions and international agreements. Last, an identifiable model of an organic treaty establishing a comprehensive, self-​contained regime has emerged in recent years. The environmental-​treaty-​as-​governance-​structure is an alternative to, although in some ways the functional equivalent of, a formal international organization as an international institutional vehicle for addressing environmental issues.

United Nations System This section addresses environmental activities within the United Nations (UN) system narrowly understood as including entities that ultimately report to the General Assembly. Primarily for the sake of establishing institutional distinctions, the work of specialized agencies established pursuant to their own constitutive treaties is treated in the following section. The significance of this delimitation, however, should not be overemphasized, as with almost everything in the field of environmental governance strict compartmentalization as a conceptual matter is difficult or impossible.

High-​Level Conferences and Agenda Setting Although a number of multilateral environmental agreements predate it, the UN Conference on the Human Environment, held in Stockholm in 1972, is generally considered a major turning point that initiated the development of truly international environmental policy and law. The Stockholm meeting produced a conference declaration containing twenty-​six principles and an action plan including 109 recommendations for future implementation at the international level by both states and the UN. Among its more concrete accomplishments, the Stockholm Conference recommended the creation of a Governing Council for Environmental Programs and Environment Secretariat headed by an Executive Director. The General Assembly subsequently established the UNEP, virtually the sole universal international institution whose mission is strictly environmental in nature. The Stockholm Conference left a legacy that resulted from meeting’s identification of the need for multilateral collaboration and concerted action with respect to the environment as a matter of urgency in international environmental policy and law.

 

united nations system   427 On the twentieth anniversary of the Stockholm Conference, the UN sponsored a Conference on Environment and Development (UNCED), the so-​called “Earth Summit,” in Rio de Janeiro. The 1992 Earth Summit was expressly and self-​consciously styled by its organizers as a successor to the earlier Stockholm Conference. More than 180 states were represented at, and over 100 heads of state or government attended, the Rio meeting, which was the largest summit-​level conference to that date. Like the Stockholm meeting, UNCED adopted an action plan for the future, known as Agenda 21, and created a new organ of the UN, the Commission on Sustainable Development (CSD) specifically to oversee subsequent implementation. The Conference also adopted a statement analogous to the Stockholm Declaration—​the Rio Declaration on Environment and Development2—​and two major multilateral conventions, one addressing climate change and the other biological diversity. Follow-​up meetings have since been held at ten-​year intervals in Johannesburg in 2002 and Rio in 2012, respectively, coordinated by the CSD as one of a number of functional commissions that report to the Economic and Social Council  (ECOSOC). Although receiving a great deal of public attention, from a structural point of view the Stockholm Conference, UNCED and succeeding events are best understood as freestanding agenda-​setting exercises, intended to catalyze further action in the form of relatively specific follow-​up activities to be pursued in other UN bodies—​chiefly although not exclusively UNEP.

UN Environment Programme As the principal structural innovation from the 1972 Stockholm Conference, as one of the few international institutions devoted strictly to the environment, and due to its global mandate, UNEP has received a great deal of attention as a principal node in the structure of global environmental governance. Formally speaking, UNEP is a UN program, reporting to the General Assembly through ECOSOC, and not a specialized agency. Formerly overseen by a Governing Body of fifty-​eight members elected by the General Assembly for four-​year terms, in 2013 as part of an attempt to enhance UNEP’s effectiveness the Governing Body was replaced by the UN Environment Assembly, with universal membership. The Secretariat, headed by the Executive Director, is headquartered in Nairobi, with six regional offices.3

  See, e.g., Jeffrey D. Kovar, “A Short Guide to the Rio Declaration,” Columbia Journal of International Environmental Law & Policy 4 (1993): 119–​40; David A. Wirth, “The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa?,” Georgia Law Review 29 (1994): 599–​654. 3  See http://​www.unep.org/​pdf/​UnepOrganigram.pdf (UNEP organogram). 2

 

428   environment Through what is now known as the Division of Environmental Law and Conventions (DELC), UNEP specifically addresses the progressive development of international environmental law, governance, and policy. UNEP has played a major role as a forum for the negotiation of major global environmental agreements, including those on exports of hazardous wastes and chemicals and pesticides, regulation and elimination of persistent organic pollutants, protection of the ozone layer, and the UNCED convention on biological diversity. DELC coordinates with the secretariats for these agreements, as well as others on migratory species and international trade in endangered species. UNEP has also served as a forum for negotiating any number of nonbinding or “soft” instruments on issues such as management of hazardous waste, trade in chemicals and pesticides, and environmental impact assessment. In any number of cases, these good-​practice standards and guidelines have served as precursors to binding instruments, allowing states to gain experience and become comfortable with international cooperation and harmonization in a voluntary mode before accepting the binding obligations contained in a multilateral treaty. UNEP has also provided technical assistance, particularly to developing countries, and managed clearinghouses for exchange of environmental information and data. To that extent, on the issues it addresses, UNEP might be called a “full service” organization, providing opportunities for a wide range of policy options ranging from providing advisory perspectives upon request to crafting binding obligations and overseeing their subsequent implementation.

UN Economic Commission for Europe The UN Economic Commission for Europe (ECE) is one of a number of regional commissions—​including those for Africa, Latin America and the Caribbean, Asia and the Pacific, and Western Asia—​that report to ECOSOC. The fifty-​six member states of the Commission include North America, Europe, Russia, Central Asia, Turkey, and Israel, comprising an area of 47  million square kilometers. Its Secretariat is located in Geneva. Unlike UNEP and the CSD, the ECE, although a UN body, has a limited, regional geographic scope. The treatment of the environment in the ECE has its roots in diplomatic efforts in a security context at least fifteen years before the end of the Cold War, most notably in the context of the Conference on Security and Cooperation in Europe (CSCE), popularly known as the “Helsinki process.” As the CSCE itself had little organizational structure or capacity to oversee implementation of this mandate, the ECE was a natural choice among then-​existing international institutions. Especially with respect to the then-​emerging issue of acid precipitation, involving long-​range transport of pollutants in both directions across the Iron Curtain, the ECE had the

 

un specialized agencies and related organizations    429 advantage of including both the NATO countries of Western Europe and North America and those of the Warsaw Pact, namely the USSR and its Eastern European allies. Some of those activities, including the environment, have now been taken up by the Organization for Security and Co-operation in Europe. The ECE is now active in a number of substantive environmental policy areas, under the direction of its Environmental Policy Committee. Most notably, the ECE has served as a forum for the negotiation of major regional agreements on (1) transboundary air pollution; (2)  transboundary watercourses and international lakes; (3) transboundary effects of industrial accidents; (4) environmental impact assessment, a tool for studying environmental effects of interventions in the ecosphere before they are undertaken; and (5) access to information, public participation in decision-​making, and access to justice in environmental matters. The ECE Secretariat services periodic meetings of the parties to these agreements, which otherwise have much in common with the formally freestanding multilateral environmental regimes discussed later in this chapter. For example, eight ancillary protocols have been adopted to the ECE’s 1979 Convention on Long-​ Range Transboundary Air Pollution (LRTAP), whose Executive Body comprising representatives of all states parties to the agreement meets annually. Like much else in the field of environmental governance, the ECE’s work is something of a hybrid among models that tend to merge fluidly one into another.

UN Specialized Agencies and Related Organizations Among UN specialized agencies and those identified by the UN as related organizations, none deals exclusively with environmental policy, and most of those that do have rather different mandates. This is hardly surprising, as the environment as a substantive issue area cuts across functional lines, both engaging and being engaged by other substantive fields.

International Maritime Organization In addition to its work on maritime security and safety, the International Maritime Organization (IMO) has served as a forum for negotiating at least two major agreements designed to protect the marine environment. As with the ECE-​sponsored

 

430   environment agreements discussed in the previous section, these are organic instruments designed to establish institutional architecture that will be responsive over time to new scientific evidence and progressive policy development. Similarly, the IMO provides secretariat services and sponsors periodic meetings of the states parties to these agreements. The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) is a multilateral agreement of potentially global scope designed to address one component of the maritime pollution problem, namely dumping at sea. The original London Convention adopted a “black list” of toxic substances whose dumping was prohibited altogether and a second “grey list” of substances, such as wastes containing other heavy metals, which require a special permit in advance. In an example of the malleability of multilateral treaty regimes, in 1996 the states parties to the 1972 London Convention essentially scrapped the original agreement and replaced it with a new Protocol based on a significantly different regulatory design that supersedes the existing 1972 instrument for parties to both agreements. Adopting a precautionary approach, the London Protocol turns the regulatory design of the earlier agreement on its head by prohibiting ocean dumping altogether unless the activity is specifically authorized by the new agreement. Among the very restricted categories of waste for which ocean disposal is allowed are sewage sludge, waste from fishing operations, and organic material of natural origin. The 1973 International Convention for the Prevention of Pollution from Ships, as modified by a 1978 Protocol (MARPOL 73/​78) is a second major environmental agreement adopted under IMO auspices. Like the London Convention and Protocol, the MARPOL regime is not a static snapshot, but a living entity intended to adapt to changed circumstances or policy developments over time. While that may be desirable from a policy point of view, the legal mechanics of modifying multilateral agreements can be daunting. For example, customary international law identifies an amendment to a multilateral treaty as a new agreement, requiring a state’s affirmative consent to be bound.4 While this rule assures that states have not taken on legal obligations involuntarily, it can quite evidently fragment the treaty regime by establishing classes of parties with differing obligations. MARPOL addresses this problem in part by establishing limited nonconsensus procedures. The agreement sets out simplified mechanisms for adopting or amending technical annexes that require approval by only a qualified majority—​two-​ thirds of the parties comprising not less than 50  percent of gross tonnage of the world merchant fleet. After a specified “opt-​out” period, those actions then become binding on all states that have not objected to them. This procedure allows a subset of states to adopt a policy without triggering blocking behavior by those that are not

  Vienna Convention on the Law of Treaties, Arts. 39 and 40, 8 ILM 679 (1969).

4

 

un specialized agencies and related organizations    431 in agreement. In principle, the consequences of publicly rejecting an international standard—​the “mobilization of shame”—​tends to discourage states from rejecting new standards. Although most international regimes, including those addressing the environment, operate by consensus, majority voting may be especially desirable for highly scientific and technical matters. Indeed, the example of MARPOL suggests that decisions taken pursuant to an established treaty regime administered in the structured setting of an international organization are an area where nonconsensus decision-​making may be particularly palatable to states.5

World Bank and Regional Development Banks The World Bank and the regional development banks for Latin America, Asia, Africa, and the former Soviet Union and Eastern Europe are excellent examples of the pervasive need for environmental governance structures across functional divides. The multilateral development banks have encountered environmental issues first and foremost as impediments to carrying out their institutional mandates—​lending money for development-​related activities. Unlike the multilateral agreements discussed above that are designed to confront environmental problems, environmental concerns in this context present themselves as something of an unwelcome burden, or at a minimum a competing policy concern. This setting has nonetheless been an occasion for addressing issues of environmental quality through the establishment of rules and good-​practice standards. For example, the World Bank has adopted requirements in such areas as environmental assessment, forest policy, and human-​rights-​related policies such as forced resettlement. The structural difference from the multilateral agreements discussed above is that these standards are adopted by the international institution and addressed to its own practices; by contrast, the typical multilateral environmental regime establishes requirements for states parties, and an international organization is more frequently an institutional setting for facilitating the regime’s goals. Although not addressed directly to states, standards established by multilateral development banks (MDBs) to apply to their own practices may nonetheless influence expectations in other settings, such as multilateral environmental agreements, by establishing benchmarks of good practice in such areas as pest management. The vigor of requirements adopted by the MDBs has been enhanced by the creation of an Inspection Panel at the World Bank and analogous mechanisms at the regional banks. Pursuant to resolutions of its Board of Executive Directors, private parties in borrowing countries that have been or may be adversely  See generally David A. Wirth, “Reexamining Decision-​ Making Processes in International Environmental Law,” Iowa Law Review 79 (1994): 769–​802. 5

 

432   environment affected by the World Bank’s operations—​presumably the intended beneficiaries of those operations—​can petition this institutional mechanism to investigate and report on the situation by reference to the Bank’s own standards. This major development was the first instance in which any multilateral institution has submitted the adequacy of its internal operations to external review. Perhaps even more importantly in the long term, the Inspection Panel became an entry point through which nonstate actors such as citizens’ organizations could enforce public rights in the international legal system, which does not even acknowledge their existence.

World Trade Organization The WTO, like the development banks, is an organization in which environmental concerns appear in an unusual structural setting. GATT/​WTO rules establish tests designed to prevent the abuse of national regulatory powers as protectionist trade barriers, as distinguished from legitimate measures for protecting public health and the environment. The WTO dispute settlement process provides a forum in which those rules can be applied, lifting trade disputes above the national and parochial level and into a rule-​of-​law setting in which states are obliged to defend their actions by reference to principled argument. Accordingly, in the trade regime environmental and public health appear as potential nontariff barriers to trade, and the remedial public policy rationale behind them is in effect a defense by a respondent state to a trade-​based attack. Trade rules are designed to define the outer limits of an acceptable exercise of a state’s regulatory authority or police jurisdiction, and do not mandate its application; rather, they proscribe the exercise of a state’s authority in this area in a manner that is inconsistent with the rules. In practice, these considerations arise in two conceptually distinct but related structural contexts. The first are the basic nondiscrimination requirements originating from the GATT as adopted in 1947. In this setting, measures that are otherwise discriminatory may be justified by environmental and public health concerns provided certain tests are met. The second is a suite of Uruguay Round agreements adopted in 1994 designed to discipline nondiscriminatory measures, most notably the WTO Agreement on the Application of Sanitary and Phytosanitary Measures, which governs certain public health and environmental measures such as food safety regulations by reference to scientific tests. The application of these screens in disputes concerning imports of shrimp harvested in ways that harm endangered sea turtles, a prohibition on hormones in beef, and importation of genetically modified foods and crops have as a practical matter required the WTO as an institution—​ and particularly its Appellate Body as the final word in the dispute settlement

 

non-un organizations   433 process—​to face daunting fundamental questions about the procedure for adopting, and the content of, environmental and public health regulations. Consequently, WTO dispute settlement jurisprudence, accreting over time, has somewhat ironically become a principal source of both international and domestic good-​practice standards and principled approaches to environmental and public health regulation on questions such as the appropriate treatment of policy-​relevant science which may be uncertain or contested.

Non-​UN Organizations International institutions outside the UN system have also addressed the environment, frequently in a manner that reflects the characteristics of the grouping of states members of the organization. Even here, as with UN-​related bodies, neat distinctions are often elusive.

Organisation for Economic Co-operation and Development Historically the OECD has been one of the principal intergovernmental organizations active in the environmental area, chiefly through its ministerial-​level Environmental Policy Committee, which was established in 1970. The OECD, created by multilateral treaty in 1960, consists of thirty member states, most of which have industrialized market-​oriented economies. The Secretariat of the Organisation, whose primary mandate is to promote economic growth and trade, is located in Paris. The OECD serves as an arena for multilateral discussion of informational or analytical studies, the negotiation of recommendations that contain nonbinding undertakings for those OECD members that agree to them, and the adoption of decisions that are binding on member states that accept them. Among other subject matter areas, the OECD has provided a forum for the adoption of numerous recommendations on transboundary pollution, environmental impact assessment, the polluter-​pays principle, and integrated pollution prevention and control. Although perhaps less numerous than nonbinding recommendations in the environmental area, binding decisions have been adopted on such matters as exports of hazardous wastes. Coordinating national policies and reconciling rational regulatory approaches for toxic substances have been particularly active areas, primarily through the Chemicals Group. Addressed directly to private

 

434   environment entities and adopted in the form of a recommendation, the OECD Guidelines for Multinational Enterprises contains a chapter addressing the environment. The choice of forum for, and form of, multilateral cooperation for undertaking environmental initiatives such as exchanging toxicity testing data is revealing. First, these efforts have taken place within the thirty-​member OECD, an international organization that is not part of the UN system, which is generally perceived as representing the interests of wealthier countries. Although developing countries may be invited to participate in OECD work, as in the case of certain of the OECD’s efforts on mutual acceptance of data and rules for international investment, there is at least the perception of the strategic value of harmonization among a small, like-​ minded group with similar interests before issues move to universal forums such as the UN.

Arctic Council Unique among international institutions addressed in this chapter, and in contradistinction to the legally binding regime for the south polar region, the Arctic Council is not established by a binding, constitutive, multilateral agreement. Rather, from a legal point of view it is an informal association of Arctic rim states—​Canada, Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russia, Sweden, and the United States—​whose constituent instrument is the 1996 nonbinding Declaration on the Establishment of the Arctic Council, adopted in Ottawa. Its routine output is therefore primarily informal and nonbinding. although it has also served as a forum for negotiating binding agreements such as the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic. The full Council meets twice yearly, with interim activities on an ongoing basis, and the position of Chair rotates biannually among the Council states. In 2011 a secretariat was established, located in Tromsø, Norway. Easily accommodated within this flexible structure, the Arctic Council includes established participation by six identified nonstate bodies as permanent participants representing indigenous peoples of the area. Other states and international organizations, such as China, Germany, and UNEP, have the status of permanent observers. Among its efforts, the Council has taken up regional global concerns with an impact on the Arctic environment and economy such as loss of sea ice, accelerated Arctic warming due to climate change, permafrost melt, thawing of the tundra, mercury and other persistent pollutants in the food chain, and ocean acidification, fisheries management, biodiversity preservation, and public health.

 

cooperative programs of existing organizations    435

Cooperative Programs of Existing Organizations The demand for responses to environmental and public health problems transcends the functional division of expertise characteristic of much international governance and many international organizations. Although many efforts have taken place within existing institutions, there have also been particular fields in which cooperation among international organizations becomes desirable or essential. Not surprisingly, hybrid undertakings based on cooperation between international institutions, generally in response to identifiable needs, have also characterized international environmental governance. The examples identified in this section are representative, and do not purport to exhaust the field.

Intergovernmental Panel on Climate Change When the issue of climate change began to attract heightened public attention in the late 1980s, the international community’s first response was to convene a high-​ level scientific panel, the Intergovernmental Panel on Climate Change (IPCC). The IPCC, which met for the first time in November 1988, was created under the auspices of UNEP and the World Meteorological Organization (WMO) with a mandate to study the climate change issue primarily from a scientific perspective. Models for assembling advisory groups of prominent scientists from multiple countries under international auspices were familiar from previous multilateral activity on environmental challenges such as stratospheric ozone depletion, but the scale and structure of the IPCC were unprecedented. All members of UNEP and WMO, in effect all UN member states, are eligible to participate in the IPCC’s work. The IPCC’s work product can be understood as a massive risk assessment undertaken by an international body of scientists from everywhere on the globe to advise the international community as to the nature and extent of threats from global climate warming. Thousands of scientists from all over the world participate voluntarily in IPCC activities. The IPCC’s work, although repeatedly challenged, has withstood outside scientific scrutiny, for example by the US National Academy of Sciences in 2001 after the United States had indicated its intention not to ratify the Kyoto Protocol. The IPPC was awarded the Nobel Peace Prize in 2007.

 

436   environment

Global Environment Facility The Global Environment Facility (GEF) was established in 1991 as a $1 billion pilot program in the World Bank to provide funding for environmentally beneficial activities. Together with the World Bank, UNEP and the UN Development Programme were the initial partners in implementing GEF projects. Restructured after the 1992 Earth Summit, the GEF is now an independent, freestanding institution administering three trust funds. The GEF Assembly is the plenary body in which representatives of all member countries participate, meeting every three to four years, most recently in 2010. The GEF Council, consisting of thirty-​two members distributed evenly among developing countries on the one hand and developed countries and economies in transition on the other, serves as the executive body, meeting semiannually. The Secretariat is housed in Washington, and the World Bank serves as Trustee of the GEF Trust Fund and provides administrative services. The GEF provides funding in a number of identified areas, such as preservation of biological diversity, and serves as the financial mechanism for a number of major environmental multilateral conventions, including the UN Framework Convention on Climate Change. The governance structure of the GEF appears to have struck something of a balance in responding to concerns from developing countries about the delivery of funds through donor-​dominated institutions, such as the World Bank.

Freestanding Multilateral Environmental Regimes Although there are prior examples, since the late 1970s or early 1980s there has been a consistent, identifiable innovation in environmental governance in the form of freestanding multilateral environmental regimes not formally tied to an international organization or institution. While international organizations are still important as a setting for rulemaking—​both “hard” or binding requirements or “soft” or nonbinding good practice standards and recommendations—​a model of a freestanding regime devoted to a particular problem has emerged. Many of these agreements are negotiated under the auspices of an international institution such as UNEP, and at least as a formal matter then sent off to an independent existence on their own.6   See generally Robin R. Churchill and Geir Ulfstein, “Autonomous Institutional Arrangements in Multilateral Environmental Agreements:  A  Little-​Noticed Phenomenon in International Law,” American Journal of International Law 94 (2000): 623–​59. 6

 

freestanding multilateral environmental regimes    437 Significantly, this relatively new institutional phenomenon can be identified by a single identifying feature: the agreements concerned do not create an international organization or anything that could be plausibly identified as an international institution in the traditional sense. Rather, there are periodic, typically annual, meetings of the parties to take further action as may be called for to assure that the agreement broadly understood as an ongoing, organic architecture is responsive to new developments—​often scientific—​or a need to extend its reach. Typically, these agreements are serviced by their own secretariats, which report to the parties to the agreement as a group. Still, the distinctions are far from crisp. Many of these agreements are still loosely tied to the international institution under whose purview they were originally created. And a significant number have ties to other international institutions, most notably the GEF, which serves as the funding mechanism for several. In the typical model, a binding agreement, often identified as a “framework” convention, serves as the anchor for the regime. Although not legally required, the expectation has evolved that substantive regulatory requirements will be included in ancillary protocols. The implicit assumption is that the regime is built in a stepwise fashion, beginning with the relatively more procedural and structural provisions of the framework agreement, to be followed by protocols that contain more substantive obligations. Ordinarily, in the “garden variety” situation, the prototype modern framework—​sometimes described as an “umbrella”—​convention includes the following components: • Procedural requirements, such as data exchange and reporting, designed in part to facilitate a better understanding of the problem, as well as typically to serve as the principal vehicle for verifying implementation of the agreement. • Provision for adoption of ancillary protocols, along with rules for adoption and amendment of both the convention itself and any protocols. Ordinarily the convention clarifies the formal legal relationship between the convention and ancillary protocols. • A  periodic, typically annual, meeting, frequently identified as a “conference of the parties.” Meetings of parties to any protocols ordinarily take place at the same time as the conference of the parties to the convention, with nonparties to protocols nonetheless present as observers. • The establishment of subsidiary bodies. The Framework Convention on Climate Change has two institutional entities subordinate to the conference of the parties: a Subsidiary Body for Scientific and Technological Advice and a Subsidiary Body for Implementation. • Requirements for periodic review of developments in science, policy, and procedural issues, typically addressed at the conference of parties. Outputs range from decisions—​generally accepted to be legally nonbinding in character—​amendments,

 

438   environment declarations, or a variety of other procedural formats. Subject matter can also vary widely, including the creation of new subsidiary bodies and the adoption of procedures on such issues as noncompliance. • Funding mechanisms, which may be freestanding entities established by and reporting to the parties to the convention or protocol in question. Existing institutions, most notably the GEF, are generally available as a default mechanism. • Secretariat services, which are sometimes constituted as freestanding entities under the agreement in question, or, alternatively, provided by the international organization under whose auspices the agreement was negotiated. • Final clauses containing procedures for amendment of convention and protocols, dispute settlement, signature, ratification, accession, and entry into force, as is typical for other multilateral conventions. This model did not emerge overnight, but instead evolved over time. The ECE’s 1979 LRTAP was clearly intended to serve as a framework for further cooperation, but does not contain a number of the features identified above, most notably an authorization for the adoption of subsequent protocols and rules for doing so. Nonetheless, that convention is now the keystone of an identifiable regime for addressing transboundary pollution in the ECE region, with eight protocols governing air pollutants such as sulfur compounds which are precursors to acid rain, nitrogen oxides, and toxic heavy metals. When states then came together under UNEP auspices to reduce threats to the stratospheric ozone layer, they made an explicit decision to undertake the now-​familiar two-​component process, including legally distinct instruments in the form of a framework multilateral convention and substantive ancillary protocols. Negotiations on a protocol to control chloroflurocarbons (CFCs), the principal chemicals causing loss of stratospheric ozone, proceeded simultaneously with deliberations on the convention until early 1985. Moreover, for a considerable portion of the negotiations when the two instruments proceeded in tandem, a number of countries including the United States called for a mandatory CFC protocol to which all parties to the convention would have to adhere. When negotiations on the CFC protocol broke down, the Vienna Convention on the Protection of the Ozone Layer alone was adopted. Renegotiation of the protocol after a scheduled one-​year “cooling off ” period coincided with a dramatic upsurge in public concern about the Antarctic ozone hole, which broke the deadlock and facilitated adoption of the Montreal Protocol in September 1987. The convention-​ plus-​ protocols architecture is not in any sense mandated by international law, but has nonetheless become ossified as received wisdom about environmental governance. Moreover, as demonstrated by the ozone precedent, there is no requirement, legal or otherwise, that conclusion of the convention must precede the negotiation and adoption of any substantive protocols. This expectation nonetheless congealed quickly, as demonstrated by subsequent negotiations on the Framework Convention on Climate Change, in which the debate over whether

 

freestanding multilateral environmental regimes    439 to include substantive emission reduction requirements in the convention became quite acrimonious.7 This model can accommodate many innovative governance approaches. Protocols range across diverse subject matter and permit considerable flexibility in subsequent implementation. For instance, the first protocol to the UN Convention on Biological Diversity, the Cartagena Protocol on Biosafety, governs trade in genetically modified food and crops—​not necessarily the most pressing issue threatening biodiversity that could be imagined. Recently, protocols on liability have been adopted under a number of the major multilateral agreements.8 In an innovation that is even closer to majority voting than MARPOL, the Montreal Protocol on Substances that Deplete the Ozone Layer rejects the customary rule of consensus by explicitly stating that a two-​thirds majority may adopt “adjustments” to the agreement’s reduction schedule, which then are binding on all parties to the original instrument without the need for subsequent assent. One of the principal vehicles for extending and modifying these freestanding treaty regimes is a decision of the parties to the agreement acting as a group, ordinarily at one of their periodic meetings. This tool is not without legal and policy ambiguity, and the extent to which actions can be taken by nonbinding decisions as opposed to legally binding measures such as amendments to a protocol or the parent convention may be unclear, a situation which may in turn have domestic legal consequences. For example, the Stockholm Convention on Persistent Organic Pollutants contains a controversial provision that allows extension of the agreement, which essentially bans substances covered by it, to new chemicals by decision rather than a full-​blown amendment.9 In addition to the Vienna Convention/​Montreal Protocol regime for stratospheric ozone and the Framework Convention on Climate Change/​Kyoto Protocol superstructure addressing global warming, the framework convention-​plus-​protocols 7   For a negotiating history of the Framework Convention on Climate Change, see Daniel Bodansky, “The United Nations Framework Convention on Climate Change:  A  Commentary,” Yale Journal of International Law 18 (1993):  451–​558. The Paris Agreement (https://​unfccc.int/​resource/​docs/​2015/​ cop21/​eng/​l09r01.pdf), adopted by the twenty-​first conference of the parties to the Framework Convention on December 12, 2015, is a protocol to the Convention in everything but name, the term “protocol” having been recognized as a serious impediment to acceptance of the Agreement by the United States. See David A. Wirth, “Cracking the American Climate Negotiators’ Hidden Code: United States Law and the Paris Agreement,” Climate Law 6 (2016): 152–​70. 8   See, e.g., Günther Doeker and Thomas Gehring, “Liability for Environmental Damage,” in The Effectiveness of International Environmental Agreements: Survey of Existing Legal Instruments, ed. Peter H. Sand (1992), 392–​435; Noah Sachs, “Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law,” University of California, Los Angeles Law Review 55 (2008): 837–​904; Francisco Orrego Vicuna, “Responsibility and Liability for Environmental Damage Under International Law: Issues and Trends,” Georgia International Environmental Law Review 10 (1998): 279–​308. 9   See, e.g., Pep Fuller and Thomas W. McGarrity, “Beyond the Dirty Dozen: The Bush Administration’s Cautious Approach to Listing New Persistent Organic Pollutants and the Future of the Stockholm Convention,” William & Mary Environmental Law & Policy Review 28 (2003): 1–​34. See also Natural Resources Defense Council v Environmental Protection Agency, 464 F3d 1 (DC Cir. 2006)  (domestic applicability of decisions adopted pursuant to Montreal Protocol).

 

440   environment model has been adopted in a number of other global agreements, by and large negotiated under UNEP auspices, including the UN Convention on Biodiversity. Regional agreements, most notably in the ECE, also employ this model. In addition to LRTAP, a good example is the Aarhus Convention on Public Participation and Access to Information, to which a Protocol on Pollutant Release and Transfer Registers has been adopted. Other treaty regimes addressing environmental issues in whole or part that can be characterized as less than universally inclusive include the 1959 Antarctic Treaty, to which is appended a 1992 Environmental Protocol, and the 1946 International Convention on the Regulation of Whaling. Although the model of an organic treaty establishing a comprehensive, self-​ contained regime is not formally an international organization, in practice the distinction frequently is not so clear. For example, a number of agreements, most notably the ECE regional conventions, rely on secretariats of existing organizations to supply those services. Even those that have technically freestanding secretariats often retain ties to the international institution under which they were negotiated. These regimes, moreover, are frequently treated as a practical matter as if they had legal personality. For example, the conventions for which the GEF serves as the funding mechanism provide advice to that institution, more or less as if the conventions themselves were formally constituted as independent entities under international law. While the environmental-​treaty-​as-​governance-​structure is formally an alternative approach to rulemaking in formally constituted international organization, the distinction is blurry and perhaps ultimately without much practical significance.

Bilateral and Regional Agreements Bilateral and regional agreements also present their own embellishments to the structural treatment of the environment as an international governance matter. While there are thousands of bilateral and regional agreements that address the environment outside the UN system, the examples in this section have unusual or unique attributes that further highlight the range and diversity of the challenges presented by international environmental law, policy, and governance.

Bilateral Investment Treaties and NAFTA Chapter 11 Beginning in the 1970s, first European countries and then the United States began to negotiate bilateral investment treaties (BITs) that were intended to resolve both the substantive and procedural weaknesses in the customary law governing foreign investment by (1) establishing clearer, treaty-​based tests for actionable measures

 

bilateral and regional agreements    441 taken against foreign investors; and (2) creating dispute settlement mechanisms that could be initiated by private party investors directly against the host state, eliminating the involvement of the government of the home state. Although some BITs anticipated dispute settlement by freestanding arbitral tribunals such as those governed by the UN Commission on International Trade Law’s (UNCITRAL) rules, many referred investor–​state disputes to the International Centre for Settlement of Investment Disputes (ICSID). The trilateral North American Free Trade Agreement (NAFTA) was the first free-​trade agreement to incorporate rules on investment, modeled on those in BITs, in its Chapter 11. Although the expectation was that Chapter 11 would apply primarily to Mexico, the first dispute investment dispute was initiated by a US investor against Canada over its effective prohibition of a fuel additive.10 Canada settled and removed the measure, triggering a flood of similar challenges to environmental measures as violations of NAFTA’s investment rules. A number of these were addressed through ICSID, where a number of procedural limitations became apparent: (1) the absence of a mechanism for assuring continuity in jurisprudence, as there is no rule of binding precedent (stare decisis) and awards of arbitral tribunals as a matter of principle have no precedential force; (2) the absence of measures for public participation either in the form of written submissions or access to oral hearings; and (3) the absence of an appellate mechanism to correct errors and resolve disputed questions of law. As a result of concerns over the potential for attacks on environmental measures as inconsistent with investment rules, newly negotiated BITS increasingly include specific protections for environmental measures, and the US model BIT11 now includes an entire article that at least partially clarifies this issue.

North American Commission for Environmental Cooperation In response to highly public and vociferous concerns over the environmental effects of the trilateral NAFTA, President Clinton, declining to renegotiate the text of NAFTA proper, advocated the adoption of new “side agreements” on environment and labor. The resulting North American Agreement on Environmental Cooperation (NAAEC) established a trilateral Commission for Environmental Cooperation (CEC) headed by a council consisting of the environment ministers of the three NAFTA states. The CEC is serviced by a professional Secretariat in Montreal and advised by a committee of Canadian, Mexican, and US nationals appointed in their personal capacities. 10   See Julie A. Soloway, “Environmental Trade Barriers Under NAFTA: The MMT Fuel Additives Controversy,” Minnesota Journal of Global Trade 8 (1999): 55–​96; Todd Weiler, “The Ethyl Arbitration: First of its Kind and a Harbinger of Things to Come,” American Review of International Arbitration 11 (2000): 187–​202. 11   http://​www.ustr.gov/​sites/​default/​files/​BIT%20text%20for%20ACIEP%20Meeting.pdf.

 

442   environment According to policymakers, the principal environmental concern was not a divergence in national standards among the three NAFTA countries, but, rather, the need to provide effective enforcement mechanisms for fully implementing existing national laws. The NAAEC consequently assigned the CEC Secretariat the responsibility to receive and process citizen submissions alleging that one of the NAFTA parties has failed effectively to enforce its domestic law, as specified in Articles 14 and 15 of the Agreement. The CEC citizen submission process, a major innovation in public international law in providing a complaint mechanism that can be initiated by private parties, begins when a nongovernmental organization or individual lodges a submission with the CEC Secretariat alleging that one of the three NAFTA governments “is failing to effectively enforce its environmental law.” The Secretariat first conducts an initial consideration of the admissibility of the submission, determines whether the submission warrants developing a factual record, and transmits its recommendation to the CEC Council. The Council, by two-​thirds vote, then instructs the Secretariat whether to prepare a factual record. After the Secretariat prepares a factual record the Council, by two-​thirds vote, decides whether to make the factual record public. As at the time of writing, there have been more than eighty citizen submissions resulting in seventeen factual records, of which only one was prepared in response to a submission concerning the United States.12 The citizen submission process has been replicated with some modifications in other regional and bilateral trade agreements to which the United States is a party, most notably the Dominican Republic-​Central America Free Trade Agreement and the Trans-​Pacific Partnership.13

International Environmental Institutional and Regulatory Toolbox As demonstrated by this examination, the number and variety of international institutional settings available to address substantive environmental goals is enormous. Similarly, in response to the challenges posed by the need for effective environmental governance, the range of available legal and policy instruments is similarly

  For a summary of citizen submissions on enforcement matters to date and a link to the docket in each, see http://​cectracker.nma.ca. The Boundary Waters Treaty of 1909, January 11, 1909, United States–​Great Britain, 36 Stat. 2448, is an example of a treaty creating a bilateral international organization that has had great influence on environmental issues, the International Joint Commission. 13   Trans-​Pacific Partnership: https://​ustr.gov/​tpp/​. 12

 

institutional and regulatory toolbox    443 diverse. These two attributes—​institutional setting and regulatory design—​are in fact deeply intertwined.14 Based on the previous analysis, one can identify any number of precedents in the form of both institutional and policy options available in response to environmental challenges: • multilateral, regional, and bilateral agreements establishing binding obligations for states • adoption of protocols by freestanding regimes establishing binding obligations for states (e.g., eight protocols adopted under LRTAP) • binding actions taken by existing organizations establishing normative standards for states (e.g., OECD decisions) • nonbinding actions taken by institutions not constituted by multilateral agreement (e.g., Arctic Council) • nonbinding actions taken by existing organizations establishing good-​practice standards for states or intended to harmonize state practice (e.g., OECD recommendations) • decisions taken pursuant to the authority of framework conventions by freestanding regimes (e.g., COP decisions, typically nonbinding) • decisions taken pursuant to the authority of protocols adopted under authority of freestanding regimes (e.g., MOP decisions, typically nonbinding, addressed only to parties to protocol) • nonconsensus decision-​ making procedures (e.g., MARPOL 73/​ 78, Montreal Protocol) • nonbinding actions taken by existing organizations establishing good-​practice standards directly addressed to nonstate actors (e.g., OECD Guidelines for Multinational Enterprises) • nonbinding standards intended to serve as models for binding substantive agreements (e.g., UNEP Goals and Principles of Environmental Impact Assessment/​ ECE Convention on Transboundary Environmental Impact Assessment) • good-​practice standards transformed into binding obligations in particular contexts (e.g., World Bank Operational Standards incorporated into binding loan agreements)  See, e.g., Barbara Koremenos, Charles Lipson, and Duncan Snidal, “The Rational Design of International Institutions,” International Organization 55 (2001): 761–​99. With respect to effectiveness, see Edith Brown Weiss, and Harold K. Jacobson (eds.), Engaging Countries: Strengthening Compliance with International Environmental Accords (Cambridge, MA: MIT Press, 1998); David G. Victor, Kal Raustiala, and Eugene B. Skolnikoff, The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge, MA: MIT Press, 1998); Durwood Zaelke, Donald Kaniaru, and Eva Kružíková (eds.), Making Law Work: Environmental Compliance and Sustainable Development, 2 vols. (London: Cameron May, 2005). 14

 

444   environment • binding obligations applied in state-​to-​state dispute resolution (e.g., WTO dispute settlement proceedings) • binding obligations applied in bilateral investor–​ state dispute settlement mechanisms (e.g., NAFTA Chapter 11, BITs) • institutional requirements applied at civil society initiative to international organizations (e.g., World Bank, regional development bank Inspection Panel mechanisms) • international obligations applied at civil society initiative to states in adjudicatory mode (e.g., NAAEC citizen complaint mechanism). These factors operate along a number of axes in multiple dimensions simultaneously. One attribute is institutional structure, which can range from among the most formally constituted international organizations to freestanding multilateral environmental agreements to an informal assemblage of states like the Arctic Council. A setting that lacks any capacity to adopt binding measures would seem at first blush to be poorly positioned to effect positive environmental change. But it may be that the situation is not yet ripe for legally binding commitments, and trying to force them prematurely could be counterproductive. If legal commitment is necessary, there is always the possibility of adopting a freestanding treaty, even under the auspices of the most loosely structured institutional arrangement. While it would be tempting to make distinctions between actions taken in the context of formally structured international organizations and freestanding treaty regimes, it is not clear that there is much of a distinction in outcomes. Instead, actual practice appears to range along a continuum. Choices such as the UN Economic Commission for Europe as a vehicle for negotiating regional air pollution agreements appear to be a product of time and place, with the availability of an existing international organization as a forum in that particular setting enhancing the likelihood of a successful outcome by comparison with the possibility of starting from scratch. A second feature of institutional setting concerns the breadth of subject matter coverage, as contrasted with functional compartmentalization. International environmental governance has frequently been criticized for its fragmented character, and invites the inference of a lack of multilateral coherence. Even the secretariats of multilateral environmental agreements are flung literally over the globe, at least potentially exacerbating the situation. As a consequence, several influential actors have made serious proposals advocating the creation of a new international organization characterized by broader subject matter coverage and greater effectiveness, such as the creation of an executive body with enhanced powers.15 15   e.g., Steve Charnovitz, “A World Environment Organization,” Columbia Journal of Environmental Law 27 (2002):  323–​62; Daniel C.  Esty and Maria Ivanova, “Making International Environmental Efforts Work: The Case for a Global Environmental Organization,” Yale Center for Environmental Law

 

conclusion   445 Third, decision-​making procedures, whether based on consensus or rules that allow actions to be taken in situations in which some states may not be entirely in agreement, can affect the efficacy of a regime. While nonconsensus rules might seem to overcome the possibility of least-​common-​denominator results, it is not necessarily productive to bind states without their consent. Significantly, although states in the Montreal Protocol regime have the option to adopt binding revisions through procedures that approach majority voting, that power has been sparingly used. Because of the strong political will behind the instrument, the decision to add new substances to the regime through a formal, consensus amendment process may very well have contributed to the efficacy of what is generally regarded as the most successful of all international environmental regimes. And, of course, the question of choice of instrument, whether binding or nonbinding, is a crucial one. But there again, one must be cautious in reflexively assuming that legally binding rules are innately superior. In contrast to a “hard” international agreement, a nonbinding “soft” instrument may allow states to gain experience with more ambitious, aspirational goals in a milieu that is perceived as less risky. By contrast, under such circumstances states might commit to binding or “hard” treaty obligations only of a modest character, if at all. Alternatively, nonbinding instruments may also be appropriate for circumstances in which consensus is elusive or illusory, while nonetheless supporting more aggressive policy action by those states that are prepared to do so. Nonbinding instruments may be attractive alternatives to a downward spiral toward a least common denominator, a result characteristic of many multilateral efforts.16

Conclusion The wide variety and great flexibility of both institutional structures and substantive regulatory tools available to international policymakers in the field of the and Policy Working Paper 2/​1 (May 2001), http://​www.yale.edu/​gegdialogue; Nils Meyer-​Ohlendorf and Markus Knigge, “A United Nations Environment Organization,” in Global Environmental Governance: Perspectives on the Current Debate, ed. Lydia Swart and Estelle Perry (New York: Center for UN Reform Education, 2007), 124–​41 (describing EU initiative in UN to “upgrade” UNEP); C. Ford Runge et  al., Freer Trade, Protected Environment:  Balancing Trade Liberalization and Environmental Interests (New York: Council on Foreign Relations Press, 1994). 16   See, e.g., Dinah L. Shelton (ed.), Commitment and Compliance: The Role of Non-​Binding Norms in the International Legal System (Oxford: Oxford University Press, 2000); Edith Brown Weiss (ed.), International Compliance with Nonbinding Accords (Washington:  American Society of International Law, 1997).

 

446   environment environment is perhaps unique in the field of international organizations. In principle, this attribute should enable a reasonably precise fit between substantive environmental challenges on the one hand and international governance responses on the other. It would be intellectually appealing to assume that form can be neatly matched to function, but it is difficult to say that that is the case in actual practice. Rather, many choices in the field appear to be fortuitous, based on criteria unique to the situation presented. And it is not at all clear that that is an undesirable situation, given the number and magnitude of the challenges to be surmounted in the ongoing search for effective international environmental governance.

 

Chapter 21

HEALTH Gian Luca Burci Andrew Cassels*

Health has gained importance and recognition in international relations and international law over the last twenty years. It is seen as an integral and essential dimension of human life and livelihood. It is subject to complex patterns of interaction and influence through a large number of international legal and policy regimes developed and managed by traditional as well as new international organizations and a range of other actors. While for many people health is perceived as a domestic issue, it has always had an international dimension—​most commonly through concerns to limit the spread of infectious diseases between countries. More recently, the international dimension has increased in prominence. This, combined with the growing number of actors involved, has led to a more sophisticated conceptualization of global health as a political and legal regime and a consequent search for more effective models of governance. Global health governance is a crowded, complex and fragmented field. It is also one of the areas of international governance where new hybrid international entities and private actors (both public interest and commercial) have claimed an increasingly important role alongside existing traditional international organizations. This has led to the proliferation of global administrative law models to regulate global health and international cooperation. The second part of this chapter describes how the landscape for global health governance has evolved. While the changing environment does not alter the basic *  This chapter was completed before the outbreak of Ebola Virus Disease in 2014–15. The aftermath of the Ebola outbreak has set in train a significant series of reforms both in WHO and more broadly within the international system, which it has not been possible to capture in the current text.

 

448   health functions carried out by international organizations, it does involve a much wider range of institutional actors. The main international organizations involved in global health are introduced at this stage. The third part focuses on the history, structure, and role of the World Health Organization (WHO). The next four parts respectively then examine four key functions of international organizations—​setting norms and standards, providing technical assistance, raising and disbursing finance, and coordination and coherence. In each case we focus on governance issues and examine the role and interactions of the international organizations involved. The chapter ends with a brief concluding section.

International Organizations and Global Health Governance Global Health Governance The fundamental idea underpinning global health governance is that the assets the world has at its disposal to improve peoples’ health could be deployed more effectively and more fairly. Health governance implies ‘the use of formal and informal institutions, rules and processes by states, intergovernmental organizations, and non-​state actors to deal with challenges to health that require cross-​border collective action to address effectively’.1 Health governance has its origins in negotiations between nation states as they sought to protect or promote people’s health—​initially on an ad hoc basis to contain the threat of communicable diseases, then more formally through treaties, conventions, international and regional institutions, through the establishment of the WHO itself, and through a variety of other formal and informal mechanisms.

A Broader Agenda Several factors have been instrumental in both broadening the health governance agenda and making it more complex to manage:   David Fidler, The Challenges of Global Health Governance, Council on Foreign Relations (May 2010). 1

 

global health governance   449 (a) Multiple voices:  as in many other sectors, health governance is no longer the exclusive preserve of nation states. Civil society networks, individual non-​ governmental organizations (NGOs) at the international and community level, professional groups, philanthropic foundations, trade associations, the media, national and transnational corporations, and individuals and informal diffuse communities that have found a new voice and influence thanks to information technology and social media—​all of these actors have an influence on decision-​ making that affects health. For inter-​government  al bodies like the WHO this issue is particularly challenging, requiring them to ensure the primacy of member states in making policy decisions and to protect normative and standard-​ setting work from any vested interests, while still finding ways of constructively engaging with other stakeholders. (b) New money and institutional complexity: Over the decade from 2000, global health benefited from increased political prominence in part due to the world’s response to the HIV/​AIDS pandemic. Official Development Assistance (ODA) for health increased from US$10.5 billion in 2000 to US$28.2 billion by 2010.2 A range of new mechanisms for channelling and disbursing funds has accompanied these increases in aid, making the landscape increasingly complex and fragmented particularly in low and middle-​income countries with many development partners. (c) Wider concerns:  Many governance discussions revolve around how to protect human health while at the same minimizing disruption to travel, trade, and economic development. While getting this balance right remains a critical concern, there are added dimensions to the debate, most notably a concern for fairness and equity, well-​illustrated in negotiations to secure better access to patented medicines through the use of flexibilities contained in the World Trade Organization (WTO) Trade-​ Related Aspects of Intellectual Property Rights (TRIPS) agreement. Furthermore, a focus on health as a human right has brought other bodies such as the Human Rights Council into the picture. (d) From health governance to governance for health:  The role of international organizations has traditionally been seen as one primarily concerned with coordinating, directing, and ensuring coherence among entities whose primary purpose is the advancement of health. Increasingly an additional role is emerging—​frequently referred to as governance for health.3 This is primarily an advocacy and public policy function that seeks to influence governance in other sectors (with a different primary purpose) in ways that positively impact on human health.

2   Institute for Health Metrics and Evaluation (IHME), Financing Global Health 2012: The End of the Golden Age? (Seattle, WA: IHME, 2012). 3   Julio Frenk and Suerie Moon, “Governance Challenges in Global Health,” New England Journal of Medicine 368/​10 (2013): 936–​42.

 

450   health

A Changing Institutional Landscape Global health is populated by diverse entities with different legal status and structures, different governance models, and complex patterns of accountability and interaction. While the WHO remains the sole global health agency, with quasi-​ universal membership, and has an undisputed role in some areas, other functions are, as we shall see, more contested. • The main actors in global health are national governments and their ministries of health and, in many Organisation for Economic Co-​operation and Development (OECD) nations, the health or social development departments of ministries of development cooperation. More recently, however, we see increasing involvement in global health affairs of foreign ministries.4 • Several United Nations (UN) funds, programmes, and specialized agencies including United Nations Children’s Fund (UNICEF), the Joint United Nations Programme on HIV and AIDS, the UN Population Fund, and the UN Development Programme have a role in health. Ensuring coherence within the UN Development System is therefore a major challenge. In addition, these agencies depend on, and inevitably compete for, funds from the same bilateral development agencies. Increasingly, these funds are linked to activities specified by the donor. Thus in addition to competition between agencies for diminishing donor funds one can observe a growing ‘bilateralization’ of the multilateral system.5 • Among the international financial institutions, the World Bank has had a role in health financing since it started lending in the sector in the early 1980s. In terms of spending power its earlier pre-​eminence has been matched by the new global health partnerships (see later in this chapter). However, there are clear signs that its intellectual and financial contributions to global health are likely to be boosted under President Jim Yong Kim.6 All the main regional development banks (such as the Asian and African Development Banks) are active in health, but do not match the World Bank’s influence. • The key institutional innovation over the last decade has been the establishment of a number of public–​private partnerships. These fall into three broad types: those concerned with providing finance to countries; those focusing on advocacy and coordination for specific health issues (such as maternal health or malaria); and those concerned with product development. Of the main financing partnerships,

  Stephen Thomas, “The Oslo Ministerial Declaration,” The Lancet 369/​9580 (2007): 2159.   OECD Multilateral Aid Report 2012, http://​search.oecd.org/​officialdocuments/​displaydocumentpdf/​?cote=DCD/​DAC(2012)33&docLanguage=En. 6   http://​ w ww.worldbank.org/​ e n/​ news/​ speech/​ 2 013/ ​ 05/ ​ 2 1/ ​ world- ​ b ank- ​ g roup- ​ president- ​ j im​yong-​kim-​speech-​at-​world-​health-​assembly. 4 5

 

global health governance   451 the Global Fund to Fight AIDS, Tuberculosis, and Malaria (GFATM) and GAVI, the Vaccine Alliance are pre-​eminent.7 UNITAID, a partnership that works to improve global markets in health commodities, bridges the typology with its concern for specific health conditions, financing the purchase of drugs and stimulating the production of new products and formulations. From a governance perspective the key point about the new global partnerships is less their sources of finance (the bulk of which still comes from governments) and more to do with their hybrid structure in which non-​state actors (private entities, civil society representatives, and communities affected by the diseases concerned) are represented on governing boards and have an equal say in decision-​making alongside governments and international organizations. • Philanthropic foundations such as Rockefeller have long played a role in global health. More recently the magnitude of its financial contributions has made the Bill and Melinda Gates Foundation one of the major players—​with a particular focus on more technological aspects of global health (e.g. the major support provided by the foundation to immunization and product development partnerships). • The influence of non-​institutional political forums (such as the G8 and G20) waxes and wanes. For a period in the early 2000s the G8 became a major force in global health through its support for a series of major health initiatives (including support for the establishment of the GFATM). More recently, interest in health has been less prominent and usually addressed as part of the G8’s agenda on Africa. The G20 has established a Development Working Group but has focused more on social protection and food security than health specifically. More recently other groups such as the BRICS countries (Brazil, Russia, India, China and South Africa, which now meet at health-​minister level) have taken an interest in health governance issues. Similarly, the World Economic Forum has provided a platform that has been most effective in bringing together major industry figures with international health leaders. • A complete map of actors in global health governance would need to include a number of players from the private commercial sector, notably but not exclusively the pharmaceutical industry; a highly influential academic community worldwide; and a vast range of civil society organizations from large international NGOs through to grass-​roots activist movements. The role of civil society organizations has become increasingly influential in campaigning for policy change (notably in relation to access to medical products) and in holding governmental and other organizations accountable for their commitments.8

7  For a comprehensive insider’s view on the origins, structure and functioning of GAVI, and GFATM, see Jon Liden, “The Grand Decade for Global Health 1998–​2008,” Chatham House Centre on Global Health Security, Working Group on Governance, Paper 2 (2013). 8   See, e.g., the regular analyses produced by IP Watch (http://​www.ip-​watch.ch/​).

 

452   health • An additional complexity of the institutional landscape is that so far we have confined the analysis primarily to those that have an influence on health as a primary intent or as a recognized part of their agenda. However, as we see in the case of non-​communicable diseases, it is increasingly recognized that health is shaped by governance in other sectors such as trade, intellectual property, food policy, urban planning, climate science, and many more. We therefore need to bring these actors and their institutional representatives (such as the WTO and the World Intellectual Property Organization), the UN agencies dealing with food, agriculture, science, and the environment into our analysis of governance functions. First, however, we turn to the role of the WHO.

The World Health Organization The WHO was established by an international conference convened in New York in 1946 at the request of the UN Economic and Social Council. The idea of establishing a single international organization whose mandate would cover all fields of public health had been launched in 1945 at the UN Conference on International Organizations. However, the birth of such an international organization was the outcome of more than a century of concerted endeavours that led to the establishment of a number of international bodies. During the nineteenth century a number of international sanitary conferences were convened to unify action against the ever growing spread of diseases linked to international trade. The first in Paris in 1851 is generally considered as having opened a new era of international action in public health. Following the Eleventh International Sanitary Conference held in Paris in 1903, twelve states concluded an arrangement in Rome in 1907 which created an international office of public health based in Paris, the Office International d’Hygiène Publique, whose functions were to disseminate general information on public health amongst its members, particularly with regard to the most common communicable diseases. The Health Organization of the League of Nations was subsequently established in 1920 on the basis of Article XXIII(f) of the Covenant of the League of Nations which provided that the members would endeavour to take steps in matters of international concern for the prevention and control of diseases. The Constitution of the WHO entered into force on 7 April 1948 and has been amended several times, mostly to increase the membership of its Executive Board.9 9   Constitution of the World Health Organization, adopted on 22 July 1946, in 14 UNTS 185. See also Gian Luca Burci and Claude-​Henri Vignes, World Health Organization (The Hague: Kluwer Law International, 2004), 15–​19.

 

the world health organization    453 While most of its text covers the structure and functioning of the organization, its Preamble is a visionary statement of principles that defines health as a crucial issue of international concern and as a fundamental human entitlement. The definition of health provided by the Preamble, namely, that ‘Health is a state of complete physical, mental and social well-​being and not merely the absence of disease or infirmity’, and the affirmation that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’, have entered the vocabulary of international law and been utilized in subsequent international instruments.10 Article 2 provides a list of twenty-​two functions to guide the WHO in fulfilling its objective (Article 1) of the attainment by all peoples of the highest-​possible level of health. Even though Article 2 is perhaps not the best example of good drafting, it shows the intentions of the authors of the Constitution to give the new organization a broad mandate and, specifically, ‘to act as the directing and coordinating authority on international health work’ as its central function. Membership in the WHO is open to states and as of September 2014 stands at 194. There is a strong bias in the Constitution in favour of universality of participation as a tool to achieve the objective enunciated in Article 1. This is shown, for example, by the requirement of just a simple majority in the World Health Assembly for admitting non-​member states of the UN, and by the participation of territories not responsible for their international relations through a form of associate membership or otherwise.11 The governance of the WHO is based on a plenary World Health Assembly, an Executive Board with a membership of thirty-​four members (as of July 2013), a Secretariat headed by a Director-General nominated by the Executive Board and appointed by the Health Assembly, as well as regional arrangements. The Executive Board was intended as a body of individuals, albeit appointed by member states, elected for that purpose by the Assembly (Arts. 24 and 25 of the Constitution). It was supposed to represent the voice of science and public health vis-​à-​vis the political dimension represented by the Health Assembly. However, that institutional design proved to be a fiction and Board members soon behaved as representatives of their respective governments. In 1998, the Health Assembly addressed this dichotomy without amending the Constitution, by deciding that members of the Board should henceforth be elected as government representatives. 10   See notably Art. 12 of the Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3; and among regional human rights instruments, Art. 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), 17 November 1988, http://​www.oas.org/​juridico/​english/​treaties/​a-​52.html. 11   The WHO Constitution, Art. 8.  The rights of participation of territories that are not admitted as associate members are regulated by a resolution adopted by the first World Health Assembly. See WHO, Basic Documents, 48th ed. (Geneva: WHO, 2014), 19–​22.

 

454   health Under Article 28 of the Constitution, the Executive Board serves as the executive organ of the Health Assembly, giving effect to the latter’s decisions and policies, as a preparatory body for the Assembly’s work, and finally as the organ in charge of emergency measures in urgent situations. Historically, in particular during the last two decades, the Board has largely focused on its preparatory functions, which include the crucial roles of reviewing the programme budget proposed by the Director-General and of nominating the latter. While the process of reform of the WHO launched by Director-General Margaret Chan in 2011 raised the possibility of a rebalancing of the division of labour between Assembly and Board by giving the latter a more robust executive role, this proposal has not yet been seriously discussed.12 A unique feature of the WHO within the UN system is its regionalized structure, which has its origins in the regional health organizations pre-​dating the WHO whose existence could not be ignored. Pursuant to Chapter XI of the Constitution, the Health Assembly has established six ‘regional organizations’ consisting of a regional committee comprising the states and territories falling within that geographical area, as well as a regional office headed by a Regional Director. The WHO’s presence at country level is ensured by a network of more than 150 offices, which report to the responsible regional director. The main structural peculiarity of the WHO’s arrangement is that Regional Directors are nominated by the respective regional committees, which submit a single candidate for appointment by the Executive Board, rather than being appointed by the Director-General as is the case in other UN organizations.13 Even though successive Directors-General have managed their relations with the Regional Directors in different ways, this system has historically entrenched a feeling of separateness and independence of the regions vis-​à-​vis central governance in Geneva. The most extreme manifestation of the distinctiveness of the WHO’s regional structure is represented by the continuing existence in the American continents of a separate regional organization, the Pan American Health Organization (PAHO). The question of whether the PAHO should be merged into the WHO could not be resolved by the 1946 Conference, which settled on a compromise constitutional provision (Art. 54) foreseeing eventual integration of the PAHO with the WHO by mutual consent. The two organizations concluded an agreement in 1949 whereby, pending final integration, the PAHO would serve as regional organization for the Americas while retaining its status as a separate international organization. In particular,

  On the functions of the Executive Board, see Burci and Vignes, World Health Organization, 46–​9.   Art. 52 of the Constitution provides that Regional Directors shall be appointed by the Board in agreement with the regional committees. Such a formulation would allow different processes for the appointment of Regional Directors. Discussions on this point have taken place several times during the life of the WHO, but the process has remained virtually unchanged since 1948. See Burci and Vignes, World Health Organization, 56–​7. 12 13

 

normative functions   455 PAHO’s Conference appoints a Director and then submits his/​her name to the WHO’s Executive Board for further appointment as Regional Director. A  portion of the WHO’s programme budget is allocated to the PAHO, while the latter also retains its own budget.14 Notwithstanding occasional references to the incomplete integration between the two organizations, there has been no momentum for changing the status quo. Despite a satisfactory level of programmatic integration and cooperation, this arrangement is fraught with ambiguities at a governance and managerial level. The functions of the WHO are common to most international organizations: • developing the policies, norms, and standards that regulate all aspects of global health and define their linkages with other areas and regimes of international law and organization • coordinating the growing number of institutions engaged in health related actions • providing technical support to, and managing technical cooperation between, countries at all levels of development, including emergency and humanitarian assistance and policy support • financing for health and the development of health related products. In the following sections we examine the role of the WHO as well as the key international organizations in relation to each of these functions.

Normative Functions General Considerations Normative functions in the field of global health are decentralized and fragmented, reflecting the institutional landscape described above. This includes the adoption, implementation and enforcement of binding international legal instruments, as well as various non-​binding normative instruments (‘soft law’). The production of international public health norms and standards as well as those in other fields that influence health outcomes is carried out by a wide variety of institutions: international organizations, treaty bodies, NGOs, public–​private partnerships, national and international regulatory bodies, as well as organizations representing commercial companies.

  Agreement between the WHO and the Pan American Sanitary Organization, 12 June 1949, in WHO, Basic Documents, 38–​40. 14

 

456   health Such institutional fragmentation raises an important question about the current status of international health law. If it is defined solely as a body of international law elaborated with the primary purpose of regulating and protecting public health, with the exception of the few legal instruments adopted by the WHO (see later in this chapter), the record is quite thin and concentrated on a few institutions. If, however, we use a broader notion of international health law as encompassing international rules that have a direct interaction and causal relationship with health, the normative landscape becomes much richer and more complex. It extends to a number of public and private bodies that adopt, interpret, manage, implement, and enforce the rules in question. Health, in other words, is a striking example of the contemporary fragmentation of international law.

The World Health Organization As the single global public health agency, the WHO was granted extensive powers to set health-​related standards and ensure their uniformity at the global level. This design transpires from paragraphs (k), (o), (s), (t), and (u) of Article 2 of the WHO’s Constitution as well as its Chapter V which clearly centres the normative functions of the Organization in the Health Assembly and provides for three types of legal instruments: conventions and agreements, regulations, and recommendations.15

Conventions Conventions can be adopted by the Health Assembly with respect to any matter within the competence of the Organization. The only international convention adopted so far has been the WHO Framework Convention on Tobacco Control (FCTC). Adopted in May 2003, it entered into force in February 2005 and has 178 parties as of April 2014. The FCTC is a ground-​breaking instrument that regulates for the first time at the global level the trade, marketing, and consumption of a lawful consumer product.16 Initially, there was some reluctance to have a health organization deal with issues such as taxation, illicit trade, and advertising, from both a constitutional and a practical perspective. However, the argument eventually prevailed that a decrease in the health consequences of tobacco use would only be possible by addressing these upstream risk factors. Similar considerations influenced the adoption in November 2012 by the Conference of the Parties to the FCTC of a protocol   Burci and Vignes, World Health Organization, 124–​55.   WHO Framework Convention on Tobacco Control, adopted on 21 May 2003, in 2302 UNTS 166. See M. Prahhu and S. Atapattu, “The WHO Framework Convention on Tobacco Control: When the WHO Meets the WTO,” in Sustainable Justice: Reconciling Economic, Social and Environmental Law, ed. M.-​C. Cordonier Segger and C.G. Weeramantry (The Hague: Martinus Nijhoff, 2005), 365–​80. 15

16

 

normative functions   457 on illicit trade in tobacco products, which deals entirely with non-​health issues such as the control of the supply chain of tobacco products, as well as law enforcement and mutual legal and administrative assistance.17 On the one hand, the approach of the FCTC and its Protocol strengthens and confirms a flexible vision of the role of international health institutions and the scope of their mandate, but on the other it raises the dual challenge of the capability of a technical health agency to manage such novel issues and of the inevitable interactions and overlaps between diverse legal instruments and regimes. The FCTC, as a framework convention modelled on the precedent of multilateral environmental agreements, has also established an institutional mechanism that has further developed its normative framework through the adoption by the Conference of the Parties of guidelines on several articles. Although the guidelines are not binding, their relevance and normative weight is demonstrated by their reference in recent international litigation.18

Regulations Regulations may be adopted by the Health Assembly under Articles 21 and 22 of the WHO Constitution in five enumerated areas, most notably on ‘procedures designed to prevent the international spread of disease’. They are a special type of legal instrument, in that once adopted by the Assembly they enter into force for all WHO member states by a specified deadline, except for those members who either reject the regulations or file a reservation. The legislative rather than contractual nature of regulations, and the corresponding compression of the sovereignty of member states who are bound unless they affirmatively ‘opt out’ is due to the need to ensure a centralized and uniform management of international rules on crucial aspects of international health. The WHO has adopted two regulations so far; the most significant are the International Health Regulations (IHR), arguably the only international instruments entirely devoted to the prevention and control of the international spread of disease.19 The IHR, initially adopted in 1951 and revised several times between 1956 and 2005, constitute the institutional development of 17   Protocol to Eliminate Illicit Trade in Tobacco Products, adopted on 12 November 2012, decision FCTC/​COP5(1), http://​www.who.int/​fctc/​protocol/​en/​. 18   WHO Framework Convention on Tobacco Control, Guidelines for Implementation (WHO, 2013). On Australia’s plain packaging law, see Kate Lannan, “The WHO Framework Convention on Tobacco Control: The International Context for Plain Packaging,” in Public Health and Plain Packaging of Cigarettes, ed. Tania Voon et al. (Cheltenham: Edward Elgar, 2012), 11–​29. 19  International Health Regulations, Res. WHA58.3, 23 May 2005, in WHA58/​2005/​REC/​1, 17. An excellent article on the IHR from historical, legal, and governance perspectives is David Fidler, “From International Sanitary Conventions to Global Health Security: The New International Health Regulations,” Chinese Journal of International Law 4 (2005): 325–​92. The other and less-​known regulations are the so-​called “Nomenclature Regulations” on the unification of the statistical classification of morbidity and mortality for purposes of comparability. Adopted by the first World Health Assembly, 24 July 1948, 13 WHO Official Records, 349–​52. On the Nomenclature Regulations and their subsequent revisions, see Burci and Vignes, World Health Organization, 132–​4.

 

458   health the sanitary conventions and regulations adopted since the end of the nineteenth century. The inconsistency and obsolescence of that body of norms militated in favour of centralizing normative and implementation functions into the WHO and shifting to a vertical legislative approach that would facilitate global uniformity and centralized monitoring. It is significant, for example, that the IHR entrust the Health Assembly with the authority to decide on the compatibility of reservations with the object and purpose of the Regulations, as a condition for the entry into force of the latter for the reserving state. The earlier IHR became increasingly marginal and ignored due to their backward-​ looking nature and were replaced in 2005 by a thoroughly revised IHR (2005) which adopt an open-​ended and dynamic approach aimed at addressing the public health aspects of any international spread of disease regardless of origin or source. The broadening of the scope of the IHR, which now extends beyond the natural spread of biological pathogens and may cover the health response to a nuclear or chemical accident or even a bioterrorist attack, leads to a broad range of potential interactions between a dedicated health instrument and other international legal regimes. From an institutional point of view, the IHR (2005) require the WHO to seek cooperation and coordination with several public and private international institutions, from the International Atomic Energy Agency to the International Air Transport Association, as an essential tool to discharge its mandate. The IHR (2005) assign to the WHO Director-General the unprecedented authority of declaring a ‘public health emergency of international concern’ and issuing temporary recommendations in order to control a significant international spread of disease.20 Albeit non-​binding, recommendations create accountability in case of divergent measures by state parties and have been used as the reference scientific standard, for example, in discussions within the WTO on restrictions in trade in pork as a consequence of the 2009 pandemic of H1N1 influenza.21

Recommendations and Other Non-​Binding Standards The setting of a wide variety of recommendations and other non-​binding standards is without doubt the most prolific and successful normative activity of the WHO. The flexibility deriving from the non-​binding nature of the standards in question, and sometimes their non-​formal nature, is coupled with the credibility of the WHO as a scientifically and technically reliable organization. The need for adaptability to local circumstances and historical developments may be one of the reasons the WHO gravitated towards non-​binding instruments even for issues which could   International Health Regulations, Art. 12.   “Members Discuss Trade Response to H1N1 Flu,” WTO Press Release, 25 June 2009, http://​www. wto.org/​english/​news_​e/​news09_​e/​sps_​25jun09_​e.htm. On the significance of WHO powers under the IHR (2005) and its implications for the sovereignty of states parties, see David Fidler, “From International Sanitary Conventions to Global Health Security,” 376–​85. 20 21

 

normative functions   459 have been the subject of regulations or conventions under the Constitution. This aspect of the normative functions of the WHO (in a broad sense) takes place at different levels legally, politically, and practically. The ‘standards’ in question fall into two broad categories: (a) Regulatory recommendations adopted by the Health Assembly under Article 23 of the Constitution. The Assembly, in particular, has adopted two ‘codes’ which represent the most formal manifestation of the WHO’s soft law and which carry significant political weight both at the level of governments as well as that of civil society and other stakeholders:  the International Code of Marketing of Breast-​Milk Substitutes of 1981,22 and the Global Code of Practice on the International Recruitment of Health Personnel of 2010.23 Within this category, particular mention should also be made of the Codex Alimentarius Commission, a joint intergovernmental standard-​setting programme of the WHO and the UN Food and Agriculture Organization (FAO) for food trade.24 (b) Standards and recommendations developed by the Secretariat on the basis of a general grant of authority by a governing body. This probably represents the most visible and practically important aspect of the normative production of the WHO, in which the main role is played by the WHO Secretariat as well as committees of independent experts advising it. Notable examples include: the recommendations issued by the WHO to the UN for the international control of narcotic drugs and psychotropic substances; the Model List of Essential Medicines which is used by national health authorities worldwide to prioritize procurement of medical products;25 and the International Non-​ Proprietary Names which aim to protect the general availability of names of active ingredients in medicines from appropriation as trademarks.26 From an institutional point of view, the main challenges faced by the WHO Secretariat in discharging this function is how to ensure the scientific integrity of its technical work, while responding to increasing requests from public and private stakeholders for participation in normative activities that may have a significant impact on them.

 International Code of Marketing of Breast-​Milk Substitutes, Res. WHA34.22, May 1981, in Handbook of Resolutions and Decisions of the World Health Assembly and the Executive Board (Geneva: WHO, 1985), vol. 2, 191. The main commentary of the Code is Sami Shubber, The WHO International Code of Marketing of Breast-​Milk Substitutes: History and Analysis, 2nd ed. (London: Pinter & Martin Ltd, 2011). 23  The Code is available at http://​www.who.int/​hrh/​migration/​code/​code_​en.pdf. See Allyn L. Taylor and Ibadat S. Dhillon, “The WHO Global Code of Practice on the International Recruitment of Health Personnel: The Evolution of Global Health Diplomacy,” Global Health Governance 5/​1 (2011): 1. 24   http://​www.codexalimentarius.org. 25 26   Burci and Vignes, World Health Organization, 151–​2.   Ibid., 149. 22

 

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Other International and Regional Organizations and Bodies The production, interpretation, and enforcement of international norms having a direct causal relationship with public health outcomes go well beyond the WHO. While a comprehensive overview of the institutional landscape in international health law is beyond the scope of this chapter, the organizations involved range from the UN and its programmes and bodies (e.g. the UN Environmental Programme and environmental treaty bodies) to various specialized agencies (FAO, the International Labour Organization), related organizations (the International Atomic Energy Agency and the WTO), regional organizations (Council of Europe and European Union), and private standard-​ setting bodies (the International Organization for Standardization (ISO) and the International Conference on Harmonization of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH)). Following are some notable examples of organizations with a direct stake in health.

The World Trade Organization The establishment of the WTO and the adoption of a broad package of multilateral and plurilateral agreements, supported by an internal dispute settlement system, has shaped the interface of trade and health and sparked policy discussions that have spilled from the WTO to the WHO and other organizations. While the possibility of adopting health protection measures limiting international trade under Article XX(b) of the General Agreement on Tariffs and Trade has remained unchanged, a number of new agreements are particularly relevant for public health, in particular the General Agreement on Trade in Services with respect to the transboundary provision of health-​related services; the Agreement on Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade with particular regard to trade in food and other consumer products; and the TRIPS Agreement with particular respect to the impact of patent protection on access to affordable essential medicines and the limitation of trademark rights, for example, for the purpose of tobacco control. A number of health-​related cases have been dealt with by the WTO’s dispute settlement panels and Appellate Body, focusing in general on the necessity and proportionality of trade-​limiting measures adopted for health protection purposes. Only a few of them have been successful, raising the general question whether the WTO is an appropriate environment for health protection.27

27   Mélanie Samson, “L’Organisation mondiale du commerce: un forum approprié pour la protection de la santé?,” in Mélanges en l’honneur du professeur Jean-​Michel Jacquet: le droit des rapports internationaux économiques et privés (Paris: LexisNexis, 2013), 299–​320.

 

normative functions   461

The UN Human Rights Council and Human Rights Treaty Bodies The affirmation of the access to the determinants of health as a human right is one of the most important developments in contemporary health policy, starting with the Preamble to the WHO Constitution and continuing with a substantial number of global and regional conventions and standards. The human rights machinery of the UN has contributed to the development of human rights law in the field of health from two main perspectives besides the growth of treaty law: the interpretation and enforcement of treaty provisions through general comments and country reports; and the increasing adoption of health-​related decisions by the Human Rights Council. The former include the ground-​breaking General Comment 14 of the Committee on Economic, Social and Cultural Rights on the right to health;28 among the latter, a recent example is Human Rights Council Resolution 23/​14 of 2013 on access to medicines in the context of the right to health.

The Council of Europe In view of the relative homogeneity of its membership and its focus on social development, ethical issues, and human rights, the Council of Europe has been able to address public health issues from multiple perspectives. In the treaty area and besides the European Social Charter,29 the normative production of the Council spans from the harmonization of specifications for medicinal substances through the Convention on the Elaboration of a European Pharmacopoeia and its protocols,30 to the very important instruments in the field of human rights and biomedicine;31 and to the recent convention on counterfeiting of medical products (‘Medicrime Convention’).32 A distinctive focus of the Council of Europe has been the promotion of social rights, including social security and medical assistance.33 28   Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000), The Right to the Highest Attainable Standard of Health (Art. 12 of the International Convention on Economic, Social and Cultural Rights), E/​C.12/​2000/​4. 29   Council of Europe, European Social Charter, 18 October 1961, CETS 35. 30  Council of Europe, Convention on the Elaboration of a European Pharmacopeia, 22 July 1964, CETS 50; Council of Europe, Protocol to the Convention on the Elaboration of a European Pharmacopeia, 16 November 1989, CETS 134. 31   Council of Europe, Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, 4 April 1997, CETS 164; Council of Europe, Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin, 24 January 2002, CETS 186; Council of Europe, Additional Protocol to the Convention on Human Rights and Biomedicine, Concerning Biomedical Research, 25 January 2005, CETS 195; Council of Europe, Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Genetic Testing for Health Purposes, 27 November 2008, CETS 203. 32   Council of Europe, Council of Europe Convention on the Counterfeiting of Medical Products and Similar Crimes Involving Threats to Public Health, 28 October 2011, CETS 211. 33   Council of Europe, European Agreement on Mutual Assistance in the matter of Special Medical Treatments and Climatic Facilities, 14 May 1962, CETS 38.

 

462   health

International Networks Contemporary channels of international cooperation and regulation are challenging traditional notions of the role of international bodies and the way in which they produce and administer norms.34 The proliferation of administrative models of normative production, with the consequent emergence of operational principles grounded in administrative law to secure their legitimacy, is also a feature of international health bodies that act ‘below’ the formal level of international organizations. A  notable example is the International Conference of Drug Regulatory Authorities (ICDRA), a network of national drug regulators convened annually by the WHO. The recommendations adopted by the ICDRA are addressed to regulators, governmental agencies, and industry, as well as to the WHO. They are not formally endorsed by the WHO but rather attributed to the network of regulators as such.

International NGOs A growing number of international non-​governmental bodies produce voluntary standards of high relevance and impact for health. ISO, for example, is an international NGO composed of national standard-​setting bodies of either a public or private nature.35 ISO responds to the need for an international standard, expressed by industry or other stakeholders, with a consensus-​based participatory process for the development of an appropriate standard that is eventually offered for sale as a private product. ISO has developed standards in fields ranging from health informatics to health protection of persons exposed to dangerous industrial processes to good practices for the sterilization of health-​care products. ISO and its standards have occasionally been criticized for amounting to self-​regulation by the industry, but their influence on practical and administrative aspects of health care is undeniable. A similar example is the ICH.36 The standardized medical terminology (MedDRA) developed by the ICH to facilitate international sharing of regulatory information for medical products has been incorporated into the WHO’s global safety database, thus receiving higher international legitimacy.

34   This growing field of study is referred to as “global administrative law.” With particular regard to the activities of international organizations, see B. Kingsbury and L. Casini, “Global Administrative Law Dimension of International Organizations Law,” International Organizations Law Review 6 (2009): 319–​58. 35   More information on the structure and activities of ISO is available on its website, http://​www. iso.org. 36   More information is available at http://​www.ich.org.

 

technical collaboration   463

Technical Collaboration Technical collaboration37 with lower and middle-​income countries, to complement normative work, has been a major part of the raison d’être for many international organizations, including the WHO. However, the form and purpose of technical collaboration has shifted significantly over time. Jenks and Jones in their work on UN reform38 highlight three distinct phases in the direction and purpose of technical collaboration that have important consequences for the role of international organizations. The first, following the foundation of the UN, focused on the provision of technical knowledge and skills in distinct technical areas, among what amounted to communities of practice within the discipline concerned. From this perspective there was a clear logic in setting up specialized agencies in areas such as health and agriculture with their own governance mechanisms and staff of specialists. In the post-​colonial era the focus of technical collaboration changed markedly towards state-​building in newly independent countries. The focus of technical collaboration therefore shifted to building the institutional capacity of governments to plan and manage their own affairs. Capacity building and national ownership became the watchwords, but too often the skill sets and ways of working of the international organizations established with a purely technical mandate failed to match what was needed. A third phase in technical collaboration, particularly important in the area of health, started in the late 1990s with the agreement on a set of very specific health-​ related Millennium Development Goals (MDGs) and the influx of significant increases in development assistance. The impact of these changes was felt not just by the existing international organizations, which had once again to adjust their approach to technical collaboration, but it signalled the arrival of several new international organizations, partnerships, and alliances dedicated to the pursuit of one or more MDGs. While the three phases are helpful in understanding the changing role of the UN as a whole, from the perspective of the WHO the picture is slightly different. Parts of the Organization, particularly in headquarters, still function in the original technical communities of practice mode. Thus TB specialists operate principally as part of a worldwide network of TB specialists. Elsewhere in the Organization the 37   For the sake of consistency the term technical collaboration—​preferred in the UN as implying more of a relationship between equals—​is used here in preference to technical cooperation or technical assistance. In practice, however, these terms are used more or less interchangeably. 38   Bruce Jenks and Bruce Jones, United Nations Development at a Crossroads (New York: New York University, Centre for International Cooperation, 2013).

 

464   health dominant discourse is capacity-​building in member countries, focusing primarily (and sometimes almost exclusively) on the public sector with a strong emphasis on central planning. Lastly, the health MDGs and their accompanying funds have also influenced the way the organization works and particularly how its impact is measured. This tension is well illustrated in the debate on the next generation of global goals post-​2015. Should an overarching goal for health be framed in terms of helping to put in place Universal Health Coverage—​a national system that ensures that everyone can access the services they need without serious financial penalties (capacity-​ building)—​or should success only be claimed in terms of reduced deaths among different groups in the population (MDG achievement)? Tracking the changing face of technical collaboration helps to understand the multiple personalities that are often exhibited by international organizations. In contrast, many of the other actors we have described such as the Global Fund and GAVI have a much clearer role in relation to a single well-​defined mandate—​a feature increasingly popular with funding agencies under pressure from a public sceptical about the efficacy of aid. Several of the new actors in the field (notably the two main global funds) that do not have a field presence bring one more aspect into the analysis of technical collaboration. Their strategy is to operate through partners such as WHO, UNICEF, and the World Bank, rather than have their own staff at country level. In some cases, there is a transfer of resources to finance technical support; in others it remains dependent on the resources of the implementing agencies. Both cases create a tension between the role of organizations like the WHO, whose mandate is to provide direct support the governments of their member states, and the creation of a contractual relationship with an external financier to whom the international agency is beholden for its performance. As a final word on technical collaboration, the establishment of much greater domestic technical and institutional capacity has reduced the need for international assistance in an increasing number of low and middle-​income countries. This has two implications for international organizations, particularly in the UN system. First, it reduces the need for comprehensive development frameworks such as the UN Development Assistance Framework. Instead countries will increasingly request the help they need à la carte. Second, international organizations will have a growing role in facilitating and brokering technical collaboration between developing countries—​s o-​called South–​S outh Collaboration.39

39  Maj-​Lis Foller, “South–​South Cooperation:  Brazilian Partnership with Mozambique and the Construction of an AIDS Drug Plant,” Austral: Brazilian Journal of Strategy and International Relations 2/​3 (2013): 167–​91.

 

financing   465

Financing In aggregate, most multilateral financing for all purposes from OECD countries goes to five main clusters of organizations. Over 80 per cent of the US$54 billion in total in 2010 went to European institutions (the European Development Fund plus the European Union Budget); the International Development Association (World Bank); UN Funds and Programmes; the African and Asian Development Bank; and the GFATM. The remainder is shared between over 200 multilaterals, of which the WHO is but one.40 The WHO’s budget is likely to be stable at around $2 billion per year between 2014–​19. The key starting point then is that WHO is not a major financier of health services for its member states. The second factor that influences the work of WHO is that less than one-​quarter of the budget is financed by assessed contributions, leaving the remainder to be funded from voluntary contributions. This raises a number of issues: tight specification of donations adds further pressure to the difficulty of setting clear priorities; and the unpredictability of voluntary funding frustrates good planning and management. More fundamentally, the split between assessed and voluntary contributions has important implications for the governance of the Organization. Assessed contributions come from ministries of health whose representatives sit on the WHO’s Executive Board and who attend the World Health Assembly. Voluntary contributions, by contrast, come either from foreign ministries, their development cooperation agencies, or a variety of non-​state actors such as the philanthropic foundations (which have no say at all in governance). In the case of some countries there is close alignment between different parts of governments in their governance relationship with the WHO, but this is far from universal. While ministries of health often tend to value the WHO’s normative role, ministries of development cooperation see the importance of international organizations more in terms of helping them achieve their own development objectives. This difference in objectives becomes apparent in the approach taken to the evaluation of the work of international organizations.41 Moving beyond the WHO, the financial crisis has inevitably affected funding for international organizations working in global health,42 but there are other changes which are equally significant. First, as we enter the second decade of the twenty-​ first century, around three-​quarters of the world’s absolute poor (i.e. those living on less than $1.25 a day) live in what are classified as middle-​income countries.   OECD Multilateral Aid Report 2012.   See, e.g., the Dept for International Development multilateral aid review:  https://​www.gov.uk/​ government/​publications/​multilateral-​aid-​review. This review was subsequently criticized by the National Audit office for paying insufficient attention to the normative role of international organizations. See, e.g., http://​www.nao.org.uk/​report/​dfid-​the-​multilateral-​aid-​review/​. 42   See, e.g., IHME, Financing Global Health 2012. 40 41

 

466   health Many of these countries are becoming less dependent on, and indeed are no longer eligible for, concessionary finance. As a result, an approach to poverty reduction, or the improvement of health outcomes based on externally financed development is becoming rapidly outdated. In its place is the need for international organizations to find new ways of working that support the exchange of knowledge and best practice, backed by strong normative instruments, and approaches that facilitate convergence between different states and between the state, the private sector, and civil society. There remain, however, countries that will continue to rely on finance from international organizations. While decreasing in number, they are increasingly those with the weakest and most fragile management systems. This poses a problem for development agencies faced with ambivalent public support for aid. Indeed, when risks are exposed, the consequences for international organizations can be extremely damaging.43 Thus while the need in such countries is to strengthen national systems, the temptation for risk-​averse donors is to design projects in which fiduciary security (through the creation of parallel systems) takes priority over development effectiveness. The weakening of financial support from traditional OECD government donors has given rise to two further important trends. First non-​state financiers have become major contributors to international organizations. Second, there is a growing interest in what is loosely termed ‘innovative financing’—​raising funds by new mechanisms and from new sources to finance projects outside international organizations. The first trend is well illustrated by the growing influence of philanthropic foundations, among which the Bill and Melinda Gates Foundation is pre-​eminent. It is beyond the scope of this chapter to give a full analysis of the impact of Gates-​funding for health. We therefore restrict ourselves to two key points. First, in relation to traditional international organizations such as the WHO, the Gates Foundation is, in the biennium 2016–​17, the largest voluntary donor to the Organization. This raises critical questions about how financing influences priority-​setting in a member state organization. The current reform programme seeks to address this question by insisting that member states agree on the whole budget, but that a dialogue on how the budget is financed is open to all contributors, state and non-​state. Beyond the WHO, it is estimated that there are few international organizations or major academic centres working on global health that are not in receipt of a Gates grant for some aspect of their work. Moreover, the Foundation has been instrumental in the start-​up of a large number of new health organizations, particularly in the area 43   A single AFP press report in 2011 alleging misappropriation of funds by recipients of Global Fund grants led to the withdrawal of several donors. While confidence has been restored this incident triggered a major series of reforms that were needed to restore confidence. See, e.g., http://​www.theguardian. com/​society/​sarah-​boseley-​global-​health/​2011/​jan/​28/​aids-​infectiousdiseases.

 

coordination and coherence   467 of product development. The Foundation has thus been a major influence on the overall institutional architecture for health through its funding for the creation of GAVI with a start-​up grant of $750  million in 1999, subsequently for the Global Fund and, more recently, UNITAID. The growing interest in ‘innovative’ financing is not restricted to health. Nevertheless health organizations have been remarkably successful in piloting new ventures. GAVI, for instance, has been instrumental in piloting the sale of AAA-​ rated vaccine bonds on the capital markets that provide additional front-​loaded cash to support national immunization programmes.44 It has also been instrumental in establishing the first Advanced Market Commitment as an incentive to produce a new pneumococcal vaccine for use in developing countries.45 UNITAID is partly funded from a tax on airline tickets levied by a growing group of countries. The Global Fund has also been active in the field of debt swaps. Countries too have been active in implementing their own innovative mechanisms such as a variety of ‘sin’ taxes on products such as tobacco and soft drinks. While such innovative mechanisms can supplement traditional forms of financing for international organizations there is little prospect that they will ever wholly replace it. Moreover, there remain concerns from critics that they often do not represent ‘new’ money, and that they are both unpredictable and risk being unsustainable in the long term. As a last word on financing we return to the theme that runs through this whole chapter, namely that the dominant characteristic of the system of international organizations involved in health is fragmentation and that there is no single governance structure that can ensure coherence. Naturally, there are those who see the solution in terms of a single pooled financier for global health that would bring order to the system.46 Our conclusion, however, would be to question the feasibility of such tidy solutions in today’s world.

Coordination and Coherence Turning finally to the operational role of international organizations, the theme of fragmentation, complexity, and unclear governance arrangements continues.   The International Finance Facility for Immunization is explained at http://​www.iffim.org/​.   An AMC is a means by which donated funds are used to give manufactures an incentive to produce vaccines or medicines to agreed specifications on the understanding that they will be sold at subsidized prices. See http://​www.gavialliance.org/​funding/​pneumococcal-​amc/​about/​. 46   See, e.g., Michel Sidibe, The Lancet, 381/​9884 (2013): 2147–​9. 44 45

 

468   health

Humanitarian Emergencies Coordination in the face of rapidly evolving and complex emergencies is critical both on the ground and globally and yet humanitarian emergencies provide some of the most well-​known examples where international organizations have been criticized for their failure to coordinate.47 Following several high-​profile disasters a humanitarian reform process was initiated by the Emergency Relief Coordinator, together with the Inter-​ Agency Standing Committee in 2005 to improve the effectiveness of humanitarian response through greater predictability, accountability, responsibility, and partnership.48 This process, led by the UN Office for the Coordination of Humanitarian Affairs, has defined levels of emergencies, standard operating procedures for classifying and acting on them, and reinforced a cluster structure for coordination in the field. The WHO is, by default, the coordinator of the health cluster once an emergency has been declared. This role is widely accepted and internal reforms in the WHO have been put in place to increase its capacity to respond effectively.

Health and Development Cooperation In more stable, low-​income countries by contrast, particularly those with large numbers of development partners, the role of the WHO is much less clear-​cut. It is in these circumstances that we have seen a rapid proliferation of new initiatives, alliances, funding channels, and public–​private partnerships in addition to a wide range of bilateral development agencies and NGOs. Many new initiatives address similar issues and compete for space and resources. Lines of accountability are often uncoordinated and confused, without being subject to any overarching authority. Coordination requires action both at global or headquarters level and in the field. While clearly within the remit of the ‘directing and coordinating authority in global health’, it is evident that much of what is happening is beyond the control of the WHO. It is useful to briefly explore why this is the case and how the role of international organizations is changing. At a conceptual level, much discussion has focused on the notion of global health architecture with the implicit assumption that there should be a structured governance arrangement with a coordinating organization at its apex. As we have seen, in specific areas at a global level, such as the management of Public Health Emergencies   See, e.g., Ngaire Woods, “Rethinking Aid Coordination,” GEG Working Papers 201/​66, Global Economic Governance Programme, Department of Politics and International Affairs, University College Oxford (2011). 48   See IASC Principals Transformative Agenda, http://​www.humanitarianinfo.org/​iasc/​pageloader. aspx?page=content-​template-​default&bd=87. 47

 

coordination and coherence   469 of International of Concern (under the International Health Regulations), such a structure is indeed relevant and the WHO acts as both anchor and coordinator. Similarly, the WHO has been influential in coordinating a global response to non-​ communicable diseases. However, in the more diffuse field of health as an aspect of development, in countries with multiple development partners, a common criticism is that the WHO has ‘lost’ this coordinating role, given the growing financial weight of other international organizations. An alternative view would hold that the idea of a hierarchical, coordinated structure to manage health and development, if it was ever realistic, is no longer possible or even desirable in today’s world. Indeed, in an area in which new ideas and innovative approaches are needed, a degree of competition may actually be helpful.49 Politically and economically, too, the world has changed. The centre of gravity for discussions of aid effectiveness and coordination has shifted from the donor-​ dominated Development Assistance Committee of the OECD that convened the forums that developed the Paris Declaration on Aid Effectiveness and the Accra Agenda for Action50 to the more inclusive Global Partnership for Development Effectiveness.51 The Busan Declaration52 that gave birth to this partnership explicitly acknowledges the role of emerging economies as both recipients and donors of development assistance and highlights the changing role of international organizations. Several recent initiatives seek to improve coordination and coherence through better governance at a global level. Among the UN agencies with field operations this takes the form of Delivering as One, an initiative begun in 2005 as part of UN reform under Secretary-​General Kofi Annan that has promoted joint planning, implementation, and reporting among the agency members of the UN country team. Recent critiques, however, point to the fact that success is constrained by the exclusive UN-​centric focus of this process and that in a rapidly changing world international agencies need to spend more time thinking about their relevance as much as coherence and that coherence alone cannot be seen as an end in itself.53 Other initiatives such as the International Health Partnership54 similarly seek to coordinate development partners working in low-​income countries, using national   Jean-​Michel Severino and Olivier Ray argue that with rapid economic growth in one group of countries and the collapse of the state in others, traditional forms of coordination around national defined development plans and priorities as envisaged by Paris and Accra are relevant to a decreasing number of stable developing countries: The End of ODA (II): The Birth of Hypercollective Action, CGD Working Paper 218 (Washington, DC: CGD, 2010), http://​international.cgdev.org/​sites/​default/​files/​ 1424253_​file_​The_​End_​of_​ODA_​II_​FINAL.pdf. 50   http://​www.oecd.org/​development/​effectiveness/​34428351.pdf. 51   D. Fidler, “Architecture amidst Anarchy: Global Health’s Quest for Governance,” Global Health Governance 1/​1 (2007): 1–​17. 52   http://​www.oecd.org/​dac/​effectiveness/​49650173.pdf 53   Jenks and Jones, United Nations Development at a Crossroads. 54   IHP+ is a group of partner countries committed to improving the health of citizens in developing countries: http://​www.internationalhealthpartnership.net/​en/​. 49

 

470   health plans and strategies as the focus for coordination. It is important to stress, however, that being signatories to the partnership comes with no binding obligation and the focus is more on voluntary coordination rather than a formal governance arrangement.

Conclusion It would be easy, but mistaken, to read the main message of this chapter as one that focuses purely on problems of coordination among the international organizations and legal regimes that deal with global health. Coherence and coordination among different legal instruments, normative bodies, channels, and systems for financing and technical assistance are, indeed, extremely challenging. But our first concluding message is that the political importance of health as an international and global issue has changed radically. International health organizations started with a mandate to control the spread of infectious diseases between countries as a by-​product of trade. By contrast, their work today is central to economic development, poverty reduction, human rights, sustainable development, and the effective management of globalization. The complexity we describe in this chapter is thus primarily a consequence of the political prominence of the issues concerned, and the recognition that health, as we state in the introduction, is an integral and essential dimension of human life and livelihood. Second, an earlier edition of this volume might well have started and finished with a description of the WHO. So our next message is that any modern understating of the role and functions of international organizations in the field of health must now take into account the actions and interactions of a much wider range of institutional actors. This is not to diminish the importance of the WHO, but it does require that we consider how the WHO’s constitutional mandate ‘to act as the directing and coordinating authority on international health work’ should be understood sixty-​five years after it was first drafted. Until recently the WHO has tended to play down its coordinating mandate, focusing more on its technical and health advocacy functions. It is therefore significant that ‘greater coherence in global health, with the WHO playing a leading role in enabling the many different actors to play an active and effective role in contributing to the health of all peoples’ now appears as one of the three overarching objectives of the current reform process. The third message concerns the effectiveness of international organizations. The growing number of institutions involved in global health would suggest the need for a much clearer division of labour allowing each to play to its respective strengths. Several international organizations, including the WHO, face a difficult conundrum

 

conclusion   471 in this regard. With rapid changes in the geography of poverty and sustained economic growth in many parts of the world, there still remains an unmet need for legislative instruments, norms, standards, and other global public goods. These are the activities in which the WHO and other IOs are arguably most effective. But it is the part of their agenda that is hardest to finance. In contrast, there are many other players—​internationally and locally—​that are more adept at providing finance, implementing projects, and providing hands-​on technical support in developing countries than normative international organizations. The problem, however, is that while such international organizations continue to depend on OECD development agencies for the bulk of their funding, the incentives drive them to focus on those activities which they are arguably least well suited to perform. The final point is about managing complexity. Even if the WHO starts to play a more effective role in coordinating the many institutions that influence global health—​particularly in extending its engagement with non-​state actors in civil society and the private sector—​much more remains to be done. Our analysis points to an uncontrolled proliferation in the number of international normative bodies with a consequent increase of overlapping or competing norms. Similarly, despite current initiatives to increase the coherence in finance and technical assistance for health, incentives that favour the creation of new organizations, financing channels, and monitoring systems over the reform of those that already exist risk making the situation worse. Ensuring that strength rather than anarchy results from this diversity will require continuing work on a robust normative framework for health and the continuing engagement of the key international organizations—​most particularly the WHO—​with the convening power to bring this about.

 

Chapter 22

LABOR Brian Langille

This chapter examines “labor” as a subject matter which international organizations have attempted to regulate over the last century by using legal and other techniques to construct modes and structures of governance.1 This is a large, complex project. As a result, this chapter proceeds at a high level of generality. A central theme is that the terrain of labor is especially difficult for international organizations to negotiate for five basic reasons. After setting out these five reasons, we will consider how they both structure and complicate the competing narratives of the labor issue, in the context of the roles and actions of prominent international organizations as well as significant events and debates. Fundamentally, on the view taken here, the long-​held narrative about international labor standards as a necessary cost to be paid in order either to constrain markets in the name of fairness, or to avoid radical social outcomes, is today inadequate. Rather, a new, alternative account is needed: that labor law can be and is best seen as holding positive value for both the creation of real human freedom, just societies, and economic progress. This value is expressed, for example, in the current, albeit unsatisfactory, patchwork of corporate social responsibility codes and mechanisms which enforce labor standards but rely on firms’ reputational concerns. But viewed through the lens of our five dimensions of the labor issue, this chapter examines how difficult it is to articulate an alternative narrative.

1   On the complexity of the ideas of regulation and governance in this context see Peer Zumbansen, “Law and Legal Pluralism:  Hybridity in Transnational Governance,” Osgoode Hall Research Paper 42/​2013.

 

five dimensions of “labor”    473 Nonetheless, it proposes that a “market” in labor rights, which is only possible on the alternative narrative, is a real possibility.

Difficult Terrain: Five Dimensions of “Labor” as a Subject Matter for International Organizations Contestability Most fundamentally, we must face the contested nature of “labor.” There exists an ongoing debate within most nation-​states over its regulation, often focused on whether and how to regulate the “labor market.”2 These questions touch a sensitive nerve in national political discourses: the appropriate role and limits of markets, in this case as a means of regulating and structuring efficient and fair outcomes for workers, firms, and economies. There is scarcely a more basic, contested issue than the relationship between state and market. Over the last century the pendulum of theory and popular opinion on this question has swung back and forth. Although in recent years we have witnessed the rise of “market values,”3 the intellectual and political struggle has not abated. Political theorists and economists will not soon declare a ceasefire regarding the question of how best to understand and “regulate” the deployment of human labor and the role of the “free market” in so doing. Pure instrumental market theorists and libertarians will continue to debate with those who conceive of human values and freedom in very different terms. We can hardly expect these fundamental debates to end when “labor,” as an issue of regulation and governance, extends beyond national borders. As a result, “labor” has a problem which many other subject matters of international governance and regulation do not: the basic contestability of the idea of nonmarket legal regulation and governance. Other subject matters explored in this volume benefit from much wider and general agreement about the landscape of a better world and seek to realize it through law or regulation. Issues such as terrorism, 2   Although this has to be broadly understood to go beyond the formal labor market inhabited by those we can identify as “employees” and “employers.” And beyond the labor market lies the informal economy which is enormous in many developing countries. See the discussions in Guy Davidov and Brian Langille (eds.), The Boundaries and Frontiers of Labour Law (Oxford: Hart Publishing, 2006). 3   Or even as the distinguished labor lawyer Alain Supiot puts it, the “total market”: Alain Supiot, The Spirit of Philadelphia: Social Justice vs. The Total Market (New York: Verso Books, 2012).

 

474   labor health, or human rights enjoy consensus about the nature of international public “goods” and “bads,” and the need to regulate the market in each to achieve agreed outcomes. In the case of labor, there is no such agreement about the need for regulation or governance; “leaving it to the market” remains an ingrained position. We do not leave terrorism to the market in terror, nor do we cede control over trade expansion and health outcomes to the market in each. Labor faces a serious debate on that very question. Some believe that “labor is not a commodity.”4 Others do not. Thus, the usual and complex international debates about technique, means, and the global distribution of interests (among developed and developing nations, for example) are complicated by the deep division between capital and labor about the role of the market.

A Moving Target Over the last century the “world of work” has undergone, and continues to undergo, dramatic structural changes driven by many factors. Among these factors are shifts in prevailing ideologies, social changes such as rising female labor market participation, and new technologies. In advanced economies, the traditional labor market, exemplified by vertically integrated firms, long-​term employment contracts with a single firm over a working life, the “male breadwinner” model, and much more, has increasingly given way to production networks or chains, deconstruction of firms, the rise of “atypical” employment, and the end of the “male breadwinner” era. In short, “labor” as a subject matter of regulation has been a fast-​moving target. Structural changes in the nature of work have strained traditional legal techniques and even legal categories used to regulate work. These include basic and familiar ideas that are central to labor regulation; “employee” and “employer,” for instance, invite a conceptual overhaul.5 This generates real and obvious problems for international regulation, as well as less obvious but equally vexing issues. For example, it is very unclear whether all of the “right” parties are at the table at international organizations such as the ILO. As a result, it is unclear whether the ILO has the institutional competence to address the complete world of work.6

  This famous phrase is found in the 1946 Declaration of Philadelphia annexed to the Constitution of the International Labour Organization (ILO). For a discussion of the history of the phrase see P. O’Higgins, “‘Labor Is Not a Commodity’: an Irish Contribution to International Labor Law,” Industrial Law Journal 26 (1997): 225; Stein Evju, “Labor Is Not a Commodity: A Reappraisal,” Arbeidsnotater 6, University of Oslo, Working Papers in Labor Law (2012). See also, generally, Supiot, The Spirit of Philadelphia. 5   Davidov and Langille (eds.), The Boundaries and Frontiers of Labour Law. 6   Francis Maupain, The Future of the ILO in the Global Economy (Oxford: Hart Publishing, 2013), 10. 4

 

five dimensions of “labor”    475

Globalization It is a common view, held by experts and nonexperts alike, that changes in the structure of work relations are driven in part by globalization, internationalization, or the increasingly deep integration of world economies. New trade and investment regimes, mobility of capital, the financialization of the economy, revolutions in communications and transportation technologies, and new firm structures and strategies have propelled this growth in international production networks and chains. This in turn has led to an international redistribution and division of labor, large shifts in the location of production,7 and, accordingly, outsourcing of jobs and reconfiguration of remaining jobs and firms. Moreover, internationalization is commonly held to drive the shifts in the structure of employment we have noted with the effect of making it less secure, reducing worker bargaining power, shifting more risk from capital to labor, and lowering overall returns to labor. The internationalization of labor is seen to be as much the problem as its solution. This has generated skepticism about the project of international regulation and resistance to international economic integration in the first place,8 undermining international efforts to come to grips with the problems generated as a result.

Race to the Bottom Taken together, the above observations present a challenge for those interested in the possible role of international organizations in labor regulation. As noted, those who advocate for safeguarding workers’ rights by re-​regulating the labor market using laws designed to protect workers assert that “labor is not a commodity.”9 This is closely followed by the claim that labor regulation cannot be “left to the market.” Both claims are heavily contested. We are faced with a further problem at the international level. Almost all work occurs within a nation-​state. All nation-​states make their own political (ideally democratic) decisions about the limits of labor market as a mode of regulation, and the need for labor laws that protect workers. One way or another, they resolve the basic debate about the benefits and limitations of market ordering. Those who believe that “labor is not a commodity” have had some domestic success, particularly in the developed world. But mobile capital can now seek out jurisdictions where that debate has been resolved more to its liking. As nation-​states compete for investment, this ability to shift investment puts great pressure on all such domestic debates. 7   Most famously in the apparel industry, but also in large sectors of the manufacturing, and increasingly, service industries. 8   And also questioning of the fairness of inward labor mobility (to the extent it does exist). 9   1946 Declaration of Philadelphia annexed to the Constitution of the ILO.

 

476   labor States then face a collective action problem. This has created a prisoners’ dilemma, leading to a “race to the bottom” in labor law. Regulatory competition, a market within labor regulation itself, presents a new problem for defenders of labor market regulation and demands a new battle-​cry. “Labor is not a commodity” is now insufficient and must be combined with the novel claim that “labor law is not a commodity.”10 This claim is as controversial as its predecessor—​if there is indeed a “race to the bottom” in labor standards, is this problematic or advantageous? Defenders of the market see globalization’s virtue as precisely this potential to slip the moorings of national labor laws. The contestability debate persists, but with an added, game theoretic, dimension.

Acting by Default There is a fifth, very real, but latent problem in what has been said thus far. It is instinctive to focus on the obvious in the world of international organizations dealing with the regulation of “labor,” such as the ILO. The issue is whether regulation occurs by “leaving it to the market” or through other regulatory devices. There is never an absence of labor regulation or labor law. Doing nothing is doing something; it is taking a position in a deep and familiar political debate, selecting and deploying one regulatory device, the market, over alternative regulatory solutions. Thus, when an organization such as the World Trade Organization (WTO) declares that it is not involved in international labor standards, alarm bells should go off.11 We must focus our attention not only on the international organizations which are “doing something,” but those that seem uninvolved, but are by default. The “contestability,” “moving target,” “globalization,” “race to the bottom,” and “default” dimensions represent the basic contours of “labor” as a subject matter for international organizations. In the following sections, I attempt to map the issue of labor as a subject of regulation by international organizations in the context of these dimensions. Negotiating this terrain without such a map is, on the view taken here, not possible.

  Brian Langille, “Labour Law Is Not a Commodity,” The Industrial Law Journal (South Africa) 19 (1998): 1002–​16. See also Brian Langille, “Competing Conceptions of Regulatory Competition in Debates on Trade Liberalization and Labour Standards,” in International Regulatory Competition and Coordination: Perspectives on Economic Regulation in Europe and the United States, ed. W. W. Bratton et al. (Oxford: Oxford University Press, 1996), 479–​90. 11   R. Howse, B. Langille, and J. Burda, “The WTO and Labour Rights:  Man Bites Dog,” in Social Issues, Globalization, and International Institutions: Labour Rights and the EU, ILO, OECD and WTO, ed. A. Leary and D. Warner (Leiden: Martinus Nijhoff, 2006), 157–​231. 10

 

the ilo   477

The ILO A map of labor at the international level must include the ILO. This large UN agency was created in 1919,12 and is now headquartered in Geneva, with offices in more than forty countries. Almost every nation-​state is a member; it is the most important formal interstate organization dealing with labor.13 As described by Francis Maupain, the ILO’s founders placed a “bet” on persuasion,14 relying on soft law and tools to persuade members to take action (rather than hard enforcement tools such as the WTO’s binding dispute settlement process). The ILO establishes international labor standards at an annually convened international parliament and has created almost 200 international treaties called Conventions.15 If ratified by a member state, the Conventions become binding ILO law and, hopefully, enter into domestic law as well. A  “supervisory system” reports on member states’ application of standards, examines complaints, and provides support.16 With its network of offices as well as research, training, and support centers, the ILO operates directly and indirectly. It can offer technical assistance, effectively acting as a development agency in aiding member states to address labor issues broadly conceived. It is also critical to note one of the ILO’s most radical aspects, in the context of other formal interstate organizations and the basic dimensions of labor. The ILO’s famous tripartite constitutional and administrative structure shares voting power between member state governments and two other nongovernmental constituencies, workers, and employers, on a 2:1:1 basis. This grants nonstate actors, elected by the unions and employer associations in member states, real political control over the organization’s agenda. Little of substance occurs without a tripartite consensus. Thus, the ILO’s “constitutional DNA” strongly emphasizes the importance and role of what Europeans call social dialogue between “the social partners” in labor regulation. This approach is far from a market fundamentalist perspective on labor regulation. The ILO takes a constitutional position, via a procedural commitment, on the “contestability” dimension of labor. Throughout its history, the ILO has struggled to come to grips with all five dimensions of the heavily contested labor issue.   As part of the Paris peace process leading to the Treaty of Versailles. See, generally, Margaret MacMillan, Paris 1919: Six Months that Changed the World (New York: Random House, 2001). 13   The literature on the ILO is vast:  see J. van Daele, “The ILO in Past and Present Research,” International Review of Social History 53 (2008): 485–​511. 14   For a full discussion of the ILO and persuasion, see Maupain, The Future of the ILO in the Global Economy. 15   An excellent overview of ILO processes and law is to be found in Jean-​Michel Servais, International Labour Law, 3rd revised ed. (Alphen aan den Rijn: Kluwer Law International, 2011). 16   “ILO Supervisory System/​Mechanism”, online:  The International Labour Organization, http://​ www.ilo.org. 12

 

478   labor Given the “contestability” problem, the most obvious questions are how the ILO came into existence and succeeded in generating so much international labor law in the form of Conventions. A simple answer is that the “contestability” debate was resolved in favor of regulation in 1919. A more realistic view is that events at that time in Russia and elsewhere generated a political climate conducive to making a deal to “respond to the threat of radical worker mobilization.”17 The ILO was to diminish the “Communist threat” by demonstrating a form of capitalism in which workers shared the fruits of progress and were involved in determining that distribution. The ILO is thus an agency “created of the capitalist system,” rather than an agency “for the transformation of capitalism.”18 It was in fact put in place as a bulwark against radical transformation. This was perhaps possible because the ILO was at the time a much smaller club of mostly European, colonial states, and a few other developed nations, for whom capacity to act was not the primary issue. The real issue was one of political will and the ability to coordinate policy. On this understanding, the ILO adopted a role as a legal rule-​maker, or, to use the ILO term, “standard-​setter,” for coordinating national labor laws in the name of forestalling more revolutionary change.19 This viewpoint also explains the ILO’s second great constitutional moment in 1944. As World War II drew to a close, the ILO’s Declaration of Philadelphia amended its constitution and broadened its mandate.20 This broadening was clearly influenced by Keynesian thought, and stands in contrast to the neoliberal economic thinking and resulting structural adjustment policies which came to dominate international regulatory life later in the twentieth century. The ILO remained well within a familiar set of possible understandings or modes of capitalism—​of what came to be called “embedded liberalism”21—​as a counterweight to the Soviet model. This view of the ILO’s political role and rationale was further reinforced by the ILO’s role in supporting the Solidarity Movement in Poland in the 1980s.22 This account of the ILO’s existence, purpose, and lawmaking success has an obvious limit in the events of 1989. The fall of the Berlin Wall and the “triumph” of 17   S. Hughes and N. Haworth, The International Labour Organization (ILO): Coming in from the Cold (London: Routledge, 2011), 97. See also MacMillan, Paris 1919, 94–​5. 18   Hughes and Haworth, The International Labour Organization (ILO): Coming in from the Cold. 19   All of this is of course changed in the modern era with the great growth of post-​colonial membership, the required move from simply national standard-​setting to capacity-​building though technical assistance and other means, and “Globalization.” See, generally on this large point, the important views of Maupain, The Future of the ILO in the Global Economy. 20   See the discussion by Eddy Lee in “The Declaration of Philadelphia: Retrospect and Prospect,” International Labour Review 133 (1994): 470; Supiot, The Spirit of Philadelphia. 21   To use the term made popular by Ruggie. See J. G. Ruggie, “International Regimes, Transactions, and Change:  Embedded Liberalism in the Postwar Economic Order,” International Organization 36/​2 (1982): 379–​415. 22   This point is made in a much larger and polemical essay by former ILO insider, Guy Standing, “The ILO: An Agency for Globalization,” Development and Change 39 (2008): 355, 364.

 

the ilo   479 capitalism have cast a long shadow over the ILO, as the removal of the “Communist threat” opened the door for the “contestability” argument in ILO debates. Further, the removal of this long-​standing political rationale roughly coincided with the dominance of the “pro-​market” argument in national and international discourse. The adoption of the Washington Consensus and resulting structural adjustment policies by the Bretton Woods Institutions, the rise of the free-​trade agenda and the WTO, and other large shifts in economic policy placed the ILO agenda and thinking very much on the defensive. As a result, many experienced observers have wondered whether the ILO has a meaningful role, and whether there ever again will be a tripartite consensus now that the incentive to keep the basic “contestability” debate off the table has been removed. As Francis Maupain explains: Thus, much as the fall of the Berlin Wall seemed to have hailed the triumph of the ILO’s reformist social model, it also opened the floodgates to a truly global economy that represented a formidable challenge to the organization’s constitutional capacity to pursue its endeavors. It was perhaps insufficiently appreciated at the time that the collapse of the ILO’s rival model would deprive the organization of an ideological counterweight that had proven to be an essential element of its persuasive powers not only vis-​a-​vis employers, but with a number of governments as well. Moreover, given that the effective implementation of its standards depended on declining powers of persuasion, much of the credibility it enjoyed in the eyes of workers as an agency for effective regulation of the global economy also quickly drained away.23

Complete pessimism is unwarranted, but one cannot fail to recognize 1989 as a watershed moment in destabilizing the political compromise which underpinned the ILO. The contestability argument subsequently informed, if not propelled, every major debate in the organization. Incoherence in the ILO’s standard-​setting function since 1989 is commonly attributed to the contestability debate,24 and thus it presents a nearly complete “theory” of the ILO since 1919. The subtitle of a volume published by former senior ILO insider Hughes, and Haworth, reflects this attitude: The ILO: Coming in From the Cold.25 But uncertainty persists as to whether there is still a place for the ILO to come into after the cold (war). This situation reached a crisis point at the ILO’s 2012 annual conference, when the Employer group halted the ILO’s normal procedures for monitoring compliance with ratified Conventions.26 The precipitating event was an interpretation of ILO Conventions by  Maupain, The Future of the ILO in the Global Economy, 28–​9.   W. R. Simpson, “Standard Setting and Supervision: A System in Difficulty,” in Les Normes internationales du travail: un patromoine pour l’avenir (Geneva: Bureau International du Travaille, 2004), 47; B. Creighton, “The Future of Labour Law: Is There a Role for International Labour Standards?,” in The Future of Labour Law, ed. C. Barnard, S. Deakin, and G. Morris (Oxford: Hart Publishing, 2004), 253. 25   Hughes and Haworth, The International Labour Organization (ILO): Coming in from the Cold. 26   Francis Maupain, “The ILO Regular Supervisory System: A Model in Crisis,” The International Organizations Law Review (forthcoming), n.  44 and text; Brian Langille, “The Trilogy is a Foreign Country, They do Things Differently There,” Ottawa Law Review (forthcoming); C. La Hovary, 23

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480   labor its relevant bodies as providing for a right to strike. What is most notable, however, is that this had been a well-​established interpretation that had been accepted, and indeed shaped, by employers themselves.27 This is no longer the case. Whether or not “contestability” is deeply damaging in the long term depends on the interactive role played by the other identified dimensions of the labor issue. In particular, the “race to the bottom” dilemma posed for labor at the international level has been key to most major debates at the ILO since 1989. As discussed, the “race to the bottom” can be a proxy for the contestability debate. However, it has been more overtly entrenched in ILO thinking,28 plays a role in reasoned public discourse about the issue, better fits with the argument about a shift from pure standard-​setting to a development agenda, and is seemingly more amenable to an empirical, rather than purely ideological, approach and research agenda. Other contours of the labor problem complicate and continue the debate. Changes in the structure of the labor market in developed countries and the arrival of the informal sector in developing countries place a new spotlight on the ILO, revealing new consideration of its roles, methods, and policy options. This also highlighted significant issues such as whether the traditional tripartite representatives—​ governments, unions, and employer associations—​were the appropriate or only parties who should be in Geneva. Even more fundamentally the “moving target” problem included not only informality in the developing world but also the rise of nonstandard or atypical employment in the developed world. Finally, the rise of global firms challenged the representativeness of employers at the ILO as national employer associations increasingly failed to bring global players to the table. Globalization resistance movements such as student-​led anti-​sweatshop campaigns furthered this state of disarray. Social and consumer demand rose for systems certifying respect for labor standards in global supply chains and elsewhere, answered in part by the corporate social responsibility industry. A positive, incentive driven, market argument for ILO standards has thus emerged. As a result, firms have widely sought to capitalize on this market advantage with labor “codes” which “monitor” compliance. The potentially significant relationship between these new initiatives and the ILO remains unclear, including the ILO’s role and perspective. I return to this issue below. There is no doubt that the post-​1989 period has been difficult for the ILO as it seeks a new role and rationale in an increasingly hostile world. Some (including ILO “Showdown at the ILO? A Historical Perspective in the Employers’ Group’s 2012 Challenge to the Right to Strike,” Industrial Law Journal 42 (2013): 338. 27   Through participation in the ILO’s Tripartite “Committee on Freedom of Association,” which shares the view that there is a right to strike in ILO “law.” (For an explanation of my use of scare quotes around the word law, see Brian Langille, “Can We Rely on the ILO?,” Canadian Labour and Employment Law Journal 13 (2007): 363. On the interpretation itself see “The Trilogy is a Foreign Country, They do Things Differently There.” 28   It is expressed in the opening line of the ILO’s Constitutional Preamble.

 

the ilo   481 insiders) think that in its efforts, the ILO has “sold its soul” by giving up the fight for social justice, and capitulated to the pro-​market side of the contestability debate.29 Others (including ILO insiders) are more positive.30 Not all events post-​1989 can be analyzed here, but the ILO’s 1998 Declaration of Fundamental Principles and Rights at Work was a particularly important moment. The Declaration promotes basic ILO principles in the local context over the enforcement of often detailed, universal legal rules contained in ILO Conventions (and the complex jurisprudence developed under them). Argument surrounding the Declaration can be understood as disagreement over the need or availability of a new narrative for the ILO post-​1989. Claiming that a new rationale was unnecessary assumes that the traditional “social justice against the market” narrative (and resulting race to the bottom) is timeless. On this view, there is nothing worse than abandoning the ILO’s core historical mandate at a time when the world needed it most. The problem was that in the post-​1989 climate this argument was temporarily on a poor political pitch. The standard ILO narrative presents social justice as an economic price worth paying to avoid a more radical outcome. The alternative view claims that this narrative has always been inadequate, and shares the same worldview as the pro-​market side of the contestability debate. That is, both agree there is a price to pay for decent work; what separates them is whether it should be paid. They also agree that there will be international regulatory competition but disagree whether this is a “good thing.” This abstract and often “theological” contestability debate took an important empirical turn in the mid 1990s.31 The “race to the bottom” narrative, which both sides assumed must exist and upon which traditional ILO thinking relied to justify international regulation turned out to be very hard to locate in the real world. In fact, the empirical evidence shows, robustly, that respect for core labor standards has no negative impact on trade or investment. This data could only be explained by a narrative very different from the “cost” narrative of the relationship between decent labor policies and economic development. The alternative view contemplates a more complex relationship between economic freedoms, political rights, and social opportunities as a new account of development’s ends and means.32 The logic behind the alternative narrative is that it is in the self-​interest of states

29   Standing, “The ILO: An Agency for Globalization”; P. Alston, “‘Core Labour Standards’ and the Transformation of the International Labour Rights Regime,” European Journal of International Law 15 (2004): 457. 30   Brian Langille, “Core Labour Rights: The True Story,” European Journal of International Law 16 (2005): 1; Francis Maupain, “Revitalization Not Retreat: The Real Potential of the 1998 Declaration,” European Journal of International Law 16 (2005): 439. Hughes and Haworth, The International Labour Organization (ILO): Coming in from the Cold. 31   The turning point came in 1996—​and in the form of an OECD study, replicated in 2000. See International Trade and Core Labor Standards (Paris:  OECD, 2000) and Trade, Employment and Labour Standards (Paris: OECD, 1996). 32   See Amartya Sen, Development as Freedom (New York: Anchor Books, 2011).

 

482   labor to pursue smart and decent human capital policies for intrinsic and instrumental reasons. (It does not, however, depend upon the idea that it is in the self-​interest of individual firms.) Only such a view, and not the traditional “there is a trade off or cost view” could explain the absence of a race to the bottom and explain that it is rational for states to respect labor rights. If the traditional debate were accurate there must be a race to the bottom. But there is not. States are not acting rationally by racing to the bottom. To the contrary, they are acting irrationally. The point is not an empirical one that states do not do it, but that to the extent they do, are wrong to do so. This had radical implications, calling into question the very nature of ILO law and law “enforcement.” Under the traditional narrative, ILO law should be as “hard” as possible in order to compel states to take actions which were not in their economic self-​interest. The ILO needs “teeth”33—​or to borrow enforcement bite from elsewhere, such as the WTO, which had real sanctions. It also follows that ILO law must be applied equally and universally in order to prevent defections.34 But without the race to the bottom, there is no big trade-​off between the ILO agenda and development. The new narrative subverts traditional ILO law. If it is in the self-​interest of developing states to adopt sound and decent labor policies and laws fostering long-​term development, then a very different form of ILO regulation is required. It should help states understand their self-​interest and develop capacity, choosing promotion of desired sound labor policy through education, assistance, capacity-​building, and expertise over sanctions for departing from undesired rules. A basic idea of the 1998 Declaration was to offer an alternative to enforcement of detailed and universal legal rules found in ILO Conventions. The move toward local promotion of core, principles makes sense; so too does much of the ILO’s real history, where successfully changing the real world is better achieved through technical assistance, not enforcement of labor standards. The new narrative also better addresses the problem of informality, allowing the ILO to reformulate its basic categories away from the traditional employee/​employer/​unions/​employer associations, and expand its tripartite structure to include more representative nonstate actors. It offers a very different account of how we might understand, and accordingly react to, the five dimensions that are central to the labor issue. If this alternative narrative and its underlying empirical evidence are rejected, then the Declaration indeed “sells out” the ILO’s fundamental mission. The 2012 annual conference, the 1998 Declaration debate, and more35 should all be seen in the context of this ongoing and critical, albeit complex, debate over the best account of the basic

  A common expression.   Brian Langille, “Imagining Post Geneva Consensus Labour Law for Post Washington Consensus Development,” Comparative Labor Law and Policy Journal 31 (2010): 523. 35   Such as the “2008 Declaration”—​see Francis Maupain, “New Foundation or Façade? The ILO and the 2008 Declaration on Social Justice for a Fair Globalization,” European Journal of International Law 20 (2009): 823. 33

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the labor debate in other interstate organizations    483 dimensions of the labor issue. These disputes bottom out in different accounts of the five key labor dimensions, informing developments elsewhere and in turn fueling discussion at the ILO. I now turn to some of those developments elsewhere.

The Labor Debate in Other Interstate Organizations—​The World Trade Organization Labor has appeared as an explicit issue in a number of regional interstate arrangements; most prominently the European Union, to a lesser extent the North America Free Trade Agreement, as well as other, often bilateral, treaties.36 In the post-​1989 period, the labor issue has also been closely associated with the WTO. As the only global international organization dealing with the rules of trade between nations, the WTO’s negotiating forum, binding dispute settlement processes, and extensive agreements providing legal rules for international commerce are a compelling venue for action. In this context, the labor debate is routinely labeled “the social clause,” a shorthand way of describing hitherto unsuccessful efforts to link labor rights to the international trading system and relevant institutions by sanctioning failures to observe decent labor standards or by awarding trade preferences for their observance. The history of labor’s connection to the WTO is a long and unhappy one. The draft Charter of the International Trade Organization (ITO) of 1947 overtly tied unfair labor conditions to “difficulties” in international trade and committed members to their elimination.37 The ITO never came into being and the General Agreement on Tariffs and Trade, later the WTO, made a career of insisting it would not address labor rights issues in the context of a social clause or otherwise, despite occasional objections from powerful worker interests in the United States. The matter came to a head at the 1996 WTO Ministerial Meeting in Singapore which refused to discuss the labor issue and issued the now famous Ministerial Declaration on labor standards: We renew our commitment to the observance of internationally recognized core labor standards. The International Labor Organization (ILO) is the competent body to set and deal with these standards, and we affirm our support for its work in promoting them.

36   Bob Hepple provides a summary in Labour Laws and Global Trade (Oxford:  Hart Publishing, 2005). 37   See the discussion ibid., ch. 6.

 

484   labor We believe that economic growth and development fostered by increased trade and further trade liberalization contribute to the promotion of these standards. We reject the use of labor standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-​wage developing countries, must in no way be put into question.38

Since 1996, the WTO has officially maintained that the labor issue is within the purview of the ILO—​a declaration affirmed at the 2001 Doha Ministerial conference.39 The “default” dimension of the labor issue makes it difficult to take this position seriously at face value. In fact, the WTO plays a clear role in the international labor standards debate. As an interstate organization, the WTO has resisted pressure to adopt a “social clause” in its texts—​that is, to take a position on the labor issue as an organization. It nonetheless plays a role in policing the strategies and actions of all individual WTO member states under general WTO norms, including individual or regional responses to labor rights abuses abroad. A commonly cited example is the trade sanctions taken by member states in response to forced labor abuses in Burma/​Myanmar.40 This was a notable test for the official WTO position. For the first time in its history, the ILO invoked the remedial power under Article 33 of its Constitution. Invited to take action, some member states, the United States included, relied in part on ILO decisions in undertaking trade measures against Burma/​Myanmar. The case was never litigated for political reasons, but it indicates that even in the most prominent international labor rights cases, the WTO cannot easily “get itself out of the way.” Here, the ILO declared a violation amounting to a “crime against humanity”41 and invoked its remedial power for the first time. Through inaction, the WTO failed to demonstrate its declared support for labor rights, nor did it endorse the ILO as an appropriate forum. The WTO’s recent and ongoing involvement in the international labor rights issue represents the “default” contour of the labor issue. Not dealing with the issue is dealing with the issue. The labor issue is particularly fraught, but its relationship with the WTO highlights a larger problem: the organization must carve out a more restrained role for itself when it comes to domestic regulatory decisions motivated by legitimate nontrade rationales, regardless of whether they impact trade.42

  World Trade Organization, Singapore Ministerial Declaration, 13 December 1996, WT/​Min96/​Dec.   “Labour Standards: Consensus, Coherence and Controversy”, online: World Trade Organization, http://​www.wto.org. 40  See, Howse, Langille, and Burda, “The WTO and Labour Rights: Man Bites Dog,” and also R. Howse and J.M. Genser, “Are EU Trade Sanctions on Burma Compatible with WTO Law?,” Michigan Journal of International Law 29 (2008): 165. 41   For a full and often first-​hand account of the ILO’s involvement with Burma/​Myanmar see R. Horsey, Ending Forced Labour in Burma: Engaging a Pariah Regime (London: Routledge, 2011). 42  R. Howse and J. Langille, “Permitting Pluralism:  The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values,” Yale Journal of International Law 27 (2012): 367. 38

39

 

the labor debate in other interstate organizations    485 This observation builds on the more general point that it is often difficult for single-​ issue organizations or regulatory bodies to recognize and address important values other than those the organization is charged explicitly with protecting. Whether the organization is responsible for protecting free trade or privacy, acknowledging competing values is challenging for many reasons, not least of which is the background of specialized adjudicators. The same might be said of the ILO as a single-​issue agency, but this is a dog that has not barked. This is made clear by considering the irony of the WTO position, exposed by the Singapore declaration: We reject the use of labor standards for protectionist purposes, and agree that the comparative advantage of countries, particularly low-​wage developing countries, must in no way be put into question.43

This is not the view of an organization which does not have an opinion of the labor issue; indeed, its opinion is rather obvious. The WTO faces a clear predicament. It denies its role, declaring the ILO as the competent authority, yet issues a remarkable broadside in terms of its own policies. As Charnovitz pointed out, the WTO does not reject the use of tariffs for protectionist purposes, yet it singles out labor standards as the subject of a new and quite unique policy, despite having recently declared that it has no jurisdiction over the issue.44 The logical equivalent of the WTO’s statement would have been this theoretical addition to the ILO’s 1998 Declaration: Arguments in favor of trade liberalization and against protectionism should not be used for the purpose of avoiding respect for core labor rights. In addition, this Declaration and its follow up should in no way be called into question by references to or arguments based on “comparative advantage.”

By not pursuing this course, the ILO refrained from adopting the WTO’s posture.45 This problematic WTO/​ILO legal contest continues to be fought largely through analogy on matters of domestic policy (particularly in the environmental, human rights, and ethical spheres), rather than through direct WTO litigation of labor issues.46 By doing nothing toward adopting a social clause which would form an active institutional stance regarding labor standards, the WTO potentially obstructs member states and citizens even where there is overwhelming multilateral consensus and protectionism is clearly not the issue (recall Burma/​Myanmar). This default position is one of fundamental “contestability” and demonstrates the enduring and

  World Trade Organization, Singapore Ministerial Declaration, 13 December 1996.  S. Charnovitz, “Trade Employment and Labour Standards:  The OECD Study and Recent Developments in the Trade and Labor Debate,” Temple International and Comparative Law Journal 11 (1997): 131, 156–​7. 45  On what the ILO actually did—​see B. Langille, “The ILO and the New Economy:  Recent Developments,” International Journal of Comparative Labour Law and Industrial Relations 15 (1999): 229. 46   Howse and Langille, “Permitting Pluralism.” 43

44

 

486   labor singular challenge the labor issue faces when it comes before international organizations, implicitly or explicitly.

The Market in Labor Rights Analysis of the labor issue through the five dimensional lenses highlights a number of developments since the ILO’s establishment in 1919. That labor standards are a tax upon economic growth—​which some will pay in the name of decency, but others will not—​is a well-​known claim. The contestability, race to the bottom, and default contours emerge as central elements revolving around this familiar narrative. The structure of the labor market is a moving target and this, combined with globalization, has cast doubt upon that same narrative. We need to revisit the wisdom of the standard account. As we have already noted, the empirical truth is that the standard account’s race to the bottom has not materialized in the way it predicted.47 This has created space for a new narrative and accordingly, a new way of pursuing just, durable, and successful societies and economies. This is, on the view taken here, the invitation which was taken up, at least to some extent, by the ILO in the post-​ 1989 period. On this view, being saddled with the constitutional limitation of, in the great run of cases, “persuasion” as a “remedy”48 is not a constitutional or legal problem but, instead, a deep insight into the true nature of the labor issue. As we have noted, all of this is contested; but we will fail to see what is really at stake in all of our recent disputes if we cannot place them in this light. There is further evidence confirming the value of our conception of the labor issue. The most striking and controversial development has been the inversion of the long-​standing model which defines it. Its basic components have been identified, and can be seen as building blocks whose assembly is dictated by the standard narrative. But when so assembled, they illustrate the controversies that have colored this issue from the beginning. The basic issue of contestability can be captured as follows: should the labor market be regulated through legally enforceable, but costly, labor standards in the name of protecting workers? “Globalization” had made this a difficult task for any state, because we must confront the resulting logic of the race to the bottom. Decent people may wish that labor law was not a commodity—​but it is, and there is nothing we can do about it. This disadvantages labor law. The failure of the ILO or the WTO to provide the hard legal remedy to this issue is the central problem to be addressed.   See n. 31 and text.   

47

 Maupain, The Future of the ILO in the Global Economy.

48

 

the market in labor rights    487 The alternative narrative reassembles the building blocks, turning the idea that labor law is not a commodity on its head. The relationship between decent human capital policy and economic progress is positive—​there is indeed a market in labor law, it is, if you like, a commodity, but it can have a positive value for which there is market demand. It is in a state’s interest to pursue such policies. All successful economies effectively do so to varying degrees. This narrative advocates for a market in labor regulation that leads to a race to the top. This is supported by evidence. The real issue is how best to deploy and maximize the positive effects of this insight. The rapid development of private, voluntary labor regulation schemes is undoubtedly the single most significant, albeit controversial, development in the international field of labor. This involves the creation and compliance-​monitoring of private, often corporate, though sometimes multi-​stakeholder, sector-​based, or even global “voluntary” labor standards codes. These developments form part of the vast corporate social responsibility industry. Corporate or other private, multi-​stakeholder schemes are complemented by a range of public or quasi-​ public initiatives, ranging from codes of conduct promulgated by the ILO and the Organisation for Economic Co-​operation and Development (OECD) to the Fair Labour Association, Social Accountability International, the UN’s Global Compact, and many more. A  recent example, unthinkable a decade ago, is the adoption of a Social Responsibility Standard (ISO 26000)  by the International Standards Organization.49 These important developments cannot be reviewed in detail here; instead we consider what they mean for our understanding of the labor issue at the international level. The logic behind the alternative labor narrative is that it is in the self-​ interest of states to pursue smart and decent human capital policies for intrinsic and instrumental reasons. It does not, however, necessarily depend upon the idea that it is in the self-​interest of individual firms. What, then, explains why firms are eager to be known as decent employers? Corporate codes recognize that a firm’s reputational capital is at stake, forming the motivation for enforcing standards. This is particularly true in the apparel industry, where labor represents a large portion of production costs. In this industry, globalization has caused an international redistribution of labor and made a firm’s brand its chief asset. High-​profile failures to provide decent working conditions are costly, so their prevention is a worthwhile investment. But these private initiatives raise difficult questions. There are no doubt real challenges in carrying out what is in effect a private system of labor regulation—​often the only labor law system in developing countries.50 The Nike   The literature here is vast. See for one view Maupain, The Future of the ILO in the Global Economy, Part IV. 50   Around the time of writing the most high-​profile example of this phenomenon was the tragedy in Bangladesh in which over 1,000 garment workers died in the collapse of a factory building. See “Fast and Flawed Inspection of Factories Abroad,” New York Times, September 2, 2013, A1. 49

 

488   labor example stands out.51 In spite of significant investment and innovation, it is difficult to demonstrate that the firm’s system had much, if any, effect on the ground. Other shortcomings are well known: lack of expertise and credibility of monitors; absence of coverage in private codes of certain core labor rights (e.g., freedom of association); worries that the system’s application is limited to the traded sector, and perhaps only to fields such as the apparel industry where reputations are visible and “exploitable.” This has prompted interesting efforts to combine the virtues of market ordering (real incentives) with public legal institutions such as the ILO. So, in the ILO’s Better Work Program the credibility and expertise of the ILO is wedded to private incentives driven by reputational capital in what Kolben has described as “integrated linkages.”52 Still, the question remains—​is this idea of a market for labor rights scalable and transferable to a broader initiative? Given the widespread explosion in the interest of firms in “the market for social justice”53 Francis Maupain asked:  “Is there anything, in principle or practice that would prevent states from seeking (and receiving) a similar reward from that market for their commitment to fundamental workers’ rights?”54 He contends that there is not. While certain design issues persist, Maupain believes that attending to these is the best way to address the labor issue in today’s world. The aforementioned limitations of a private labeling scheme encourage public alternatives. Briefly, the proliferation of inconsistent and heterogeneous codes has generated a great deal of confusion in the information marketplace. (It should be noted that this is a problem for both consumers and firms, who must comply with multiple codes while contracting with multiple firms.55) This is aggravated by a credibility gap—​it is hard to prove monitoring systems are an effective means of assuring compliance with standards regarding decent working conditions. These shortcomings seem endemic and are unlikely to be resolved absent a public and credible coordinating mechanism; the defects in this particular market call for a solution. Additionally, the inherent deficit in the existing market system is that it is limited to the conditions in specific firms within the traded sector; it does not extend to “the rest of the workers in the country of production.” These problems can be solved by taking a further step toward constructing an information marketplace about labor standards. This began with individual firm codes and monitoring with a view to communicating basic standard compliance to 51  Richard Locke, Fei Qin, and Alberto Brause, “Does Monitoring Improve Labour Standards? Lessons from NIKE,” Industrial and Labor Relations Review 61 (2007): 3. 52   K. Kolben, “Trade, Monitoring, and the ILO:  Working to Improve Conditions in Cambodia’s Garment Factories,” Yale Human Rights and Development Law Journal 7 (2004): 79; and “Integrative Linkage:  Combining Public and Private Regulatory Approaches in the Design of Trade and Labor Regimes,” Harvard International Law Journal 48 (2007): 203; and S. Polaski, “Combining Global and Local Forces: The Case of Labor Rights in Cambodia,” World Development 34/​5 (2006). 53 54  Maupain, The Future of the ILO in the Global Economy, 212.   Ibid., 214. 55   See Locke, Qin, and Brause, “Does Monitoring Improve Labour Standards? Lessons from NIKE.”

 

conclusion   489 consumers. The system’s faults (efficacy, expertise, credibility, etc.) were addressed in part by initiatives such as the Better Work program, which sought to link the virtues of the private system (the real incentives of the market in information about labor standards) with those of the public or ILO system (expertise, credibility). There are enormous residual problems, however, including that its application is restricted to individual firms, and may perhaps be limited to industries similar to apparel. The current project must correct these defects. An ILO convention or an open-​ended multilateral agreement among states could create space for a multilateral system of mutual recognition of “social” labels assigned by exporting states (“countries of origin”) that are verifiable by others. Failing verification, recognition should be withdrawn. This would at minimum structure a real incentive for national compliance with core labor standards. This is a remarkable reform proposal that seeks to negotiate the inherent difficulties of the labor issue in a principled way. It finesses the contestability point by adopting a market strategy based on a new view of what is in a state’s self-​interest. It introduces a method for realizing a theorized race to the top. It uses “globalization” as a vehicle for reform. It adapts to the “moving target” of a changing labor market. For example, there is no inherent limitation to the formal sector. Finally, it is compatible with the problem presented by the WTO and the “default” problem. There is no market access issue involved.

Conclusion The central claims of this chapter are, first, that the debate confronting international organizations about labor as an issue takes place on difficult terrain which has five key dimensions. Any map which fails to come to grips with these will be of little use. Second, this perspective demonstrates that there are several narratives available, each providing a way of plotting our five dimensions and understanding their relationship. Third, modern controversies and developments concerning labor as an issue for international organizations can best be seen as a contest of basic narratives—​how to make sense of the critical dimensions of the labor issue in today’s world. Finally, this contest of narratives is amenable to empirical testing as well as normative theorizing. The real question is, now, which account of the dimensions of the labor issue, can make sense, and use, of available evidence. We take the view that the standard view of the “labor” issue fails this test.

 

Chapter 23

RELIGION Helge Årsheim

Religion is not a general feature in the operations of international organizations (IOs). Unlike issues like trade, environmental concerns, and standardization, religion does not fit the modes and practices of most international organizations, which are commonly derived from the problems and requirements of modern, secular, and functionally differentiated nation-​states and their non-​state adversaries and subsidiaries.1 Despite this ill fit, religion has become increasingly important to IOs over the course of the last decade: religious nongovernmental organizations (NGOs), intergovernmental organizations (IGOs), and international non-​governmental organizations (INGOs) increasingly try to influence policy-​making at the United Nations (UN); global financial institutions have realized the importance of sensitivity towards local value systems in order to further development efforts; and the protection of religious freedom and religiously motivated persecution has risen to the top of the agenda of international human rights organizations. This chapter has two parts. In the first part, I give an overview of how and why religion(s) and IOs relate and interact. I discuss the definitional ambiguity of what constitutes ‘religious’ IOs and examine some proposals to clarify the issue, before mapping some important and influential religious IOs. In the second part, I present the interrelationship of secular IOs with religion, emphasizing the influential role the handling of religion at the different levels of the UN plays in international approaches to religion in general. I then present some other important secular IOs   Chapters in this volume illustrate the point: all the other thematic issues dealt with in the preceding chapters deal with concerns of the modern nation-​state. 1

 

the ‘resurgence’ of religion    491 and their interaction with religion, before providing a brief summary of the argument and a conclusion.

The ‘Resurgence’ of Religion Among increasing numbers of scholars in the field of international relations (IR), religion is currently construed as an ‘overlooked element’,2 a sin of omission that has had grave consequences that are currently sought to be redressed in a rising number of publications.3 According to this line of inquiry, IR has ignored the ‘global resurgence’4 of religion in the public sphere and politics, and is left with few theoretical tools to handle the new and altered situation. Three key insights are presented in this literature. First, while religion may have lost its salience in the West, the ‘developing world’ is still strongly, even increasingly, religious, an issue that influences international policy-​making, and should be better investigated and understood. This line of inquiry is currently being explored mainly from a policy perspective, where scholars urge bureaucracies dealing with the states in question

2  Jonathan Fox, “Religion as an Overlooked Element of International Relations,” International Studies Review 3/​3 (2001): 53–​73. 3   See Timothy Samuel Shah, Alfred Stepan, and Monica Duffy Toft (eds.), Rethinking Religion and World Affairs (Oxford:  Oxford University Press, 2012); Jack Snyder (ed.), Religion and International Relations Theory (New York: Columbia University Press, 2011); Petr Kratochvíl, “The Religious Turn in IR: A Brief Assessment,” Review of International Affairs 17/​2 (2009): 5–​12; Elizabeth Shakman Hurd, The Politics of Secularism in International Relations (Princeton: Princeton University Press, 2008); Scott M. Thomas, The Global Resurgence of Religion and the Transformation of International Relations: The Struggle for the Soul of the Twenty-​First Century (London: Palgrave Macmillan, 2005); Fabio Petito and Pavlos Hatzopoulos, Religion in International Relations:  The Return from Exile (New  York:  Palgrave Macmillan, 2003). 4   Other terms to denote the renewed relevance of religion in the public sphere include desecularization (Peter L. Berger (ed.), The Desecularization of the World: Resurgent Religion and World Politics (Grand Rapids: Wm. B. Eerdmans Publishing Company, 1999)), post-​secularity (Jürgen Habermas, “Religion in the Public Sphere,” European Journal of Philosophy 14/​1 (2006): 1–​25), and the ambivalence of the sacred (R. Scott Appleby, The Ambivalence of the Sacred: Religion, Violence, and Reconciliation (Lanham: Rowman & Littlefield Publishers, Inc., 1997)). While resurgence seems to be particularly strong in IR presently, it has been applied in the social sciences at least since 1987, when Franklin A. Presler observed that religious resurgence was evident, as “The prominence of religion in public life has reopened a whole set of issues which many people had regarded as closed, such as the role of religion in party politics, public education, family law, taxation, foreign relations and civic morality”: Religion under Bureaucracy, Cambridge: Cambridge University Press, 1987, 1. Presler furthermore backs up this analysis by pointing to a 1980 publication, illustrating the long-​standing use of the resurgence term.

 

492   religion to gain sufficient knowledge of the importance of religion(s) to the political milieu in these localities.5 Second, dismay with the unfulfilled promises of the modern, rationalist state project and its lack of binding moral authority is seen to have led to an upswing in the societal role of religion across the world. Religion has entered the marketplace as a deregulated commodity that can be enjoyed by individuals according to their own needs and desires, free from the grips of old, ecclesiastical authorities.6 Third, following the end of the Cold War, the demise of the Soviet Union and the surge in civil wars and ethnic strife during the 1990s, religion, religiosity, and religious organizations have been reinstated as viable political themes and alternatives, offering rationales for antagonism and reconciliation in unequal measures. As the world becomes ever more interconnected, the combination of markedly different rates of religiosity, deregulation of religion and a new role for religiosity at the international level is rapidly becoming a major theme in social scientific research and policy-​ planning alike.7 What unites these approaches to the come-​back, or ‘resurgence’, of religion in the international sphere, is a thoroughly Western conception of religion as personally selected world-​views that contain sets of moral and other presuppositions with some binding force, both at the individual and the community level. This conception seems to be generally accepted in law and political science, where the resurgence approach reifies religion as an external driving force, influencing the erstwhile detached, sovereign individual actor presupposed by political liberalism to make irrational and uninformed choices beyond the explanatory power of political theory.8

5   This thesis is particularly strong in Thomas’s The Global Resurgence of Religion, but is also in evidence in Eric O. Hanson, Religion and Politics in the International System Today (Cambridge: Cambridge University Press, 2006). 6   This approach is favoured in the rising tide of literature on religious fundamentalism, highlighting the modern nature of fundamentalist movements. See Martin Riesebrodt, “Fundamentalism and the Resurgence of Religion,” Numen 47/​3 (2000): 266–​87; Steve Bruce, Fundamentalism (Cambridge: Polity Press, 2008); Torkel Brekke, Fundamentalism: Prophecy and Protest in an Age of Globalization (Oxford: Oxford University Press, 2012). 7   This thesis has underpinned the literature on religion and politics more broadly since the middle of the 1990s, and turns on the mobilizing potential of religion evinced by upheavals like the Islamic revolution in Iran in 1979, the rise of the “New Christian Right” in US politics, the increasingly religious overtones of the conflict in Northern Ireland, and the role of religion as a policy challenge in post-​Soviet states. See Mark Juergensmeyer, Terror in the Mind of God: The Global Rise of Religious Violence, 3rd ed. (Berkeley, CA: University of California Press, 2003). 8   The idea that religion is “irrational” and hence resides outside the confines of social science has a long history, and can be traced back to secularization theories in which religion was considered an irrelevant, pre-​modern remnant that would slowly wither away as society went through modernization and functional differentiation. See Philip S. Gorski and Ateş Altınordu, “After Secularization?,” Annual Review of Sociology 34/​1 (August 2008): 55–​85.

 

the ‘resurgence’ of religion    493 Contrary to the concept of resurgence, several scholars in theology, religious studies, and anthropology have suggested alternative ways to address the nexus between religious and political spheres. Approaches range from the call by Mandair and Dressler for an anthropology of the ways in which states engage in ‘religion-​making’,9 to the proposal by Bloch and Asad to examine different conceptions of the differentiation of religion as a corollary of the rise of the modern nation-​state.10 Christoffersen, arguing from a theological, church-​historical perspective, claims that religious and legal spheres are ‘intertwined’ to the extent that their separation is illusory,11 a stance echoing the claims put forward concerning the impossibility of premising law on a distinction between religion and the secular in the recent edited volume After Secular Law.12 A recurring theme across these approaches is that the clear demarcation, stability, and essence presupposed by claims that religion can be ‘resurgent’ or engaged in a kind of ‘come-​back’ contrasts with the messy reality of lived and experienced religion and religiosity. Rather than falsifying the resurgence literature, these approaches suggest that the proper field of inquiry may not be how ‘political’ and ‘religious’ actors interact and influence one another, but rather which mechanisms influence the distinctions drawn between religion and politics. This perspectival shift roughly corresponds to challenges raised against realism and liberalism by the constructivist turn in IR literature,13 emphasizing ideas and discourses as well as material and power concerns. From these broader perspectives, relations between religion and international organizations turn on their mutual constitution; the nature and extent of their interaction depend on the strategies of differentiation employed within international organizations as well as within religious traditions. In the following, I  will explore this mutual constitution further, starting with the ways in which religious traditions have inspired the formation of international organizations, moving on to the ways in which nominally ‘secular’ international organizations have handled religion. For matters of space and coherence, I will limit the perspective to current IOs.

9   Arvind Mandair and Markus Dressler (eds.), Secularism and Religion-​Making (Oxford: Oxford University Press, 2011). 10  Maurice Bloch, “Why Religion Is Nothing Special but Is Central,” Philosophical Transactions of the Royal Society 363/​10 (2008):  2055–​61; Talal Asad, “Religion, Nation-​State, Secularism,” in Nation and Religion: Perspectives on Europe and Asia, ed. Peter van der Veer and Hartmut Lehmann (Princeton: Princeton University Press, 1999), 178–​96. 11  Lisbet Christoffersen, “Intertwinement:  A  New Concept for Understanding Religion–​ Law Relations,” Nordic Journal of Religion and Society 19/​2 (2006): 107–​26. 12   Winnifred Fallers Sullivan, Robert A. Yelle, and Mateo Taussig-​Rubbo (eds.), After Secular Law (Stanford: Stanford University Press, 2011). 13   Peter J. Katzenstein, Robert O. Keohane, and Stephen D. Krasner, “International Organization and the Study of World Politics,” International Organization 52/​4 (1998): 645–​85.

 

494   religion

Religious International Organizations Organizing the world, either in the abstract, non-​material, or the concrete physical sense, is an established trope in religious traditions.14 Religious traditions have cultivated global ambitions for millennia, ranging from the treaty of Tordesillas, in which Pope Alexander VI separated the world into one Spanish and one Portuguese sphere of influence,15 to the myriad conceptions of the potential scope of the dar-​al-​Islam16 and the Chinese mythical conception of the tianxia (lit. ‘all under heaven’).17 Since the rise of the modern nation-​state, however, these ambitions have, for the most part, been considerably modified. Today, most religious organizations, international and domestic alike, have more moderate aims, usually mixing the propagation and spread of their core values with work seen to be based on these values. The classification of organizations as ‘religious’ is anything but unproblematic.18 The UN has been engaged with a Committee of Religious NGOs since 1972, uniting organizations which ‘define their work as religious, spiritual or ethical in nature’,19 but during a survey of committee members, Berger found the majority of representatives to be vague or obfuscating when pressed on the issue of the ‘religiosity’ of their activities.20 A  review of the literature on religion in organization studies 14   Concerning the organization of physical space, Andrew Phillips, in War, Religion and Empire: The Transformation of International Orders (Cambridge: Cambridge University Press, 2011): 301, contests the notion that domestic politics are oriented towards the pursuit of the good life while international relations are inherently anarchic. Rather, shifting conceptions of “the good,” religious and otherwise, have been driving factors behind shifts in international orders, illustrated by fundamental changes ushered in by ideological shifts in the Sino-​sphere and Christianity. Along similar lines, Daniel Philpott, in “The Religious Roots of Modern International Relations,” World Politics 52/​2 (2000): 206–​45, has pointed to the overlooked importance of the Protestant Reformation for the creation of the Western state system. 15   See Philip E. Steinberg, “Lines of Division, Lines of Connection: Stewardship in the World Ocean,” Geographical Review 89/​2 (1999): 254–​64. 16   See Mashood A. Baderin, International Law and Islamic Law (Aldershot: Ashgate, 2008). 17  See Frederick Tse-​ Shyang Chen, “The Confucian View of World Order,” in Religion and International Law, ed. Carolyn Evans and Mark W. Janis (Leiden: Martinus Nijhoff Publishers, 2004), 27–​50. 18   While the term “faith-​based” has long been used synonymously with religious in the organizational sphere, focusing on faith does nothing in the way of resolving the issue, due to the comparably problematic problem posed by identifying the borders between faith and non-​faith. See Ronald J. Sider and Heidi R. Unruh, “Typology of Religious Characteristics of Social Service and Educational Organizations and Programs,” Nonprofit and Voluntary Sector Quarterly 33/​1 (2004): 109–​34. 19   http://​rngos.wordpress.com/​about/​. 20   Julia Berger, “Religious Nongovernmental Organizations: An Exploratory Analysis,” International Journal of Voluntary and Nonprofit Organizations 14/​1 (2003): 15–​39. This finding is also supported by the Religion Counts report Religion and Public Policy at the UN (2002), which found that the religious identity of NGOs working at the UN was ambiguous, and sometimes intentionally so, in order to gain access to decision-​making processes where religious affiliation would be problematic.

 

religious international organizations   495 concludes that across a broad swathe of different approaches, findings call into question the neat distinction between secular and religious organizational forms.21 Examining the difference between secular and religious humanitarian NGOs, Barnett has pointed to the distinction as unhelpful, if not downright distorting.22 Several scholars have tried to define what makes organizations ‘religious’. Berger, inspired by Martens23 and joined by Boehle,24 proposes the following definition for religious NGOs: formal organizations whose identity and mission are self-​consciously derived from the teachings of one or more religious or spiritual traditions and which operates on a nonprofit, independent, voluntary basis to promote and realize collectively articulated ideas about the public good at the national or international level. [emphasis added]25

In other definitions, Benedetti26 and Juul Petersen27 are more pragmatic, settling with the identification of religious NGOs as organizations that ‘self-​identify as religious’, essentially evading the issue. Although these authors all recognize the limits of their definitional strategies, none propose alternative strategies. In more general terms, the definitional ambiguity of religious organizations have been highlighted by Rudy and Greil28 and Mintzberg and Westley,29 labelling Alcoholics Anonymous as a ‘quasi-​religious organization’ and comparing organizational renewal in Protestant and Catholic communities with computer companies HP and IBM, respectively. In the study of religion, distinctions between religious organizations have largely been drawn between churches and states,30 largely derived from their different  Paul Tracey, “Religion and Organization:  A  Critical Review of Current Trends and Future Directions,” The Academy of Management Annals 6/​1 (2012): 87–​134. 22  Michael Barnett, “Where Is the Religion? Humanitarianism, Faith, and World Affairs,” in Rethinking Religion and World Affairs, ed. Timothy Samuel Shah, Alfred Stepan, and Monica Duffy Tof (Oxford: Oxford University Press, 2012), 165–​82. 23   Kerstin Martens, “Mission Impossible? Defining Nongovernmental Organizations,” Voluntas 13/​3 (2002): 271–​85. 24   Josef Boehle, “Religious NGOs at the UN and the Millennium Development Goals: An Introduc­ tion,” Global Change, Peace & Security 22/​3 (2010): 275–​96. 25   Berger, “Religious Nongovernmental Organizations,” 16 26   Carlo Benedetti, “Islamic Aid and Christian Inspired Relief NGOs: Between Tactical Collaboration and Strategic Diffidence?,” Journal of International Development 18 (2006): 849–​59. 27   Marie Juul Petersen, “International Religious NGOs at the United Nations: A Study of a Group of Religious Organizations,” The Journal of Humanitarian Assistance (https://​sites.tufts.edu/​jha/​archives/​ 847) (2010): [31.01.2013]. 28  David R. Rudy and Arthur L. Greil, “Is Alcoholics Anonymous a Religious Organization?: Meditations on Marginality,” Sociological Analysis 50/​1 (1989): 41–​51. 29   Henry Mintzberg and Frances Westley, “Cycles of Organizational Change,” Strategic Management Journal 13 (1992): 39–​59. 30   For an overview and critique of the viability of the division between church and state as an analytical concept, see Winnifred Fallers Sullivan, “Beyond ‘Church and State’: Advances in the Study of Religion and Law,” in New Approaches to the Study of Religion, II: Textual, Comparative, Sociological and Cognitive Approaches, ed. P. Antes, A. Geertz, and R. Warne (Berlin: Walter de Gruyter, 2004), 321–​44. 21

 

496   religion origins and jurisdictions, and the doctrinal and interpretational differences between churches and sects, with the latter commonly seen as detractors from the former.31 With increasing religious pluralism and the expansion of new religious groups, however, both of these borderlines have been increasingly problematized, resulting in new distinctions and divisions. While church–​state relations to some extent have been reconceptualized as ‘Law and Religion’,32 distinctions between church and sect have been replaced by more refined typologies, like the ‘cultural alignment’ model proposed by Bromley and Melton.33 Paramount in both these ‘turns’ is a stronger attention to contextual constraints: as the social roles of state bureaucracies, churches, and smaller religious organizations shift, so do their institutional borders and relative power relations. Commenting on the intersection of law and religion in the organizational context, the anthropologist John Comaroff has identified an increasing ‘sacralization’ of the former and a simultaneous ‘juridification’ of the latter.34 Pointing to the ways in which legal regulation has become embedded in organizations to the extent that street gangs, chiefdoms, and NGOs alike sport their own constitutions, Comaroff observes an increasing willingness among faith communities to use the legal system developed by the modern, liberal nation-​state to further their own, illiberal agendas.35 Less alarmist, but supporting the general claim concerning the increasing self-​ assertions of religious organizations identified by Comaroff, sociologist Peter Beyer has pointed to the paramount role of organizations in giving religions an identifiable form in modern functionally differentiated societies, with heightened attention to organizational efficiency seen as a competitive advantage among ‘new’ religions and concretized variations within established ones.36 According to these authors, then, the   Church/​sect typologies can be traced back to Max Weber, but was considerably expanded and modified by his student, Ernst Troeltsch. For an overview of theorizing on the topic, see Lorne Dawson, “Creating ‘Cult’ Typologies:  Some Strategic Considerations,” Journal of Contemporary Religion 12/​3 (1997): 363–​83. 32   Law and religion is a burgeoning area of study, with participants from a wide range of academic disciplines. Whereas law and religion has commonly been studied in relation to distinct legal and religious fields, the rise in the juridification of religion is increasingly prompting scholars and legal practitioners alike to consider law and religion as a distinct legal field with its own vocabulary and rationale (see Russell Sandberg, Law and Religion (Cambridge: Cambridge University Press, 2011)). Despite the development of law and religion studies, however, the issue of church and state is still a strong and vibrant subfield, sporting several journals, study centres, conferences, and frequent publications. 33   David G. Bromley and J. Gordon Melton, “Reconceptualizing Types of Religious Organization: Dominant, Sectarian, Alternative, and Emergent Tradition Groups,” Nova Religio 15/​3 (2012): 4–​28. 34   John L. Comaroff, “Reflections on the Rise of Legal Theology: Law and Religion in the Twenty-​ First Century,” Social Analysis 53/​1 (2009): 193–​216. 35   Ibid., 208. A related tendency has been observed by Côté and Richardson concerning concurrent organizational renewal and strategic litigation pursued by Jehovah’s Witnesses (Pauline Côté and James T. Richardson, “Disciplined Litigation, Vigilant Litigation, and Deformation: Dramatic Organization Change in Jehovah’s Witnesses,” Journal for the Scientific Study of Religion 40/​1 (2001): 11–​25). 36   Peter Beyer, Religions in Global Society (London: Routledge, 2006), 109. 31

 

religious international organizations   497 nature and role of religious organizations cannot be considered in isolation from their legal surroundings. A related, though different perspective on the nature of religious organizations points to the conceptual transfer of imagery, tropes, and practices from the religious sphere to the corporate sphere: rituals, morals, and social values drawn from major religious traditions have been identified in erstwhile clearly non-​religious organizations, further complicating the potential distinctiveness of religious organizations.37 The ‘religiosity’ of organizations, then, is largely determined by two interrelated factors: the role within the organization of ideas and practices that have traditionally been considered as religious or spiritual, and the salience and recognizability of these ideas and practices as religious in their relevant surroundings. The prototypical example of a religious international organization according to these criteria is the Holy See, since 1929 an independent nation-​state comprising approximately 110 acres in the middle of Rome with approximately 800 inhabitants, governing a congregation of somewhere in the vicinity of 1.1 billion Catholics worldwide.38 The unique legal status of the Holy See as church and state is widely discussed by international lawyers and political scientists.39 Whether it is a church, a state, or both, it is indisputably an international, transnational, and global organization with a considerable impact on a broad range of issues. Capable of entering into treaties with sovereign states, the Holy See is uniquely positioned to spread its message and pursue its aims at the international political level. Simultaneously, however, the organization has a strong influence at the non-​state NGO forums of UN conferences, leading one commentator to call for its demotion to NGO status at such conferences due to its failure to meet basic legal criteria of statehood.40 Unlike religious NGOs accredited by the UN, the Holy See has no problems identifying as a religious entity, drawing on explicit religious terminology and imagery in pursuing its political goals, ‘so as to guide humanity towards a progressive religious orientation that privileges peace between diversities of race and creed’.41   Tracey, “Religion and Organization”; Thomas H. Jeavons, “Identifying Characteristics of ‘Religious’ Organizations: An Exploratory Proposal,” in Sacred Companies: Organizational Aspects of Religion and Religious Aspects of Organization, ed. N. J. Demerath III et al. (New York: Oxford University Press, 1998), 79–​95. 38   The Global Religious Landscape (2012), a report from the US Pew Forum on Religion and Public Life puts the total number of Christians in the world at 2.2 billion, with Catholics making up about 50 per cent of this figure. 39   Alan Chong and Jodok Troy, “A Universal Sacred Mission and the Universal Secular Organization: The Holy See and the United Nations,” Politics, Religion & Ideology 12/​3 (2011): 335–​54; Melanie Black, “The Unusual Sovereign State: The Foreign Sovereign Immunities Act and Litigation against the Holy See for its Role in the Global Priest Sexual Abuse Scandal,” Wisconsin International Law Journal 27/​2 (2009): 299–​334; Robert John Araujo, “The International Personality and Sovereignty of the Holy See,” Catholic University Law Review 50 (2000): 292–​336; Yasmin Abdullah, “The Holy See at United Nations Conferences: State or Church?,” Columbia Law Review 96 (1996): 1835–​75. 40   Abdullah, “The Holy See at United Nations Conferences,” 1875. 41   Chong and Troy, “A Universal Sacred Mission,” 32 37

 

498   religion In addition to the Holy See, several traditions recognized as ‘world religions’ have become the subject of some form of international organization that are recognized as ‘religious’ both internally and externally. These organizations are formed either as formal superstructures for religious communities, or as movements or institutions working from a more or less particular ethos within a religious tradition.42 Of the former, the Anglican Communion, the Lutheran World Federation, and the World Evangelical Alliance are among the largest and most influential Christian traditions. Islamic organizations include the World Muslim Congress and the Muslim World League, while the World Fellowship of Buddhists was established in Sri Lanka in 1950. Notably, among the ‘world religions’, Judaism, Orthodox Christianity, and Hinduism lack international structures, due largely to their strong association with particular nation-​states.43 While global institutions of ‘world religions’ typically take the form of umbrella organizations for national or regional churches or synods, movements or organizations working from the ethos of any of these traditions can take myriad forms, ranging from issue-​specific NGOs to large-​scale aid organizations with thousands of employees. Arguably, religious movements constituted some of the first modern NGOs, protesting against slavery and demanding alcohol prohibition in the nineteenth century.44 At present, notwithstanding their considerable definitional ambiguity, religious NGOs are among the core actors in aid and relief work, with Caritas, Islamic Relief, Habitat for Humanity, and the Salvation Army among the more familiar agencies. In addition to formal superstructures and more loosely inspired international organizations, religious traditions have in recent years also become related to the formation of IGOs. The Organisation of Islamic Cooperation (OIC) is at present the only such organization that clearly self-​identifies as an organization for ‘Islamic’ countries, claiming to speak collectively for Muslim nations in international forums like the UN.45 However, the debate in the European Union (EU) over the role of God in its constitution46 and the related discussion on the possible membership of Turkey as the Union’s only non-​Christian member47 clearly indicate the sensitivity and relevance of religious unity to the EU. 42  See Katherine Marshall, Global Institutions of Religion:  Ancient Movers, Modern Shakers (Oxford: Routledge, 2013), 44–​6, for an alternative, more finely grained subdivision of the global institutions of religion. 43   Several smaller religious traditions also have international organizations, notably Zoroastrianism, the Bah’ais, and Sikhism. See Marshall, Global Institutions of Religion for a comprehensive list of smaller faiths. 44  Steve Charnovitz, “Two Centuries of Participation: NGOs and International Governance,” Michigan Journal of International Law 18/​2 (1997): 183–​286. 45   http://​www.oic-​oci.org/​page_​detail.asp?p_​id=52. 46   See Lucian N. Leustean (ed.), Representing Religion in the European Union: Does God Matter? (London: Routledge, 2012). 47   See Rachid Azrout, Joost van Spanje, and Claes de Vreese, “A Threat Called Turkey: Perceived Religious Threat and Support for EU Entry of Croatia, Switzerland and Turkey,” Acta Politica 48, no. 1 (2013): 2–​21.

 

international organizations and religion    499 The role of religious international organizations in international relations evades simple classifications and positions. Considering the definitional ambiguity of which international organizations can be characterized as ‘religious’, and the broad operational scope of organizations that self-​identify with a religious tradition, no single common denominator can be isolated.

International Organizations and Religion The concept of religion in ‘non-​religious’ international organizations is largely derived from the understanding of religion in the International Bill of Rights:48 a sincerely held belief that is not limited to theistic or traditional beliefs, and that can be ‘manifested’ within certain clearly demarcated limits.49 This conception has been effectively distributed, debated, and enforced across international borders and societal subsectors, regardless of the real or perceived fit with local conditions and taxonomies.50 As the principal custodian of international norms on religion, the UN has been decisive to the ways in which other IOs approach the issue: when confronted with religion, IOs typically conform to one of the approaches to religion that have gradually evolved at the UN. Although all parts of the UN initially draw on international law in their approach to religion, three distinct discourses on religion have developed at the world organization, corresponding to the three levels of the UN identified by Weiss et al.: the political state level, the Secretariat and specialized programmes level, and the NGO, or civil society level.51   The International Bill of Rights is shorthand for the Universal Declaration of Human Rights (UDHR, 1948), and the Covenants on Civil and Political Rights (ICCPR, 1966) and Economic, Social and Cultural Rights (ICESCR, 1966). 49   The freedom of religion is enshrined in this fashion in the UDHR and ICCPR article 18. Its authoritative interpretation has been laid out by the Human Rights Committee in its General Comment no. 22 (1993, CCPR/​C/​21/​Rev.1/​Add.4). Similar articles can be found in the European Convention on Human Rights (ECHR, 1950) article 9 and the American Convention on Human Rights (ACHR, 1969) article 12. A related, but more limited conception of religious freedom is enshrined in the African Charter on Human and Peoples’ Rights (ACHPR, 1981) article 8. 50  Beyer, Religions in Global Society. 51   Thomas G. Weiss, Tatyana Carayannis, and Richard Jolly, “The ‘Third’ United Nations,” Global Governance 15 (2009):  123–​42. This division was proposed by the UN Intellectual History Project (1999–​2010), in order to expand the classical division proposed by Claude (Inis L. Claude, Swords into Plowshares: The Problems and Progress of International Organization (New York: Random House, 1956)) between the “intergovernmental arena” and the Secretariat, to recognize the considerable impact of NGOs on UN affairs. 48

 

500   religion

Religion at the UN At the political level of the UN, religion is frequently called upon to legitimize and frame policy choices. A  major issue during the drafting of the Universal Declaration of Human Rights (UDHR) and subsequent human rights treaties,52 religion is an identity marker and source of cohesion and division among member states. At the General Assembly, religion is invoked to inspire harmony and peace,53 but also used to explain strife and conflict.54 Religion unites voting blocs in support and opposition to resolutions that may conflict with authoritative concepts in particular traditions.55 Political applications of religion at the international level largely draw upon abstract, unspecified notions, and the use of explicit and tradition-​ specific language known from domestic and regional politics is rarely seen. In its place is offered vague, general notions of harmony, peace, understanding, and dialogue. In this sense, religion has attained a status at the international political level comparable to that of the ‘civil religion’ identified by Robert Bellah in American presidential addresses: although tropes and issues are drawn from concrete, identifiable traditions, their deployment is commonly elusive and abstract.56 At the second, bureaucratic level of the UN, religion is concrete, specific, and practical. Following the instrumentalist approach identified by Presler in temple policies in Tamil Nadu,57 the Secretariat and special programmes of the world organization have developed a pragmatic perspective on religion and religiosity. Approached as a secondary challenge or support to a range of different issues, religion is only considered whenever it relates to the primary purpose or goal of a given bureaucratic arm of the organization. Having no dedicated bureaucracy or programme, religion is persistently treated ad hoc, as a residual and superfluous

  See Paul M. Taylor, Freedom of Religion:  UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005); Roger Normand and Sarah Zaidi, Human Rights at the UN: The Political History of Universal Justice (Bloomington: Indiana University Press, 2008). 53   Since 2003, resolutions concerning “interreligious harmony” and related issues have been adopted annually by the General Assembly, also on the initiative of Pakistan, with moderate opposition from the EU bloc. 54   The issue of the “defamation of religion” is an illustrative case in point. Since 1999, the OIC, spearheaded by Pakistan, have fielded resolutions that condemn, and demand the creation of international rules that can eradicate, the defamation of religions, which the resolutions claim are consistent with rising threats to religious freedom. The resolutions have been proposed at both the General Assembly and the Human Rights Council, have been vigorously opposed by the EU bloc, and have created a certain amount of controversy in human rights circles. See Lorentz Langer, “The Rise (and Fall?) of Defamation of Religions,” Yale Journal of International Law 35/​1 (2010): 257–​63. 55   At a meeting in the Human Rights Council in 2012 on gay rights, all members from the OIC, the African group, and the Arab group staged a walk-​out to demonstrate their opposition to the issue. 56   Robert N. Bellah, “Civil Religion in America,” Daedalus 96/​1 (1967): 17. 57   Franklin A. Presler, “The Structure and Consequences of Temple Policy in Tamil Nadu 1967–​81,” Pacific Affairs 56/​2 (1983): 232–​46. 52

 

international organizations and religion    501 category. Excluded from political influence, religion becomes a surrounding feature rather than a primary purpose in and of itself. At the Secretariat, then, religion is approached almost exclusively as a regulatory object left to specialized human rights monitoring bodies. Faced with the twin political pressures from states and formal requirements of international law, the Secretariat is obliged to create viable compromises that satisfy both. In this process, religion cannot be abstract or general, it can only be an object with particular, concrete attributes that can be regulated. An illustrative case in point is the ongoing discussion between the politically composed Human Rights Council and the bureaucratic High Commissioner for Human Rights (UNHCR), the special rapporteurs, and their staff concerning repeated resolutions on the ‘defamation’ of religion: whereas states are free to argue their views on the issue as they wish, proposing a new international legal conception of religion along the way, the High Commissioner, special rapporteurs, and their staff are obliged to point out the obvious conflict between this concept and the established norms on religion in international law.58 At specialized programmes and organs dedicated to specific issues like the World Health Organization (WHO), the UN Educational, Scientific and Cultural Organization (UNESCO), the UN Development Programme (UNDP), the World Bank, and the World Food Programme, religion enters the field of vision whenever it interferes with their primary purposes. When religion is seen to influence the access to health care, education, elections, development, or food distribution, these entities are forced to handle the issue. Although these organizations have chosen fairly different approaches to the concept of religion, they are united in their pragmatic approach to the issue, outlining different, ad hoc roles for religion relative to the problems or benefits arising from its presence. For instance, the WHO, faced with the perceived detrimental role attributed to religion in issues concerning female genital mutilation, has flatly stated that this practice has no rationale in any religious tradition, drawing a sharp line around a very contested concept.59 Engaging the issue of mental health in emergencies, on the other hand, the WHO stresses the significance of creating ‘religious places’ in refugee camps in order to re-​ establish normal cultural and religious events like grieving rituals.60 In yet another context, the WHO encourages and praises the decisive influence of faith-​based organizations in fighting the HIV/​AIDS pandemic.61 Religion, to the WHO, comes in many shapes and forms, and its identification cannot be separated from the primary objectives of the organization in the field of health care. 58   See in particular the joint statement by the special rapporteurs on religious freedom, racism, and the freedom of expression entitled “Freedom of Expression and Incitement to Racial or Religious Hatred,” from the Office of the HCHR side event during the Durban Review Conference in Geneva in 2009, warning against the potential abuse of the concept of defamation. 59 60   WHO Fact sheet No. 241 (February 2012).   WHO/​MSD/​MER/​03.01. 61   Press Release 8 February 2007, following the launch of the report “Appreciating Assets: Mapping, Understanding, Translating and Engaging Religious Health Assets in Zambia and Lesotho.”

 

502   religion The UNDP, for its part, entered into a collaboration with the Alliance of Religions and Conservation in 2009, launching a conference on faith-​based environmental activism called ‘Many Heavens, One Earth’,62 while the World Bank, via its ‘Development Dialogue on Values and Ethics’ funds a ‘World Faiths Development Dialogue’, dedicated to the exploration of relationships between major ‘world religions’ and development in low-​income countries.63 UNESCO runs its own interreligious dialogue programme, stressing the reciprocal interactions and influences between, on the one hand, religions, spiritual and humanistic traditions, and on the other, the need to promote understanding between them in order to challenge ignorance and prejudices and foster mutual respect.64

The potential impact of religious organizations, doctrines, and actors on the performance of the Secretariat and specialized organs of the UN has given rise to a specific form of pragmatism whenever these actors are confronted with religion. Unlike political actors, officials handling religion can draw on surrounding bureaucratic mechanisms like charters and policy documents to justify an instrumental approach to the proper conception and approach to religion. At the third level of the UN, religion can influence anything and everything. According to Weiss et  al., this level is composed of ‘certain nongovernmental organizations (NGOs), external experts, scholars, consultants, and committed citizens who work closely with the UN’s intergovernmental machinery and secretariats’.65 Free of the political constraints of states or the bureaucratic constraints of the Secretariat and specialized programs, actors at this level can employ religious rationales for political positions, whether in the abstract or the general sense, and opine on the role of religion in practically every conceivable issue. Because religion is not a stand-​alone concept within the UN, but rather a hybrid concept that attaches itself to a host of issues, no singular discourse on religion has emerged at this heterogeneous third level. Rather, in ways similar to the approach taken by the international civil service at the second level, religion is called upon to do instrumental work relative to the interests of the actors involved. However, unlike the other levels of the UN, the third level is free to derive their positions with regard to the UN from idiosyncratic religious precepts, drawing explicitly on religious imagery and rationales to front their cases. Actors at this level are unencumbered by the concept of religion enshrined in international human rights law, and have been seen to overturn or reinterpret the contents of this concept, as seen in the acerbic language employed at the Durban conferences on racism.

  http://​www.arcworld.org/​news.asp?pageID=351.   http://​www.worldbank.org/​developmentdialogue. 64   UNESCO website, “Interreligious Dialogue,” http://​www.unesco.org/​new/​en/​culture/​themes/​ dialogue/​intercultural-​dialogue/​interreligious-​dialogue/​. 65   Weiss, Carayannis, and Jolly, “The ‘Third’ United Nations,” 123. 62 63

 

international organizations and religion    503 Unlike the other levels of the UN, membership of the third level is relative to the issue at hand, crystallizing around UN or other international conferences or initiatives launched to amend particular problems. Among illustrative cases are the International Campaign to Ban Landmines, an NGO forum that inaugurated the process of negotiating and adopting a more comprehensive treaty on landmines than the considerably bleaker protection offered by the UN Convention on Certain Conventional Weapons (1980). A different but related example of how independent actors congregate from outside the UN in order to alter policies within the organization is the formation and membership of the International Panel on Climate Change (1988), where external experts contribute in their personal capacities with analysis on the shape, content, and ramifications of climate change. Independent experts serve in their personal capacity in a large number of UN and UN affiliated entities, ranging from World Bank working groups to the UN Human Rights Treaty bodies.66 However, the largest and most prominent impact from the third level of the UN is in the myriad international conferences convened every year in order to solve complex international issues. The impact of independent actors on such conferences long predates the formation of the UN, and the conferences can to some extent be considered the prime venues for the emergence of actors in civil society at the international level.67 Among outside actors that seek to influence processes inside the UN, religion is a ‘floating signifier’ that can be attached to any and all issues, not conforming to one authoritative outline or another. Hence, religion can simultaneously be cast as one of the main culprits responsible for violations against women’s rights, as was seen at the Fourth World Conference on Women in Beijing in 1995, where activists fronting conservative religious views clashed with women’s rights activists on the issue of women’s reproductive rights,68 or as one, if not the resource to draw upon to stir civil society to action in complex issues like combating climate change, enhancing development, and reconciling warring factions. The idea that the UN has three distinct operational levels was developed by a team working with the United Nations Intellectual History Project, a collaborative effort among the UN, scholars, and NGOs to map the influence of ideas to the work of the UN (1999–​2010). Tellingly, the project, itself located at the third, independent level it helped identify, did not address the issue of religion, despite its broad range of publications.69 However, in a summary of findings published in 2005, the project 66  All treaty bodies are staffed by individual experts that serve in their individual capacities. Although they are selected by governments that have ratified the treaties in question, they cannot be instructed by governments in their work. 67   Charnovitz, “Two Centuries of Participation.” 68   Doris E. Buss, “Robes, Relics and Rights: The Vatican and the Beijing Conference on Women,” Social & Legal Studies 7/​3 (1998): 339–​63. 69   The project published seventeen monographs, and held numerous seminars, workshops, and conferences. While religion was briefly touched upon in the volume on human rights, no assessments were made concerning the role of religion more generally at the UN. See http://​www.unhistory.org/​.

 

504   religion team identifies ‘work on culture’ as one of the major gaps in the UN approach to its mission to secure peace and development, and concludes that ‘The growing divide between the Islamic world and the West—​with attention to the political, cultural, religious, and development dimensions’ is an area where new thinking and research is ‘urgently required’ and where the UN should be encouraged to do far more work.70

International Organizations Outside the UN External to the UN system, IOs tend to conform to the same differences in their handling of religion as the various levels of the UN, shifting their perspective depending on their political, bureaucratic, or activist orientations and drawing on discursive tropes established within the world organization. A vital difference between the UN and other IOs is the lack of corresponding parliamentary structures to the General Assembly (GA) in other organizations. Other IOs have more limited membership and more specific, narrow purposes, such as trade, development, or security. Hence, the ‘civil religion’ approach that has evolved at the GA is commonly mixed with the more pragmatic, instrumental approaches to religion favoured at the second and third levels of the UN. Outside the UN, approaches to religion tend to differ primarily between IGOs and INGOs. IGOs like the Association of Southeast Asian Nations (ASEAN), the Organization of American States (OAS), the African Union (AU), and the European Union (EU) tend to draw upon a combination of political and bureaucratic conceptions of religion, cautiously pairing political navigation of sensitive issues with more pragmatic, hands-​on management of religion. Common to all major IGOs, however, is the recognition that religion, and in particular religious difference, is a powerful social force that can cause disruption and conflict, and should be handled with care in order to foster reconciliation and development in unequal measures. While some of these organizations, like the EU, have comprehensive policies that deal with religion in several, interrelated fields,71 others, like the ASEAN and the AU, have had to tackle issues 70   Roger Jolly, Louis Emmerij, and Thomas G. Weiss, The Power of UN Ideas: Lessons from the First 60 Years. A Summary of the Books and Findings from the United Nations Intellectual History Project (New York: UN, 2005), 62. 71   In particular, the EU European External Action Service has recently created policy guidelines on the promotion of the freedom of religion or belief by EU member states worldwide, following initiatives from the European Parliament and a host of religious NGOs. See Pasquale Annichino, “Freedom of Religion or Belief in the Foreign Policy of the European Union: Much ado about Nothing?,” presented at Harvard Law School within the framework of the conference “Religion and Civil Society: The Changing Faces of ‘Religion’ and ‘Secularity’,” 7–​8 June 2012, http://​papers.ssrn.com/​sol3/​papers. cfm?abstract_​id=2207568. In its long-​standing efforts to promote “intercultural dialogue” as a solution to problems derived from cultural differences, the EU has promoted exchanges between religious and cultural boundaries based on mutual empathy for respective cultural belongings. See Robert Aman,

 

international organizations and religion    505 related to religion on a case-​by-​case basis, particularly as tensions between religious groups in member states have led to human rights violations72 and have been blamed for slowing down development efforts. At the INGO level, the handling of religion tends to be strongly instrumental, relative to the primary purpose of the organization in question. Unlike IGOs, INGOs are rarely organized around broad, regional commonalities, but tend to focus on one or a few societal subsectors where their work can have a particular impact. INGOs like the International Committee of the Red Cross (ICRC), Amnesty International (AI) and Save the Children Fund (SCF), have all selected their own niche activities, to which religion has very different relevance. Whereas the symbols employed by the ICRC tend to evoke religious connotations,73 the organization has been adamant that religious origins or allegiances play no role in its activities, whether as an inspiration or as a strategic concern.74 As a large-​scale activist organization working for a broad array of different human rights issues, AI has to consider both the boundaries and protection of the human right to the freedom of religion or belief, the right to non-​discrimination on the grounds of religion or belief, and the impact religious groups can have on the protection of other rights. The organization was originally founded to protect prisoners of conscience, under the name of Amnesty (International Movement for Freedom of Opinion and Religion),75 but now works from explicitly non-​religious principles.76 The nature of human rights work has brought AI into contact with religious actors and institutions, both as rights-​holders, protagonists, and antagonists

“The EU and the Recycling of Colonialism: Formation of Europeans through Intercultural Dialogue,” Educational Philosophy and Theory 44/​9 (2012): 1010–​23. 72   The ASEAN has been the subject of much criticism for its lack of involvement in ethnic and religious strife across the region, in particular in Myanmar, where the Buddhist majority has clashed frequently with the Muslim minority. The cause of this hesitant stance is the central position of the “ASEAN way” at the organization, a strict interpretation of the principle of non-​interference. See Peter Malaczuk, “Association of Southeast Asian Nations (ASEAN),” in Max Planck Encyclopedia of Public International Law, 2011, http://​www.mpepil.com/​subscriber_​article?script=yes&id=/​epil/​entries/​law​9780199231690-​e898&recno=106&letter=A. 73   The cross and the crescent adopted by the organization in the nineteenth century were derived from inversions of the Swiss and Ottoman flags, respectively, but have always created some degree of confusion and ambivalence about the motivations of the organization. The scale of the uncertainty recently reached the point where the organizations saw the need for an additional symbol, the red crystal, which was adopted in 2005, in order to contribute to the universality of the movement. See Ann M. Torres, “International Committee of the Red Cross: Emblems of Humanity,” Marketing Intelligence & Planning 28/​2 (2010): 223–​35. 74   See Barbara Ann Rieffer-​Flanagan, “Is Neutral Humanitarianism Dead? Red Cross Neutrality: Walking the Tightrope of Neutral Humanitarianism,” Human Rights Quarterly 31/​4 (2009): 888–​915. 75   See Jonathan Power, Like Water on Stone: The Story of Amnesty International (Boston: Northeastern University Press, 2001). 76   See Ann Marie Clark, Diplomacy of Conscience:  Amnesty International and Changing Human Rights Norms (Princeton: Princeton University Press, 2001), 12.

 

506   religion in their work to protect human rights. Rather than creating a specific policy on the issue of religion, however, AI has preferred handling religion on a case-​by-​case basis, with the conception of religion enshrined in international law as its guiding principle. The SCF, combining relief efforts and human rights activism specifically directed towards children, frequently encounters religious doctrines and institutions as obstacles to their work, resulting in scepticism towards the role of religion qua children’s rights: ‘deep-​rooted cultural and religious beliefs’ is considered the main challenge to safeguard universal access to education for girls,77 while religious beliefs among Muslims are considered the main causes for the limited appeal of family planning services in Nepal.78 Simultaneously, however, religious leaders are considered vital conduits for the dissemination of vaccine campaigns, and critical to the success of relief efforts.79

Conclusion The interrelationship between religion and international organizations is marked by the commonality of ad hoc approaches, due largely to the widely held view that religions are residual and superfluous phenomena in late modern international society. While recent claims that religion is returning to the public sphere from its ‘exile’ and therefore ‘resurgent’ rests on a simplified and distorted view of religion, the increase in religious IOs and the broad engagement of secular IOs with religion does suggest that international actors may be ignoring the impact and complexity of religion at their peril. Taking religion seriously requires an approach that does not consider religions to be anachronistic remnants of a distant past, as dangerous forces to be contained, nor simply as irritants to the real tasks of IOs that can be managed on a case-​by-​case basis. Being attentive to religion, however, should not translate into the singling out of religious institutions, doctrines, or actors for special treatment. Rather, religion should be approached as one important and historically significant mode of

 See http://​www.savethechildren.org/​site/​c.8rKLIXMGIpI4E/​b.6196511/​. Such values need not be externally enforced, but may also be results of the socialization of girls into “deep-​rooted beliefs.” See The State of the World’s Mothers 2005: The Power and Promise of Girls’ Education (Save the Children Fund, 2005), 9. 78  See Creating Healthy Families in Nepal: Sustaining Family Planning Practices Among Marginalized Groups (Save the Children Fund, 2009). 79  See Saving Newborn’s Lives: Tools for Newborn Health (Save the Children Fund, 2006). 77

 

conclusion   507 human interaction among many others that have spawned long-​lasting communities, institutions, doctrines, and traditions of interpretation that provide vital and necessary input, correctives, and challenges to the work of IOs. Only by recognizing the ambiguity of ‘religion’ and the dangers of attaching specific attributes to religious institutions and actors can IOs hope to engage fruitfully with religion in the future.

 

Chapter 24

DEMOCRACY PROMOTION Ian Johnstone Michael Snyder

The extent to which international organizations (IOs) engage in democracy promotion says something important both about the organizations and about the normative climate in which they operate. According to a strictly Westphalian notion of sovereignty, how a government comes to power and how it rules is not a matter of international concern. The emergence of international human rights law puts a significant dent in that absolutist notion of sovereignty; the practice of democracy promotion puts an even deeper dent. Not surprisingly, several Western regional organizations have engaged in democracy promotion for many years. More surprising is the extent to which the United Nations (UN) has taken this on. The word democracy is nowhere to be found in the UN Charter. There is no body of law on democratic governance, nor is there a “committee on democracy” to interpret it. Moreover democracy promotion by the UN would appear to be at odds with Article 2(7) of the Charter, which prohibits it from interfering in the domestic affairs of member states. Despite the absence of a clear mandate or overarching normative framework, the UN has responded with surprising ingenuity to emerge as an active proponent of democratic governance. In 2009, UN Secretary-​General Ban Ki-​moon expressed a clear commitment by the UN to “principled, coherent, and consistent action in

 

approaches to democracy promotion    509 support of democracy.”1 Other intergovernmental organizations have likewise emerged as stalwart supporters of democratic governance, even in parts of the globe where democracy is still consolidating or has yet to take root. In an international system where states superintend a great diversity of domestic political systems—​ from autocracies and constitutional monarchies to pseudo-​democracies and hybrid regimes—​what are IOs doing to promote democratic governance? What is the normative basis for these substantive activities? Are the activities of IOs giving content to an emerging right to democracy? This chapter chronicles the major normative and operational developments engaged in by IOs in the field of democratic governance. We observe that democratic norms are being articulated and acted upon by IOs. As evidence, we look to the development of democracy’s normative roots as well as the following operational activities: electoral assistance, the good governance agenda of development programs, and peacebuilding. We argue that those activities are both rooted in and have had an impact on the normative climate in which IOs operate—​both in a positive and negative way. We do not argue that an international right to democracy exists—​there is still too much contestation to make that claim—​but rather use the activities of international organizations as a yardstick for measuring whether, how, and to what extent such a right may crystallize.

Approaches to Democracy Promotion Democratic governance, in simple terms, means that the will of the people “shall be the basis of the authority of government,” a principle embodied in Article 21 of the Universal Declaration of Human Rights. It is true that many fuller definitions of democracy have been put forward. For instance, one widely used conception distinguishes between “procedural” and “substantive” democracy.2 Meanwhile,   UN, “Guidance Note of the Secretary-​General on Democracy,” 2009.   The procedural lens views democracy in minimalist terms, focusing narrowly on the rules, procedures, and processes of democratic governance—​chiefly a free and fair electoral process. The substantive definition is much more expansive. It sees democracy as embodying a full range of civic, political, and even social and economic rights required to give effect to democratic governance, embodied in robust institutions such a free press, balanced branches of government, and an independent judiciary. For more on the procedural definition, see Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (New  York:  Harper & Row Publishers, 1942); Adam Przeworski, Democracy and the Market:  Political and Economic Reforms in Eastern Europe and Latin America (Cambridge: Cambridge University Press, 1991). 1

2

 

510   democracy promotion theorists speak of liberal, republican, deliberative, and other variants of democracy.3 Rather than fixate on competing definitions or view democracy in aphoristic terms, we adopt a framework proposed by Thomas Carothers, who differentiates between “political” and “developmental” approaches to democracy promotion.4 The political approach underscores the importance of “elections plus rights” when prioritizing democracy assistance, to include ensuring a free and fair election process, support for political parties, and upholding core civil and political rights such as freedom of expression. As a consequence, social and economic rights tend to get overlooked. In contrast, the developmental approach is guided by the conviction that transparency, accountability, inclusivity, and other general features of democratic governance deserve the most attention. While elections and political rights are important, so are accountability and responsiveness to the demands of citizens, especially the poor. Less confrontational methods of promoting democracy, such as capacity-​building and good governance, win out over activities that risk easy politicization. While the political approach views democratization as a kind of political struggle in which pro-​democratic forces compete against undemocratic forces (often within the context of landmark political or electoral events), the developmental approach sees democratization as a “slow, iterative process” where “substantive outcomes,” such as equality and justice, are most valued.5 Carothers’s framework is useful because it accepts that pro-​democracy actors themselves often view democracy with diverging lenses. As will be seen, IOs have employed both of these approaches to democracy promotion in their operational activities. Interestingly, the evolving landscape of democracy assistance within IOs reflects a clear shift away from the political approach, to contemporary operations based on a largely developmental framework. What is more, IOs have altered the political and normative climate in which pro-​democracy actors operate, legitimizing likeminded efforts by NGOs and bilateral actors. The international election monitoring regime provides a fitting example of this. Finally, IOs have themselves shaped—​and arguably hardened—​a norm of democratic governance. They have served as “transmission belts” in which ideas surrounding a norm of democratic

3   For diverse accounts of democracy, see Robert A. Dahl, Polyarchy: Participation and Opposition (New Haven and London:  Yale University Press, 1972); Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: The MIT Press, 1998); Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: W. W.  Norton & Company, 2003); Larry Diamond, The Spirit of Democracy:  The Struggle to Build Free Societies Throughout the World (New  York:  Henry Holt and Company, 2008); Arend Ljiphart, “Typologies of Democratic Systems,” Comparative Political Studies 1/​1 (1968). See Freedom House and Polity IV data sets for liberal democracy frameworks consisting of a range of democracy variables across multiple categories. 4   Thomas Carothers, “Democracy Assistance: Political vs. Developmental?,” Journal of Democracy 20/​1 (2009). 5  Ibid.

 

normative roots   511 governance have coalesced. As a result, they have established a normative basis for an emerging right to democratic governance.

Normative Roots It is a mystery of sorts that despite the absence of an overarching normative framework, the idea of democratic governance has gained widespread appeal and spurred great discussion in and around IOs. It would not be hyperbole to say that IOs have played a crucial role in articulating and advancing this norm. While support for democracy has recently been conflated (somewhat disparagingly) with the actions of Western countries, particularly in the aftermath of the 2003 Iraq War and the Bush administration’s Broader Middle East and North Africa Initiative, IOs were active in the norm’s earliest formulations. In this regard, IOs have served as transmission belts where the concept of democratic governance has coalesced and taken on new meanings. From patchwork origins, IOs have guided the norm’s development from an embryonic idea to one that was described as a “universal” value in the 2005 World Summit of the UN General Assembly (UNGA).6

Agenda for Democratization No document has made a more explicit case for the UN’s involvement in democracy promotion than Boutros Boutros-​Ghali’s Agenda for Democratization, a companion to his earlier Agenda for Peace and Agenda for Development.7 With a bit of creative interpretation, the Secretary-​General wove together varied sources to highlight an “emerging consensus” on the value of democratic governance and justify (if belatedly) the UN’s bourgeoning activities in this area. Agenda begins by identifying three sources that provide “a clear and solid foundation” for a UN role in democratization. Despite the formal absence of democracy in the UN Charter, Boutros-​Ghali saw the pluralistic language of the Preamble’s opening line, “We the Peoples of the United Nations,” as rooting the authority of member

  “We reaffirm that democracy is a universal value based on the freely expressed will of people.” UNGA, “2005 World Summit Outcome,” A/​RES/​60/​1, October 24, 2005. 7   Boutros Boutros-​Ghali, An Agenda for Democratization, A/​51/​761, December 20, 1996; Boutros Boutros-​Ghali, An Agenda for Development, A/​48/​935, May 6, 1994; Boutros Boutros-Ghali, An Agenda for Peace, A/​47/​277-​S/​2411, June 17, 1992. 6

 

512   democracy promotion states in their citizenry. In addition to the Charter, Boutros-​Ghali refers to the Universal Declaration of Human Rights of 1948, especially Article 21, which states that “the will of the people shall be the basis of government,” and the Declaration on the Granting of Independence to Colonial Countries and Peoples. The Secretary-​General was equally innovative in his ability to explain democracy’s utility in fulfilling the UN’s purposes, as comprised of three basic pillars. First, democracy contributes to peace and conflict prevention. Because democracies manage conflict through elections, courts, and other nonviolent forms of dispute settlement, this is tantamount to promoting peace and security in both inter-​and intrastate conflicts. Second, he viewed democratic governance as inherently linked to development. Social and economic progress is more likely to take place within the context of transparent and accountable democratic institutions. Third, democracy promotes human rights. Democratic systems are more likely to safeguard values such as freedom of thought and the rule of law. For all this, Agenda stopped short of labeling democracy as a universal right. Indeed, Boutros-​Ghali took pains to specify that the UN only supports democratic processes in member states that specifically request its assistance. Nor does the Organization impose a “particular model” of democracy. In this way, he was able to claim that democracy assistance did not violate Article 2(7) of the Charter. The Secretary-​General knew he was walking a fine line when making his case. In outlining his three pillars, Boutros-​Ghali saw democracy, development, and peace as “inextricably linked.” His instrumentalist assessment—​rather than declaring democracy to be a good in itself—​reveals some trepidation in advancing a norm that was seen as ahead of its time.8 Indeed, UN member states did not seize on the Secretary-​General’s agenda and so there was little follow-​up at the intergovernmental level after he left office.9

A Right to Political Participation An international right to political participation, also known as popular sovereignty, is rooted in a strong legal framework. More than 160 states are party to the International Covenant on Civil and Political Rights (ICCPR).10 Article 25 enshrines a right “to vote and to be elected at genuine periodic elections … guaranteeing 8   Boutros-​Ghali was counseled by senior advisors and UN officials to reconsider releasing the report. Boutros Boutros-​Ghali, Unvanquished: A US-​UN Saga (London: I. B. Tauris, 1999); Caroline E. Lombardo, “The Making of an Agenda for Democratization,” Chicago Journal of International Law 2/​1 (2001). 9  Simon Rushton, “The UN Secretary-​General and Norm Entrepreneurship:  Boutros Boutros-​ Ghali and Democracy Promotion,” Global Governance 14/​1 (January–​March 2008): 95–​110. 10   International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), December 1966.

 

normative roots   513 the free expression of the will of the electors.” The UN Human Rights Committee, delegated to interpret the ICCPR, clarified in its General Comment 25 that this provision requires, inter alia, access to a free press, freedom of association, the right to form political parties, and access to judicial review.11 A number of legal arrangements at the regional level further augment this norm, for instance Article 3 of the first Protocol of the European Convention on Human Rights,12 Article 23 of the American Convention on Human Rights,13 and Article 13 of the African Charter on Human and Peoples’ Rights.14 Democracy entails more than political participation so the fact that the right is firmly rooted in treaty law does not itself constitute a right to democracy. But it is an important element of most conceptions of democracy and therefore a critical piece of the normative foundation.

Charters of Regional Organizations Overt democratic principles can be traced to the constituent principles of the charters of many regional organizations. Article 2 of the European Union (EU) Treaty states that it is founded on “the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.”15 The founding documents of the Organization for Security and Co-​operation in Europe (OSCE) are even more adamant. The Charter of Paris, for instance, states that OSCE participating states “undertake to build, consolidate, and strengthen democracy as the only system of government of our nations.”16 The charters of many other organizations embrace democratic principles, including the North Atlantic Treaty Organization (NATO), the Commonwealth of Independent States, Organization of American States (OAS), Mercosur, and the Andean Community. One of the objectives of the African Union (AU) is to “promote democratic principles and institutions, popular participation and good governance” and in 2007 the AU adopted a Charter on Democracy, Elections and Governance, which came into force in February 2012. The Association for Southeast Asian Nations (ASEAN) was founded on the principle of noninterference in internal affairs but in 2007 adopted a Charter that calls for “adherence to the rule of law, good governance, the principles of democracy, and constitutional government.”17 Notable exceptions to this rule include the Arab   General Comment 25 of the Human Rights Committee, UN Doc. CCPR/​C/​21/​Rev.1/​Add.7, 1996.   Convention for the Protection of Human Rights and Fundamental Freedoms, First Protocol, European Court of Human Rights. 13   American Convention on Human Rights, “Pact of San José, Costa Rica” (B-​32). 14   African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/​LEG/​67/​ 3 rev. 5, 21 ILM 58 (1982), entered into force October 21, 1986. 15   The Treaty of the European Union, 2008. 16   The Charter of Paris for a New Europe, November 1990. 17   The Charter of the Association of Southeast Asian Nations. 11

12

 

514   democracy promotion League, South Asian Association for Regional Cooperation, and the Organisation of Islamic Cooperation.

UN General Assembly Resolutions Soft law—​ norms that are “formally non-​ binding but habitually obeyed”18—​is also evidence of a growing normative consensus for democratic governance. Approximately every other year between 1991 and 2015, the UNGA passed a resolution entitled affirming the importance of elections and democracy.19 The most recent version stated in unequivocal terms that democracy is a “universal value based on the freely expressed will of the people.” Another oft-​cited text is the 1999 resolution of the UN Human Rights Commission provocatively entitled “Promotion of the Right to Democracy.”20 Although the word democracy is nowhere listed in the body of the text, this nonbinding resolution, adopted by a vote of 51–​0 (with only Cuba and China abstaining), affirms a series of rights related to democratic governance. Finally, a resolution on “Support by the United Nations System of the Efforts of Governments to Promote or Consolidate New or Restored Democracies,” adopted multiple times between 1994 and 2007, is equally forthright, arguing for “the need to continue to encourage and promote democratization” and describing democracy as a “universal and indivisible” core value of the UN.21 Despite the large number of UNGA resolutions and other soft law advocating for democratic governance, these developments have met with resistance. Notably, a series of counter-​resolutions on the topic of “Respect for the Principle of National Sovereignty and Non-​Interference in the Internal Affairs of States in their Electoral Processes” have been passed every other year beginning in 1991 until 2005.22 Initially drafted by the Soviet Union, these counter-​resolutions urge states to respect Article 2(7) of the Charter and to abstain from supporting domestic political 18   Kenneth W. Abbott and Duncan Snidal, “Hard Law and Soft Law in International Governance,” International Organization 54/​3 (2000): 421. 19  UNGA, “Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections,” A/​Res/​45/​150, February 22, 1991; UNGA, “Strengthening the Role of the United Nations in Enhancing Periodic and Genuine Elections and the Promotion of Democratization,” A/​RES/​70/​168, December 17, 2015. 20   UN Commission on Human Rights, “Promotion of the Right to Democracy,” E/​CN.4/​RES/​1999/​ 57, April 27, 1999. 21   UNGA, “Support by the United Nations System of the Efforts of Governments to Promote and Consolidate New or Restored Democracies,” A/​RES/​62/​7, November 8, 2007. 22   UNGA, “Respect for the Principle of National Sovereignty and Non-​Interference in the Internal Affairs of States in their Electoral Processes,” A/​RES/​45/​151, February 22, 1991. See also UNGA, “Respect for the Principles of National Sovereignty and Diversity of Democratic Systems in Electoral Processes as an Important Element for the Promotion and Protection of Human Rights,” A/​RES/​60/​ 164, December 16, 2005.

 

normative roots   515 parties. The counter-​resolutions underscore the degree of normative contestation among the UNGA on the question of democracy assistance by the UN.

Democracy Forums and the 2005 World Summit Significantly, the above normative signposts paralleled the establishment of a number of influential forums. For instance, some 100 nations convened for the International Conferences of New and Restored Democracies, first held in the 1990s, which led to the creation of the UN Democracy Caucus, a body that was influential in the passing of the aforementioned resolution on promoting or consolidating new or restored democracies. Likewise, the Community of Democracies Conference, consisting of 107 countries, agreed to “uphold … core democratic principles and practices” in the 2000 Warsaw Declaration.23 The 2005 UN World Summit deserves special note. In many ways the culmination of the legal-​normative developments that preceded it, this gathering of the UNGA brought together 191 member states which unanimously declared their support for democracy. In his report leading up to the World Summit, In Larger Freedom, Secretary-​General Kofi Annan laid the groundwork by explaining that “democracy does not belong to any country or region but is a universal right.”24 This led to a striking paragraph in the World Summit Outcome document, whereby the GA reaffirmed that democracy is a “universal value based on the freely expressed will of people” and established the United Nations Democracy Fund to promote it.25 If the Agenda for Democratization, written ten years earlier, tiptoed around the language of universality, In Larger Freedom and the World Summit Outcome exhibited unqualified support for it.

Secretary-​General’s Guidance Note on Democracy A nonbinding document, the Secretary-​General’s Guidance Note on Democracy of 2009, 26 lays out a normative framework for UN democracy assistance that is “based on universal principles, norms and standards” and commits the UN to “principled, coherent, and consistent action in support of democracy.” The Secretary-​General starts with the same three pillars on which the UN’s democracy promotion efforts   Council for a Community of Democracies, Final Warsaw Declaration, June 27, 2000.   UNGA, “In Larger Freedom: Towards Development, Security and Human Rights for All: Report of the Secretary-​General,” A/​59/​2005, March 21, 2005, 25   UNGA, “2005 World Summit Outcome,” A/​RES/​60/​1, October 24, 2005. 26   UN, “Guidance Note of the Secretary-​General on Democracy,” 2009. 23

24

 

516   democracy promotion are grounded that appeared in Agenda for Democratization:  peace and security, development, and human rights. The document then sets out eight guiding principles for effective assistance, such as the maxim of “do no harm,” and lists eight areas where the UN has a comparative advantage and should focus its efforts, including fostering “a culture of democracy” and supporting a “strong and vibrant civil society.” Gone is the reticence of Agenda for Democratization, which more loosely tied democracy to ideals of justice and human rights and sidestepped overt pronouncements of democracy’s universal character. What is more, the document reveals something about the overarching political climate in which it was written. If Boutros Boutros-​Ghali faced a chilly reception from member states for his statements in support of democracy, Ban Ki-​moon arrived on the scene amid a more permissive normative backdrop. This evolving consensus is a fitting case study of IOs’ function as transmission belts for ideas,27 and of how norm entrepreneurs can stimulate a process by which norms become institutionalized in IOs and then become internalized by states.28 Yet recent years have witnessed a backlash, reflected not so much in declarations and other normative statements, but in the operational activities of IOs. In the next section, we look at how those operational activities have both reinforced the norm and undermined it. The progress has never been linear, but there does seem to have been a swing of the pendulum away from universal acceptance of democratic norms.

Operational Activities International organizations have not only articulated a democracy norm, they have also acted on it. The operational activities of IOs have effectuated this norm by supporting democratic rules, processes, institutions, and even a culture of democracy in member states. Far from implementing a static program of action, IOs have experimented with a panoply of strategies and methods. Advancing free and fair elections, strengthening democratic institutions in the name of development, and democratic peacebuilding in post-​conflict settings all fall under the purview of IOs.

27   Louis Emmerij, Richard Jolly, and Thomas G. Weiss, Ahead of the Curve? UN Ideas and Global Challenges (Bloomington: Indiana University Press, 2001). 28   Martha Finnemore and Kathryn Sikkink, “International Norm Dynamics and Political Change”, International Organization 52/​4 (1998), 817; Harold Koh, “Why Do Nations Obey International Law?” Yale Law Journal 106 (1997–​97): 2599; Ian Johnstone, “The Secretary-​General as Norm Entrepreneur,” in Secretary or General?: The UN Secretary-​General in World Politics, ed. Simon Chesterman (New York: Cambridge University Press, 2007), 123–​38.

 

operational activities   517 Interestingly, the scope of the provision of democracy assistance has evolved from the “political” approach to the more “developmental” approach described above. The UN’s initial activities in this area, which focused on electoral outcomes, conferred legitimacy on electoral proceedings and otherwise adopted a remarkably minimalist bent from the standpoint of democratic governance, have largely given way to multidimensional, long-​term development projects aimed at building the institutions of democratic governance and the ultimate transformation of the politics of the societies in which they are placed. This section chronicles that evolution.

Electoral Assistance: Organizing and Monitoring Elections The UN’s foray into democracy promotion began with electoral assistance, which remains the most common form of democracy assistance engaged in by IOs. Between August 2013 and August 2015, for instance, the UN provided electoral assistance to sixty-​five member states, of which eleven fell under the mandate of the UN Security Council (UNSC).29 Historically, IOs have provided several different types of electoral assistance including organizing and conducting elections, supervision and verification, election monitoring, coordination of international and domestic election monitors, and technical assistance. The origins of this set of activities can be traced to the rather involved electoral support missions of the early 1990s. The most rare and intrusive of these is when the organization assumes full responsibility for organizing elections in lieu of a sovereign government. This usually occurs under the auspices of an international transitional administration when the IO assumes executive authority over a territory for a transitional period, including authority over the electoral process. The UN has administered elections in Kosovo, Cambodia, East​Timor, and Eastern Slavonia; the OSCE conducted elections in Bosnia and Kosovo. Supervision missions, also uncommon, occur when a large number of UN personnel certify each step of the electoral process, from drafting of electoral laws and the campaign period to election-​day operations. These high-​stakes, heavy footprint operations occurred primarily in the 1990s under the aegis of UN peace operations in post-​conflict societies. Only slightly less intrusive, verification occurs when the UN makes a judgment on the freeness and fairness of the election as a whole. Much less intrusive is 29   “Strengthening the Role of the United Nations in Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization: Report of the Secretary-​ General,” A/​70/​306, August 7, 2015. In that report the Secretary-​General worried that the field of electoral assistance was becoming overcrowded and claimed “the most effective situations are those in which the UN has been given a coordinating or convening role with respect to external assistance providers,” para. 37.

 

518   democracy promotion election monitoring. On many occasions, the UN deployed election monitors to member states to observe and assess the integrity of election-​day proceedings, as well as report on the pre-​election and post-​election cycle. How did member states react to this growth in UN electoral assistance? No doubt, the electoral missions of the early 1990s generated fears among some member states for their potentially precedent-​setting ability.30 Prior to 1989, the means by which a government assumed power was not deemed a matter of international concern. That an international organization could comment on, let  alone validate the legitimacy of, a domestic political process was seen as antithetical to the principle of sovereignty under the UN Charter. The initial skepticism on the part of many member states quickly gave way to an unprecedented enthusiasm for electoral assistance. Because verification and monitoring missions could give (or deny) the UN’s stamp of approval to a country’s elections—​essentially conferring legitimacy on the winner—​this led to an increase in demand from political actors eager to receive the “blessing” of the UN, from only one observer request in 1989 by Nicaragua to sixteen in 1992.31 Leaders who wished to claim authority to rule were seen as requiring the imprimatur of the UN. For instance, Russia solicited the Electoral Assistance Division to verify its December 1993 elections.32 In fact, the number of requests for electoral assistance grew to the point where the UN could not accommodate them all. The Electoral Assistance Division (formerly the Electoral Assistance Unit) of the Department of Political Affairs was founded in the 1990s in part to evaluate the growing number of requests. This meteoric rise in requests for UN electoral assistance is remarkable and says something about the evolving nature of sovereignty:  countries increasingly were seeking the approval of international and regional organizations for validation of their domestic governmental systems. This suggests that member states were less concerned about standing on an absolutist principle of sovereignty when it came to the UN’s involvement in an area previously considered within the domestic jurisdiction of the host government. For all this activity, today the UN is almost never given a mandate to engage in the organization or monitoring of elections. It deployed its last monitoring mission to Fiji in 2001 and has since taken a backseat role.33 For reasons explained below, today, the UN’s involvement in election monitoring is limited to playing a coordinating and support role for the monitoring activities of other organizations.

30  Thomas Franck, “The Emerging Right to Democratic Governance,” The American Journal of International Law 86/​1 (1992): 72. 31   Michael Schroeder, “The Evolution of UN Electoral Services,” Global Governance 19/​2 (2013): 219. 32   Simon Rushton, “The UN Secretary-​General and Norm Entrepreneurship: Boutros Boutros-​Ghali and Democracy Promotion,” Global Governance 14/​1 (January–​March 2008): 95–​110. 33   “Overview: Electoral Assistance,” UN Department of Political Affairs website.

 

operational activities   519 Yet despite the formal retreat of the UN from this area, election monitoring continues to enjoy wide support and is widely engaged in by nongovernmental and regional actors; in 2013 alone, more than eighty national elections or referendums were observed by international monitors.34 Nearly 80 percent of national elections were monitored by international observers in 2006.35 The OSCE, for instance, requires participating states to undergo routine election monitoring and has conducted more than 250 election observation missions between 1991 and 2015.36 Likewise, the OAS has deployed more than 210 election observation missions to its member states.37 As of 2012, the AU (formerly the Organization of African Unity) has observed around 250 elections, its first mission sent in 1989 to monitor elections in Namibia alongside UN observers as part of the country’s decolonization process.38 The EU, the Commonwealth of Independent States (CIS), and, more recently, the League of Arab States all participate in election monitoring. Many of these regional organizations have also developed infrastructure from which to oversee electoral assistance operations. These include the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR), the AU’s Democracy and Electoral Assistance Unit, and the OAS’s Department of Electoral Cooperation and Observation. In addition, a number of nongovernmental organizations (or quasi nongovernmental organizations) such as the National Democratic Institute, the Carter Center, the Electoral Institute for Sustainable Democracy in Africa, and L’Organisation Internationale de la Francophonie actively observe elections. The Carter Center alone has observed ninety-​nine elections in thirty-​eight countries as of March 2015.39 The election monitoring regime serves as a useful indicator of the legitimizing effect that the UN provides for similar activities by these regional and nongovernmental actors. With exceptions noted below, these efforts are generally not perceived as violating the sovereignty of nations but are in fact requested by   Based on the number of unique election observation reports in 2013 listed on the ACE Electoral Knowledge Network website and the web portals for several regional organizations. Accessed March 2015, http://​www.aceproject.org. 35   Susan Hyde, “Catch Us If You Can:  Election Monitoring and International Norm Diffusion,” American Journal of Political Science 55/​2 (2011). 36   “ODIHR Election Activities by Year,” OSCE Office for Democratic Institutions and Human Rights, http://​www.osce.org/​odihr/​elections; Judith G. Kelley, Monitoring Democracy:  When International Election Observation Works, and Why it Often Fails (Princeton: Princeton University Press, 2012). 37   The OAS deployed more than 180 electoral observation missions between 1962 and September 2011, and approximately thirty additional missions were conducted between September 2011 and March 2015: OAS, “Electoral Observation Missions,” http://​www.oas.org/​en/​spa/​deco/​moe.asp; “OAS Electoral Observation Missions 2011,” Presentation from the OAS Department for Electoral Cooperation and Observation, http://​www.oas.org/​en/​ser/​dia/​institutional_​relations/​Documents/​ 2011/​AU%20Forum/​Presentation%20MOEs%202011.pdf. 38   Shumbana Karume and Eleonora Mura, “Reflections on African Union Electoral Assistance and Observation,” in The Integrity of Elections: The Role of Regional Organizations, ed. R. Cordenillo and A. Ellis (Stockholm: International Institute for Democracy and Electoral Assistance, 2012), 21–​39. 39   The Carter Center Democracy Program, http://​www.cartercenter.org/​peace/​democracy/​index.html. 34

 

520   democracy promotion host governments who seek the benefits associated with the arrival of international monitors and other pro-​democracy actors, such as an influx of aid money. It is possible that the UN’s initial involvement in this area was meant to undercut arguments that democracy assistance activities were part of a “neocolonial agenda” by Western powers. Regardless, it is hard to envision the success and validation of these efforts without the legitimating function provided by IOs. However, if the UN brought a stamp of legitimacy to election monitoring in its initial stages, then the subsequent retreat of the UN from election monitoring may be dirtying the waters. While it continues to attract wide support overall, election monitoring has met resistance from a number of states in recent years. Notably, Russia placed restrictions on the OSCE’s planned monitoring mission during the 2008 presidential elections, prompting the Organization to not deploy at the last minute.40 The EU’s abortive election observation mission to Zimbabwe in 2002 is another clear instance where a state has pushed back in a way atypical during the heyday of UN monitoring.41 A similar situation occurred in 2013, when Zimbabwean President Robert Mugabe barred Western monitors from observing a constitutional referendum and general elections, supposedly as retribution for sanctions imposed on his country for human rights violations.42 That same year, former Nigerian President Olusegun Obasanjo suggested that non-​African monitors should be banned entirely from observing polls on the continent.43 More common than flat-​out refusal of election monitors, however, is the emergence of so-​called “shadow” election monitoring organizations.44 These organizations frequently offer lenient assessments of electoral processes in pseudo-​democracies, in effect condoning undemocratic elections. This occurred, for instance, during the 2008 parliamentary elections in Belarus when a delegation of monitors from the CIS called “free and democratic” the elections that led to a sweeping victory for President Alexander Lukashenko’s party.45 During Venezuela’s 2004 and 2006 elections, OAS teams headed by parties “sympathetic” to the Chavez government praised the elections and glossed over a series of infractions identified by the opposition.46 African monitoring teams from the AU, the South African Development Community, and the Economic Community of Central African States released a joint statement declaring “successful” the 2011 Democratic republic of Congo elections that re-​elected President Joseph Kabila, despite the fact that the EU, the International Foundation 40   “OSCE/​ODIHR Regrets that Restrictions Force Cancellation of Election Observation Mission to Russian Federation,” OSCE, February 7, 2008. 41   “Zimbabwe Expels EU Monitor Chief,” CNN, February 20, 2002. 42   “Zimbabwe to Bar Western Election Observers: Paper,” Reuters, March 5, 2013. 43   “Africa: Obasanjo Canvasses Ban on Non-​African Election Observers,” AllAfrica, March 13, 2013. 44  Kelley, Monitoring Democracy. 45   Clifford Levy, “Electoral Rot Nearby? The Russians Don’t See It,” The New York Times, December 16, 2008. 46   Ruben M. Perina, “The Future of Election Observation,” Americas Quarterly, Spring 2012.

 

operational activities   521 for Electoral Systems, the Carter Center, and many citizen observers felt it “lacked credibility” and identified “significant irregularities and attempted cheating.”47 In sum, the influence of international organizations in this area has been significant. Not only has the UN acted as midwife to the modern-​day election monitoring regime involving many organizations; it has brought us to the point where election monitoring is a common, indeed expected, occurrence. Nevertheless, the recent backlash has begun to undermine the legitimacy of election monitoring while also calling into question the commitment to democratic principles of many countries.

Electoral Assistance: Technical Assistance Whereas supervision, verification, and monitoring missions predominated in the immediate post-​Cold War period, today technical assistance is the most common type of electoral assistance provided by IOs. Technical assistance engages a group of technical advisers from multiple organizations (such as the UN Development Programme (UNDP), UN High Commissioner for Refugees, and the UN Department of Peacekeeping Operations) working in conjunction with national authorities over an extended period to improve the participatory nature of electoral institutions, such as design of election laws, updates to the voter registry, and logistics and procurement. A related type of mission, known as an “expert panel,” consists of a handful of experts to advise informally on the electoral process.48 With their light footprint and nimble character, expert panels keep a decidedly low profile. It is interesting that technical assistance missions have supplanted other, more intrusive types of electoral assistance. This shift may be explained as a necessary counterbalancing of the surging demand for an active UN presence.49 Because the UN possessed a unique ability to confer legitimacy on the electoral process, this legitimizing function could be exploited by autocratic and hybrid regimes who wished to “signal their government’s commitment to democratization.” 50 This also resulted in the widespread belief that “all true-​democrats” invite observers.51 Yet these regimes merely paid lip service to democratic norms, and their commitment to free and fair elections was questionable at best. 47  Helidah Ogude, “An Appraisal of Election Monitoring and Observation in Africa:  The Case of the Democratic Republic of Congo’s 2011 Presidential Elections,” Consultancy Africa Intelligence, March 2012. 48   e.g., the UN deployed a three-​member expert panel to follow Algeria’s April 2014 presidential elections:  “Commending Peaceful Presidential Elections, Secretary-​General Reiterates Support for Democratic Reforms in Algeria,” UN Press Service, April 24, 2014. 49   Schroeder, “The Evolution of UN Electoral Services.” 50   Hyde, “Catch Us If You Can: Election Monitoring and International Norm Diffusion.” 51  Ibid.

 

522   democracy promotion Embracing the mantra of technical assistance, therefore, allowed the UN to sidestep the highly politically charged task of verifying elections and thereby maintain its legitimacy on these matters.52 By shifting its efforts to less controversial and less visible technical assistance, such as support to electoral management bodies, the UN could better maintain its appearance of political neutrality. Thus, technical assistance missions provided a useful crutch to mitigate the unintended consequences of rising requests for electoral assistance that empowered democratic regimes as well as pseudo-​democrats.

Development and Good Governance The expansion of technical assistance aligns closely with the UN’s development agenda and the broader “good governance” agenda of the UNDP, the World Bank, and other development actors. UNDP devotes over one-​third of its budget to democratic governance programs.53 With the backing of the World Bank, the EU, and many other development agencies and donor governments, the development agenda focuses on building the institutions of democratic governance, which ought to be transparent, accountable, well-​functioning, and technocratic in the Weberian sense. UNDP democratic governance programming therefore seeks to make government institutions more accountable, support anticorruption efforts, and promote the rule of law. Not surprisingly, this agenda reflects Carothers’s “developmental” approach to democracy promotion. The idea of good governance has its roots in the policies of structural adjustment promoted by the Bretton Woods institutions. A backlash against the so-​called Washington Consensus began in the early 1990s, and crystallized with the World Development Report of 1997 which focuses on state effectiveness:  not less government, as the Washington Consensus called for, but better government. Better government implies obvious things like rules and restraints on public officials and less corruption. More deeply, the strategy calls for “bringing the state closer to the people,” by allowing those most directly affected by decisions greater participation in making those decisions and by devolving power to the level of government best placed to deal with a problem.54 The UNDP took this a step further in its 2002 Human Development Report, with its forthright appeal not simply for good governance, but “democratic governance.”55   Schroeder, “The Evolution of UN Electoral Services,” 219.   “Fast Facts: UNDP Democratic Governance,” UN Development Programme, October 2011, http://​ www.undp.org/​content/​dam/​undp/​library/​corporate/​fast-​facts/​english/​FF-​Democratic-​Governance-​ 2011.pdf. 54   World Bank, World Development Report 1997: The State in a Changing World (New York: Oxford University Press, 1997). 55  UNDP, Human Development Report 2002:  Deepening Democracy in a Fragmented World (New York: Oxford University Press, 2002). 52 53

 

operational activities   523 First, the report argues that political freedoms and political participation is part and parcel of human development. Second, democratic governance helps to protect the poorest of the poor from economic and political catastrophes via government accountability mechanisms. Third, democratic governance can trigger a virtuous cycle of development: political freedom empowers citizens to press for policies that expand social and economic opportunities. It is a sign of the evolving normative climate when the development organization most trusted by developing countries embraces a notion of good governance that is more overtly political than that of the World Bank. The idea of democratic governance has also received crucial backing from the AU in the form of its development framework, the New Partnership for Africa’s Development (NEPAD). Led by Nigeria and South Africa, but pan-​African in scope, NEPAD lists “democracy and governance” as one of its four pillars. Following a series of pro-​democracy protests that swept across the Arab world in 2010–​11, the “Deauville Partnership” was launched by the G8 in partnership with several Arab countries and regional development organizations, including the Islamic Development Bank and Arab Monetary Fund. This is a multi-​billion dollar development effort designed to support transitions in Egypt, Tunisia, Morocco and elsewhere towards “free, democratic, and tolerant societies,” although it has come under criticism.56 In both of these cases, it is telling that at significant moments in the histories of the two regions democracy was considered an underlying pillar of development even outside the aegis of the West. If the expansion of democratic governance projects under UNDP, the World Bank, and the AU underscored its increasing relevance to sustainable development, then the Millennium Development Goals (MDGs) were a sobering reminder of the obstacles that remained to its complete acceptance. While the Millennium Declaration of September 2000 declared “democratic and participatory governance” to be a “fundamental” value for the twenty-​first century,57 the MDGs that followed failed to codify any concrete action in favor of promoting pluralistic government. Governments refused to endorse an explicit good governance indicator in the MDGs. Excluding a pledge to strengthen democracy in the MDGs only served to decouple democratic governance from the development agenda, much to the chagrin of pro-​democracy actors. Despite this backlash at the turn of the millennium, it should be noted that even in the area of UN electoral assistance, the presence of UNDP and other UN development actors is deeply felt. As discussed, technical assistance missions have trumped other forms of electoral assistance, but there is now a third wave of electoral assistance that seeks to “go beyond technical advice” to broader reform of 56   Ibrahim Warde, “Forgotten Promises of Aid for Arab States: So Where’s the Money?,” Le Monde Diplomatique, October 3, 2014. 57   UN Millennial Declaration, UNGA Res. 55/​2, September 8, 2000.

 

524   democracy promotion electoral processes.58 The Secretary-​General in his 2013 biennial report on elections, for instance, emphasizes that elections are fundamentally political events which require “more than improving technicalities.”59 In effect, we may be witnessing a gradual convergence of UN electoral assistance with the broader good governance agenda. As evidence of this, the UN has diversified its technical assistance efforts from primarily working with election monitoring bodies to more diffuse, long-​term strategies implemented during all phases of the electoral cycle.60 These capacity-​building measures include voter education, political party finance, domestic observer training, and removing barriers to equal participation particularly by women and minorities. The UN Democracy Fund, a voluntary trust fund established in 2005, likewise promotes systemic drivers of democratization by funding civil society organizations and grassroots activism, rather than state-​ centric approaches to electoral reform. Although we are not there yet, it is becoming increasingly true with the UN that “the line between … democracy support and development aid … is often blurred or hard to find.”61 The debates over the 2030 Sustainable Development Goals (SDGs) may serve as a bellwether of how a norm of democratic governance is converging with the development agenda. When the Millennium Development Goals (MDGs) expired in 2015, many argued that the time was ripe for governments to push to include commitments relating to governance in the post-​2015 MDG framework.62 Thus goal sixteen of the 2030 SDGs, formally adopted by the UNGA in September 2015, is dedicated to “the promotion of peaceful and inclusive societies for sustainable development, the provision of access to justice for all, and building effective, accountable institutions at all levels.” One of the targets under this goal is “to ensure responsive, inclusive, participatory, and representative decision-​making.”63 The

58  “Deepening Democracy:  A  Strategy for Improving the Integrity of Elections Worldwide,” Report of the Global Commission on Elections, Democracy, and Security, chaired by Kofi Annan, September 2012. 59   “Strengthening the Role of the United Nations in Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization: Report of the Secretary General,” A/​68/​301, August 9, 2013. 60   Based on informal interviews and consultation with members of the Electoral Assistance Division, Department of Political Affairs, UN, 2012. 61   Thomas Carothers, “Democracy Support and Development Aid: The Elusive Synthesis,” Journal of Democracy 21/​4 (October 2010). 62  Daniel F.  Runde and Conor M.  Savoy, “Good Governance as a Post-​ 2015 Millennium Development Goal,” Center for Strategic and International Studies, March 5, 2014. Thomas Carothers and Saskia Brechenmacher, “Closing Space:  Democracy and Human Rights Support Under Fire,” Carnegie Endowment for International Peace, February 20, 2014; Michael Snyder, “What Does Good Governance Look Like? Democracy and the post-​2015 Development Agenda,” The Global Observatory, International Peace Institute, August 5, 2014, https://​theglobalobservatory.org/​2014/​08/​good-​ governance-​democracy-​post-​2015-​development-​agenda/​. 63   UNGA, “Transforming Our World:  The 2030 Sustainable Development Agenda,” A/​RES/​70/​1, October 21, 2015.

 

operational activities   525 inclusion of such a goal—​while falling short of an overt endorsement of democratic governance—​heralds a further shift in the progression of a democracy norm under the banner of development.

Conflict Prevention and Peacebuilding A final area of engagement is democratic peacebuilding. While democracy has long been considered essential in the pursuit of peaceful relations among states, it is in no small part due to IOs that democracy is equally regarded as a vital tool in preventing civil wars from occurring or recurring. As the Secretary-​General explained in the Agenda for Democratization, democratic institutions are believed to be more effective at managing the high stakes of political competition by ensuring that conflict is resolved peacefully through the ballot box, legal system, and wider political process. This reasoning has guided the UN’s efforts in post-​conflict societies for more than two decades. In practice, this means that UN peace operations have been active in converting rebel groups into political parties, supporting the organization of post-​conflict elections, building democratic institutions, such as independent electoral commissions, and establishing a functioning judiciary. With little mincing of words, the Security Council ordered the UN Mission in Mali to assist that country toward “full restoration of … democratic governance.”64 Security Council Resolution 2040 gave the UN Mission in Libya a broad mandate to “manage the process of democratic transition” including not only giving technical advice, but also a wide variety of measures aimed at improving institutional capacity and promoting political participation.65 The Peacebuilding Fund, managed by the UN Peacebuilding Support Office, can also “exceptionally support elections at critical junctures for peacebuilding,”66 as it did in Guinea-​Bissau in 2014.67 More broadly, one of the Peacebuilding and Statebuilding Goals endorsed by some twenty “fragile states” (the so-​called G7+) is “legitimate and inclusive politics.”68

  UNSC Res. 2100, S/​RES/​2100, April 2013.    65  UNSC Res. 2040, S/​RES/​2040, March 2012.   “Strengthening the Role of the United Nations in Enhancing the Effectiveness of the Principle of Periodic and Genuine Elections and the Promotion of Democratization: Report of the Secretary General,” A/​68/​301, August 9, 2013. 67   “[The Chair] also reminded that the PBF has approved $4.2 million for support to Guinea-​Bissau’s elections, youth and women, media training for the elections and the high-​level strategic commission”: “Chair’s Summary of the Informal Meeting of the Guinea-​Bissau Configuration,” United Nations Peacebuilding Commission, May 12, 2014, http://​www.un.org/​en/​peacebuilding/​doc_​guinea-​bissau. shtml#informalmtg. 68   The New Deal for Engagement with Fragile States, Busan Declaration 2013, “Peacebuilding and State-​Building Goals,” http://​www.oecd.org/​dac/​HLM%20one%20pager%20PSGs.pdf. 64 66

 

526   democracy promotion This peacebuilding agenda pursued by IOs is not without its detractors. There is currently a backlash against the idea that so-​called “liberal peacebuilding” can reconstruct war-​torn societies and transform them into democracies. Roland Paris identifies a number of recurring criticisms, including that it is a value-​laden process bound up in international politics and a Western, neoliberal agenda.69 While some critics see a problem with the concept of democratic peacebuilding, others point to its implementation. In certain cases, the UN has been forced to backtrack by narrowing the scope of its peacebuilding activities. For example, the UN Mission in South Sudan, initially conceived in 2011 to foster “longer-​term statebuilding,”70 was scaled back to a more limited protection of civilians mandate following the December 2013 breakout of civil war.71 It is suggested that rather than focus their efforts on strengthening existing state institutions, which can be “predatory” toward the local population, practitioners should instead seek to “build resilient local communities.”72 In addition, the peacebuilding agenda has come to recognize that there is danger in overemphasizing the importance of elections and premature elections in particular. While international actors may be pressured to hold early elections because it offers a convenient “exit strategy,” this should not come at the cost of other elements of democratic society. At the same time, elections frequently serve as a flashpoint for internecine violence and can even be destabilizing, as occurred in Angola in the early 1990s. IOs must take into account a variety of considerations, not only the timing and sequencing of elections, but also their “integrity”73 and the design of the political/​electoral system. Winner-​takes-​all majoritarian systems are believed to be more conflict-​prone than proportional representation systems and group-​based arrangements, such as consociationalism.74 Societies undergoing democratic transition have also become the site of conflict-​ prevention efforts by IOs. It is a well-​known irony that while consolidated democracies are more peaceful, democratization is often a turbulent process accompanied by deep-​seated social and political conflict and even violence.75 In the wake of the 69   Roland Paris, “Saving Liberal Peacebuilding,” Review of International Studies 36/​2 (2010); see also David Chandler, Empire in Denial: The Politics of Statebuilding (London: Pluto Press, 2006). 70 71   UNSC Res. 1996, S/​RES/​1996, July 2011.   UNSC Res. 2155, S/​RES/​215, May 2014. 72   Paul Williams, “Protection, Resilience, and Empowerment,” Politics 33/​4 (2013): 287–​98. 73   Pippa Norris, “Why Electoral Malpractices Heighten Risks of Electoral Violence,” presented at the annual gathering of the American Political Science Association 2012; Michael R. Snyder, “For Want of a Credible Voter Registry: Do Problems in Voter Registration Increase the Likelihood of Electoral Violence?,” Josef Korbel Journal of Advanced International Studies 5 (2013). 74   Benjamin Reilly, “Elections in Post-​Conflict Scenarios: Constraints and Dangers,” International Peacekeeping 9/​2 (2002): 118–​39; Kristine Hoglund, “Electoral Violence in Conflict-​Ridden Societies: Concepts, Causes, and Consequences,” Terrorism and Political Violence 21/​3 (2010); Benjamin Reilly, “Electoral Systems for Divided Societies,” Journal of Democracy 13/​2 (2002). 75   Edward Mansfield and Jack Snyder, Electing to Fight:  Why Emerging Democracies Go to War (Cambridge, MA: MIT Press, 2005).

 

operational activities   527 protests that swept the Arab world beginning in 2010, the UN has taken a strong interest in supporting democratic political transitions including, inter alia, facilitating a national dialogue and the formation of a unity government in Libya and support to the constitutional process in Tunisia. Another oft-​cited example is Kenya during the 2007–​8 presidential elections. Following destabilizing election violence that left more than 1,000 people dead, UN Special Envoy Kofi Annan was called upon to broker a settlement between the opposing parties who had each claimed an election victory, preventing a deadly slide into violence in the subregion.76 The linear relationship between democracy and peacebuilding may have to be re-​ examined. Returning to the Kenyan crisis, it is a “deep and enduring dilemma” that the perpetrators of election violence were “rewarded” with a seat at the table by the UN and the international community.77 In Cambodia, the UN rewarded Hun Sen with a power-​sharing agreement after he threatened renewed conflict following the 1993 electoral contest.78 In both cases, the opposition was compensated with more political power as a result of inciting violence than they would have been granted had they grudgingly accepted defeat. This dilemma can likewise be witnessed in the acquiescence of the international community to the flawed 2009 Afghan elections.79 The legacy of peace operations has galvanized consensus on the importance of democracy in peacebuilding, and the idea that no peace process can succeed without participatory governance is widely held. However, when faced with competing norms of democratic governance on the one hand and security on the other, the actions of IOs reveal a subtle preference for stability over democracy.

“Enforcement” of Democratic Norms Although uncommon, the UN Security Council has on several occasions authorized the use of force to restore or support democratically elected regimes, notably in Haiti, Sierra Leone, and Côte d’Ivoire. Traditionally, the rule used to determine the legality of a government as representative of the state follows from whether government exerts de facto control over the state’s territory. However, the Security Council has begun to weigh more heavily the means by which a party comes to power, not just whether it exerts territorial control. 76   Human Rights Watch, “Ballots to Bullets:  Organized Political Violence and Kenya’s Crisis of Governance,” Human Rights Watch Report 20/​1 (March 2008): 1–​79. 77   Timothy Sisk, “Elections in Fragile States: Between Voices and Violence,” paper prepared for the International Studies Association Annual Meeting, March 2008. 78   Benjamin Reilly, “Post-​War Elections: Uncertain Turning Points of Transition,” in From War to Democracy: Dilemmas of Peacebuilding, ed. Anna K. Jarstad and Timothy Sisk (New York: Cambridge University Press, 2008), 165–​6. 79   Peter W. Galbraith, “UN Isn’t Addressing Fraud in Afghanistan,” The Washington Post, October 4, 2009.

 

528   democracy promotion The aftermath of the 1991 coup in Haiti presents arguably the clearest case of coercive intervention to support democracy. Security Council Resolution 940 invoked Chapter VII of the UN Charter and authorized a multinational force to use “all necessary means” to reverse the coup.80 It justified this on the basis of upholding democracy, stating directly in its Preamble that its goal was “the restoration of democracy in Haiti and the prompt return of President Aristide.” Under different circumstances, the Economic Community of West Africa States (ECOWAS) intervened in Sierra Leone in 1998 to remove a regime which had toppled the democratically elected government, a decision that was approved by the UN Security Council ex post facto. ECOWAS again threatened the use of military force during Côte d’Ivoire’s 2010 political crisis, in which opposition candidate Laurent Gbagbo rejected the results of democratic elections and proclaimed himself the victor.81 Ultimately, the UN Security Council stopped short of authorizing the use of force to remove Gbagbo, but called on other measures under Chapter VII such as targeted sanctions, and a stronger mandate to protect civilians. Robust action by UN peacekeeping troops and French forces led to the eventual capture of Gbagbo by supporters of Alassane Outarra, the winner of the elections. The significance of these coercive interventions is hotly debated.82 While the language of the Haiti and Sierra Leone resolutions in particular suggests that the actions were in the name of democracy, these countries were also host to a civil war, human rights abuses, and larger humanitarian crises that might also have justified Chapter VII action. Some claim these interventions are highly selective, chiding the P5’s bias in deciding which overthrown regimes will be restored and which will be left on the sidelines. The US invasion of Iraq in 2003 has also cast a pall over the idea of using force in the name of democracy. Without greater consistency and frequency of action on this matter by the Security Council, there will continue to be considerable skepticism of the idea that the UN is moving in the direction of endorsing pro-​democratic intervention, a shift that would effectively expand the definition of what constitutes a threat to international peace and security. A less coercive type of enforcement is the so-​called red-​card principle, where regional organizations suspend states from participation in the organization for unconstitutional changes in the democratic order. This began with the Western or Western-​ driven organizations. Thus the OAS includes the 1991 Santiago Commitment and the Inter-​American Democratic Charter, which calls for suspension in case of “unconstitutional interruption of the democratic order.” Honduras faced suspension by the OAS following the 2009 coup by Manuel Zelaya, the first   UNSC Res. 940, S/​RES/​940, July 1994.   Alex J. Bellamy and Paul Williams, “The New Politics of Protection? Côte d’Ivoire, Libya, and the Responsibility to Protect,” International Affairs 87/​4 (2011). 82   See, e.g., Gregory H. Fox and Brad R. Roth (eds.), Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000). 80 81

 

impact of operational activities on international law    529 time this happened since Cuba was suspended in 1962. The Andean Community and Mercosur both have language allowing for suspension of members under similar circumstances. The Commonwealth Ministerial Action Group suspended Nigeria’s membership in 1995, Zimbabwe in 2002, Fiji in 2006, and Pakistan in 2007, each following a usurpation of the democratic order. The OSCE’s Moscow Document, implemented after the attempted 1991 coup in the Soviet Union, likewise directs its members not to recognize a regime that seizes control from a democratically elected government. The phenomenon spread to Africa, where Articles 4(p) and 30 of the Constitutive Act of the AU provides that governments which come to power “by unconstitutional means” cannot participate in the Union. Côte d’Ivoire was reprimanded in precisely this way when Gbagbo refused to accept the outcome of the elections in 2010. Most recently, Burkina Faso was suspended following the coup there in September 2015. It is worth noting that “unconstitutional” changes in government can in fact be pro-​democracy, so Articles 4(p) and 30 should be read in light of Article 4(m), which requires respect for “democratic principles, human rights, the rule of law and good governance.” This idea gained further momentum as a result of NEPAD. Approximately thirty countries have signed into the partnership. Asia and the Middle East, given their historical lack of democratic tradition, would be expected to forego these enforcement measures. Nevertheless, the League of Arab States suspended both Libya and Syria from its membership during those political crises, and the ASEAN allows for suspension in the case of unconstitutional changes of government, a provision which has yet to be invoked.

Impact of Operational Activities on International Law As early as 1992, Thomas Franck argued that an emerging right to democratic governance, or “democratic entitlement,” was rapidly accelerating into customary international law. He claimed this emerging right comprised not only a right to political participation (as spelled out in the ICCPR), but a constellation of other principles including a right to self-​determination and a right to freedom of expression. A combination of regional jurisprudence, soft law in the form of UNGA resolutions, and UN operational activities all served as evidence of this entitlement. Were acceptance of election monitoring and other forms of democracy assistance to become general practice among states, it would herald the norm’s ascendance. He wrote, “We are not there yet, but we can see the outlines of this new world in which

 

530   democracy promotion citizens of each state will look to international law and organization to guarantee their democratic entitlement.” Was Franck prescient? In the intervening twenty-​ four years, has a right to democracy crystallized in international law? As one of us has argued elsewhere, the law can “harden” through the operational activities of IOs. The process, in a nutshell, is as follows. Much of IO practice occurs against the backdrop of widely acknowledged but not well-​specified norms. The IOs are not trying to enforce the norms but carry out their mandated activities in a manner that conforms to them. The purpose is to achieve programmatic goals; the effect may be to harden international law. According to the authors of an influential volume on “the legalization” of world politics, all law falls on a spectrum, with the hardest law being clearly obligatory, precise, and subject to judicial or some other form of dispute settlement delegated to third parties, while the softest law is nonbinding, vague, and subject to diplomatic dispute settlement.83 This spectrum has been criticized for relying on too narrow of a conception of international law, missing out on its broader nature as a “social phenomenon deeply embedded in the practices, beliefs and traditions of societies and shaped by interaction among societies.”84 But if modified to include perceived legitimacy as an element of the felt sense of obligation and the implicit authority to interpret and implement the law as an element of delegation, then the three criteria are useful for assessing the movement from soft to hard law.85 Applying this to democracy norms, Gregory Fox contends that the election monitoring missions of the 1990s gave content to the right to political participation by insisting on political party pluralism—​the requirement that at least two political parties compete in elections in order to provide voters with an actual choice.86 In terms of the legalization criteria, the right to political participation became more precise as a result of election monitoring and related activities. Multiparty elections were increasingly seen as obligatory in the sense that governments became anxious 83   Judith Goldstein et al. (eds.), “Legalization and World Politics,” International Organization 54/​3 (2000): 1, republished as a book in 2001. The concept of legalization is set out briefly in the introduction to the volume, and then elaborated more fully in Kenneth Abbott et al., “The Concept of Legalization,” 54 International Organization (2000): 401; and Kenneth Abbott and Duncan Snidal, “Hard and Soft Law in International Governance,” International Organization at 54 (2000):  421. Georges Abi Saab identified similar criteria: the circumstances of the adoption of the instrument, including the amount of support for it; the concreteness of the language; and the existence of follow-​up procedures: Georges Abi-​Saab, “Cours general de droit international public,” Recueil des Cours 207 (1987): 160–​1. 84   Martha Finnemore and Stephen Toope, “Alternatives to Legalization: Richer Views of Law and Politics,” International Organization 55 (2001):  743–​58. For the author’s response to the critique, see Judith Goldstein et  al., “Response to Finnemore and Toope,” International Organization 55 (2000): 759–​60. 85   For a fuller development of this modified “legalization” criteria, see Ian Johnstone, “Law-​making through the Operational Activities of International Organizations”, The George Washington International Law Review 40/​1 (2008): 115–​16. 86   Gregory Fox, “The Right to Political Participation in International Law”, in Democratic Governance and International Law, ed. G. Fox and B. Roth (New York: Cambridge University Press, 2000), 48–​78.

 

impact of operational activities on international law    531 to claim the external and internal legitimacy that certification of “free and fair” elections bestows, and that certification would only be forthcoming if political parties were allowed to form. Finally, the delegation criterion is satisfied if one considers the electoral monitoring and assistance missions to be implicit interpretations of the ICCPR and similar regional instruments. As Oscar Schachter put it: “UN interpretation does not usually have an adjudicative character. The task faced by most UN bodies is practical and instrumental—​that is to prepare a plan of action or to … achieve a goal … Interpretation is implicit in the measures adopted.”87 If one adds to this implicit delegation to the Security Council to enforce electoral outcomes (as in Haiti, Sierra Leone, and Côte d’Ivoire), then the case for a “hardening” of the right to political participation becomes stronger. However, even in respect of the right to political participation—​the most widely accepted democratic norm—​there has been a backlash. As noted above, the UNGA has adopted almost as many resolutions calling for noninterference in electoral processes as those that call for “periodic and genuine elections”; the UN itself retreated from election monitoring after 2001; some states, like Russia and Zimbabwe, have become bolder in rejecting external election monitoring without paying much of a price; and “shadow” election monitoring organizations are making it easier for autocratic states to pay lip service to free and fair elections, undermining the credibility of the whole enterprise. If one looks beyond political participation to other democratic norms, the picture is even more mixed. Consider the good governance programs of development organizations. On the one hand, UNDP, the World Bank, and the African Union (through NEPAD) have embraced democracy promotion as a development goal—​ even if they do not all use that term. Moreover, the line between short-​term electoral assistance activities and long-​term political development strategies has begun to blur, with technical advice by international organizations spanning both. On the other hand, one of the criticisms of the MDGs is that they did not address governance issues sufficiently. And a faultline of debate over the 2030 SDGs was whether indicators of democracy should be included in the new development goals, which they eventually were, albeit in a modified and watered-​down form. Meanwhile, China has been relatively successful at presenting itself as a model for an alternative path to development and has pursued aid and investment policies in Africa and elsewhere to back that up. Similarly, promoting democracy is still very much part of the peacebuilding agenda. Despite the liberal peacebuilding critique that has taken hold in the scholarly literature, most new missions have in their mandates electoral assistance and human rights promotion, and security sector, justice, and other institutional reforms geared toward building a democratic polity. Yet in actual practice, most  O. Schachter, “The UN Legal Order:  An Overview,” in The UN and International Law, ed. Christopher Joyner (New York: Cambridge University Press, 1997), 9. 87

 

532   democracy promotion peacebuilding operations fall well short of achieving these ambitious goals—​in part because the agenda is less widely embraced by those on the receiving end of the assistance than by the peacebuilders themselves.88 Moreover, the challenges of post-​conflict peacebuilding in the aftermath of the interventions in Iraq, Afghanistan, and Libya have dampened enthusiasm for making liberal democracy the exit strategy (perhaps reinforced by the uncertain trajectory of countries coming out of the Arab Spring). This is not to say that cultivating democratic habits like inclusive and deliberative politics have been abandoned89, but these relatively modest peacebuilding goals do not add much to the case that a hard right to democracy has emerged. As for the few cases of Security Council-​approved coercive interventions that gave effect to electoral outcomes, none were undertaken solely in the name of democracy, and in any case remain the exception rather than the rule. Even the red-​card principle, a striking regional development that has spread beyond the Americas and Western Europe, is subject to wide regional variation and inconsistent application. And while the credentials process in the UN opened the door for a majority of member states to register disapproval of how a government comes to power and rules (most notably South Africa during the apartheid era), the UN is a long way from adopting its own variant of the red-​card principle. So where does that leave the state of international law? The backlash, regional variation and inconsistency make it clear that a global right to democracy has not crystallized. That being said, the sheer volume of democracy promotion practice by IOs—​and the contestation that surrounds those activities—​are a useful bellwether of where the law is heading. It may well come down to definitional issues. The ICCPR and regional conventions calling for genuine and periodic elections are evidence of a right to political participation, but not a more all-​encompassing right to democracy. Such a right to democracy would ostensibly include many other rules and norms outlined in this chapter and operationalized by IOs, such as a robust civil society, freedom of expression, rule of law, balanced government institutions, and civilian control over the military. If a broader, “substantive” definition of democracy is adopted, the legal threshold becomes more difficult to attain, and there is less obligation to comply with the rule. If a narrow, “procedural” definition of democracy is embraced, which roots democracy strictly “in the will of the people” via free and fair elections, such precision makes it easier to claim a general right—​ even if this means a watering down of democracy’s content. This dilemma, perhaps embodied in “electoral autocracies” which conduct free and fair elections but then proceed to rule with an iron first, is not lost on international lawyers. Until imbued 88  Michael Barnett, Songying Fang, and Christoph Zurcher, “Compromised Peacebuilding,” International Studies Quarterly (2014): 1–​13, 5. 89   Ian Johnstone, “Consolidating Peace:  Priorities and Deliberative Processes,” Annual Review of Global Peace Operations 2007 (Boulder: Lynne Rienner Publisher, 2007), 13–​27.

 

conclusion   533 with greater precision, obligation, and delegation—​or all three—​the question of a right to democracy in international law will remain contested.

Conclusion IOs have been at the center of global efforts to promote democracy. They have advanced the development of democracy’s normative roots, and they have operationalized democracy promotion via electoral assistance, peacebuilding, and development programs. Collectively, these point to a fragile consensus on the value of democratic governance, which was described as a “universal right” by the Secretary-​General and a “universal value based on the freely expressed will of the people” in the 2005 World Summit of the General Assembly. As described, IOs have acted as transmission belts for a norm of democratic governance, a process that was set in motion by the creation of regional organizations with democracy promotion mandates, strengthened in a series of UNGA resolutions and the Agenda of Democratization, and culminated quite spectacularly with the 2005 World Summit. It is also telling that the number of requests for UN operational activities, especially electoral assistance, has skyrocketed. This suggests that member states are less concerned about the UN’s involvement in a domestic area previously considered within the jurisdiction of the host government. However, strong legal arguments can be made against the formation of a right to democratic governance. One notable critique is that there is considerable geographic variation in support for democracy. For this reason, normative developments at the regional level may be a more telling indicator of progress toward crystallization of the rule. Some progress can be traced to the constituent principles of the charters of regional organizations, in regional human rights agreements, and the red-​card principle used to suspend membership of undemocratic regimes. The UN’s recent involvement in the Middle East in the wake of the Arab uprisings, in countries like Tunisia, Libya, Yemen, and Egypt, seemed to portend a growing democratic consensus in that region. Yet recent developments there illustrate how hard it can be to translate principles into practice. Meanwhile, China is a long way from embracing multiparty democracy, and its growing economic influence in Asia, Africa, and elsewhere makes it harder for IOs like the UN and AU to push a democracy agenda through development and good governance policies. As a practical matter, IOs face the challenge of ensuring effective democracy assistance while simultaneously preserving their legitimacy and impartiality. Democracy promotion is an inherently political act. The high-​profile verification

 

534   democracy promotion missions of the 1990s and the ensuing rise in requests from pseudo-​democrats served to undermine the UN’s legitimacy as a credible servicer of electoral assistance. Attempts to safeguard the UN’s legitimacy may help to account for why it shifted its efforts away from what Thomas Carothers calls a “political” approach to democracy promotion to a quieter “developmental” agenda. This is exemplified by the UN’s retreat from election monitoring and subsequent embracing of the good governance agenda of UNDP. This shift in strategies is not without drawbacks, however. As Carothers argues, the indirect methods of the developmental approach can verge on being “toothless.” This does not mean that such techniques are inferior; however, they are not substitutes for the advantages of the political approach, such as its capacity to highlight electoral competition—​the arena where civil and political rights are played out in practice. It is a contradiction of sorts that, as the UN has developed the normative and institutional architecture to promote democracy, it has shied away from more visible methods (such as delegitimizing elections) that may be necessary to bring autocratic regimes to account. This means that its influence may be less felt precisely when its benediction (or condemnation) is needed most. IOs must also balance the competing norms of democratic governance on the one hand and the imperative of maintaining peace and security on the other. Of course, democracy and security can be mutually reinforcing, and the Secretary-​General has argued persuasively that strengthening democracy also contributes to conflict prevention. However, the reality of UN peacebuilding in post-​conflict countries has not corroborated this in every instance. While the majority of post-​conflict elections have been peaceful, the legacy of premature elections in Angola and elsewhere highlight a number of variables endogenous to the success of elections such as their timing and level of “integrity.” Even more remarkable is that on several occasions the UN has actively undermined democracy in the name of security—​for example, by endorsing fraudulent elections in Afghanistan and empowering the losing party in Kenya. It seems likely that IOs will continue to prioritize conflict prevention over democratic governance, presenting a quandary for IOs in the foreseeable future. The operational activities of the UN, regional organizations, and development agencies have shaped and been shaped by democracy norms. While the sands have shifted, the field remains sufficiently vibrant that scholars and policymakers would do well to keep a close eye on developments in and around IOs. The lessons of democracy promotion efforts are important not only for their own sake but also to better understand how international law evolves. Consistent practice of IOs that conforms to an emerging norm can cause it to harden; practice that undermines the norm can cause it to soften. While it would be premature to declare an “international right to democracy,” it is also too soon to declare its death.

 

Chapter 25

COMMUNICATIONS AND THE INTERNET Milton Mueller

International organization (IO) studies typically rest on three explanatory pillars—​the political, the economic and the sociocultural. Often missing from this triumvirate, however, is the technical. Technology can alter the scope and scale of social relations. By constantly changing human capabilities it can reshuffle the distribution of power among actors. It can create a need for new kinds of cooperation or coordination, which IOs may be called upon or created to solve. It can create new resource spaces that generate demands for rules or governance among actors seeking to exploit or appropriate the resources. Further, complex large-​scale technical systems are supported by epistemic or expert communities who standardize, design, construct, operate, and maintain them; these technical and scientific communities can be transnational and develop a kind of normative autonomy. Thus, one would be unable to describe or explain international organization in the communication-​ information sector without reference to specific technologies and technological changes. The relationship between technology and international organization is two-​way, of course. Changes in technology are accelerated or retarded by changes in policy, business, ideas, and ideologies. In 1865 the transaction costs associated with the operation of separate telegraph organizations produced the first modern international intergovernmental organization, the International Telegraph Union, to facilitate interconnection of national systems. By 1932 the growth of voice telephone service had relegated telegraphy to secondary status in the communication sector, and the Union evolved into the International

 

536    communications and the internet Telecommunication Union (ITU). For six decades, the ITU was the central IO in the sector. But the rise of computer technology and industry, combined with new regulatory regimes in telecommunications, created yet another generational change in international organization of the sector. A new, still-​emerging order centered on the Internet has progressively marginalized the ITU and empowered new IOs. What we call “the Internet” is based on software, a suite of data communication protocols for facilitating the exchange of information among separate networks. In what is actually a suite of standards based on Transmission Control Protocol/​Internet Protocol (TCP/​IP), “the Internet” was formally standardized in 1981.1 The gradual emergence of TCP/​IP as the dominant standard for interconnecting computers worldwide, which occurred from about 1984 to 1994, corresponds closely (neither clearly preceding nor obviously lagging) with growing theorization about “globalization” and growing interest in “governance without governments”2 and “global governance.” This chapter attempts to examine the transformative effect of the Internet and the rise of computer technology on international organization of communications. It begins by describing the liberalization of telecommunication services, which provides the essential point of departure for understanding the contemporary situation. Next, the key IOs involved in Internet governance are identified, described, and classified into four categories. This survey of organizations is heavily biased toward entities that are involved in Internet operations and governance. It gives short shrift to communication industries and IOs that have not (yet) been taken over fully by Internet protocol, such as traditional radio and television broadcasting. The next section puts this collection of organizations into motion by describing their power struggles over the control of the Internet. Along the way, the chapter invokes several theories of organization, such as regime theory, principal–​agent concepts of delegation, and theories of networked governance derived from transaction cost theory.

Global Liberalization of Telecommunications Services The emergence of what we now think of as the Internet was preceded and enabled by the liberalization of telecommunications and information services. Liberalization 1   J. Postel, Internet Protocol (Vol. RFC 791) (Arlington, VA:  Defense Advanced Research Projects Agency, 1981). 2   J. Rosenau and O. Czempiel, Governance without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992).

 

global liberalization of telecommunications services    537 is an umbrella term for a series of economic and regulatory changes that transformed an industry once dominated by state-​owned post, telephone, and telegraph monopolies into a commercial, private sector industry primarily governed by market competition. It involved the privatization of state-​owned monopolies, the replacement of monopoly with competition in most markets, some deregulation of prices, and technical unbundling of the elements of the network. Beginning in the United States in the 1960s and mostly completed by 2000, telecommunications industry liberalization dramatically changed domestic regulatory regimes and then international organization.3 Although there were many subtle but important regulatory changes in the United States that preceded it, the breakup of the AT&T monopoly from 1980–​4 could be cited as the “big bang” of global liberalization. The United Kingdom and Japan quickly took steps along the same path, privatizing their state-​owned monopolies and encouraging the growth of multiple, competing networks. Technical standard-​ setting for the sector was largely liberated from national governments. Regulators and market forces began to chip away at what had once been a vertically integrated industry by unbundling network services from the provision of telephone handsets and other equipment, and by splitting local access from long-​distance service. As a stampede of new competitors entered information service and equipment markets, prices fell dramatically, usage increased by orders of magnitude, and penetration levels surged. International telecommunications was redefined as “trade in services” and included in free trade agreements.4 The World Trade Organization (WTO) concluded a major free trade agreement for information and communication technology (ICT) equipment in 1995; one for basic telecommunication services was concluded in 1997.5 In the telecom liberalization process, state actors were driving change, and intergovernmental organizations (IGOs) such as the WTO and the ITU were the key venues for changes in international organization (although US initiatives led to a shift from the ITU to the WTO as the central governance institution). This change was aptly described as a “regime change” in that it involved new principles, norms, rules, and procedures.6   G. Brock, Telecommunications Policy for the Information Age (Cambridge: Harvard University Press, 1994); W. Li and C. L. Xu, “The Political Economy of Privatization and Competition: Cross-​Country Evidence from the Telecommunications Sector,” Journal of Comparative Economics 30 (2002): 439–​62; J. P. Singh, “The Institutional Environment and Effects of Telecommunication Privatization and Market Liberalization in Asia,” Telecommunications Policy 24/​10–​11 (2000): 885–​906. 4   J. D. Aronson and P. F. Cowhey, When Countries Talk: International Trade in Telecommunications Services (Cambridge, MA:  Ballinger Pub. Co., 1988); W. J. Drake and K. Nicolaidis, “Ideas, Interests, and Institutionalization:  ‘Trade in Services’ and the Uruguay Round,” International Organization 46/​1 (1992): 37–​100. 5   W. J. Drake and E. Noam, “The WTO Deal on Basic Telecommunications:  Big Bang or Little Whimper?,” Telecommunications Policy 21/​9–​10 (1997): 799–​818. 6   P. Cowhey, “The International Telecommunications Regime: The Political Roots of Regimes for High Technology,” International Organization 44 (1990): 169–​99; W. J. Drake, “The Rise and Decline 3

 

538    communications and the internet The Internet protocols developed independently of the traditional telecommunication industry, but the momentous changes in telecommunication policy and economics were a precondition for the rise of the Internet. The new economy emerging around computers and information services was able to thrive in the more open and competitive telecommunications environment. Here again, US initiatives sparked the change. In the mid 1960s, American policymakers knew that they did not want the fledgling new computer and information services industry to be dominated and stifled by the AT&T monopoly. So the US Federal Communications Commission created a regulatory distinction between “basic” and “enhanced” services. Any service that added “information processing” to a telecommunications transmission would be defined as an “enhanced service” and would be unregulated and open to market entry.7 Basic telecommunication service, on the other hand, would continue to be regulated as a common carrier. Separating information services from telecommunication allowed the former to ride on the telephone companies’ infrastructures without being subject to all the entry restrictions and gatekeeping regulations of the telephone companies and their governments. Starting in the early 1980s, the United States pushed for trade rules that would internationalize these reforms, seeing this sector as one of the few in which it enjoyed a competitive advantage and a potential trade surplus. Negotiated at the ITU during the early stages of global liberalization, the 1988 International Telecommunication Regulations (ITRs) failed to explicitly endorse or mandate liberalization, but did create a huge opening for new information services. Article 9, Private Arrangements, allowed international carriers to commercially contract for new kinds of international information services, exempting them from the heavier regulations applied to standard voice communication. By doing so, the United States started to pry open space for “enhanced services,” which was then a small and largely experimental market. The 1988 negotiations over the ITRs took a month to obtain these openings. Consequently, information services began to slip out of the grasp of the formal, regulated telecommunications interconnection arrangements and were able to rely on private contracting among the businesses involved. The early Internet was considered an “information service” by the United States and other major economies such as Britain and Japan. In the early 1990s it was able to spread like rhizomes into the global path cleared for it by the international deregulation of information services and the availability of competitive, unbundled telecommunication facilities. In mid 1990s trade negotiations, some countries saw little harm in opening up such a tiny market; they were more concerned about protecting the gigantic revenue streams and monopoly profits made in voice telephony. of the International Telecommunications Regime,” in Regulating the Global Information Society, ed. T. M. Christopher (London: Routledge, 2000), 124–​77.   R. Cannon, “The Legacy of the Federal Communications Commission’s Computer Inquiries,” Federal Communications Law Journal 55/​2 (2003): 167–​206. 7

 

four types of international organizations    539 Little did those early trade negotiators know that, fifteen years later, the massive telephone voice market would be all but swallowed up by an “information service” known as the Internet. Nor could they have known that this seemingly small and obscure “information service” would transform newspapers, TV and audio broadcasters, cable TV systems, book publishers, and practically every other mode of communication.

Four Types of  International Organizations By converging many industries and technologies onto an integrated digital platform, the rise of the Internet cut across many different industry sectors, a variety of legal regimes, and many international organizations. In order to simplify the analysis, this chapter groups the relevant IOs into four categories: i) technically-​focused organizations that develop global standards and manage and set policy for the naming and numbering resources created by Internet standards ii) transnational forums and alliances of private sector operators and equipment manufacturers iii) governments and IGOs iv) multi-​stakeholder entities that try to serve as a bridge between the governmental and nongovernmental organizations. At this stage, the chapter will briefly describe the organizational entities that fall into each category. Later sections will set these pieces into motion, describing their emergence, their interactions with Internet governance, and the power struggles among them. The nature, function, and role of the organizations will become much clearer in that narrative.

Technical Organizations In this category we place the core institutions of global Internet governance—​the organizations that control the standards development processes and coordinate the management of unique protocol parameters, naming, and addressing.

 

540    communications and the internet The Internet Engineering Task Force (IETF) is the technical standards development forum for the Internet. It dates back to a small and informal gathering of engineers and computer scientists located at major research universities and private sector defense contractors in January 1986. One could consider the IETF to be one of the world’s first open-​source software development communities. It uses open working groups, based on email lists and supplemented by twice-​yearly meetings, to draft and adopt official protocol standards for the Internet. Unlike the ITU, which restricts its standards documents to members, IETF standards have always been openly published. It had—​and still has—​no formal membership and its working groups are open to anyone who cares to join. In most cases adoption of IETF standards is completely voluntary. It was unincorporated until recently when parts of its structure were folded into and supported by the Internet Society. From its beginnings to the present, the IETF developed a series of numbered documents known as the Request for Comments (RFC) series. These documents contained detailed technical specifications for the protocols that made the Internet operate, but they also defined procedures by which the Internet technical community agreed on standards and policies.8 RFCs are routinely referred to as a kind of “law” by the Internet technical community and often engaged with issues of policy.9 Two additional types of organizations are required to operationalize the Internet protocols and standards. Critical to its functioning are two standardized forms of addressing that require global coordination. Internet Protocol (IP) addresses are 32-​bit numbers that are assigned either statically or dynamically to particular computers. These numerical addresses (e.g., 192.14.75.112) are the ones actually used by machines to address and route data packets. The other addressing method, the domain name system (DNS), consists of hierarchically organized character strings that usually form recognizable words or phrases to users (e.g., www.batmanforever.com). Easier to remember and key in than IP addresses, they also provide a more stable identifier, as network administrators may need to share or rearrange the numerical addresses. IP addresses are coordinated by five regional organizations known as Regional Internet Registries (RIRs). There is one for the North American region (ARIN), one for Europe and the Middle East (RIPE-​NCC), one for Africa (AFRINIC), one for Latin America and the Caribbean (LACNIC) and one of the Asia Pacific region (APNIC). Like the Internet Society (ISOC), the RIRs are all incorporated as private sector nonprofit organizations. The RIRs are membership organizations; most of 8   K. W. Abbott and D. Snidal, “International ‘Standards’ and International Governance,” Journal of European Public Policy 8/​3 (2001): 345–​70. 9   S. Braman, “Internet RFCs as Social Policy: Network Design from a Regulatory Perspective,” Proceedings of the American Society for Information Science and Technology 46/​ 1 (2009): 1–​ 29; S. Braman, “The Framing Years: Policy Fundamentals in the Internet Design Process, 1969–​1979,” The Information Society 27/​5 (2011): 295–​310; C. Vincent and J. Camp, “Looking to the Internet for Models of Governance,” Ethics and Information Technology 6/​3 (2004): 161–​73.

 

four types of international organizations    541 the members are Internet service providers, hosting companies and other organizations for whom IP addresses are a critical input into their business. The key activity of the RIRs is to maintain registries that show which blocks of Internet numbers have been given to which organizations. They also formulate policies regarding the allocation and assignment of blocks of unique numbers to applicants. The RIRs govern by private contract; companies that apply for or receive IP number blocks sign registration service agreements that bind them to the policies set by RIR membership collectively.10 Domain name assignment is coordinated globally by the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN is a private corporation to which the US government has delegated the task of maintaining the authoritative root zone of the DNS.11 Unlike the RIRs, ICANN has no members; instead, it has a relatively open but highly complex and diffuse set of representational organs that develop policy recommendations and play a role in the selection of board members. ICANN’s board of directors (and indirectly, its staff) has near-​absolute power over its policies and processes; the outcomes of its bottom-​up policy development organs are basically just recommendations that the board can accept or reject as it pleases, and there are no truly binding forms of appeal or judicial review of its policies.12 Like the RIRs, ICANN governs the domain name industry by private contracts with domain name registrars and registries. It decides what new top-​ level domains will exist, assigns the right to manage them, and determines how much they have to pay for that privilege. ICANN also can set policies regarding the behavior of domain name managers and (indirectly) users; for instance, it contractually binds registrars to a dispute resolution process for trademark domain name conflicts or requires them to publish identification data about registrants. Because of the intense policy conflicts around domain names, ICANN is far more politicized than the RIRs. It has a Governmental Advisory Committee which serves as a de facto IGO in microcosm during ICANN’s policymaking processes. Because of its roots in National Science Foundation contracts, ICANN is tethered to the US government through a contract (the IANA contract) that authorizes it to make changes to the DNS root. But in March 2014, in the wake of the Snowden revelations, the US announced that it would withdraw from this role and two years later a plan for the full privatization of ICANN was developed. ICANN also plays a role in IP addressing, as it makes the initial delegations of large blocks of IP addresses to the RIRs.

10   M. L. Mueller, “Critical Resource: An Institutional Economics of the Internet Addressing-​Routing Space,” Telecommunications Policy 34/​8 (2010): 405–​16. 11   M. L. Mueller, Ruling the Root: Internet Governance and the Taming of Cyberspace (Cambridge, MA: MIT Press, 2002); J. Weinberg, “Geeks and Greeks,” Info 3/​4 (2001): 313–​32. 12   M. L. Mueller, “ICANN, Inc.: Accountability and Participation in the Governance of Critical Internet Resources,” Internet Governance Project (2009), http://​internetgovernance.org/​pdf/​ICANNInc.pdf.

 

542    communications and the internet ISOC is now one of the organizational linchpins of the Internet technical community, which could be described as the epistemic community that developed around the principles, norms, and expert knowledge associated with designing and implementing the Internet protocols. ISOC began in 1992 as an attempt to provide the IETF with an institutional home and financial support.13 Incorporated as a nonprofit organization, ISOC did not easily achieve its intended status. The fiercely independent and anti-​hierarchical IETF participants initially rejected ISOC as its parent organization. For the next decade ISOC coexisted in a looser, informal relationship with the IETF, and it was not until the mid 2000s that the IETF was formally incorporated into ISOC. Most leaders and board members in the RIRs and in ICANN are affiliated with ISOC in one way or another.

Private Sector Operator Forums and Associations Aside from ICANN and the RIRs, a variety of other private sector entities play a significant role in global Internet governance. Because they are more like voluntary industry associations and have not been directly delegated global governance or coordination responsibilities, their politics are less dramatic than ICANN’s, but their role in the actual operation of the Internet is just as important. Liberalization allowed responsibility for many of the interconnection and coordination decisions, as well as certain forms of self-​policing, to be assumed by the private actors or sorted out in the market. Network operator groups are professional associations of the Internet service providers, operators of educational networks, and some content and services firms in the Internet industry. The NOGs, as they are known, tend to be regional in scope, reflecting the Internet’s need for transnational cooperation while also responding to the cultural, political, and economic differences around the world. The oldest of these groups, the North American Network Operators Group (NANOG), grew out of the National Science Foundation’s Internet backbone and routing project that ran from 1987 to 1995. There is a European NOG and an Asia Pacific Regional Internet Conference on Operational Technologies (APRICOT) which describes its mission as providing “a forum for those key Internet builders in the region to learn from their peers and other leaders in the Internet community from around the world.” The NOGs often hold their meetings in conjunction with the RIRs. Both NANOG and APRICOT are membership organizations organized as tax-​exempt nonprofits. While they have no hierarchical control of Internet resources analogous to ICANN’s they function as a space where private sector providers and others   V.  Cerf, “IETF and the Internet Society” (1995), http://​www.internetsociety.org/​internet/​what-​ internet/​history-​internet/​ietf-​and-​internet-​society. 13

 

four types of international organizations    543 can discuss problems and generate self-​regulatory solutions. There are also trade associations of country code top-​level domain (ccTLD) operators. These too are private sector international organizations that represent the interests of and provide services to the operators of country code top-​level domains, such as .UK for Great Britain, .DE for Germany, or .BR for Brazil. The largest of these associations, the Council of European National Top-​level Domain Registries (CENTR), has sixty members and twelve observers that include the domain name registries for almost all of Europe and significant parts of the Middle East, as well as entities from North America and the Asia-​Pacific region. Internet exchange points (IXs) are even more directly connected to Internet operations. These organizations operate neutral meeting points at which multiple Internet service providers can directly interconnect their networks to exchange traffic. IXs interconnect Internet Service Providers (ISPs) at lower cost, lower latency, and faster bandwidth than most other forms of interconnection. Examples of these organizations include Germany’s DE-​CIX (the world’s largest); London’s Internet Exchange (LINX), the Hong Kong Internet Exchange (HKIX), Amsterdam’s Internet Exchange (Ams-​IX) and so on. A variety of action on security issues and cybercrime is routinely taken by the industry. Associations such as the global Forum for Incident Response and Security Teams (FIRST) bring together computer and network security experts from around the world and facilitate cooperative action. Although national policy authorities sometimes play a major role in botnet takedowns, just as often Internet operators work among themselves. Entities like the Anti-​Phishing Working Group are private sector initiatives that coordinate the efforts of banks, domain name registries and registrars, browser manufacturers, and hosting companies to rapidly identify and take down websites that are engaged in a form of fraud known as phishing. The Conficker cabal was a loose, ad hoc network of operational actors formed to combat a powerful worm that seemed to be establishing the infrastructure for a massive botnet. The networks of technical experts and operators underlying these kinds of cooperation can only be understood in the context of network theories of organization14 and by highlighting the broader network of operator forums and associations, and specialized Internet security communities. Two other private sector entities merit a brief mention in this content. The International Chamber of Commerce Business Action to Support the Information Society (ICC-​BASIS) is an industry lobbying group that regularly participates in global Internet governance debates. ICC-​BASIS tends to support a private sector-​ led and business-​friendly approach to governance, but is not rooted in the Internet technical community. It is more representative of large multinational corporations 14   M. Kahler (ed.), Networked Politics: Agency, Structure and Power (Ithaca, NY: Cornell University Press, 2009); M. L. Mueller, Networks and States: The Global Politics of Internet Governance (Cambridge, MA: MIT Press, 2010).

 

544    communications and the internet and their interests in trademark protection, regulation, and security. The Global Network Initiative (GNI) on the other hand is a multi-​stakeholder human rights initiative that seeks to get major Internet operators (such as Google or Microsoft) to take into account human rights concerns when they do business in repressive countries. The GNI is premised on the centrality of the private sector in setting operational policies that affect what Internet users can see and do online. It joins together civil society advocacy groups and industry players to counter efforts by governments to control Internet users by requiring social media operators, ISPs, or search engines to cooperate with or facilitate repression.

Governments and IGOs The emergence of the Internet in the early 1990s caught governments off-​guard, leading to a relative cession of initiative to the private sector actors mentioned above. But it did not take governments long to rebound. Among IGOs, the Internet was quickly recognized as a new arena in which they could apply or expand their missions. Because of the way digital technology converged different media, different industries, and once-​segregated systems of law and regulation, many IOs rushed in to stake out territory, often in an overlapping or even competitive manner. IGOs who have been both early movers in the Internet space and persistent presences have been the Organisation for Economic Co-​operation and Development (OECD), the International Telecommunication Union (ITU), the World Intellectual Property Organization (WIPO), and the Council of Europe. The OECD has played a “soft power” role, facilitating convergence on norms and principles by the major Internet economies. There have also been more sporadic forays by various United Nations (UN) entities into the Internet space, for example by UNESCO, the UN Office of Drugs and Crime, and the UN Human Rights Council’s Special Rapporteur on Freedom of Expression. The WTO, on the other hand, has been surprisingly dormant with regards to Internet governance. Although the 1997 Basic Telecommunication Services agreement incorporated information services and has been invoked to resolve a few Internet-​related trade disputes (most notably involving gambling), most of the trade-​related action in the Internet sphere has since moved to US-​initiated bilateral negotiations and US-​led plurilateral trade agreements such as the Anti-​ Counterfeiting Trade Agreement (ACTA) and the Trans-​Pacific Partnership. In addition to more formal intergovernmental treaties, the Internet’s rise has led to informal transgovernmental networks and governmental participation in some of the private sector networks mentioned above. One transgovernmental network, the London Action Plan, convenes mid-​level law enforcement agency

 

four types of international organizations    545 personnel with some private sector actors to cooperate on the problem of controlling email spam. The US government can also be considered a transnational actor in the Internet space, due to its global power and reach and the centrality of US infrastructure and services in the global Internet industry. The US Commerce Department has had a pre-​eminent role in the oversight of ICANN due to its administration of the IANA contract. The various revelations and whistleblowers from the US National Security Agency from 2005 to 2013 showed that user data from nearly any country might be subject to interception or search provided it touches a US service provider or network. US regulations affecting the flow of money, implemented during the antiterror reaction after 2001, can be used to regulate online service providers by cutting off credit card transactions or bank transfers. US law enforcement agencies have leveraged the presence of the major domain name registries to seize domains registered to foreign businesses because of their association with forms of copyright or trademark infringement that are illegal in the United States. The European Commission on the other hand does not have quite the same clout, but it can also exert transnational leverage through its antitrust proceedings, which might require dominant service providers based in the United States to alter their practices.

Multi-​stakeholder Entities A political tension between the transnational, private sector-​led organizations/​ governance mechanisms characteristic of the Internet and the sovereignty-​based governance of national and intergovernmental institutions has been a recurring feature of the evolution of Internet governance. Multi-​stakeholder entities are IOs that serve as a bridge between these two worlds. Multi-​stakeholderism inserts representatives of civil society and the private sector into intergovernmental proceedings, more or less as peers. The UN Internet Governance Forum (IGF) is the main multistakeholder organization. It was expressly created by the World Summit on the Information Society to serve such a bridging function. The IGF itself sits in a sometimes uncomfortable place between the two worlds. It is part of the UN system but must raise its own money as it is not guaranteed funds from the general budget like a UN bureau would be. The IGF runs an open annual meeting that typically attracts about 2,000 people, where the problems of Internet governance are discussed in a nonbinding dialogue. The program of the IGF is established by a Multi-​Stakeholder Advisory Group which contains representatives from governments, business, and civil society. Since the first meeting of the IGF in 2006, regional and national IGFs have proliferated which reproduce this pattern locally. Some writers use a broader definition of multi-​stakeholder; they would categorize ICANN and the RIRs, for example, as multi-​stakeholder institutions or

 

546    communications and the internet as exemplars of “the multi-​stakeholder model.” But it is important to remember that the label “multi-​stakeholder” was only applied to ICANN and the RIRs retroactively, in the wake of the battles over Internet governance during the World Summit on the Information Society (WSIS). And the concept does not apply to the IETF at all, because it is based entirely on individual participation not on classes of “stakeholders.” In fact, the term “multi-​stakeholder” was applied to the organically developed Internet institutions after the WSIS debates only as a kind of political ploy: to leverage the rhetoric of broader inclusion and representation that civil society activists had brought into the UN system during WSIS and make the Internet institutions more palatable to states and the UN system. The fact remains, however, that the original Internet institutions were private sector-​led forms of self-​governance that in some ways were intended to exclude or avoid governments. The White Paper that established the basis for the ICANN regime, for example, described it as a “privatization” of the DNS. Only after governments asserted themselves in the WSIS process was the term “multi-​stakeholder” applied to ICANN, the RIRs, and IETF. The tendency now is to consider governments as “stakeholders” on a par with private sector and civil society organizations. Governmental participation as peers, however, almost never works because of their inherently bureaucratic and hierarchical structure, and their ability to overrule or even repress other stakeholder groups. While in some sense states are also network operators and users and thus share many concerns with other stakeholders, there is a certain naivety about the treatment of states as “stakeholders” when the pre-​existing political and governance system is built around the notion of states as sovereign decision-​makers who are above specific stakeholder groups.

The Institutionalization of Internet Governance A starting point for understanding transnational organization around the Internet is to articulate a concept of the Internet technical community. This is a self-​conscious community of standards developers and technical experts committed first to building and then to operating and maintaining the Internet. The unique forms of knowledge and technical expertise associated with the Internet protocols, the networks of actors, as well as the rise of companies based on that technology and the relative decline of traditional telecommunication firms, empowered this community. IETF served as ground-​zero for the Internet technical community, and its

 

the institutionalization of internet governance    547 leaders rose to positions of authority along with the Internet’s success, and pushed to institutionalize their position.

Phase 1: The Creation of ICANN The Internet and its domain name and IP addressing systems grew for about twelve years (1981–​93) without creating any notable public policy issues or shifts in international organization. During most of those years, the Internet was closed to the general public and to commercial uses and applications. As a research and education network subsidized by the US National Science Foundation (NSF), the Internet was relatively small and was insulated from commercial forces. Among other restrictions, the NSF imposed an “acceptable use policy” (AUP) in 1985 that prohibited commercial traffic on the subsidized Internet backbone. US government agencies or federal contractors handled the central coordinating functions. In July 1991 only 645 second-​level domain names had been registered, and more than half of them were under the .edu, .mil, and .gov top-​level domains. But in 1992, as the huge commercial value of a globally interoperable data communications standard started to become evident, the NSF began to privatize the Internet infrastructure. It gradually withdrew subsidies from telecommunications backbone and access providers and permitted the growth of a private, commercial ISP industry. In 1995 it shut down the NSFNet backbone and its functions were seamlessly taken over by competing private telecommunication firms. The AUP restrictions disappeared and the Internet was fully open to commerce. The year 1995 can be used as the date when the Internet became a truly commercial, public medium. The popularization of the World Wide Web application two years earlier15 facilitated the explosion of consumer and business activity. The rapid growth of users produced a rush of demand for websites, and every new business wanting a website needed a domain name. The number of new domain name registrations went from 300 per month in 1992 to 45,000 per month by late 1995, and the NSF allowed the contracted registry to begin charging for domains. This created an institutional problem. Significant sums of money were being made on domain registrations, and policy issues regarding domain name trademark conflicts and the economic regulation of the domain name industry surfaced. Yet management and policymaking were in the hands of a tiny group of computer scientists and US government contractors with no mandate to make regulatory policy for the entire world.

15   The first widely disseminated Web browser, “Mosaic,” was produced by the University of Illinois NCSA beginning in 1993. In 1994 the commercialized version of Mosaic known as Netscape was released.

 

548    communications and the internet As early as 1994–​5, ISOC was looking for a way to privatize the central coordinating function of the DNS to allow it and the technical community to retain control of it. In what now would appear to be a strange alliance, it joined with the ITU and WIPO to create an International Ad Hoc Committee to propose new governance arrangements that would institutionalize DNS management in the hands of ISOC, WIPO, and the ITU. At the same time, some commercially oriented actors were attempting to create new, competing DNS roots. Firmly rejecting both ISOC’s attempt to self-​privatize and what it saw as a power grab by the ITU, the US government intervened in 1997. The US Department of Commerce asserted control over the root and initiated a formal notice and comment process that led to the creation of ICANN. A 1998 White Paper served as the charter and founding document for ICANN.16 It avoided direct government action while inviting international participation in governance, concluding that “the U.S. Government is prepared to recognize, by entering into agreement with, and to seek international support for, a new, not-​for-​profit corporation formed by private sector Internet stakeholders to administer policy for the Internet name and address system.” ICANN was incorporated as a California nonprofit public benefit corporation and in 1999 it was recognized by the Commerce Department as the entity that would take over coordination and policymaking for the DNS. There were three reasons why the problem of governing the root of the domain name system and the IP address hierarchy was solved in this way. First, there was the influence of a particular epistemic community, namely the Internet technical community. As new stakeholders and commercial interests impinged on DNS management, the technologists’ control was threatened. This stakeholder group, therefore, resisted traditional forms of international collective action and favored private sector arrangements based on their own, organically developed institutions—​the IETF and the Internet Society. The second factor was the need for global rather than national jurisdiction. In forming its policy toward the Internet and global electronic commerce in the mid-​ to-​late 1990s, the Clinton administration was very concerned about the possibility that the promise of global electronic commerce would be undermined by the assertion of territorial jurisdiction.17 It feared that national governments in particular would impose upon the naturally global arena of the Internet a patchwork of inconsistent or conflicting national laws and regulations. A  private sector governance authority based on private contracts was perceived as a way around this problem. The Clinton administration’s policy called for “private sector leadership” and noted “governments should establish a predictable and simple legal environment based  US Commerce Department, National Telecommunications and Information Administration, Management of Internet Names and Addresses, Docket Number:  980212036-​8146-​02 (“The White Paper”), June 5, 1998, http://​www.ntia.doc.gov/​ntiahome/​domainname/​6_​5_​98dns.htm. 17   “The Internet is emerging as a global marketplace. The legal framework supporting commercial transactions on the Internet should be governed by consistent principles across state, national, and 16

 

the institutionalization of internet governance    549 on a decentralized, contractual model of law rather than one based on top-​down regulation.”18 The third factor was the desire of the US government to avoid existing international regimes, which it viewed unfavorably. US telecommunication businesses and information policymakers shared a long-​standing antipathy toward the ITU’s role in communications regulation in particular. The United States was also leery of European-​led efforts to create a new international treaty or charter for regulation of the Internet,19 fearing that it would open to door to the imposition of a UN-​ like bureaucracy upon the Internet. In this manner the United States sidestepped traditional international arenas and moved the governance problem to an entirely new forum where governments and IGOs were not the central players. In a fateful move, however, the European Commission convinced the United States to add a Governmental Advisory Committee to the ICANN model in 1998. Out of deference to the powerful intellectual property interests, the United States also asked WIPO to develop policy guidance for domain name trademark conflicts. Out of this complicated process ICANN emerged as a new international organization: a private corporation charged with global governance responsibilities with a group of governments sitting as an advisory committee. This delegation to a private actor, invoked by the US government and bound to its supervision through the IANA contract, gave ICANN the authority to modify the authoritative root zone file of the DNS, but only with the approval of the United States. This supervisory authority, which the Clinton Administration originally asserted would end after two years, has remained in place until 2016. Political pressure from US interests, primarily the company running the .com registry and the trademark lobby, prevented full privatization. Later, security concerns and worries about the capture of ICANN by others encouraged the United States to hang on. The current IANA contract requires ICANN to be headquartered in the United States. ICANN was thus organized as if it were a nonprofit membership corporation—​but it had no members, and thus it had no real accountability to anyone except the US government. Also emerging at this time were RIRs which governed the allocation and assignment of IP addresses. These were also organized as nonprofit organizations, but with actual voting members who elected their boards. The RIRs have adhered more closely to the classical bottom-​up governance model of the Internet technical community. Although they have encouraged participation by representatives of governments, and have formed special working groups to liaise with law enforcement international borders that lead to predictable results regardless of the jurisdiction in which a particular buyer or seller resides.” A Framework for Global Electronic Commerce, The White House, July 1, 1997.  Ibid.   On September 8, 1997, EU Commissioner Martin Bangemann, in a speech prepared for an ITU conference in Geneva, called for an “international charter” to regulate the Internet. The proposed charter would deal with questions such as technical standards, illegal content, licenses, encryption, and data privacy. 18

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550    communications and the internet agencies, they have no equivalent of the GAC and no contract or oversight from the United States. A key contributor to the success of ISOC was the 2003 decision by ICANN to award Public Interest Registry (PIR) control of the .ORG top-​level domain. In an attempt to promote competition, the US Commerce Department had extracted from Network Solutions an agreement to divest itself of one or two top-​level domains. PIR, a wholly owned subsidiary of ISOC, applied to operate the new domain and was successful. Before it controlled .ORG, ISOC had been plagued by financial problems and stumbled along with a somewhat confused mission. From 1995 to 1998 ISOC made several unsuccessful or semi-​successful attempts to influence the intensifying international politics around the Internet.20 Possession of the .ORG registry, however, changed everything. It put ISOC in command of a stable, growing income stream in the tens of millions of dollars. With these financial resources, ISOC was not only able to provide support for the RFC editor and the IETF process, but also to become a formidable lobbying power in domestic and international policymaking related to the Internet. It also expanded its technical influence, making a major donation supporting the operation of the World Wide Web Consortium (W3C), which develops and maintains standards such as HTML and HTTP for the Web. ISOC has hired as policy staff former diplomats and government officials involved in the ICANN regime as well as former Department of Commerce staff members who were once responsible for supervising ICANN. Indeed the relationship between ICANN and ISOC is a good example of how the success of the Internet empowered and institutionalized the Internet technical community.

Phase 2: The World Summit on the Information Society (WSIS) The WSIS (2002–​5) can be characterized as the world’s governments collectively waking up to the revolution in governance that was taking place around the Internet, and making a strenuous effort to reassert traditional forms of sovereignty. It had started as an attempt by the ITU to marshal resources for telecom infrastructure development, but conflicts among states over Internet governance, and in particular ICANN, came to dominate the summit agenda. Several developing country governments, egged on by the ITU, challenged both the unilateral power held by the US government over ICANN and the prevalence of nongovernmental policymaking mechanisms for the Internet. While some of these governments were authoritarian 20   R. Werle and V. Leib, “The Internet Society and its Struggle for Recognition and Influence,” in Private Organisations in Global Politics, ECPR Studies in European Political Science, ed. R. Karsten and S. Volker (London, New York: Routledge, 2000), 102–​23.

 

the institutionalization of internet governance    551 states such as China and Middle Eastern dictatorships, the sovereigntist backlash also included developing-​world democracies such as Brazil and South Africa. The summit also served as a battleground over the principle of the representation of nonstate actors in intergovernmental proceedings (i.e., multi-​stakeholderism). A civil society mobilization ​demanding voice in WSIS helped to forge an ongoing political alliance between private sector Internet businesses, the technical community, and civil society rights advocates. WSIS had two phases, the first in Geneva and the second in Tunis. The Geneva phase produced a multi-​stakeholder Working Group on Internet Governance (WGIG) charged to define the term “Internet governance” and to identify the public policy issues involved. The WGIG—​a group of forty people in which civil society, governments, and private business were all represented and had equal status—​produced a broad definition: “Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-​making procedures, and programmes that shape the evolution and use of the Internet.” While anchored in the theory of international regimes from academic international relations literature,21 the definition also reveals some of the political imperatives at work. In deference to the important role of private actors, it makes a point of noting that Internet governance is done not just by governments but also by other stakeholder groups. But the phrase “in their respective roles” signals a concession to the sovereigntists’ insistence that governments alone are responsible for public policy. The report’s concept broadened the definition of Internet governance beyond “ICANN issues” to include almost any policy issue that touches on Internet usage or coordination. The Summit went on to articulate a set of broad principles regarding Internet governance: “The international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations.” The Geneva principles, along with the WGIG report, formally recognized the principle of multi-​stakeholder participation in Internet governance. Unlike the ICANN regime, however, the Geneva principles envisioned “full involvement” of national governments and posited “multilateral” governance as a norm, indirectly criticizing the special role of the United States. The final document produced by the summit, the Tunis Agenda, also made it clear that states were reserving to themselves the right to make policy for the Internet:  “Policy authority for Internet-​related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-​related public policy issues.” The Tunis Agenda also agreed to create the IGF, a nonbinding, multi-​stakeholder dialogue where states, business, civil society, and the technical community would meet annually to discuss Internet governance.

  S. D. Krasner (ed.)., International Regimes (Ithaca, NY: Cornell University Press, 1983).

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552    communications and the internet WSIS had a huge impact on ICANN. The intergovernmental system had failed to ‘take over’ ICANN or push its functions into the ITU, as the G77 states had wished. In some respects that challenge strengthened and stabilized ICANN. China, for example, rejoined the GAC once it was clear ICANN was not going to go away. ICANN emerged from WSIS with more awareness and support from civil society groups, which appreciated the contrast between its open participation and the restriction of intergovernmental proceedings to state actors. ICANN also came across as more grounded in the Internet’s original ethos and less likely to be authoritarian than the intergovernmental system. On the other hand, WSIS greatly strengthened the role of governments in ICANN, moving it closer to an intergovernmental regime. The US government began to use ICANN’s GAC as a tool to keep restive nation-​states happy, so as to keep them inside the regime and satisfied with what it now referred to as “the multi-​stakeholder model.” As a result, the US government itself, and other governments in the GAC, frequently invoked the Tunis Agenda’s claim that governments had a special status in the formulation of “public policy.” The GAC was used to remake or veto policies developed by nonstate actors in ICANN’s formerly bottom-​up process.

Phase 3: The WCIT and the Rise of Cybersecurity Nationalism The eight years after WSIS saw the rise and decline of the IGF, continuing efforts by counter-​hegemonic states to promote the ITU or the UN as the appropriate venue for Internet governance, and a convergence of Internet governance and national security concerns brought on by cyberespionage and cyberweapons use. The latter development brought a new epistemic community—​foreign policy and military/​ strategic thinkers—​into the institutional field of Internet governance. That community had little grounding in, and sometimes little sympathy for, ideals of bottom-​up policymaking, multi-​stakeholder governance, or the free flow of information and open systems, tending instead to see governance issues in the traditional framework of great power geopolitics and national exclusivity. In the early years of the IGF, equal-​status dialogues among governments, civil society, and business on Internet issues proved to be refreshing and workable. As time passed, however, the nonbinding exchanges evidently had no discernable impact on the basic governance arrangements. That failed to satisfy those governments who were either resentful of the privileged role of the United States or seeking a more sovereignty-​based regime. By the same token, Internet organizations such as ISOC and the RIRs (which had openly opposed the creation of the IGF in the first place), quickly learned that their expertise and resources enabled them to dominate the IGF agenda and planning committees. The happier the traditional

 

the institutionalization of internet governance    553 Internet community became with the IGF, the more dissatisfied the statists became. Thus, five years after WSIS, the fissure between national sovereignty and transnational, private sector governance advocates reappeared. Intergovernmentalists attempted to bring the IGF more firmly under the control of the UN, or asked the UN General Assembly to create a state-​centric alternative to the IGF (a Committee on Internet-​Related Policies); their opponents sought to preserve the status quo “multi-​stakeholder model.” Another weakness of the IGF was the lack of serious participation from the private sector entities with real operational control of the Internet. To them, IGF was more of a public relations function than an arena for exploring or negotiating new governance mechanisms. As the IGF approached its tenth anniversary, it appeared likely to survive, but unlikely to achieve its hoped-​for status as the primary meeting point for states, Internet businesses, and civil society on matters of Internet governance. The ITU also reappeared as an alternative institutional venue for nation-​states dissatisfied with the ICANN regime and/​or eager to work against what they perceived as US hegemony on the Internet. The ITU floated initiatives to create “country Internet registries” that would provide an alternative IP address allocation mechanism to the transnational private sector-​led regime of the RIRs.22 Resolutions passed at ITU plenipotentiary conferences laid the groundwork for continued involvement of the ITU in Internet governance discussions. The ITU also began positioning its World Telecommunication Policy Forum as an alternative to the IGF. The role of the ITU in Internet governance came to a head, however, in the December 2012 World Conference on International Telecommunications (WCIT). The goal of the WCIT was to revise the 1988 International Telecommunication Regulations, a binding treaty governing the international interconnection arrangements among telecommunication carriers. Some aspects of the treaty were badly in need of updating; for example, there were still references to telegraph and telex technology in them. For nearly ten years prior to the 2012 WCIT meeting, there were discussions and debates about whether the ITRs should be revised or allowed to expire. By 2009, when the United States and Europe finally agreed to go ahead with a revision, the Internet had long supplanted traditional voice telecommunications as the predominant form of international communication. The ITRs’ status as a binding treaty, some feared (or hoped), might allow states to give the ITU and nation-​states more authority over the Internet. This led some big Internet firms to generate a major public relations campaign claiming that the ITU was out to “take over” and censor the Internet. They succeeded in mobilizing many civil society 22   R. K. Murugesan and S. Ramadass, “The Country Internet Registry (CIR) Model: An Alternative Approach for the Allocation and Distribution of IPv6 Addresses,” presented at the 6th International Symposium on High-​Capacity Optical Networks and Enabling Technologies (HONET), Alexandria, Egypt (December 28–​30, 2009).

 

554    communications and the internet groups opposed to censorship and content regulation. Civil society mobilization around WCIT pressured the ITU to open up access to its negotiating documents in unprecedented ways. The United States and most other Western developed states insisted on modifying the treaty in ways that kept its definitions and its scope strictly limited to telecommunications. Other states proposed incorporating cybersecurity, spam, and other Internet-​related issues into the treaty. In a calculatedly provocative move, Russia tabled a proposal to include in the new ITRs definitions for the Internet, Internet Governance, and a new concept called the “national Internet segment.” In the end, the final draft of the revised ITRs retained its narrow scope and rejected nearly all of the controversial proposals.23 Yet a nonbinding resolution authorized the ITU to continue to debate and discuss Internet governance.24 Only 89 of the 144 eligible states signed the amended ITRs. With the exception of India, which joined the nonsignatories, most of the signatories were non-​Western developing countries and most of the rejecters were developed economies in Europe and North America. Countries that refused to sign will continue to operate under the 1988 ITRs. Yet even as the Western powers were raising fears of an Internet dominated by nation-​states, their own security interests and intelligence agencies were in the process of fostering a new Internet nationalism based on what they saw as the convergence of cybersecurity and national security. The United States created a Cyber Command and deployed a powerful cyberweapon known as Stuxnet against Iran. Restrictions on the use of Chinese-​manufactured telecommunications equipment in the US market were called for, based on unproven but not entirely implausible fears that the foreign-​made equipment might have “back doors” that would allow spying by China’s government. Exposure of Chinese cyberespionage against many organizations, companies, and governments worldwide by a number of sources contributed to the perception that the Internet was becoming an instrument of foreign and military policy.25 A committee that approves foreign investment in the United States used its gatekeeping position to extract ever-​stronger commitments from telecommunication providers to provide US intelligence and law enforcement agencies with knowledge of and access to their networks, and to limit foreign equipment purchases. The June 2013 revelations of whistleblower Edward Snowden, along with a string of   ITU, 2013.   Resolution Plen/​3 (Dubai, 2012), “To Foster an Enabling Environment for the Greater Growth of the Internet,” Final Acts of the World Conference on International Telecommunications, Dubai, 2012, p. 20, http://​www.itu.int/​en/​wcit-​12/​Documents/​final-​acts-​wcit-​12.pdf. Part 1 refers to resolutions related to Internet governance adopted by WSIS and ITU at previous conferences. Part 2 invites ITU member states and the ITU Secretary-​General to engage in Internet-​related public policy issues using the multi-​stakeholder model. 25   S.  Adair et  al., Shadows in the Cloud:  Investigating Cyber Espionage 2.0, Information Warfare Monitor and Shadowserver Foundation (April 6, 2010); R. Deibert et al., Tracking Ghostnet: Investigating a Cyber-​Espionage Network (Toronto: Information Warfare Monitor, 2009); Mandiant, APT1: Exposing One of China’s Cyber Espionage Units (Washington, DC: Mandiant, Inc., 2013). 23

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conclusion   555 several other disillusioned National Security Agency (NSA) employees, showed the world that the world’s most powerful government was already collecting and observing massive amounts of Internet and telephone data, leveraging their special relationships with American phone and Internet service providers. While the debate in the United States focused narrowly on whether the NSA’s surveillance respected legal boundaries intended to protect US citizens, it was evident to the rest of the world that they enjoyed no such protection, reinforcing further the tendency to think of infrastructure and information services in national rather than transnational terms. The NSA revelations provoked a powerful backlash. States such as Brazil and Germany began thinking in terms of “data sovereignty.” Trade negotiations between Europe and the United States were affected. The US attempt to promote norms of Internet freedom was severely undermined. In October 2013, one of the most shocking reactions to the NSA revelations occurred when the leaders of all the Internet technical community issued a statement calling for the independence of ICANN from unilateral US oversight,26 and ICANN’s CEO joined Brazilian President Dilma Rousseff in a call for a global summit to discuss a new, more “equal” approach to Internet governance.

Conclusion Perhaps more than any other sector, communications and information is pioneering change in the role of states and leading to new forms of transnational governance. Yet in the realm of cybersecurity the traditional concerns about national security and interstate rivalry, espionage, and war remain. With only the murky concepts of multi-​stakeholder governance and public–​private partnerships to serve as a bridge, the world is groping for new forms of Internet governance that reconcile the opposing demands of globalized communication and territorial government. The arena is characterized by intense competition for authority and influence among international organizations of both the state-​centric and nonstate variety. With the NSA exposure revealing—​and therefore undermining—​US pre-​eminence on the Internet, a nationalist backlash has taken place. But it is checked by the norms and networked ties among industry, civil society, and some entities within governments who view a globally interoperable Internet as a social value of tremendous importance.  Montevideo statement October 10, 2013, https://​w ww.icann.org/​n ews/​announcement-​ 2013-​10-​07-​en. 26

 

 

Part V

THE FUNCTIONS OF INTERNATIONAL ORGANIZATIONS

 

 

Chapter 26

LAWMAKING Nigel D. White

Before understanding the legal and political nature of norms produced by international organizations, it is first necessary to understand the legal and political nature of international organizations, in order to discern their legislative potential. This is considered in the early part of the chapter through discussing the concepts of legal personality, separate will, and governance as forming the conceptual framework for lawmaking by international organizations. The inquiry will be as to whether organizations, in exercising their autonomous competence, can produce laws in their own right, irrespective of whether their output then feeds into the traditional sources of international law—​treaties, custom, or general principles. Examples will be taken from practice—​for example in health law, space law, and counterterrorism law—​to show how organizations make laws and whether it is possible to identify those by the form, content, and method of adoption. If resolutions adopted by international organizations, matching certain legislative criteria, are shown to be laws per se, it is unnecessary to wait to see if they are accepted in practice so as to become custom; rather, practice should be examined in order to evaluate the impact of those laws on the internal legal orders of organizations and, more broadly, on the international legal order. There is a clear difference between custom which is traditionally conceived as unwritten agreements between states, and law produced by international organizations which is written (in the form of decisions, declarations, recommendations, codes of practice). That written law may either encapsulate existing customary norms (although the process of writing custom down will invariably mean change), possibly create entirely new

 

560   lawmaking law, or challenge existing practices and customs, thereby competing for recognition alongside such norms. This vision of lawmaking by organizations represents a significant change, from a pure Westphalian system of self-​regulation by states, towards a system of governance by organizations.

Organizations as Lawmakers International legal analysis of the legal nature of international organizations is often limited to determining the presence of international legal personality, but that concept is merely the first layer of autonomy to be found in such bodies.1 The extent of separate will of organizations is worth exploring as it unearths their true lawmaking potential and, ultimately, their pretentions to governance.

Legal Personality In the period of proliferating organizations after World War II, before it was thought that international organizations could produce law (whether soft or hard), it was necessary to establish as a general principle that organizations meeting certain criteria had international legal personality. Without possessing this attribute, it would not be possible for an organization to produce law.2 Historically, only states possessed such an attribute, the importance of which was that they were the subjects of the international legal order, but it also meant that only states could make international law as an expression of their sovereign wills.3 This distinguishes international law from national legal orders, where the possession of legal personality does not inherently entitle the subjects of the legal order to make law (except in a private contractual sense). Within a predominantly horizontal system of states there was the possibility that when they came together collectively to form something separate from themselves, they were creating an entity with international legal personality, with the capacity to 1   See N. D. White, “Layers of Autonomy in the UN System,” in International Organizations and the Idea of Autonomy, ed. R. Collins and N. D. White (London: Routledge, 2011), 298. 2  C. F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd ed. (Cambridge: Cambridge University Press, 2005), 78. 3   But see J. Crawford, “The Charter of the United Nations as a Constitution,” in The Changing Constitution of the United Nations, ed. H. Fox (London:  British Institute of International and Comparative Law, 1997), 6.

 

organizations as lawmakers   561 make law, although the existing state-​dominated forms of lawmaking still prevailed. However, the extent of institutional lawmaking was not anticipated in the immediate postwar period when it was envisaged that the specialized agencies at least would be ‘forum organizations’4 with little lawmaking or indeed operational competence.5 Although such agencies appeared to have ‘functions corresponding roughly to those of traditional national government departments: finance, agriculture, labour, health, education etc.’,6 it was clear from the lack of any decisive coordination by the Economic and Social Council (ECOSOC) that this was neither an attempt at a form of world government, nor, indeed, an attempt at creating different regimes of governance.7 This perception of organizations as glorified conference structures constructed to facilitate inter-​state discourse was soon changed by the seminal judgment of the International Court of Justice in the Reparation advisory opinion of 1949. The Court stated: The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the Community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective action of States has already given rise to instances of action upon the international plane by certain entities which are not States. The development culminated in the establishment in June 1945 of an international organization whose purposes and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable.8

International legal personality is a rather anodyne label attached to the notion of separate will and, moreover, it only establishes that organizations can have the potential to make law. Thus, to establish that organizations have lawmaking capacity it is necessary to identify whether an intergovernmental organization has separate (legislative) will or volonté distincte in a more profound sense than embodied in the notion of international legal personality.9

Separate Will It might have been the case that the ‘pure’ system of states would have survived the advent of organizations, if organizations had simply represented the aggregation of   P. Taylor, “Developing the Role of ECOSOC,” in The United Nations at the Millennium, ed. P. Taylor and A. Groom (London: Continuum, 2000), 103. 5   O. Schachter, “The UN Legal Order: An Overview,” in United Nations Legal Order, ed. O. Schachter and C. C. Joyner (Cambridge: Cambridge University Press, 1995), 2. 6 7   Taylor, “Developing the Role of ECOSOC,” 102.   Arts. 62–​4 UN Charter. 8   Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, 174, 178. 9   D. J. Bederman, “The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel,” 36 Virginia Journal of International Law 36 (1996): 275, 357. 4

 

562   lawmaking the wills of the member states. However, it has become generally accepted law that an intergovernmental organization with certain elements is presumed to have international legal personality.10 Those elements vary between writers, with some emphasizing permanency, separate purposes, and distinct powers, as well as organs;11 while others include organs, membership, and decision-​making.12 While this establishes the existence of separate will in the form of international legal personality, the extent of separate will is to be found in the nature of those features: in the presence of majority voting in the organs; the breadth of the purposes of the organization; the intrusiveness of the powers of the organs; the nature of decision-​making; and the nature of membership. These are reflective of the legal nature or character of the organization, which may range from the contractual-​type (for example NATO) to the constitutional (for example the European Union (EU) and, to a lesser extent, the United Nations (UN)). In order for any international organization to be seen as existing separately from its member states, the organization ‘must have a decision making organ that is able to produce a “corporate” will, as opposed to a mere “aggregate” of the wills of the Member States’.13 That ‘corporate will’ takes different forms: executive decisions consisting of concrete actions such as the disposition of peacekeeping forces, judicial decisions, and opinions aimed at resolving disputes, and abstract legislative decisions designed at shaping, changing, or influencing the institutional and international legal orders. In contrast to G7 ‘communiqués’, decisions of the UN Security Council (UNSC), even ones adopted by the unanimous vote of all fifteen members are a product of the exercise of will of the Security Council not the combined wills of the member states. The separate personality of the UN establishes the will of the organization as a whole, although in the case of the Security Council there is a concentration of will, enabling it for example, to take mandatory decisions imposing non-​military measures binding on the whole membership.14 In the past, this has taken the form of sanctions imposed against states,15 and increasingly non-​state actors,16 to tackle specific threats to the peace. In the twenty-​first century, however, this has taken the form of more general legislation binding on the international community of 10  Amerasinghe, Principles of the Institutional Law of International Organizations, 90; J. Klabbers, “Presumptive Personality: The European Union in International Law,” in International Legal Aspects of the European Union, ed. M. Koskenniemi (Aldershot: Ashgate, 1998), 243–​9. 11   J. Crawford, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012), 169. See further Amerasinghe, Principles of the Institutional Law of International Organizations, 82–​3; R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon, 1994), 47. 12  R. A. Wessel, “Revisiting the International Legal Status of the EU,” European Foreign Affairs Review 5 (2000): 507, 517. 13 14  Ibid.   Arts. 25, 41 UN Charter. 15   e.g., UNSC Res. 661 (1990) re Iraq; UNSC Res. 748 (1992) re Libya. 16   UNSC Res. 1267 (1999), re the Taliban and Al-​Qaeda.

 

organizations as lawmakers   563 states to take measures to combat terrorism,17 the proliferation of weapon of mass destruction to non-​state actors,18 and the re-​emergence of piracy as general threats to international peace and security.19 The development of these powers is a clear expression of the separate will of the Security Council. The power to create international criminal tribunals by the Security Council, for instance, can hardly be said to have been the intention of the founding states; in reality the tribunals are a creation of the Security Council itself, a product of its separate will.20 Of course there are various strengths of constitutions governing both international organizations and their member states; some may command more respect and loyalty from states, and, on occasions, individuals, than others do.21 The stronger the constitution the greater the separate will of the organization. Dynamic constitutions reinforce and strengthen separate will. The driving force in such organizations is not so much the doctrine of powers, but the practice of the organization, which creates ‘customary constitutional law’ that gradually fills in the legal framework created by the constitutive document.22 As Bederman states, this results in the ‘merger of treaty and custom into the life’ of the organization.23

Governance In 1945, the UN Charter was arguably constructed with some intent to create a constitutional document and not simply an international treaty,24 a fact indicated by its opening words: ‘We the Peoples of the United Nations …’25 The Charter has indeed become the foundational constitutional document in the UN system and, to a lesser extent, in the wider international legal order.26 This is not an argument for world government since a constitution at a basic level is not necessarily an instrument or reflection of government. A constitution aims at ‘the establishment and preservation 18 19   UNSC Res. 1373 (2001).   UNSC Res. 1540 (2004).   UNSC Res. 1846 (2008).   UNSC Res. 827 (1993) re ICTY; UNSC Res. 955 (1994) re ICTR. 21   P. Craig, “Constitutions, Constitutionalism, and the European Union,” European Law Journal 7 (2001): 25, 125. See also J. Raz, “On Authority and Interpretation of Constitutions: Some Preliminaries,” in Constitutionalism, ed. L. Alexander (Cambridge: Cambridge University Press, 1998), 152–​3. 22   Pollux, “The Interpretation of the Charter,” British Yearbook of International Law 23 (1946): 54, at 54. 23   Bederman, “The Souls of International Organizations,” 358. 24  See generally S. C. Schlesinger, Act of Creation:  The Founding of the United Nations (New York: Westview Press, 2003). 25   But see M. Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University Press, 2013). 26   R. Bernhardt, “On Article 103,” in The Charter of the United Nations: A Commentary, ed. B. Simma, 2nd ed. (Oxford: Oxford University Press, 2002), 1295. See also C. Tomuschat, The United Nations at Fifty: A Legal Perspective (The Hague: Kluwer, 1995), ix. But see G. Arangio-​Ruiz, “The ‘Federal Analogy’ and UN Charter Interpretation: A Crucial Issue,” European Journal of International Law 8 (1997): 9. 17

20

 

564   lawmaking of an international order in which basic rights and interests … are acknowledged and conflicting claims settled peacefully’.27 This does not lead automatically to government, but rather to governance whereby laws are made that guide behaviour and enable legal claims to be settled by peaceful means.28 The emergence of ‘governance without government’ at the international level,29 has been energized by the challenges of increasing globalization, which has enabled ‘individuals, corporations and nation-​states to reach around the world farther, faster, deeper and cheaper than ever before’.30 This means that ‘unless some aspects of globalization can be effectively governed, it may not be sustainable in its current form. Complete laissez faire was not a viable option during earlier periods of globalization and is not likely to be now.’31 Organizations contribute to such stabilization by providing a ‘stable organizational structure’ allowing for increased ‘efficiency of collective activities’ and enhancing an organization’s ‘ability to affect the understandings, environment, and interests of states’.32 Thus, organizations provide governance, a system that falls short of government and the idea of a world state. There are limited exceptions to this, namely the EU (especially in its economic functions) and the Security Council with the realm of peace and security, but the bulk of organizations contribute to regulation by providing norms and mechanisms for governance.

The Inadequacies of Traditional Sources of International Law An organization possessing an independent will located within a constitutional framework will provide governance principally in the form of norms, so that there are many sometimes overlapping organizational legal orders (UN law, ITU law, WHO law, ICAO law, ILO law, IAEA law, WTO law … ). Drawing on a well-​known 27   B. Fassbender, “The United Nations Charter as Constitution of the International Community,” Columbia Journal of Transnational Law 36 (1998): 529, 555. 28   Ibid., 574. 29   P. Mayer, V. Rittberger, and M. Zurn, “Regime Theory, State of the Art and Perspectives,” in Regime Theory in International Relations, ed. V. Rittberger (Oxford: Clarendon, 1993), 393. 30   T. L. Friedman, The Lexus and the Olive Tree: Understanding Globalization (New York: Anchor Books, 1999), 7–​8. 31   R. O. Keohane and J. S. Nye, “Introduction,” in Governance in a Globalising World, ed. J. S. Nye and J.D. Donahue (Washington: Brookings Institution, 2000), 1. 32   K. Abbott and D. Snidal, “Why States Act through Formal International Organizations?,” Journal of Conflict Resolution 42 (1998): 4–​5.

 

the inadequacies of traditional sources    565 text on international institutions to provide some illustrations33 of how UN bodies produce both traditional and non-​traditional laws, the following legal outputs can be mentioned:  the International Labour Organization’s (ILO) production of nearly 200 labour conventions with accompanying recommendations, as well as its declaration on fundamental principles and rights at work in 1998; the Food and Agriculture Organization’s (FAO) resolution on the utilization of food surpluses in 1961; the UN Educational, Scientific and Cultural Organization’s (UNESCO) conventions on culture and heritage; the International Civil Aviation Organization’s (ICAO) lawmaking on communications, navigation, air traffic management, flight safety, preventing acts of terrorism against civil aviation, and tackling aircraft emissions; the International Monetary Fund (IMF) Board of Governors’ twenty-​ plus laws complementing the Articles of Agreement; the World Bank’s development of a body of norms on conditionality accompanying its loans; the World Health Organization (WHO) treaties (e.g. on tobacco control, 2003) and regulations; the technical regulations covering meteorological practices and procedures of the World Meteorological Organization (WMO); the International Maritime Organization’s (IMO) standards in matters of maritime safety and navigation; the Universal Postal Union’s (UPU) regulations on postal services; the International Telecommunication Union’s (ITU) regulation of radio frequencies and orbital slots; the harmonization of national legislation on intellectual property by World Intellectual Property Organization (WIPO); and the International Atomic Energy Agency’s (IAEA) standards on nuclear safety and material. The growth of legal orders and the increasing operational activities of organizations have meant increasingly overlapping competences, so that, in the case of the UN family of organizations and bodies, for instance, the system is no longer one of discrete sectoral competences as originally envisaged in 1945, or indeed, as claimed by the International Court in an advisory opinion of 1996.34 The legal outputs of organizations, both formal and informal, contribute to the creation of legal regimes. Such a regime has been defined as a ‘set of implicit or explicit principles, norms, rules and decision-​making procedures around which actors’ expectations converge in a given area of international relations’.35 It follows that state behaviour is not only to be evaluated by reference to treaty or custom. Although there is no current international legislature, the legislative effect of lawmaking by organizations should not be underestimated. Of course, subject to limited exceptions such as the UN Security Council, the legal output of international organizations is not legislative in the sense of creating immediate hard obligations,   P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th ed. (Sweet and Maxwell, 2009), 81–​112. 34   Legality of the Use by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 1996, 66. 35   S. Krasner, “Structural Causes and Regime Consequences:  Regimes as Intervening Variables,” International Organization 36 (1982): 184, 186. 33

 

566   lawmaking but organizations still make international law through ‘informal operations, directives and initiatives’.36 Even though the term ‘legislation’ is often confined to hard lawmaking, there is no reason why its meaning—​as the process of enacting law—​should not be extended to softer forms of lawmaking. The point about these forms is that the intention remains one of norm creation, but the form is not one of the traditional sources of international law, with their clear obligatory element. Furthermore, the success of such soft lawmaking is not dependent on the existence of a formal obligation to obey, but on the fairness or justness of the norm, principle, or standard being promulgated.37 The greater this element, the more likely the norm is to exert ‘a pull towards those addressed’ by the norm.38 In other words, a much more crucial feature in norm compliance is the legitimacy of that norm rather than the issue of whether it has come about by traditional means of ‘hard’ lawmaking, or by means of ‘soft’ lawmaking within an international organization. It is this factor that explains why states ‘habitually comply’39 with large amounts of laws promulgated by international organizations.40 Although it is possible to reconcile many forms of organizational output with the traditional sources of international law located in Article 38 of the Statute of the International Court of Justice, this can only be achieved by adopting an understanding of its provisions that departs from the pure consensual concept of international lawmaking embodied in the Lotus Case of 1927.41 Although the form of the ‘traditional’ sources—​principally custom and treaties—​has remained constant, the content, function, and promulgation of the law has significantly changed, with treaty-​making and custom formation being centred upon international organizations after World War II.42 The impact of organizations in the post-​1945 era has combined with international concern for abuse within states to dilute the Lotus vision of international law as consisting of contractual relations between sovereign equals concerned solely with intergovernmental relations. The move away from international law being solely the ‘private’ law of states (the law of nations) towards a more ‘public’ form of law concerned with the relations between the state and the individuals within its jurisdiction (most obviously in the case of human rights law) has been fuelled by the legal   Bederman, “The Souls of International Organizations,” 372.  J. Rawls, A Theory of Justice (Oxford:  Oxford University Press, 1972), 11–​22, 118–​92, 333–​62; R. Dworkin, Law’s Empire (London: Fontana, 1986), 193. 38   T. M. Franck, The Power of Legitimacy Among Nations (Oxford: Oxford University Press, 1990), 24. 39   P. Szasz, “General Law-​Making Process,” in United Nations Legal Order, ed. O. Schachter and C. C. Joyner (Cambridge: Cambridge University Press, 1995), 46. 40   F. L. Kirgis, “Specialized Law-​Making Processes,” in United Nations Legal Order, ed. O. Schachter and C. C. Joyner (Cambridge: Cambridge University Press, 1995), 109. 41   PCIJ Rep, Series A, No. 9. 42  See further K. Renner, The Institutions of Private Law and their Social Functions (London: Routledge & Kegan Paul, 1949), 300. 36 37

 

lawmaking by organizations   567 output of international organizations starting with the seminal resolution of the UN General Assembly (UNGA) of 1948—​the Universal Declaration of Human Rights.43 While the label ‘hard law’ in the sense of obligatory norms has stuck to treaties and custom (but less so the ‘general principles’, and the ‘subsidiary means’ listed in Article 38 of the Court’s Statute), the legal output of international organizations has (in the absence of a binding treaty commitment) attracted the label of ‘soft law’ in an attempt to explain the legal, but non-​binding nature, of the output.44 This reflects the dominant discourse of international law based on treaties and custom which define the limits of binding law, buttressed by the principles of pacta sunt servanda45 and opinio juris, which are grounded on the principle of consent. However, it will be shown that, even in terms of the dominant discourse, many organizational outputs can become hard law, either because they are later translated into treaties to which states can become parties, or they become accepted as custom. However, this orthodox accommodation of institutional outputs as ‘soft law’ which may or may not become ‘hard law’ undervalues the legislative function of ‘soft’ law itself, as the following section illustrates.

Lawmaking by Organizations Forms of Law In this section a brief overview of the two main forms of lawmaking by international organizations will be undertaken to show that, although there may be a formal distinction between ‘hard’ and ‘soft’ law within the output of international organizations, the distinction is neither conclusive as to what constitutes institutional legislation nor is it decisive in considering compliance by member states in practice. Although a limited number of organizations, primarily but not exclusively, the EU and the UN (in the form of the Security Council) can, by the terms of their constitutions,46 adopt binding decisions, for most organizations the difference between these and non-​binding forms of resolutions is marginal.47 Declaratory texts of the UN General Assembly have as much impact and arguably greater legitimacy than many law-​creating decisions of the Security Council. There   UNGA Res. 217A (III), 1948.   F. Van Hoof, Rethinking the Sources of International Law (The Hague: Kluwer, 1983), 187–​9. 45   Art. 26 of the Vienna Convention on the Law of Treaties 1969. 46   Art. 25 UN Charter; Art. 249 of the Treaty Establishing the European Community. 47   H. G. Schermers and N. M. Blokker, International Institutional Law, 5th ed. (Leiden: Martinus Nijhoff, 2011), 825. 43

44

 

568   lawmaking are numerous such Assembly resolutions containing clearly articulated norms, such as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990,48 the normative force of which has been accepted not only by the Human Rights Committee,49 but also within the UN system when deploying peace operations with a police element.50 This has more normative force than the badly drafted ‘legislative’ resolutions of the Security Council, for example, on terrorism,51 where the lack of definition of terrorism has allowed states to interpret the broad ‘obligations’ for their own purposes. Although the Security Council legislative resolutions are ‘binding’ they arguably do not regulate state behaviour as much as the declaratory resolutions of the Assembly.

Executive Lawmaking The UN Security Council’s mandatory powers have been wielded regularly since the end of the Cold War.52 There has been a continuing debate, since the non-​forcible measures taken against Libya in 1992,53 about the limitations on the competence of the Security Council. Libya raised concerns regarding the use or misuse of the concept of ‘threat to the peace’ by the Council,54 as well as the ability of the Council to override existing treaty rights and duties of states by virtue of Article 103 of the Charter (in that case the treaty rights of Libya to prosecute the two suspects arising under the Montreal Convention of 1971).55 The issue was intensified with the adoption of Resolution 1422 on 12 July 2002, in relation to immunity of peacekeepers before the International Criminal Court, where there was no explicit finding of a ‘threat to the peace’ in what purported to be a Chapter VII resolution. Furthermore, the Council was not simply overriding the obligations of member states under the ICC Statute but the obligations of the Court itself. Resolution 1422 illustrates the problem of the UN’s executive organ developing legislative supranational powers of a general nature when the Charter only seems to provide for enforcement powers of a specific nature to deal with particular threats

  UNGA Res. 45/​121 (1990).   L. Doswald Beck, Human Rights in Times of Conflict and Terrorism (Oxford: Oxford University Press, 2011), 164. 50   N. D. White, “The Use of Weapons in Peace Operations,” in Weapons under International Human Rights Law, ed. S. Casey-​Maslen (Cambridge: Cambridge University Press, 2014), 228. 51   UNSC Res. 1373 (2001). 52  For criticism see J. E. Alvarez, International Organizations as Law-​Makers (Oxford:  Oxford University Press, 2005), 184–​217. 53 54   UNSC Res. 748 (1992).   See Art. 39 UN Charter. 55   Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahirya v United Kingdom), Provisional Measures, ICJ Reports 1992, 3; Preliminary Objections, ICJ Reports 1998, 26. 48 49

 

lawmaking by organizations   569 to the peace or breaches of the peace. Sanction regimes, authorized under Article 41 of the Charter, have been legitimately used in the past against states whose actions have constituted specific threats to the peace, as with Libya in 1992. The development of general legislative powers, whether to grant immunity to UN personnel, or to combat terrorism, is legally innovative, by-​passing as it does the normal methods of lawmaking by states (treaties and custom). However, while the Security Council failed to make a determination of a ‘threat to the peace’ in the case of Resolution 1422, making it the most legally questionable resolution, it did make a general determination of a ‘threat to the peace’ in relation to the problem of terrorism, which then enabled it to adopt a binding decision in 2001, in response to the attacks on the United States, that member states should take various non-​forcible measures to combat terrorism.56 While it might offend the liberal concept of separation of powers for the supposed executive body to adopt general laws, there is nothing to prohibit this development in the Charter. Indeed, the classic separation of powers is not the model followed by organizations. In the EU, for instance, lawmaking competence is located in the Council of Ministers and the Commission but not significantly in the Parliament, although its co-​decision-​making competence has expanded over the decades. Sands and Klein state more generally that ‘the power to “legislate”—​ at least when it comes to the adoption of international acts binding on the members or on other addressees—​lies in most organizations in the executive’.57 The legitimacy of the Security Council’s legislative decisions would be increased if it acted in a legislative manner when drafting and adopting these resolutions. This would include greater consultation (in open meetings),58 greater transparency, and ultimately greater representation of the international community.59 Such general legislation has to be approached in a more considered way, with time spent on crafting obligations that pass Lon Fuller’s tests for legitimate norm creation (concerning generality, promulgation, clarity, lack of contradictions, possibility of performance, and constancy).60 Current Security Council legislation does not match up well to these criteria. In contrast to the doubts raised about the legitimacy of the Security Council’s lawmaking, the following sections argue that the opposite is true of much of institutional ‘soft’ lawmaking.

  UNSC Res. 1373 (2001).   Sands and Klein, Bowett’s Law of International Institutions, 268. 58   See S. D. Bailey and S. Daws, The Procedure of the UN Security Council, 3rd ed. (Oxford: Clarendon Press, 1998), 51–​2 on the development of greater consultation in the Council. 59   See Report of the Secretary-​General, “In Larger Freedom: Towards Security Development and Freedom for All” (UN, 2005), paras. 167–​70. 60   L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969), 46–​91. See C. H. Powell, “A Fullerian Analysis of Security Council Legislation,” International Organizations Law Review 8 (2011): 205. 56 57

 

570   lawmaking

Plenary Lawmaking ‘All international organizations are empowered to issue recommendations’,61 and sometimes these take the form of solemn legislative-​ appearing ‘declarations’, adopted by the plenary organ consisting of all member states. Schermers and Blokker sum up the possible ways that institutional declarations can become law: In all cases, it will be important to obtain unanimity or virtual unanimity when a declaration is accepted. Only then can it be regarded as general customary law, as generally accepted principles of law, as an authoritative interpretation of the constitution, or as a generally accepted new law in a vacuum.62

It should be noted that the last three possibilities mentioned, as general principles, constitutional law, or new law, do not depend upon passage into custom; only general principles are recognized as a source of law in Article 38 of the Statute of the International Court of Justice. Even then ‘general principles’ are traditionally seen as those common to domestic legal systems, so that understanding them to include resolutions of international organizations is a radical reinterpretation of that provision. Some immensely influential General Assembly declarations have been adopted over the years, not always by unanimity or consensus. For instance, in 1960 the Assembly adopted the Declaration on the Granting of Independence to Colonial Territories or Peoples, which gave substantive legal content to the right of self-​ determination.63 In 1962, the General Assembly adopted the Resolution on Permanent Sovereignty over Natural Resources that recognized the right of states to expropriate foreign property subject to certain conditions.64 Fourteen (mainly Western) states were unable to vote for the resolution, including France who voted against. Subsequently, in a strongly pro-​Western interpretation of the international legal principles governing expropriation, Dupuy stated that the resolution reflected customary international law.65 It is also worth noting that in deciphering the customary principles regulating the use of force in international relations, the International Court of Justice has relied principally on General Assembly resolutions, namely the 1965 Declaration on Non-​Intervention, the 1970 Declaration on Friendly Relations, and the 1974 Definition of Aggression, without searching separately for opinio juris.66 While the above resolutions can be seen as feeding into the traditional sources of law, either as custom or as general principles, they can also be seen as developing the constitution of the UN, both in a wide sense regarding the principles of non-​use 62   Schermers and Blokker, International Institutional Law, 768.   Ibid., 789.   UNGA Res. 1514 (1960); nine (mainly Western) states abstained. 64 65   UNGA Res. 1803 (1962).   Texaco v Libya (1977) 53 ILR 389, para. 87. 66   Case Concerning Military and Paramilitary Activities in and Against Nicaragua, ICJ Reports 1986, 14, 99, 101, 103–​4; UNGA Res. 2131 (1965); UNGA Res. 2625 (1970); UNGA Res. 3314 (1974). 61

63

 

lawmaking by organizations   571 of force, self-​determination and non-​intervention, and also in the narrow sense of developing concepts such as ‘aggression’ as a key term within Article 39 of the Charter. It is very rare for General Assembly resolutions (as opposed to those coming from the specialized agencies) to fill a legal vacuum, but it can happen as with the resolutions governing the use of, and activities in, outer space, adopted by the General Assembly in the early 1960s, pending the negotiation of the Outer Space Treaty of 1967.67 The point about declarations is that they have significant legal effect before they might be deemed customary. This was recognized in the early 1960s by the UN’s Office of Legal Affairs: In view of the greater solemnity and significance of a declaration, it may be considered to import, on behalf of the organ adopting it, a strong expectation that members of the international community will abide by it. Consequently, in so far as the expectation is gradually justified by state practice, a declaration may by custom become recognized as laying down binding rules upon states. In conclusion, it may be said that in United Nations practice, a declaration is a solemn instrument resorted to only in very rare cases relating to matters of major and lasting importance where maximum compliance is expected.68

In the case of the technical agencies the recommendations (sometimes called standards or regulations) of the organization are treated as legislative although they are not formally binding obligations. The IAEA has the power to ‘establish or adopt … standards of safety for protection of health and minimization of danger to life and property … and to provide for the application of these standards, at the request of the parties, to operations under’ treaties or at the request of individual states. In fact, the IAEA’s standards, although not binding in a treaty sense,69 are often taken on board by members. Given the dangerous nature of fissionable material, and the complexity of the technical regulations, many members incorporate them directly into their domestic legislation.70 Many functional organizations use the power of recommendation to great effect. Some, such as the WHO and the ILO, often use recommendations in place of, or as a complement to, conventions. The less formal, and technically non-​binding, recommendation seems to be equally respected by members as the more formal binding treaty commitment. The Health Assembly of the WHO has the authority to adopt conventions by a two-​thirds majority and regulations by a simple majority. Conventions are binding on those members when accepted by their relevant constitutional procedures, and thus as with all treaties adopted by international organizations, are initially a recommendation to ratify the treaty. Regulations are binding on all members unless they expressly opt out.71 In this sense WHO regulations are not fully binding, although they appear to have more force than   UNGA Res. 1962 (1963).    68  UN Doc. E/​CN.4/​L610 (1962).   Art. III(6) IAEA Statute. 70   Schermers and Blokker, International Institutional Law, 778. 71   Arts. 21 and 22 WHO Constitution 1948. 67

69

 

572   lawmaking normal recommendations. Important regulations adopted by the WHO include the International Health Regulations (most recently revised in 2005) designed to prevent and control the spread of diseases.72 Most legal outputs of the technical agencies fall short of hard law, at least in the sense of an absolute, unqualified binding treaty commitment to comply with the regulations produced by the organization. Indeed, the obligation imposed by the constituent treaty often appears similar to the qualified and progressive obligation found, for example, in the International Covenant on Economic, Social and Cultural Rights of 1966.73 For instance, in the Chicago Convention of 1944, which established the ICAO, the obligation is upon each contracting state ‘to keep its own regulations … uniform to the greatest possible extent, with those established from time to time under this Convention’.74 This constitutes a treaty obligation but not an absolute one. The reality is that member states will do their best to comply with the standards, but given the vast disparity in resources of states this is not always possible, in which case the state in question must notify the ICAO.75 Further, the line between ICAO’s standards and recommended practices is blurred as Kirgis relates: ‘ICAO recommendations come in the form of recommended practices adopted by the Council. Although they are by definition somewhere below ICAO international standards on the spectrum running from legal obligation to non-​obligation, in ICAO practice they are often lumped together with standards.’76 Finally on this point, Schermers and Blokker relate that ‘in some cases the constitutions of international organizations impose obligations on the members to act on recommendations’,77 citing UNESCO and the FAO as both requiring member states to report on the action taken upon the organization’s recommendations.78 The ILO and UNESCO also oblige member states to submit recommendations to their authorities to implement them.79 The legal outputs of the technical agencies can impose obligations on member states, but these are generally not unqualified obligations. However, the evidence of a high degree of compliance with the legal output of these organizations does suggest that, despite the qualifications surrounding the obligations, states feel they ought to comply. Thus, although there is no hard obligation on states arising from the treaty, it has been contended that there may well be a hard obligation arising out of a customary rule (as evidenced by the consistent practice of state compliance). Furthermore, that customary rule could be generalized to the effect that it

72   See G. L. Burci, “Health and Infectious Disease,” in The Oxford Handbook on the United Nations, ed. T. G. Weiss and S. Daws (Oxford: Oxford University Press, 2007), 582. 73 74 75   Art. 2(1).   Art. 12.   Arts. 37–​8. 76   Kirgis, “Specialized Law-​Making Processes,” 146. 77   Schermers and Blokker, International Institutional Law, 768. 78 79   Art. VIII UNESCO; Art. XI(3) FAO.   Art. 19(6) ILO; Art. IV(4) UNESCO.

 

a source of international law?    573 recognizes that certain types of legislative outputs of the technical agencies are to be treated as obligatory, thus obviating the need to prove that every recommendation has passed into customary law.

A Source of International Law? The above analysis has shown that the legal outputs of international organizations can be seen as a source of law—​either as source of obligation for states or a source of expectation that they will comply—​in addition to providing material for hard obligations listed in Article 38 of the Statute of the International Court of Justice. Resolutions can feed into the traditional sources of international law, either treaties or custom, or sometimes can be seen as interpretations of the constituent documents or expressions of general principles.80 Significantly, according to the analysis in this chapter, they can constitute laws by themselves without tracing their origins back to a treaty provision that provides that such resolutions are obligatory. Many resolutions cannot be attached to treaty obligations but they are drafted in the language of obligation, often by consensus or overwhelming majority and are capable of achieving a high degree of compliance due to their legitimacy—​either in terms of their fairness or justness of their terms or more simply they practically fill in significant vacuums or gaps within the international legal order such as providing for the protection of world heritage sites,81 or recognizing the rights of indigenous peoples.82 To challenge the completeness of Article 38 of the Statute of the International Court of Justice is not to undermine the international legal order. Treaties and customs remain central to international law, but the relative slowness of these processes of law formation have been supplemented to a considerable degree by the legal outputs of international organizations. Indeed, it seems incongruous that Article 38 has been portrayed as the basic norm of international law in standard texts.83 It must be remembered that it was primarily drafted as an instruction to the Permanent Court

  Schachter, “The UN Legal Order: An Overview,” 4.   See Operational Guidelines for the Implementation of the World Heritage Convention, WHC 13/​01 (2013) updated by the World Heritage Committee, acting under the Convention Covering the Protection of the World Cultural and Natural Heritage, adopted in 1972 by the General Conference of UNESCO. 82   UN Declaration on the Rights of Indigenous Peoples, UNGA Res. 61/​295 (2007). 83   M. N. Shaw, International Law, 7th ed. (Cambridge: Cambridge University Press, 2014), 50. 80 81

 

574   lawmaking of International Justice, nearly a century ago, before the proliferation (and legalization) of international organizations. In fact, as has been illustrated in the above section, the line between ‘soft’ and ‘hard’ law is considerably blurred, so that in the case of the technical agencies, there is strong evidence of legislation, with their legal outputs adding to the constitutive treaty and to the earlier corpus of law. The point is that institutional legal outputs are treated as law without seeking to find (at least outside of the resolution) consistent practice and opinio juris. The modern concept of custom could be sufficiently adaptable to accommodate this, but then the label ‘custom’ is used in a manner far divorced from its original intent. Schachter seemed to recognize this when he stated that the customary process of norm formation ‘cannot meet the necessity for common action to deal with the numerous problems’, and treaty law is too slow, ‘whereas UN resolutions can be more readily attained … The curious result is that new law is often called “custom”.’84 It is more difficult to see General Assembly resolutions as legislative per se and hence they are seen as the start of a process towards the formation of a new custom; there needs to be evidence of the adoption of these resolutions in the practice of states combined with a sense of obligation or opinio juris.85 In reality, however, General Assembly resolutions are normally adopted against a background of competing or unclear customary principles on the same matter, and, even when they are adopted by consensus, compete for recognition with these other principles. An Assembly resolution can be seen, in effect, as either a codification or a clarification of existing law or the development of a new principle or norm. The resolutions on outer space that seemed to have formed an instant normative framework for space activities, allowing for use but not appropriation, were in effect legislation in an area where the applicable legal norms governing exploration and use of outer space were unclear; in fact, there were competing principles (in which outer space and the planets could have been viewed either as res nullius, terra nullius, res communis, or the common heritage of mankind).86 Furthermore, the process of codification of customary law rarely can take place without a development and refining of the law. Arguably the mere process of writing down laws makes them different, in that states are moving from a vaguer, elastic unwritten rule to one that has greater precision,87 where every significant word is fought over in the negotiations. Admittedly, this may lead to an ambiguous choice of words or phrases in key provisions, but even that takes the debate further, although it does not necessarily provide a clear answer. Nevertheless, the orthodoxy is to explain the bindingness of resolutions in terms of the traditional sources, primarily custom, even though most writers then qualify 85   Schachter, “The UN Legal Order: An Overview,” 5.  Shaw, International Law, 86.   Schermers and Blokker, International Institutional Law, 786 citing the resolutions on outer space and more recent resolutions of a variety of institutions on the issue of cloning as examples. 87   H. L. A. Hart, The Concept of Law (Oxford: Clarendon, 1961), 92–​3. 84 86

 

a source of international law?    575 the strict requirements of customary law. For instance, Schermers and Blokker write that the ‘General Assembly can do no more than recommend. Nevertheless, this does not prevent declarations from containing binding law; it merely means that the binding character will have to be derived from another source’, although they accept that the vagueness of customary law will mean that the process of codification involves development of the law.88 For Szasz, organizations increase ‘the speed by which new customary law is being created’.89 Alvarez on the other hand is much closer to the reality of institutional lawmaking when he states that ‘inter-​governmental organizations … have changed our sources of law, the substantive content of our law, as well as the actors that make it’.90 He seems to retrace his steps somewhat when he goes on to declare that ‘even positivists accept’ organizations have ‘transformed customary international law’,91 given that there is no longer the need to search through decades of state practice in the shape of diplomatic exchanges since organizations ‘have given us shortcuts to find custom’.92 One might ask whether positivists might accept that what is being talked about is not custom but a new and dynamic form of norm formation? Accepting that the outputs of international organizations are a new source of international law would not undermine the fundamental nature of the international legal system—​that it is still, by and large, consensual—​since those resolutions of organizations that are treated as normative are adopted by an overwhelming majority, if not by consensus. Furthermore, it can be contended that the traditional approach to the legal outputs of organizations, which requires evidence of opinio juris and passage into custom, ignores the fact that a resolution is not simply to be viewed as a collection of the views of states, but rather is an act of separate will by an organ of a legal person. Schermers and Blokker note that the orthodox approach does not recognize resolutions are a new source of international law, but rather are filtered into one of the existing sources, principally customary international law. This ‘disregards the source of the decision that was not taken simultaneously by a number of states acting in their own capacity and expressing their own individual wills, but by an organization having a volonté distincte’.93 It has been argued in this chapter that the existence of an organization with separate will means that certain normative resolutions are laws applicable to member states of those organizations. Some of the content of those resolutions may also form obligations under traditional sources by means of consistent practice and opinio juris, elements of which can be found in the resolution and debates surrounding it. Thus institutional law can have normative force in the wider legal   Schermers and Blokker, International Institutional Law, 784–​5.   Szasz, “General Law-​Making Process,” 42. 90   J. Alvarez, “International Organizations as Law-​Makers,” in From Government to Governance, ed. W. P. Heere (The Hague: Asser, 2004), 11. 91 92 93  Ibid.  Ibid.   Schermers and Blokker, International Institutional Law, 786. 88

89

 

576   lawmaking order. Thus, the one act of adopting a resolution can lead to two types of law: first, the immediate laws that are a product of the organ of the organization; and second, the same act can, in theory at least, then be the start of a traditional process of slower lawmaking process that might lead to a customary rule. Thus, there is in theory a line between ‘soft’ law and ‘hard’ law, though in reality it is hard to discern where one blurs into another. Furthermore, an insistence on treating institutional lawmaking as a first possible step towards customary law gives states a period in which they can decide whether to accept the norms contained in institutional laws, in both their behaviour and their statements of law. This period then allows states to adjust their behaviour and opinio juris to the institutional laws if they agree with them. Such an interpretation would prevent institutional law from having any normative effect per se. However, it is an interpretation that purports to perpetuate the dominance of custom and its weak system of governance of state behaviour. Custom is an inadequate way of regulating state behaviour, for custom is only established once behaviour has, by and large, converged. Under a customary rule states in effect, are agreeing to behave in ways that they are already following. The radical effect of recognizing the normative effect of institutional laws per se is that regulation of states starts as soon as such laws are adopted, so the issue then becomes one of compliance with a law rather than acceptance of it. Under this perception custom is best seen as convergence in compliance rather than a form of consent and acceptance. The above analysis does not follow the ‘soft’ and ‘hard’ distinction, since the distinction fails to recognize the full normative value of institutional lawmaking, besides which the ‘soft’ and ‘hard’ law divide is not as theoretically clear as the legal doctrinal debates suggest. While international lawyers normally distinguish hard from soft law on the basis that the former is legally binding and the latter not,94 Abbott and Snidal define hard law as ‘legally binding obligations that are precise … and that delegate authority for interpreting and enforcing the law’.95 In other words, the emphasis is on obligation, precision, and delegation, and not just on formal legal obligation. The ‘realm of “soft law” begins once legal arrangements are weakened along one or more of the dimensions of obligation, precision and delegation’.96 They are not making a straightforward connection between governance by means of soft law, and government by means of hard law—​‘even “hard” international law falls short of this standard: international regimes do not even attempt to establish legal obligations centrally enforceable against states’.97 94   D. Shelton, “International Law and Relative Normativity,” in International Law, ed. M. Evans, 4th ed. (Oxford: Oxford University Press, 2014), 159–​63; Szasz, “General Law-​Making Process,” 38–​9; C. M. Chinkin, “The Challenge of Soft Law:  Development and Change in International Law,” International and Comparative Law Quarterly 38 (1989):  850; H. Hillgenberg, “A Fresh Look at Soft Law,” European Journal of International Law 10 (1999): 499. But see L. Blutman, “In the Trap of a Legal Metaphor: International Soft Law,” International and Comparative Law Quarterly 59 (2010): 605. 95   K. W. Abbott and D. Snidal, “Hard and Soft Law in International Governance,” International Organization 54 (2000): 421. 96  Ibid., 422.   97  Ibid., 426.

 

a source of international law?    577 More significantly, Abbott and Snidal refute the argument, made for instance by Weil,98 that a departure from any of the elements of hard law somehow makes soft law a failure, or at best an interim step towards more satisfactory hard law: ‘Soft law offers many of the advantages of hard law, avoids some of the costs of hard law, and has certain advantages of its own. Importantly, because one or more of the elements of legalization can be relaxed, softer legalization is often easier to achieve than hard legalization.’99 The real difference between soft and hard law lies in the form of law:  the formalities of treaties are different from declarations of international organization even though the contents may be similar, and custom, although less formal in appearance, still requires consistent practice combined with opinio juris, which again distinguishes it from institutional outputs. This sort of thinking does find support; Schermers and Blokker state that although ‘recommendations do not legally bind the members’, ‘this does not mean that they have no effect on them’. The ‘existence of a legal obligation provides one of many reasons for observing a rule and indeed, in international law, where sanctions often prove to be illusory, the legal obligation may not even be the prime motivation behind norm compliance’.100 Although still focusing on obligation, they admit that this might not indeed be the reason states comply with a norm. Indeed, in the international legal order, sanctions, when they occur, are not only responses to illegality; they can be imposed for threats to the peace, for instance.101 The model of a legal system, where government produces laws that create duties and are backed by sanctions does not play well in the international legal order where governance leads to an array of forms of law, guiding state behaviour and only exceptionally providing for enforcement. Furthermore, the basis of obligation in customary international law—​consent in the form of opinio juris—​is assumed in the absence of protest.102 This has been matched by a trend towards recognizing the value of acquiescence by those states not positively using the text of a resolution of an international organization.103 Both in ‘hard’ and ‘soft’ law the requirements of consent to the norm have been diluted. The move away from the Lotus case-​type consent for custom has also been found in treaties sponsored by some organizations. For instance, the ILO Secretariat has not accepted the validity of any purported reservation to ILO treaties as this would allow the government of a state to undermine the unique tripartite nature of the membership (where 98   P. Weil, “Towards Relative Normativity in International Law,” American Journal of International Law 77 (1983): 423. 99   Abbott and Snidal, “Hard and Soft Law in International Governance,” 423. 100   Schermers and Blokker, International Institutional Law, 767. 101   N. Tsagourias and N. D. White, Collective Security: Theory, Law and Practice (Cambridge: Cambridge University Press, 2013), 220. 102   See, e.g., Crawford, Brownlie’s Principles of Public International Law, 26. 103   J. Alvarez, “Constitutional Interpretation in International Organizations,” in The Legitimacy of International Organizations, ed. J-​M. Coicaud and V. Heiskanen (Tokyo: The United Nations, 2001), 120.

 

578   lawmaking governments, employers, and employees are represented).104 Furthermore, the ILO Convention provides that where a member does not ratify one of its many treaties the member state is still required to report to the Director-General: the position of its law and practice in regard to the matters dealt with in the Convention, showing the extent to which effect has been given … to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Convention.105

This has led Weil to state that the principle of consent to treaties has not been ‘frontally assaulted, but cunningly outflanked’.106 Thus, it is possible to state that both hard and soft law are in the main consensual but that the nature of consent is not the positive acceptance we find in the Lotus decision, but the assumed acceptance we find in modern international law. This accords with the global governance model identified earlier in which an organization’s legal output shapes expectations and constrains behaviour.107 The ‘flexible nature’ of international legal obligation identified by Kirgis in the context of institutional lawmaking108 is reflected in Schermers and Blokker’s recognition of the significance of the practice whereby ‘a state which wishes to ignore a recommendation will announce its intention to do so by submitting a declaration of vote’. This practice has now ‘become widespread and formal, a development which seems unlikely to have taken place had states considered themselves free of any obligation to implement a particular recommendation by casting a mere negative vote’.109 Thus, even international lawyers who focus on obligation recognize that resolutions of organizations can, in themselves, produce obligations, even though they are cast in the form of recommendations. In commenting on the notion of ‘soft’ law, Alvarez states that organizations ‘produce lots of post-​modern or post-​positivist norms, outside the three traditional sources of international law’, with the result that ‘to the regret of positivist, the result is that it is often difficult to tell the difference between black letter law that is and the law as it ought to be’, with a consequent ‘spectrum of binding force’.110 Organizations ‘have produced more law, more democratically and transparently, and, given all our compliance efforts, presumably to more effect’.111 The legitimacy of much institutional soft law should be contrasted with the variable legitimacy that characterizes some recent Security Council legislation that is viewed as ‘hard’ binding law by virtue of treaty obligation.112   35 (1954) ILO Official Bulletin: 267–​8.   Art. 19(5)(e) of the Constitution of the ILO. See also Art. 20 of the Constitution of the WHO. 106   Weil, “Towards Relative Normativity,” 438. 107   Mayer, Rittberger, and Zurn, “Regime Theory, State of the Art and Perspectives,” 392. 108   Kirgis, “Specialized Law-​Making Processes,” 61. 109   Schermers and Blokker, International Institutional Law, 770 110  Alvarez, “International Organizations as Law-​Makers,” 12. See further Alvarez, International Organizations as Law-​Makers, 257–​67. 111 112   Alvarez, “International Organizations as Law-​Makers,” 15.   Art. 25 UN Charter. 104 105

 

conclusion   579

Conclusion The legal output of international organizations is a product of their separate will and a reflection of their autonomy. This signifies that the resolutions produced have their own separateness from traditional sources. The recommendations and regulations of many organizations are not fully binding in a classical international legal sense, but they are often accepted as law at their inception and acted upon by member states, especially in technical areas. The idea of ‘soft’ law encapsulates the legal effect of resolutions before they may mature into treaties or custom, but it does not fully capture their legislative nature. International institutional law fails to fully grasp this, relying instead on somewhat awkward constructions in an attempt to explain this legislative character in ways that might be more palatable: for example, that such resolutions are not binding in an absolute sense but there is a presumption of legality attached to them;113 that they are ‘general principles’, acting to fill the gaps in international law;114 or that such resolutions can form what could be labelled ‘customary constitutional law’ developing the framework of obligations contained in the constituent treaty.115 International lawyers have placed emphasis on obligation to distinguish hard law (custom and treaties) from soft lawmaking by organizations. It has been shown that the legitimacy, appropriateness, and utility of the norm are more important for compliance in a world that remains largely without legal hierarchies. Norms produced in an open, transparent and democratic manner by international organizations generally have such legitimacy, more so perhaps than customary norms whose provenance is debatable, perhaps going back decades, centuries even. A pure system of customary rules is slow to change, often lacking in certainty,116 and is a product of behaviour rather than a means of controlling it. Treaty rules, although often a product of a slow process of lawmaking, at least provide certainty. However, both traditional sources are now underpinned to a large degree by international organizations, whose resolutions can become custom, and whose treaty sponsorship has increased the importance and relevance of that source.117 Thus, in this conception, which aims to reconcile the undoubted lawmaking activities of organizations

113   C. H. Schreuer, “Recommendations and the Traditional Sources of International Law,” German Yearbook of International Law 20 (1977): 103, 118. 114   Schermers and Blokker, International Institutional Law, 787, consider that “all law-​making resolutions of universal organizations adopted by a large majority of states represent general principles of law.” 115   Pollux, “The Interpretation of the Charter,” 54. 116  Hart, The Concept of Law, 92–​3. 117  Schachter, “Overview,” 2–​ 3, who notes the importance of treaty-​ making by international organizations.

 

580   lawmaking with traditional sources, international organizations not only enact ‘soft’ law, they have also revitalized both custom and treaty-​making. However, it has been argued here that it would be more accurate to say that organizations have moved the informal side of lawmaking away from a system of custom where norms are forged over a period of years, by the gradual acceptance by states of norms in the form of opinio juris, towards a system of legislation by organizations where the issue became not one of whether states have accepted the norms contained therein as law but whether they have complied with the norms found in the resolutions themselves. In this light it seems incongruous to maintain inflexible allegiance to Article 38 of the International Court’s Statute, when that provision acts as a limited portal through which we try to squeeze norms produced by international organizations, a process which inevitably fails to capture the vast amount, range, and impact of institutional lawmaking.118 The role of custom decreases as legal systems mature and as laws are agreed by the lawmakers and promulgated in written forms, then ultimately enforced more centrally.119 While enforcement is still relatively weak in the international legal order, we should admit that we have at least moved away from a system dominated by customary norms, towards complex overlapping governance regimes that both empower and regulate states and other actors in an increasingly globalized world.

118  C. Chinkin, “Normative Development in the International Legal System,” in Commitment and Compliance:  The Role of Non-​Binding Norms in the International Legal System, ed. D. Shelton (Oxford: Oxford University Press, 2003), 42; Alvarez, International Organizations as Law-​Makers, x; R. A. Wessel, “Informal International Law-​Making as a New Form of World Legislation?,” International Organizations Law Review 8 (2011): 253, 254–​7. 119  Hart, The Concept of Law, 76–​96.

 

Chapter 27

MONITORING PROCESSES Timm Betz Barbara Koremenos

Information on the behavior of treaty partners is important. Knowing whether one’s partner in cooperation is complying with the terms of an agreement is essential in the practical world of policymaking and implementation. Suppose two states know they would both be better off if they both reduced or eliminated their stockpiles of certain weapons of mass destruction, and that they negotiate an agreement to this effect. If one party to the agreement fulfilled its obligations while the other party secretly kept its weapons, the latter would gain a tremendous advantage. Not knowing whether the other party is complying with the agreement terms, each party must be wary about potentially falling behind: a unilateral reduction or elimination of its stockpiles of weapons would leave it vulnerable. Without information about the behavior of the other party, each side has good reasons to defect from the agreement, and anticipating this dynamic both parties may fail to reach an agreement in the first place. This scenario, familiar from the Cold War, has been of crucial importance to policymakers for a long time. We thank the editors, Kal Raustiala, Kristan Seibel, and participants at the Annual Conference of the International Studies Association in 2012 for comments, and Anthony Ambroselli, Sherol Manavi, Jessica Perszyk, Tim Reid, Peter Wennerholm, and Marisa Wetmore for research assistance. The research for this chapter was funded by a National Science Foundation Grant, “The Continent of International Law: Theoretical Development, Data Collection, and Empirical Analysis” (SES-​0801581); a National Science Foundation CAREER Award, “Designing International Agreements:  Theoretical Development, Data Collection, and Empirical Analysis” (SES-​0094376); and a Rackham Research Grant from the University of Michigan.

 

582   monitoring processes Likewise, such information about compliance is and has been central to theoretical accounts of international cooperation. In fact, information collection and distribution is at the heart of rationalist theories of international institutions. “By reducing asymmetries of information,” Robert O. Keohane wrote in 1984, international institutions reduce uncertainty and thereby the risks of cooperation.1 This view has become orthodox within the literature on international institutions, which finds that a primary function of international institutions is “to provide politically relevant information and so allow states to escape from the prisoners’ dilemma trap.”2 Barnett and Finnemore likewise contend that the literature on international institutions has largely been devoted to exploring how, “through their control over information, in particular,” international regimes mediate between state interests and political outcomes.3 Others concur that international institutions facilitate transparency and “provide access to stabilizing or reassuring information about others’ level of compliance.”4 The belief that information provision is a central—​if not the central—​function of international institutions is succinctly summarized by the statement that “the rationale for the existence and influence of institutions at the international level is driven almost entirely by informational considerations.”5 A justification for this focus on information provision can be found in formal models of cooperation. Absent additional information, states may stop cooperating in response to doubts about the other side’s behavior; or they may resort to unwarranted punishments. As pointed out by James D.  Morrow, “applying the proper sanctioning strategy is difficult when compliance is difficult to monitor.”6 If players possess private information about compliance, cooperation is fragile and may not even be feasible. Actions by other states might be mistaken for defections, and being afraid of undetected defections by the other side, states might be hesitant to enter cooperative agreements. Monitoring provisions ensure deeper and more stable patterns of cooperation by overcoming the problems arising from asymmetric information. Yet not all international agreements establish monitoring processes, and even when they do, not all provide for monitoring through international organizations. Despite the importance of information to compliance, the international law

1   Robert O. Keohane, After Hegemony:  Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984). 2   Judith Goldstein and Lisa L. Martin, “Legalization, Trade Liberalization, and Domestic Politics: A Cautionary Note,” International Organization 54 (2000): 603–​32. 3   Michael N. Barnett and Martha Finnemore, “The Politics, Power, and Pathologies of International Organizations,” International Organization 53 (1999): 699–​732. 4   Jose Alvarez, International Organizations as Law-​Makers (Oxford: Oxford University Press, 1999). 5  Jeffry Frieden and Lisa L. Martin, “International Political Economy:  Global and Domestic Interactions,” in Political Science: The State of the Discipline, ed. Ira Katznelson and Helen V. Milner (New York: W. W. Norton, 2003). 6  James D. Morrow, “Modeling the Forms of International Cooperation:  Distribution versus Information,” International Organization 48 (1994): 387–​423.

 

monitoring processes   583 and political science literatures have devoted little attention to when and how international agreements provide this information. In this chapter, we present a survey of formal monitoring provisions in a random sample of international agreements7 which covers and is conditional on four issue areas: economics, environment, human rights, and security.8 We show that monitoring provisions are indeed an important feature of international agreements: almost six out of ten agreements incorporate some form of explicit monitoring provision. However, information provision is not an important design feature of all international agreements. When monitoring provisions are included in agreements, they take a variety of forms. As mentioned, more than half of the agreements in the sample contain monitoring provisions. In almost one-​third of these, international organizations are formally involved in the monitoring process. This involvement differs starkly across issue areas. For instance, while 60 percent of human rights agreements with monitoring provisions involve international organizations, such as the International Labour Organization, this is the case for only 10 percent of economic agreements. We also find that nongovernmental organizations play virtually no role in the formal monitoring process for most agreements. Only three of the agreements in the sample, or about 1 percent, formally involve nongovernmental organizations in the monitoring process. Finally, we show that the design of monitoring provisions follows standards of efficiency. When states face uncertainty about the behavior of other participants to an agreement, monitoring provisions are more likely to be included in an agreement. However, uncertainty about behavior is not sufficient for states to delegate these functions to other actors, such as international organizations or agreement bodies. For instance, in an agreement to prevent the spread of plant diseases, each party benefits from knowing whether a plant disease is occurring in each other’s territory, what measures a government has taken to address and isolate these instances, and how effective these measures have been in stopping the spread of the disease. Additionally, there is nothing for either party to gain by not reporting truthfully this information. Delegating the collection of information about compliance is inefficient in this case, despite the presence of uncertainty about behavior. Delegated monitoring is an efficient response to uncertainty about behavior when it is aggravated by incentives to defect on agreements. In the absence of incentives to defect, states are willing to rely on self-​reporting exclusively. We

  We use a broad definition of the term international agreement. The sample relies on international agreements registered with the United Nations and includes what corresponds to treaties, Congressional-​Executive Agreements, and even some Executive Agreements. 8   By “monitoring provisions” we mean mechanisms by which information concerning a state’s compliance with its international obligations is gathered and distributed. 7

 

584   monitoring processes therefore provide an explanation for both the existence and the design of monitoring provisions, and we find support for this explanation in the data.9 In the next section, we provide a description of formal monitoring provisions in our sample of international agreements from the four different issue areas. We provide some examples of monitoring provision and their subsequent use. We then outline a theory to explain the existence and design of monitoring provisions. We also briefly discuss the role of informal monitoring provisions in international agreements.

A Survey of Monitoring Provisions in International Agreements Our survey of monitoring provisions draws on the Continent of International Law (COIL) project, which provides data on international agreements across four issue areas: economics, environment, human rights, and security.10 The sample of international agreements was chosen from the United Nations Treaty Series (UNTS). The COIL project codes agreement characteristics based on treaty texts, with each agreement having been examined independently by at least two coders, who recorded the relevant agreement characteristics.11 We therefore focus on formal monitoring provisions exclusively: monitoring provisions that are explicitly incorporated in the text of an international agreement.

  For complements to our approach, see Kenneth W. Abbott, “Trust but Verify: The Production of Information in Arms Control Treaties and Other International Agreements,” Cornell International Law Journal 26 (1993): 1–​58; Xinyan Dai, “Information Systems in Treaty Regimes,” World Politics 54 (2002): 405–​36; Ronald B. Mitchell, “Sources of Transparency: Information Systems in International Regimes,” International Studies Quarterly 42 (1998): 109–​30; Kal Raustiala, “Police Patrols & Fire Alarms in the NAAEC,” International and Comparative Law Review 26 (2004): 389–​413; David G. Victor, Kal Raustiala, and Eugene B. Skolnikoff (eds.), The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge: MIT Press, 1998). 10  Barbara Koremenos, “The Continent of International Law,” Journal of Conflict Resolution 57 (2013): 653–​81. The project website is http://​www.isr.umich.edu/​cps/​coil/​. 11   The coders for this project were extensively trained in order to give them high levels of both competency and consistency. At least two coders independently coded each agreement using an online survey instrument. Upon completion, inconsistencies were resolved through a close rereading of the agreement and supervised discussion involving the original coders, a graduate student, and Barbara Koremenos. For more details, see Barbara Koremenos. The Continent of International Law: Explaining Agreement Design (Cambridge: Cambridge University Press, 2016). 9

 

monitoring provisions in international agreements    585 We distinguish agreements on two dimensions: whether an agreement establishes a formal system of compliance monitoring, and which actors provide information to such a formal monitoring mechanism. Since the question of which actor(s) to involve in the monitoring system is clearly contingent on the existence of a monitoring system, we first consider whether an international agreement calls for a system of compliance monitoring of any form. As an example, the International Convention for the Prevention of Pollution of the Sea by Oil (UNTS 4714) from 1954 aims to reduce operational oil pollution from ships. To this end, the member states to the Convention have to report to a body created by the agreement whether they installed facilities for collecting oily residue, as required by the Convention. The Convention also establishes a monitoring system with respect to individual ships. This monitoring is conducted by government authorities. The Convention requires ships to carry an oil record book which can be examined by the authorities of contracting parties at any time while the ship is within a port in the state’s territory. The Convention is careful to facilitate this form of monitoring by requiring the record book to follow a standardized format, as specified in an appendix to the Convention, and by requiring the oil record book to be completed in English, French, or the official language of the territory in which the ship is registered. Similar monitoring provisions are quite common among international agreements, as reported in Table  27.1. However, considering the importance of information to theories of international cooperation, it may appear surprising that less than two-​thirds of international agreements explicitly contain monitoring provisions. The table suggests that there is not much variation across issue areas, but it masks differences within issue areas. For instance, within the category of economic agreements, about two-​thirds of investment agreements call for monitoring, but none of the agreements on monetary matters do. This relative absence of monitoring provisions may partly be driven by the availability of monitoring through informal channels, such as nongovernmental organizations or individuals willing to denounce noncompliance; indeed, we argue in the next section that an important driver of this pattern is the degree to which information is available without monitoring provisions. Since states have many options for designing monitoring provisions, we distinguish monitoring provisions on the basis of who conducts the monitoring and consider five possibilities:  member states themselves, internal agreement bodies, pre-​existing international organizations, nongovernmental organizations, or some other entity.12 As an example of monitoring conducted by member states, in 1963 12   For an alternative dimension, the distinction between monitoring on a regular basis (“police patrols”) and monitoring in response to allegations of noncompliance (“fire alarms”), see Barbara Koremenos and Timm Betz, “Information and International Agreements” (presented at the Annual Conference of the International Studies Association, San Diego, California, April 2012).

 

586   monitoring processes Table 27.1  Does the agreement create a system of compliance monitoring? Issue Area

No

Yes

Total

Economics

44

59

103

(43%)

(57%)

21

22

(49%)

(51%)

17

24

(41%)

(59%)

12

35

(26%)

(74%)

94

140

(40%)

(60%)

Environment Human rights Security Total

43 41 47 234

Austria and Hungary signed an agreement with the goal of preventing the introduction and spread of plant diseases and pests (UNTS 6989). The agreement obliges both states to report annually “on the appearance and spread of such diseases and pests during the year in question, specifying, in so far as possible, the infected or infested areas (towns, communes) and the control measures taken” (Art. 5). An agreement between Denmark and Sweden on the protection of the Sound Oresund from pollution (UNTS 13823)  provides an example of monitoring conducted by internal bodies. The agreement establishes a Commission, composed of three members from each state, that is tasked with reporting on the pollution situation in the Sound and that shall also “actively follow the fulfilment by each country of the requirements connected with this Agreement” (Art. 7), thereby monitoring the behavior of member states. The International Convention on the Suppression and Punishment of the Crime of Apartheid (UNTS 14861) is an example of an agreement with monitoring involving a pre-​existing intergovernmental organization, in this case the United Nations. Article VII obliges parties to the Convention to submit periodic reports, which are transmitted through the Secretary-​General of the United Nations to a Special Committee on Apartheid. Article X goes further in terms of the monitoring mandate, and specifies that reports prepared by organs of the United Nations may be used to compile “a list of individuals, organizations, institutions and representatives of States which are alleged to be responsible for the crimes enumerated in … the Convention.” Thus, data assembled by United Nations organs is employed in the monitoring process.

 

monitoring provisions in international agreements    587 Table 27.2 If the agreement calls for a system of compliance monitoring, who monitors behavior? Issue Area

Member States

Internal body

IGO

NGO

Other

Economics

30

3

6

0

28

(51%)

(5%)

(10%)

(0%)

(47%)

18

11

8

0

1

(86%)

(50%)

(36%)

(0%)

(5%)

21

13

15

3

0

(88%)

(54%)

(63%)

(13%)

(0%)

32

11

10

0

1

(91%)

(31%)

(29%)

(0%)

(3%)

101

38

39

3

30

(72%)

(27%)

(28%)

(2%)

(21%)

Environment Human rights Security Total

Note: Each agreement can be monitored by more than one entity, such that the percentages do not necessarily add up to 100%. The percentages indicate the percentage of agreements with respective monitoring entity among agreements in the issue area with monitoring. For instance, among economics agreements with any monitoring provision, 51% involve member states.

A very small number of agreements formally involve nongovernmental organizations in the monitoring process. An example is the American Convention on Human Rights (UNTS 17955), signed in 1969, which in Article 44 states that “Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions … containing denunciations or complaints of violation of this Convention.” The Convention therefore grants monitoring rights to nongovernmental organizations (as well as individuals), which is rather rare among international agreements—​in the COIL sample, only three other agreements grant similar rights to nongovernmental organizations, and all of these agreements concern human rights. As “other entities,” agreements often list individuals or firms acting independently of their home states, as in bilateral investment treaties, or third states outside the agreement, as in the Geneva Conventions on Prisoners of War. An agreement may also involve more than one entity in the monitoring process, implying a more comprehensive and dense monitoring system. Table 27.2 allows for a more systematic look at which actors are formally involved in the monitoring procedures among those agreements that call for compliance monitoring. As the table shows, whenever an agreement specifies that monitoring

 

588   monitoring processes should take place, member states are most likely to assume the primary role regardless of the issue area, although in the issue area of economics, their involvement is almost always matched by other entities. Member states are involved most heavily in security agreements, where they monitor more than half of all agreements and about 90 percent of agreements with a monitoring provision. Pre-​existing international organizations are formally involved in the monitoring process in about 28  percent of agreements with any monitoring provision, and particularly often in human rights agreements. For instance, many agreements are established within the context of the International Labour Organization whose constitution provides for monitoring through the various bodies established by it. This presence of international organizations looming in the background of international agreements points to the importance of viewing international institutions not in isolation, but as embedded in a larger framework of related institutions.13 Nongovernmental organizations are, maybe surprisingly, given little formal role in monitoring across all issue areas. Only three agreements, all of which are related to human rights, explicitly give a role to nongovernmental organizations in the monitoring process: the Convention for the Protection of Human Rights and Fundamental Freedoms, the Geneva Convention Relative to the Treatment of Prisoners of War, and the American Convention on Human Rights. The latter two invite nongovernmental organizations to give reports concerning compliance. The former, the Convention for the Protection of Human Rights and Fundamental Freedoms from 1952 (UNTS 2889), explicitly states that “any person, non-​governmental organization, or group of individuals claiming to be victims of a violation” may file petitions with the European Commission of Human Rights, which is established with the Convention. Yet, the Convention is eager to limit this quite far-​reaching coverage, noting that individuals and nongovernmental organizations may only file claims provided that the contracting party against which a complaint has been filed recognizes the competence of the Commission in this regard (Art. 25)—​in other words, it is possible and legitimate for governments to elude legally sanctioned scrutiny by individuals or nongovernmental organizations. Finally, Table  27.2 suggests a dense monitoring of human rights agreements and, to a lesser extent, environmental agreements. Among those human rights agreements that are monitored 88 percent involve member states in the monitoring process. In addition, internal bodies and pre-​existing intergovernmental organizations each monitor more than half of the human rights agreements that have any monitoring provision, and a few human rights agreements also involve nongovernmental organizations. As a result of this multiplicity of

  Karen J. Alter and Sophie Meunier, “The Politics of International Regime Complexity,” Perspectives on Politics 7 (2009): 13–​24. 13

 

explaining the design of monitoring provisions    589 monitoring entities, each monitored human rights agreement involves more than two monitoring entities on average. This may reflect the difficulties in monitoring state behavior in such agreements and in obtaining reliable, accurate information from a single source.

Explaining the Design of Monitoring Provisions The previous section discussed various differences in the existence and design of monitoring provisions. How can we explain these design choices by states? In this section, we offer a theory of whether and how international agreements structure and organize the provision of information about state performance.14 We take an instrumentalist approach which expands on Rational Design15 and assume that states design international agreements both effectively and efficiently: states craft agreements such that their design matches the cooperation problems the agreement is trying to solve at the lowest possible cost, and agreements do not contain redundant or obsolete design elements. The implication is that differences among international institutions are not random, but the result of rational, purposeful interactions among states and governed primarily by the underlying cooperation problems. With respect to the existence of monitoring provisions, we note that they facilitate the collection and dissemination of information. As such, they are a response to informational problems in international cooperation, what we call uncertainty about behavior. If states do not know what other states are doing with respect to their treaty obligations, they would like to obtain some additional information. Monitoring provisions are an institutionalized solution to improve the amount and the quality of available information for all agreement members. However, incorporating monitoring provisions is costly, and in the absence of informational frictions, comprehensive and extensive monitoring provisions would be rather surprising. Being scrutinized by international monitoring bodies is intrusive and may infringe on the conception of sovereignty for many states, especially when the monitoring process involves onsite inspections, as prescribed in many security and disarmament agreements. As an example, the Comprehensive Test Ban Treaty provides 14   Parts of this section draw on Koremenos and Betz, “Information and International Agreements,” and Barbara Koremenos, “The Continent of International Law.” 15   Barbara Koremenos, Charles Lipson, and Duncan Snidal, “The Rational Design of International Institutions,” International Organization 55 (2001): 761–​99.

 

590   monitoring processes that “[e]‌ach State Party has the right to request an on-​site inspection … in the territory or in any other place under the jurisdiction or control of any State Party, or in any area beyond the jurisdiction or control of any State.” Internal bodies with the mandate to monitor behavior can also be costly in terms of financial resources—​even the World Trade Organization’s (WTO) Trade Policy Review Mechanism, which is part of an elaborate and well-​equipped international organization, seems to reach the limits of the WTO’s resources and capacities.16 We therefore expect monitoring provisions to be left out of agreements when there is little uncertainty about behavior, but to be present when such uncertainty exists. Returning to the example of the International Convention for the Prevention of Pollution of the Sea by Oil, it would be difficult for member states to monitor the behavior of individual ships, especially of ships not registered in their own territory, without the provisions laid out in the Convention.17 As a contrasting example, consider an agreement between Germany and Somalia, negotiated in 1983 (UNTS 22962), in which Germany grants Somalia DM 7 million to finance various imports. There is little uncertainty with respect to the behavior of either contracting party in this agreement, and a monitoring provision consequently appears quite redundant. Similarly, of those human rights agreements that have no monitoring provisions, several agreements are reciprocal voting right agreements among European countries that allow individuals with permanent residency status in other member states of the European Union to vote in local elections. Since state behavior is quite easily observable in these instances, explicit monitoring provisions are unnecessary. Thus, our first conjecture is: C1: Everything else equal, if states are facing high uncertainty about behavior, they are more likely to include monitoring provisions in their agreements. As we documented in the previous section, states can choose from a wide array of options to design their monitoring provisions. One important question for states is whether to involve other actors in the monitoring process: whether monitoring tasks are delegated to other actors or whether member states self-​report information. We still maintain that uncertainty about behavior is the main driving force, and virtually a prerequisite, for the existence of monitoring provisions. Without such 16   Sam Laird, “The WTO’s Trade Policy Review Mechanism:  From Through the Looking Glass,” World Economy 22 (1999): 741–​64. 17   It is notable that some of the most severe damage from oil pollution has been caused not by ships or tankers but fixed platforms, such as British Petroleum’s Deepwater Horizon oil rig in the Gulf of Mexico, which exploded in 2010. The Convention, and the monitoring mechanisms it entails, did not apply to the oil spill caused by the Deepwater Horizon: the Deepwater Horizon, as a fixed platform, did not fall under the purview of the Convention, which only applies to ships, and hence also fell outside the purview of the Convention’s monitoring provisions. (Marissa Smith, “The Deepwater Horizon Disaster: An Examination of the Spill’s Impact on the Gap in International Regulation of Oil Pollution from Fixed Platforms,” Emory International Law Review 25 (2011): 1477–​516.) In response to the Deepwater Horizon spill, the International Maritime Organization acknowledged the shortcomings of its current Conventions and called for discussions to adjust current international law.

 

explaining the design of monitoring provisions    591 uncertainty there is little need to gather additional information through formally prescribed procedures. However, the effect of uncertainty about behavior on the design of monitoring provisions should depend on the strategic incentives of states to defect from a negotiated agreement. Specifically, self-​reporting is not problematic if there are no incentives to defect and therefore no incentives to misreport information. States have little incentive to misreport their own behavior, or that of other actors, in settings where the underlying problem is one of relative harmony. While uncertainty about behavior implies that other states would like to gain additional information on the state’s behavior, the state can be expected to reveal this information truthfully. Thus, if there are no incentives to defect, self-​reporting is an efficient and trustworthy mechanism to reveal information; at the same time, states give up a minimum of sovereignty, as they are not inviting external actors to monitor their behavior. The utility of self-​reporting is limited by fears that states fail to report behavior accurately.18 These fears are particularly pressing when states have incentives to defect from an agreement. If behavior is not easily observed and states have incentives to defect, the temptation is large to act one way and claim to have behaved another way, making reporting by member states less useful to resolve uncertainties about behavior. For instance, in many environmental agreements states have good reason to publicly claim they are enforcing standards that are costly to their domestic industries, while in fact turning a blind eye to the enforcement of these standards. Several cooperation problems generate incentives to defect from an agreement or make states believe other states may have an incentive to defect. An enforcement problem is the most prominent one, but agreements with underlying uncertainty about the state of the world also create incentives to defect: if exogenous shocks change the situation states are facing, cooperation may no longer be an equilibrium and defection might ensue.19 Arguably, this problem is underlying current debates in the Eurozone. The global economic crisis triggered a large debt crisis in some states within the Eurozone, such as Greece. In response, several governments discussed a default by the Greek government on its sovereign debt obligations, a renegotiation of existing obligations to international creditors, and ultimately an exit of Greece from the Eurozone. None of these options were seriously and publicly discussed when Greece entered the European Community and, later, the European Monetary Union. A third relevant cooperation problem is uncertainty about preferences.20 For instance, some states might be serious about their commitment to protect   Abbott, “Trust but Verify.”   Barbara Koremenos, “Contracting around International Uncertainty,” American Political Science Review 99 (2005): 549–​65. 20   With uncertainty about preferences, we refer to uncertainty about the underlying preferences of states with respect to the policies or outcomes at stake. These preferences, of course, need not be aligned with what states publicly declare to be in their interest, and the incentive to misrepresent such preferences in certain situations creates such uncertainty. 18

19

 

592   monitoring processes human rights, while others might be what Simmons termed “strategic ratifiers” who reap benefits from joining an agreement without the intent to follow through on their promises.21 A  final relevant cooperation problem is a time-​inconsistency or commitment problem, which means that governments may have incentives to announce a policy currently but to not follow through on it in the future, maybe because the government’s incentive structure changes.22 As an example, bilateral investment treaties are often argued to address this problem with respect to foreign direct investment.23 Potential host governments may have strong incentives to attract foreign investment and to promise protections to potential investors. Yet, once the investment is in place, such as in the case of an established production facility, the government has incentives to expropriate the investment. We collect all of these cooperation problems, in which states have to worry that their partners might defect from an agreement, under the label “incentive to defect” and derive our second conjecture as follows. C2: Everything else equal, high uncertainty about behavior leads states to rely on self-​ reporting only if there are low incentives to defect. States rely on delegated monitoring only if uncertainty about behavior is aggravated by large incentives to defect. To assess these two conjectures we estimate a number of probit models. The data for these come from the COIL project. We include dummies for the issue areas in the sample, to control for characteristics specific to each issue area, as well as a variable for the number of participants in each agreement. All cooperation problems are coded as binary variables and have a value of 1 when present to a large extent (e.g., when uncertainty about behavior is high).24 To determine whether a cooperation problem is present, coders took into account not only the agreement text, as published in the UNTS, but also the political, economic, and historical context of agreements. As an example, the Convention Concerning Equality of Treatment for National and Foreign Workers as Regards Workmen’s Compensation for Accidents (UNTS 602) is an example of a human rights agreement for which the underlying cooperation problem is characterized by uncertainty about behavior as well as an enforcement problem. States can easily discern if other member states have 21   Beth A. Simmons, Mobilizing for Human Rights: International Law and Domestic Politics (Cambridge: Cambridge University Press, 2009). 22  Judith O. Goldstein et  al., “Introduction:  Legalization and World Politics,” International Organization 54 (1999): 385–​99. The difference between commitment problems and enforcement problems is subtle. The former arise if an actor’s current optimal plan for the future will no longer be optimal if the actor has a chance to reoptimize. The latter arise if an actor’s current optimal plan entails a defection. Enforcement problems can be alleviated by the existence of future periods (through punishment provisions), whereas commitment problems exist because of the future. 23  Andrew M. Kerner, “Why Should I  Believe You? The Costs and Consequences of Bilateral Investment Treaties,” International Studies Quarterly 53 (2009): 73–​100. 24   See the project website for the definitions of cooperation problems and for how coding decisions were made.

 

explaining the design of monitoring provisions    593 Table 27.3  Does the agreement call for a system of compliance monitoring? Coefficient

Std. Error

p-​value

1.05***

.260

.000

.120

.095

.205

economics

.606**

.301

.044

environment

.547**

.272

.044

security

–​.106

.300

.724

constant

–​.484*

.288

.093

Log Likelihood

–​142.12

uncertainty behavior log (number)

Number Obs.

234

Probit estimates. *** significant at 1%; ** significant at 5%; * significant at 10%.

appropriately incorporated equal treatment into their domestic law, but it is quite difficult to tell if the laws are being enforced. This kind of uncertainty underlies many human rights agreements. The enforcement problem is created by a structure akin to the Prisoners’ Dilemma: a state wants its workers to be treated well in other states, but would prefer not to spend resources on foreigners working within its borders. C1 suggests that the presence of monitoring provisions should be associated with uncertainty about behavior. The estimation results are displayed in Table 27.3. As expected, the coefficient on uncertainty about behavior is positive and statistically significant at the 1 percent level. The effect is also meaningful in substantive terms. Figure 27.1, which shows the average predicted probabilities and 95 percent confidence intervals, illustrates the results: under uncertainty about behavior, the probability that an agreement includes monitoring increases by more than 50 percent. It moves from 51 to 85 percent, an increase of 34 percentage points.25 This supports C1, suggesting that the variation showcased in the descriptive statistics is not randomly cluttered across agreements, but a purposeful response to a distinct cooperation problem: uncertainty about what other actors are doing. When such uncertainty is absent, states do not craft formal monitoring provisions in their agreements. With respect to the design of monitoring provisions, C2 contends that states are more likely to delegate monitoring functions in response to high uncertainty about behavior only if they face incentives to defect at the same time. Absent incentives to defect, states have little reason to formally surrender sovereignty by inviting external 25   To obtain predicted probabilities, we calculated for each issue area the predicted probabilities and averaged the predicted probabilities across issue areas (with weights according to the relative frequency of each issue area in the sample).

 

594   monitoring processes

Marginal effect/Predicted Probability

1

.8

.6

.4

.2

0 No uncertainty

Uncertainty

Marginal effect

Figure 27.1  Average predicted probabilities, marginal effect, with 95 percent confidence intervals, based on the results in Table 27.3

actors to monitor their behavior. Instead, they can rely on self-​reporting. To test this hypothesis, we use two probit models. In the first model, the dependent variable is coded 1 whenever member states self-​report information and the agreement fails to stipulate who verifies this information.26 In the second model, the dependent variable is coded 1 whenever states delegated the monitoring process to other actors. Our conditional argument is captured by including two additional variables in each model: the variable incentives to defect and an interaction term between this variable and uncertainty about behavior. Our conjecture predicts that in the first model, uncertainty about behavior has a positive effect only in the absence of incentives to defect. Thus, the coefficient on uncertainty about behavior should be positive, while the coefficient on the interaction term should be negative and such that the overall effect of uncertainty about behavior cancels. In the second model, the effect of uncertainty about behavior should be positive and significant only in the presence of incentives of defect. The results in Table 27.4 support our theory. In the upper panel, the dependent variable captures self-​monitoring. Figure 27.2 visualizes the predicted probabilities and 95 percent confidence intervals. In the absence of incentives to defect, uncertainty about behavior has a strong, statistically significant effect on the probability that an agreement calls for self-​monitoring. By contrast, if states have incentives to defect, uncertainty about behavior has virtually no effect (the effect is small and statistically not significant at conventional levels). This result supports the idea articulated   The results are similar when the dependent variable is coded 1 whenever only member states, but no other actors or bodies, monitor compliance. 26

 

explaining the design of monitoring provisions    595 Table 27.4  Self-​monitoring and delegated monitoring Coefficient

Std. Error

p-​value

DV: Self-​Monitoring uncertainty behavior

1.47***

.463

.001

incentive to defect

–​.527**

.261

.043

uncertainty behavior

–​1.30**

.613

.034

log (number)

–​.374**

.189

.048

economics

.918**

.447

.040

environment

1.05**

.416

.012

security

.750*

.440

.089

constant

–​1.06**

.470

.024

Log Likelihood

–​94.528

–​.303

.509

.552

.809***

.255

.002

1.08*

.608

.074

.310***

.098

.002

economics

.241

.339

.478

environment

.111

.284

.697

security

–​.429

.309

.165

constant

–​1.48***

.319

.000

Log Likelihood

–​127.05

x incentive to defect

Number Obs.

234

DV: Delegated Monitoring uncertainty behavior incentive to defect uncertainty behavior x incentive to defect log (number)

Number Obs.

234

Probit estimates. *** significant at 1%; ** significant at 5%; * significant at 10%.

 

596   monitoring processes

Marginal effect Uncertainty about Behavior

.8

.6

.4

.2

0

–.2 No incentive to defect

Incentive to defect

Figure 27.2  Marginal effects, with 95 percent confidence intervals, of uncertainty about behavior on self-​monitoring, in the absence and presence of incentives to defect. Based on results in Table 27.4

in C2 that states rely on self-​reporting in the presence of uncertainty about behavior only if there are few concerns that other states will defect from the agreement. The lower panel of Table 27.4 supports the second part of C2: not only are states wary of relying on self-​reporting when faced with a combination of uncertainty about behavior and incentives to defect; they also turn to alternative means of information gathering by involving external actors in the monitoring process. In fact, Figure 27.3 is the mirror image of Figure 27.2: uncertainty about behavior alone has a small, statistically insignificant effect on the probability that states delegate monitoring tasks. However, when states face incentives to defect, uncertainty about behavior has a large, positive, and statistically significant effect on the probability that monitoring tasks are delegated. The probability increases from 41 percent to 69 percent, and the effect of uncertainty about behavior is statistically significant with a p-​value of .009. Uncertainty about behavior alone is not sufficient for states to delegate monitoring tasks, while when in combination with high incentives to defect are states willing to give up control over the monitoring process. We now turn to two additional considerations:  the role of informal monitoring, and some of the trade-​offs in choosing information providers, such as international organizations. With respect to the former, a potential drawback of our survey of monitoring provisions is that we focus on formal monitoring provisions exclusively. Formal monitoring provisions are not the only way to obtain information. In particular, individuals and nongovernmental organizations may engage in informal monitoring in ways that go beyond the formally negotiated treaty text. If

 

explaining the design of monitoring provisions    597

Marginal effect Uncertainty about Behavior

.6

.4

.2

0

–.2 No incentive to defect

Incentive to defect

Figure 27.3  Marginal effects, with 95 percent confidence intervals, of uncertainty about behavior on delegated monitoring, in the absence and presence of incentives to defect. Based on results in Table 27.4

so, one may expect that agreements without any formal monitoring provisions are effectively monitored through informal means. However, when uncertainty about behavior is a relevant concern, such informal ways of monitoring can best be seen as complementing existing formal monitoring procedures.27 As an example, the WTO couples a formal monitoring process based on regular inspections, the Trade Policy Review Mechanism, with informal monitoring by individual firms, which can file complaints about the trade policies of foreign governments with their home governments and petition for the initiation of trade disputes.28 The formal component of the monitoring process, the Trade Policy Review Mechanism, subjects all WTO members to regular inspections; for the members with the largest shares of world trade (the European Communities, the United States, Japan, and China), reviews take place every two years. The reviews rely on information from the state that is being reviewed as well as reports compiled by a body at the WTO Secretariat, which also assumes the sole responsibility for the reports. Each report contains chapters examining the member state’s practices and policies in substantial detail; for instance, the report for Cameroon, published in 2013, contains an annex 27   See also Victor, Raustiala, and Skolnikoff (eds.), The Implementation and Effectiveness of Interna­ tional Environmental Commitments. 28   Chad P. Bown and Bernard M. Hoekman, “WTO Dispute Settlement and the Missing Developing Country Cases: Engaging the Private Sector,” Journal of International Economic Law 8 (2005): 861–​90; Laird, “Trade Policy Review Mechanism”; Trade Policy Review Mechanism, Marrakesh Agreement Establishing the World Trade Organization, Annex 3 (1994).

 

598   monitoring processes detailing the specifics of Cameroon’s trade policies comprising almost a hundred pages of information. This formal review mechanism is complemented by informal monitoring. Firms which may be harmed by a foreign government’s trade policies can petition their home government to file a trade dispute against the foreign government. If the home government decides to file a dispute, the foreign government’s trade policies are reviewed. Individual firms have no legal standing in this process, and they cannot formally initiate a dispute against a foreign government. However, they may alert their home government to violations of commitments by foreign governments, and their home government may then decide to pursue the case.29 Thus, while the formal Trade Policy Review Mechanisms “polices” member states on a regular basis, individual firms can serve as low-​cost monitors, or “fire alarms”30 to direct attention to noncompliance by WTO members. The informal monitoring by firms can therefore best be seen as complementing the regular, but costly inspections. States similarly may assume monitoring functions without formal delegation in the agreement text. In this regard, the United States plays a particularly important role, as it has the capacity and global interests—​especially during the second half of the twentieth century—​to provide monitoring informally and on its own. For instance, the United States Congress enacted a number of bills that mandate reports on nuclear proliferation around the world.31 Thus, in addition to monitoring of the Nuclear Nonproliferation Treaty by the International Atomic Energy Agency, the United States monitors and investigates as well. The United States Congress enacted similar bills with the goal of monitoring human rights practices abroad. These examples of informal monitoring notwithstanding, in many circumstances it is difficult to rely on informal monitoring alone. Without a mandate sanctioned by international law, it might be easier for targeted states to question the reliability and accuracy of reports of informal monitors, and informal monitors may face additional obstacles and harassment trying to gather information. The example of the Strategic Arms Reduction Treaty (START) demonstrates the importance of formal monitoring provisions. Once START expired, the United States had to interrupt its inspections immediately. As a former special assistant to President George W. Bush noted, the expiration of the formal agreement literally implied losing “the holy grail to get on-​site inspections,” even for the most powerful state in the system.32 Thus, while modes of informal monitoring are potentially important in complementing the information from formal monitoring provisions, it would be difficult 29   Timm Betz, “Domestic Politics and the Initiation of International Disputes,” presented at the Annual Conference of the American Political Science Association, Washington, DC, August 2014. 30   For the distinction between “fire alarms” and “police patrols” in the context of American politics, see Mathew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols versus Fire Alarms,” American Journal of Political Science 28 (1984): 165–​79. 31   HR 4310 (112th): National Defense Authorization Act for Fiscal Year 2013, with Title XII Subtitle E requiring reports on nuclear weapons in the United States, China, and the Western Pacific region, and Subtitle G mandating reports on military and security development involving North Korea and Syria. 32   “START Expiration Ends U.S. Inspection of Russian Nuclear Bases,” Washington Post, August 17, 2010.

 

explaining the design of monitoring provisions    599 Table 27.5  Does the agreement call for a system of compliance monitoring? Coefficient uncertainty behavior

Std. Error

p-​value

.998***

.272

.000

.138

.099

.162

year

.012**

.006

.033

economics

.583*

.320

.069

environment

.522*

.280

.062

security

–​.139

.303

.646

constant

–​24.4**

11.2

.030

Log Likelihood

–​139.90

log (number)

Number Obs.

234

Probit estimates. *** significant at 1%; ** significant at 5%; * significant at 10%.

for informal monitoring to effectively substitute for formal monitoring. This view seems to be consistent with our data:  if informal monitoring were to substitute for formal monitoring provisions, then given the increasing availability of entities that could provide low-​cost informal monitoring—​nongovernmental organizations, pre-​existing international organizations, and individuals with access to the required technology for information collection and dissemination—​we should see a decrease in formal monitoring provisions over time. Yet, as shown in Table 27.5, our data suggest that time is positively associated with the presence of monitoring provisions: agreements concluded later in time are actually more likely to include formal monitoring provisions. As we documented in the previous section, even when states rely on delegated monitoring they have a variety of options. In particular, many agreements involve international organizations explicitly, while others rely on private actors and individuals. For example, under the Treaty on the Non-​Proliferation of Nuclear Weapons, the International Atomic Energy Agency is explicitly tasked with verifying implementation and compliance, often by inspecting nuclear power facilities within states. These inspections occur on a regular basis. By contrast, the bilateral investment treaty between the United States and El Salvador empowers private actors, in this case firms from one state investing in the territory of the other, to bring disputes about compliance to an arbitral panel. This feature is typical of investment treaties, which generally rely on private actors to uncover noncompliance and judicial processes to address it, and is also found in investment provisions in many trade arrangements, such as the North American Free Trade Agreement.

 

600   monitoring processes What explains such differences in the choice of information providers? One potential explanation is the mere availability of established, well-​functioning, international organizations to assume such tasks. If this is the case, we might expect international organizations to be most frequently involved in the monitoring process in economic agreements:  two of the most prominent international organizations, the General Agreement on Tariffs and Trade and its successor, the WTO, and the International Monetary Fund, are directly involved in economic matters. These institutions are also considered to be among the more well-​functioning agreements—​so much so that the literature “regards the GATT/​WTO as its beau ideal.”33 However, the data we presented in Table  27.2 tells a different picture. Only 10  percent of economic agreements with a monitoring provision involve international organizations in the process, compared to over 60 percent in the case of human rights agreements. This pattern suggests that it is not the availability of established international organizations as information providers that explains who is tasked with collecting data. Instead, it appears that the involvement of international organizations follows a logic that is similar to the distinction between “police patrols” and “fire alarms.”34 Police patrols are inspections in regular intervals, whereas fire alarms are triggered in the event of violations. Market participants are relatively reliable information providers in economic agreements, since they often have an interest in detecting and terminating noncompliance. For instance, in trade agreements, exporters are hurt by violations of their rights by foreign governments and consequently have an incentive to alert their own government to these violations and push their governments to address these by filing trade disputes.35 By contrast, in many human rights agreements, such self-​reporting is much harder and much less reliable—​victims may no longer be able to report violations, may be embarrassed to do so, or may refuse to do so due to fears of reprisals. In such cases, international organizations may be perceived as more neutral information providers than other sovereign states, and they may also acquire and provide the centralized expertise to implement such monitoring efficiently. Environmental agreements may fall somewhere in between on this scale. On the one hand, governments and some private actors may have little interest in publicizing noncompliance, for instance in agreements that require costly measures to reduce the output of pollutants. On the other hand, other actors, such as affected citizens, nongovernmental organizations, or neighboring states, have large incentives to publicize such noncompliance, rendering the involvement of international organizations unnecessary.36 33   Judith L. Goldstein, Douglas Rivers, and Michael Tomz, “Institutions in International Relations: Understanding the Effects of the GATT and the WTO on World Trade,” International Organization 61 (2007): 37–​67. 34   Raustiala, “Police Patrols & Fire Alarms in the NAAEC,” 265; Koremenos and Betz, “Information and International Agreements”; Dai, “Information Systems in Treaty Regimes.” 35   Betz, “Domestic Politics and the Initiation of International Disputes.” 36   See Koremenos and Betz, “Information and International Agreements” for an argument that moves beyond differences across issue areas.

 

conclusion   601 In sum, where compliance-​relevant information is well hidden or confidential, involving international organizations in the form of “police patrols” should be more effective than privately triggered “fire alarms.” Conversely, fire alarms are effective when private actors can observe violations and can alert other parties to the agreement of a potential violation without fear of oppression. In many cases, police patrols and fire alarms are present at the same time, as in the American Convention on Human Rights. Part II of the Convention establishes a formal system that delegates the collection of information on compliance to member states, the Inter-​American Commission on Human Rights, and to nongovernmental organizations. The Commission assumes functions that follow the logic of police patrols. Article 41 of the Convention gives the Commission the ability to prepare reports, to request information from governments, and to take action on petitions it receives. This, notably, includes investigations and onsite evaluations of the human rights situation. At the same time, fire alarm monitoring is provided by many nongovernmental organizations, which can bring complaints by themselves and on behalf of victims and may petition the Commission. Additionally, nongovernmental organizations may—​and often do—​provide amici curiae for determining the compliance of state parties.37

Conclusion The difficulties in obtaining information about state performance have been a leading concern for international relations policymakers and academics alike. In this chapter, we have provided systematic evidence from a conditional random sample of international agreements to assess this claim. We find that informational concerns are an important aspect of international agreements; nonetheless, about 40 percent of international agreements do not contain any provisions with respect to monitoring procedures. Of course, this is not to say that these agreements do not assume important functions, such as setting procedural rules, providing policy advice, or coordinating actions. We showed that the presence of monitoring provisions can be explained by the presence of uncertainty about behavior; when such uncertainty is absent, monitoring provisions are typically not included in agreements. We further discussed how the specific design of monitoring provisions

37   Marisa Wetmore, “The American Convention on Human Rights: A Case Study on the Effectiveness of Monitoring Provisions in International Human Rights Agreements,” undergraduate student paper, University of Michigan (2014).

 

602   monitoring processes can be explained:  in the coincidence of uncertainty about behavior and incentives to defect, states are willing to cede sovereignty by involving external entities, such as intergovernmental organizations, in the monitoring process. International organizations may be especially important information providers in cases where private actors are either less reliable or less able to reveal noncompliance. This is especially the case for human rights agreements, where more than half of the agreements with monitoring provisions involve international organizations in the monitoring process. International organizations may also assume important roles in verifying and disseminating information. For instance, the WTO, the World Bank, and the International Monetary Fund regularly publish extensive data on a variety of economic issues. We conclude by noting that the availability of reliable, accurate information is not only important in itself, it is also crucial for the proper functioning of other design elements, such as punishment provisions, dispute resolution mechanisms, and escape clauses. To avoid opportunistic defections enabled by escape clauses, proper information on state behavior may be necessary. Similarly, the enforcement of international agreements may rely on reciprocal punishments. However, reciprocity cannot function properly without information about the behavior of other states. Put differently, monitoring provisions are what enables Axelrod’s celebrated tit-​for-​tat to take place.38 Absent monitoring provisions, even strategies as powerful and simple as tit-​for-​tat cannot function properly. Such links may even exist across agreements, as in the Bilateral Textile Trade Agreement between the United States and Cambodia, which enforces labor standards established and monitored by the ILO through the Cambodia Better Factories program.39 These relationships between various design elements and patterns of international cooperation are an exciting area for future research and have the potential to further our understanding of both the functioning and design of international institutions.40

  Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984).  Drusilla K.  Brown, Alan V.  Deardorff, and Robert M.  Stern, Labor Standards and Human Rights: Implications for International Trade and Investment, International Policy Center Working Paper Series No. 119 (Ann Arbor: University of Michigan, 2011). 40   Laurence R. Helfer, “Flexibility in International Agreements,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, ed. Jeffrey L. Dunoff and Mark A. Pollack (New York: Cambridge University Press, 2013). 38 39

 

Chapter 28

SANCTIONS Jeremy Farrall

Sanctions are a coercive foreign policy tool that states and international organizations sometimes use to apply pressure on a target state, organization, or individual to change their behaviour. While the term ‘international sanctions’ in its broadest sense can encompass the use of military force, it is more commonly used to refer to coercive measures short of the use of force. These coercive measures can take a variety of forms, the most common of which are economic sanctions, arms embargoes, asset freezes, and travel bans.1 This chapter examines how sanctions work in the two international organizations that have used sanctions the most, namely the United Nations (UN) and the European Union (EU). The chapter proceeds in three parts. The first describes how UN sanctions work. It examines the constitutional basis, scope, and administration of UN sanctions. The second discusses how EU sanctions function, examining the constitutional basis, scope, and administration of EU sanctions. The third compares and contrasts these two models, discussing how the interests of peace and security, on the one hand, and human rights and the rule of law, on the other, can sometimes come into conflict in the application of international organization sanctions. It illustrates how the UN sanctions decision-​making system tends to prioritize peace and security, whereas the EU sanctions decision-​making system tends to prioritize the rule of law. The chapter argues that neither tradition of international organization sanctions has yet got the balance right and that the ongoing contest between peace and security and the rule of law will continue to   For more detailed discussion of the forms sanctions can take, see Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (Cambridge: Cambridge University Press, 2007), 106–​31. 1

 

604   sanctions shape and constrain international organization sanctions decision-​making for the foreseeable future.

How United Nations Sanctions Work The UN Charter empowers the UN Security Council to apply sanctions in order to maintain or restore international peace and security.2 In the UN’s first four and a half decades the ideological divide between East and West severely restricted the Council’s ability to exercise its sanctions powers. Between its first meeting on 17 January 1946 and its 2933rd meeting on 6 August 1990,3 the Security Council was only able to apply two sanctions regimes. In December 1966 the Council applied its very first sanctions regime against the illegal white minority regime of Ian Smith in Southern Rhodesia.4 The Southern Rhodesian sanctions regime initially consisted of prohibitions against the import from and export to Southern Rhodesia of specific commodities and products, including petroleum and leather goods.5 Less than two years later these sanctions were strengthened substantially, making the Southern Rhodesian sanctions regime the first instance of UN comprehensive sanctions, as it sought to prevent the flow to and from Southern Rhodesia of virtually all products and commodities.6 In 1977 the Council applied its second sanctions regime against the apartheid regime in South Africa, which consisted of an arms embargo.7 As a consequence of the infrequency of UN sanctions in the Security Council’s first four decades, much of the Cold War era scholarly literature on the Council’s Chapter VII powers, including sanctions, focused on the question of how to enable the Council to use its powers more regularly.8 The notion that the Council might exceed its Chapter VII authority was practically unimaginable to the Cold War academy. Since the end of the Cold War, however, the Security Council has been able to achieve the necessary agreement to impose sanctions far more frequently. Whereas those two lonely sanctions regimes were all that the Council was able to apply in its first forty-​four years,

2   UN Charter Chapter VII, in particular Arts. 39 and 41. For further discussion of the legal basis for UN sanctions, see the next section. 3   At its 2933rd Meeting on 6 August 1990 the Security Council adopted Res. 661 (1990), applying a mix of comprehensive and financial sanctions against Iraq: SC Res. 661 (6 August 1990), paras. 3–​4. 4 5   SC Res. 232 (16 December 1966), para. 2.  Ibid. 6 7   SC Res. 253 (29 May 1968), paras. 3–​6.   SC Res. 418 (4 November 1977), paras. 2, 4. 8   See Farrall, United Nations Sanctions and the Rule of Law, 36–​7.

 

how united nations sanctions work    605 in the subsequent twenty-​five years the Council created no fewer than thirty-​ one additional sanctions regimes, bringing the total number of UN sanctions regimes to thirty-​three.9 The Council has employed its sanctions powers so frequently in the post-​C old War era that the focus of contemporary scholarly literature now tends to be on how to constrain, rather than facilitate, the Council’s use of sanctions powers.10 The first section discusses the legal basis for UN sanctions. The next surveys the scope of UN sanctions, encompassing sanctions types, targets, and objectives. The third discusses the UN mechanisms that have evolved to undertake the administration and monitoring of sanctions.

The Legal Basis for UN Sanctions The UN Security Council’s powers are outlined in Chapters V–​VIII of the UN Charter. The most important provisions relating to sanctions are contained in Chapters V and VII. In Chapter V of the Charter, Article 24 grants the Council primary responsibility for the maintenance of international peace and security.11 Article 25 adds teeth to this responsibility by providing that the Council’s decisions are binding on all UN member states.12 In Chapter VII, Article 39 requires the Council to ‘determine the existence of any threat to the peace, breach of the peace or act of aggression’ and to take appropriate action to maintain or restore international peace and security.13 The two specific types of action foreshadowed by Article 39 are non-​forcible sanctions (under Art. 41) and the use of force (under Art. 42). Article 50 also specifies that when the Council applies sanctions under Article 41 it should take into account the special needs of third countries unintentionally affected by the application of sanctions.   The first twenty-​five UN sanctions regimes are charted ibid., Appendices. The most recent eight sanctions regimes have been the 1970 (Libya) sanctions regime, applied by Res. 1970 (2011); the 1988 (Taliban) sanctions regime, applied by Res. 1988 (2011); the 1989 (al-​Qaeda) sanctions regime, applied by Res. 1989 (2011); the 1907 (Eritrea) sanctions regime, applied by Res. 1907 (2011); the 2048 (Guinea-​ Bissau) sanctions regime, applied by Res. 2048 (2011); the 2127 (Central African Republic) sanctions regime, applied by Res. 2127 (2013); the 2140 (Yemen) sanctions regime, applied by Res. 2140 (2014); and the 2206 (South Sudan) sanctions regime, applied by Res. 2206 (2015). 10   See, e.g., Antonios Tzanakopoulos, Disobeying the Security Council:  Countermeasures Against Wrongful Sanctions (Oxford: Oxford University Press, 2011); Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Portland: Hart Publishing, 2004); Erika de Wet, “From Kadi to Nada: Judicial Techniques Favoring Human Rights over United Nations Security Council Sanctions,” Chinese Journal of International Law 12 (2013); Alexander Orakhelashvili, “The Impact of Peremptory Norms on Interpretation and Application of the UN Security Council Resolutions,” European Journal of International Law 1 (2005). The question of the potential limits on the Council’s sanctions powers is discussed later in this chapter. 11 12 13   UN Charter, Art. 24.   Ibid., Art. 25.   Ibid., Art. 39. 9

 

606   sanctions The text of Article 41, the UN Charter’s sanctions provision, reads as follows: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.14

The Scope of UN Sanctions Sanctions Types As the text of Article 41 quoted above illustrates, the UN founders outlined an inclusive rather than exclusive list of the types of sanctions that the Security Council can apply. This means that the Council is not restricted to those measures.15 On the whole, however, both academic and practitioner references to the term ‘UN sanctions’ tend to refer to actions that fall within Article 41’s inclusive list. In practice the Council has interpreted its Article 41 sanctions mandate expansively, employing a wide variety of sanctions measures, ranging from comprehensive sanctions, which seek to prevent the flow to and from the target of virtually all products and commodities,16 to more specific measures that prohibit trade in particular items, such as arms, timber, or diamonds.17 Sanctions have also sought to circumscribe particular activities understood to benefit a target, such as diplomatic, sporting, and cultural relations, as well as travel.18   Ibid., Art. 41.   Examples of sanctions measures that went beyond Art. 41’s list include the sports and cultural sanctions applied against the Federal Republic of Yugoslavia (Serbia-​Montenegro) to address its intervention in Bosnia-​Herzegovina: SC Res. 757 (30 May 1992), paras. 8(b) and 8(c). For the argument that Art. 41 was the basis for the creation of international criminal tribunals on Rwanda and Yugoslavia, see B. Simma, The Charter of the United Nations: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2002), “Article 41.” 16   Comprehensive sanctions were applied as part of the 232 Rhodesia, 661 Iraq, 757 Federal Republic of Yugoslavia (Serbia-​Montenegro) (FRYSM), 820 Bosnian Serb, and 841 Haiti sanctions regimes. 17   Arms embargoes have been applied as part of numerous UN sanctions regimes. The following regimes, however, have consisted solely of an arms embargo:  418 South Africa, 713 Yugoslavia, 733 Somalia, 1343 Liberia, 918 Rwanda, 757 Federal Republic of Yugoslavia (FRY), and 1298 Eritrea and Ethiopia. Timber sanctions have been applied as part of both the 1343 and 1521 Liberian sanctions regimes. Diamond sanctions have been applied as part of the 864 UNITA, 1132 Sierra Leone, and 1572 Côte d’Ivoire sanctions regimes, as well as both the 1343 and 1521 Liberian sanctions regimes. 18   Diplomatic sanctions have been applied as part of the 748 Libya and 1054 Sudan sanctions regimes. Sporting and cultural relations were prohibited as part of the 757 Federal Republic of Yugoslavia (Serbia-​ Montenegro) regime. Travel sanctions or travel bans have been applied as part of the 232 Southern Rhodesia, 661 Iraq, 748 Libya, 841 Haiti, 864 UNITA, 1054 Sudan, 1132 Sierra Leone, 1267 Taliban and Al Qaeda, 1343 Liberia, 1493 Democratic Republic of Congo (DRC), 1572 Côte d’Ivoire, 1636 Hariri, 1718 North Korea, and 1737 Iran sanctions regimes. 14 15

 

how united nations sanctions work    607

Sanctions Targets The Security Council’s initial sanctions regimes applied comprehensive or more specific sanctions measures against nations as a whole.19 This approach to applying sanctions was criticized for being too blunt and for causing disproportionate hardship for civilian populations.20 As a consequence the Council has sought to be more sophisticated with its targeting, applying ‘smart’ or ‘targeted’ sanctions against particular targets that it determined to represent a threat to international peace and security, including individuals and organizations.21 This new generation of sanctions regimes tends to apply one or more of a suite of ‘smart’ sanctions measures, such as an asset freeze, a travel ban, or an arms embargo, against those individuals or organizations deemed to pose a threat to the peace.

Sanctions Objectives The Security Council has imposed sanctions in pursuit of a growing array of objectives.22 Sanctions have been used to compel an occupying state to withdraw its troops;23 prevent a state from developing or acquiring weapons of mass destruction;24 counter international terrorism by targeting individuals and entities associated with terrorist organizations;25 protect human rights by targeting individuals alleged to have perpetrated serious human rights violations;26 and promote the implementation of peace processes.27 19   See, e.g., the 232 Southern Rhodesia, 661 Iraq, 713 Former Yugoslavia, 733 Somalia, and 748 Libya sanctions regimes. 20   e.g., the UN Secretary-​General observed in his Supplement to An Agenda for Peace: “Sanctions, as is generally recognized, are a blunt instrument.” UN Doc. A/​50/​60-​S/​1995/​1 (3 January 1995) Supplement to An Agenda For Peace:  Position Paper of the Secretary-​ General on the Occasion of the Fiftieth Anniversary of the United Nations, para. 70. See also criticism of the Iraqi sanctions regime: R. Normand, “Iraqi Sanctions, Human Rights and Humanitarian Law,” Middle East Report (July–​December 1996). 21   Rebel groups have been targeted in the Bosnian Serb, UNITA, Sierra Leone, and DRC sanctions regimes. The Taliban and al-​Qaeda sanctions regime targets terrorist organizations. 22   On sanctions objectives in general, see Farrall, United Nations Sanctions and the Rule of Law, 133–​8. 23   This was the initial objective of the 661 Iraq sanctions regime. 24   Non-​proliferation was an objective of the 418 South Africa, 1718 North Korea, and 1737 Iran sanctions regimes, as well as the primary reason for maintaining the 661 Iraq sanctions regime after the conclusion of 1991 Gulf War hostilities. 25   Preventing and responding to international terrorism was an objective of the 748 Libya, 1054 Sudan, 1267 Taliban and al-​Qaeda, and 1636 Hariri sanctions regimes. 26   Stemming human rights violations has been an objective of the 232 Rhodesia, 418 South Africa, 841 Haiti, 1160 FRY, and 1556 Sudan sanctions regimes. 27   Promoting the implementation of a peace process was an objective of the Liberia, 864 UNITA, 918 Rwanda, 1132 Sierra Leone, 1493 DRC, and 1572 Côte d’Ivoire sanctions regimes.

 

608   sanctions

The Administration and Monitoring of UN Sanctions The UN Charter does not provide specific guidance on how UN sanctions should be implemented or administered. In terms of implementation, although the Security Council’s sanctions decisions are binding on all UN member states, the Council relies on those member states to act in good faith on their legal obligation to implement UN sanctions within their domestic jurisdictions. In terms of administration, Article 29 of the Charter empowers the Council to establish ‘such subsidiary organs as it deems necessary for the performance of its functions’.28 Rule 28 of the Council’s provisional rules of procedure further provides that ‘the Security Council may appoint a commission or committee or rapporteur for a specified question’.29 The Council has acted under Article 29 and Rule 28 to create a range of subsidiary actors to administer and monitor the implementation of sanctions.30 The most common sanctions administrative bodies are sanctions committees and expert monitoring bodies.

Sanctions Committees When the Security Council creates a new sanctions regime it usually establishes a new sanctions committee to oversee administration of the new sanctions measures.31 Sanctions committees are called ‘committees of the whole’ of the Security Council, as they comprise representatives from each serving Council member. By convention the responsibility of chairing sanctions committees tends to be allocated to elected Council members. Another, more far-​reaching convention, requires sanctions committees to take decisions by consensus. This

  UN Charter, Art. 29.   S/​96/​Rev.7 (December 1982): Provisional Rules of Procedure of the Security Council, Rule 28. While the rules are technically “provisional,” they have not been amended for more than thirty years and they are treated by all UN member states as authoritative. 30   For a more detailed discussion of the administration and monitoring of UN sanctions, see Farrall, United Nations Sanctions and the Rule of Law, 146–​82. 31   While this is the prevailing approach, the Council’s practice has varied. In the case of the 1054 Sudan sanctions regime, the Council did not create a sanctions committee at all. On various occasions the Council has created the relevant sanctions committee months or years after it first applied sanctions. These “after-​thought” sanctions committees have included the 253 Committee (for the 232 Southern Rhodesia regime), the 421 Committee (for the 418 South Africa regime), the 751 Committee (for the 733 Somalia regime), the 724 Committee (for the 713 Former Yugoslavia regime), the 985 Committee (for the 788 Liberia regime), the 1533 Committee (for the 1493 DRC regime), and the 1591 Committee (for the 1556 Sudan regime). Twice the Council has assigned responsibility for administering a new sanctions regime to an existing committee, namely the 724 Former Yugoslavia Committee (for the 757 Serbia-​Montenegro and 820 Bosnian Serb regimes, respectively). On three occasions the Council has also created new sanctions committees to succeed a dissolved committee. Thus the 1518 Iraq Committee assumed relevant responsibilities from the 661 Committee and the 1988 Taliban and 1989 al-​Qaeda Sanctions Committees assumed relevant responsibilities from the 1267 Taliban/​al-​ Qaeda Committee. 28

29

 

how united nations sanctions work    609 effectively means that each committee member wields a veto over every potential committee decision. Sanctions committees undertake a range of tasks, including reporting to the Council on sanctions implementation, administering sanctions exemptions, making recommendations to improve sanctions implementation, and administering blacklists (technically ‘consolidated lists’) of individuals and entities subject to targeted sanctions measures such as assets freezes and travel bans. Sanctions committees also serve as the point of contact between sanctions expert bodies and the Security Council, as expert bodies report to and through the relevant sanctions committees.

Sanctions Expert Monitoring Bodies The Security Council has also taken to creating dedicated expert bodies to improve the implementation of most of its sanctions regimes. These independent expert bodies tend to be appointed for a period of months, with a mandate to undertake fieldwork investigations to identify how sanctions are being applied and violated and to make recommendations on how each sanctions regime might be strengthened.32 These bodies have been given different names over the years, including panels of experts, groups of experts, and monitoring mechanisms. Most bodies serve a similar function, with the main point of distinction being that panels and groups of experts tend to be given shorter mandates and they tend to focus on field investigations, coming together in New  York after their investigations to compile their reports. Monitoring mechanisms, by contrast, tend to be given longer mandates and they tend to have a more long-​term presence at UN Headquarters in New York.

The Sanctions Focal Point and the UN Ombudsperson for al-​Qaeda Sanctions Since the Security Council began to employ more targeted sanctions, an increasing number of individuals and entities have been subject to UN sanctions. At the time of writing 621 individuals and 420 entities appeared on the combined list of the thirteen active UN sanctions blacklists (or ‘consolidated lists’ in official UN parlance) of individuals and groups subject to targeted UN sanctions.33 The Council has created two administrative positions dedicated to making the UN sanctions machinery more responsive to the concerns of individuals or entities that believe

32   For a more detailed discussion of sanctions experts groups, see Jeremy Farrall, “Should the United Nations Security Council Leave it to the Experts? The Governance and Accountability of UN Sanctions Monitoring,” in Sanctions, Accountability and Governance in a Globalised World, ed. Jeremy Farrall and Kim Rubenstein (Cambridge: Cambridge University Press, 2009), 191–​214. 33   This consolidated list of consolidated lists can be found at:  https://​www.un.org/​sc/​suborg/​en/​ sanctions/​un-​sc-​consolidated-​list.

 

610   sanctions they have been incorrectly targeted. These positions are the Sanctions Focal Point and the UN Ombudsperson. In December 2006 the Council created the position of ‘Sanctions Focal Point’ in the UN Secretariat to receive requests from such individuals to be removed from individual sanctions blacklists.34 It is important to note that the Sanctions Focal Point was not given substantive powers to recommend delisting. As a flowchart posted on the UN website makes clear, the Focal Point is charged with shepherding any delisting requests through a cumbersome shuttling process between the individual, the committee member state that originally proposed the individual’s listing, and the individual’s state of citizenship or residency.35 Ultimately the individual can only be delisted if such a step is approved by the state that originally proposed the listing and if there is no objection by the individual’s state of citizenship or residency or by any of the other fourteen members of the relevant sanctions committee. In December 2009 the Security Council created the Office of the Ombudsperson for the then 1267 (Taliban and al-​Qaeda) sanctions regime, with a mandate to receive delisting requests from individuals on the 1267 consolidated list and to investigate the reasons for listing. While the Ombudsperson’s initial role enabled more proactive investigation of the circumstances of delisting, ultimately the 1267 Sanctions Committee retained complete control over whether or not to approve a delisting request.36 This situation altered dramatically in June 2011, when the Council adopted Resolutions 1988 and 1989. The combination of those two resolutions separated out the previously combined 1267 Taliban and al-​Qaeda sanctions regime into two separate sanctions regimes, namely the 1988 Taliban sanctions regime and the 1267/​ 1989 al-​Qaeda sanctions regime. Resolution 1989 both narrowed and expanded the scope of the Ombudsperson’s powers. On one hand, the Ombudsperson would now focus solely on the al-​Qaeda sanctions regime, leaving those on the Taliban consolidated list without recourse to the Ombudsperson. On the other hand, however, Resolution 1989 (2011) gave the Ombudsperson the substantive power to recommend delistings. Critically, when the Ombudsperson did recommend a delisting, that recommendation would have to be implemented unless there was a decision by the Security Council itself to retain the individual on the consolidated list. This modification to the al-​Qaeda sanctions regime thus had the effect of removing the reverse veto effectively held by all sanctions committee members by virtue of the consensus decision-​making process, replacing it with the conventional voting procedure that applies in the Council.   SC Res. 1730 (19 December 2006), paras. 1–​2.  See https://​w ww.un.org/​sc/​suborg/​sites/​w ww.un.org.sc.suborg/​files/​f lowchart_​dl_​process_​ english.pdf. 36   The Ombudsperson’s initial mandate and the complex process for pursuing delisting requests were outlined in detail in Annex II to Res. 1730. 34 35

 

how eu sanctions work    611 The creation of these two positions has gone some way towards making the UN sanctions system more responsive to the concerns of individuals targeted by UN sanctions. As discussed in later in the chapter, however, the impact of these improvements is tempered by the fact that the Ombudsperson process continues to be available only to individuals on the al-​Qaeda sanctions regime and not to those inscribed on other consolidated UN sanctions lists. Moreover, the European Court is not convinced that the Security Council’s attempt to innovate even with respect to the al-​Qaeda sanctions regime provides sufficient protection for the due process rights of affected individuals and entities. In the Kadi cases, concerning individuals who had been inscribed on the Taliban and al-​Qaeda consolidated list, the European Court held that nothing short of full judicial protection should be available to listed individuals.37

How EU Sanctions Work EU sanctions, or ‘restrictive measures’ as they are formally described by the EU system, are applied by the European Council.38 There is considerable overlap between EU and UN sanctions, as when the UN Security Council applies UN sanctions, the EU immediately adopts regulations reaffirming the obligation of EU member states to implement UN sanctions in their own jurisdictions. The purpose of this EU action is to ensure consistency throughout the EU in terms of the steps taken to implement UN sanctions.39 The EU thus draws a distinction between three broad types of EU sanctions measures:  (1)  those that that simply implement UN sanctions; (2) those that reinforce UN sanctions by applying additional measures; and

37  See Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Joined Cases C-​402/​05 P and C-​415/​05 [2008] ECR I-​6351 (3 September 2008); and European Commission & the Council of the European Union v Yassin Abdullah Kadi, Joined Cases C-​584/​10 P, C-​593/​10 P, and C-​595/​10 P [2013] ECR not yet reported (18 July 2013). See also Yassin Adullah Kadi v Council of the European Union and Commission of the European Commmunities, Case T-​315/​01 [2005] ECR II-​3649 (21 September 2005); and Yassin Abdullah Kadi v European Commission, Case T-​85/​09 [2010] ECHR II-​0000 (30 September 2010). For discussion of the Kadi case, see “The Contest between Politics and the Rule of Law in International Organization Sanctions” later in this chapter. 38   Sanctions decisions are generally adopted by the European Council sitting in its foreign affairs configuration, under the auspices of the EU’s Common Foreign Security Position (CFSP). For further discussion, see later in this chapter on the constitutional basis of EU sanctions. 39   Clara Portela, European Union Sanctions and Foreign Policy:  When and Why Do They Work? (London: Routledge, 2010), 19–​20.

 

612   sanctions (3) ‘autonomous’ EU sanctions that are applied to address situations where there are no UN sanctions in place.40 EU sanctions have been implemented at least as frequently as UN sanctions since the end of the Cold War.41 At the time of writing the official consolidated list of EU restrictive measures identifies thirty-​six examples of active EU sanctions regimes.42 The UN, at the same time, had sixteen active sanctions regimes. All of these UN sanctions regimes feature on the EU consolidated list, suggesting that the EU maintained an additional twenty-​two autonomous sanctions regimes. Apart from the overlap noted above where EU sanctions directly implement UN sanctions, the other primary similarity between EU and UN sanctions lies in the scope and targeting of sanctions measures. Both the UN Security Council and the European Council now tend to employ targeted sanctions measures such as arms embargoes, asset freezes, and travel bans. Increasingly, both Councils also apply these targeted measures against individuals who are considered to be responsible for the action or situation prompting the application of sanctions. These similarities in the scope and targeting of sanctions flow directly from the leadership role assumed by European states in reforming UN sanctions policy through the Interlaken, Stockholm, and Bonn-​Berlin processes.43 The status of two EU members, namely France and the United Kingdom, as permanent members on the UN Security Council, has also facilitated the cross-​fertilization of sanctions policy evolutions between the two sanctions systems. Yet while there are some close similarities between EU and UN sanctions, there are also noticeable differences. A quick glance at the EU’s consolidated list of active restrictive measures reveals one clear political difference between UN and EU sanctions. Two of the countries targeted by EU sanctions, namely China and Russia, could never be targets of UN sanctions because they are permanent members of the   See, e.g., Press Office of the Council of the EU, “Fact-​Sheet: EU Restrictive Measures” (29 April 2014).   A study of EU sanctions between 1980 and 2004 illustrated that the incidence of EU autonomous sanctions consistently matched that of UN sanctions throughout that period. See Joakin Kreutz, Hard Measures by a Soft Power? Sanctions Policy of the European Union (Bonn: Bonn International Center for Conversion, 2005), 15 (Fig. 1: “Sanctions in the EU area, 1980–​2003”). Writing in 2013, Giumelli lists 45 “CFSP restrictive measures” (i.e. EU sanctions regimes), beginning with the 1989–​2008 sanctions against China: Francesco Giumelli, How EU Sanctions Work: A New Narrative, Chaillot Paper No. 129 (May 2013), 43–​5. 42  European Commission, “European Union Restrictive Measures (Sanctions) in Force” (list updated on 2 September 2014), http://​eeas.europa.eu/​cfsp/​sanctions/​docs/​measures_​en.pdf. 43  See Thomas J. Biersteker et  al., Targeted Financial Sanctions:  A  Manual for Design and Implementation. Contributions from the Interlaken Process (Providence, RI:  Watson Institute for International Studies, 2001); Peter Wallensteen, Carina Staibano, and Mikael Eriksson (eds.), Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options. Results from the Stockholm Process on the Implementation of Targeted Sanctions (Uppsala: Uppsala University, 2003); Michael Brzoska (ed.), Design and Implementation of Arms Embargo and Travel Sanctions and Aviation-​ Related Sanctions: Results of the Bonn-​Berlin Process (Bonn: Bonn International Center for Conversion, 2001). 40 41

 

how eu sanctions work    613 Security Council and they would thus veto any attempts to apply sanctions against them. But on a substantive level, the most prominent differences between the two sanctions systems lie in the objectives sanctions are intended to achieve, the way sanctions are administered, and the extent to which sanctions decisions are subject to judicial review. The following sections discuss the legal basis for EU sanctions; the scope of EU sanctions, encompassing sanctions types, targets, and objectives; and the EU mechanism with primary responsibility for the administration and monitoring of sanctions, namely Sanctions Formation of the European Council’s Foreign Relations Counsellors Working Party.

The Legal Basis for EU Sanctions The legal framework for EU sanctions or ‘restrictive measures’, as they are equally commonly called, is substantially more complex than the UN legal framework, as it is articulated in various iterations of EU treaties. The legal basis for EU sanctions is located in the provisions of the Treaty on European Union (TEU) relating to the EU’s Common Foreign and Security Policy (CFSP), as well as in the Treaty on the Functioning of the EU (TFEU).44 Interestingly, the focus of the relevant CFSP provisions, outlined in Chapters 1 and 2 of Title V of the TEU, is not on the type or scope of foreign policy instruments that might be employed to implement the CFSP, but rather on the objectives that those instruments must pursue.45 All CFSP decisions must thus aim to ‘support democracy, the rule of law, human rights and the principles of international law’, as well as to ‘preserve peace, prevent conflicts and strengthen international security’.46 The TFEU, for its part, contains a provision dedicated to EU sanctions. Title IV (Art. 215) of the TFEU, which is entitled ‘Restrictive Measures’, thus states: 1. Where a decision, adopted in accordance with … [the EU Common Foreign and Security Policy] … provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof.   Consolidated Version of the Treaty on the Functioning of the European Union, Official Journal of the EU (26 October 2012), C 326/​47 (TFEU); Consolidated Version of the Treaty on European Union, Official Journal of the EU (26 October 2012), C 326/​13, (TEU), Title V (Chapters  1 and 2). For an official EU fact-​sheet on EU sanctions, see http://​www.consilium.europa.eu/​uedocs/​cms_​data/​docs/​ pressdata/​EN/​foraff/​135804.pdf (“EU Fact-​Sheet: Restrictive Measures”). 45   The EU Fact-​Sheet confirms that sanctions are considered to form one of the tools available to the EU to promote the objectives of the CSFP. 46   See TEU, Art. 21(2), especially paras. (b) and (c). 44

 

614   sanctions 2. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-​State entities. 3. The acts referred to in this Article shall include necessary provisions on legal safeguards.47

EU sanctions are created by a unanimous decision of the European Council’s Foreign Affairs configuration.48 Certain types of sanctions, including arms embargoes and travel bans, must then be implemented by EU member states without the need for any further EU-​level decision. Where, however, the sanctions involve economic measures such as asset freezes and export bans, they require implementing legislation in the form of a European Council regulation, which is directly binding on EU citizens and businesses.49

The Scope and Objectives of EU Sanctions The types and targets of EU sanctions are broadly similar to those of UN sanctions. EU sanctions regimes have thus included broad economic sanctions,50 as well as partial or economic sanctions against specific commodities or products that are considered to fuel or sustain the behaviour subject to sanctions, such as arms,51 diamonds,52 timber,53 and oil and petroleum products.54 Like UN sanctions, EU restrictive measures have also sought to circumscribe particular activities understood to benefit a target, including the activities of financial institutions,55 travel restrictions,56 teaching and training,57 and diplomatic activities.58 As noted above, EU member states 48 49   Art. 215.   EU Fact-​Sheet.   EU Fact-​Sheet.   See, e.g., Council Decision 2014/​386/​CFSP (23 June 2014) (prohibiting the import into the EU of goods originating in Crimea or Sevastopol). 51   See, e.g., Council Decision 2014/​449/​CFSP (10 July 2014), Art. 1 (concerning restrictive measures in view of the situation in South Sudan). 52   See, e.g., Council Decision 2013/​255/​CFSP (31 May 2013), Art. 12 (concerning restrictive measures against Syria). 53   See, e.g., Council Regulation (EC) No. 1819/​2006 (11 December 2006) (repealing a prohibition on the importation of round logs and timber products from Liberia). 54   See, e.g., Council Decision 2012/​35/​CFSP (23 January 2012), Art. 1 (prohibiting the import, purchase, or transport of Iranian crude). 55   See, e.g., Council Decision 2013/​183/​CFSP (22 April 2013), Art. 7 (concerning restrictive measures against the Democratic People’s Republic of Korea). 56   See, e.g., Council Decision 2011/​173/​CFSP (21 March 2011), Art. 1 (concerning restrictive measures in view of the situation in Bosnia and Herzegovina). 57   See, e.g., Council Decision 2013/​183/​CFSP (22 April 2013), Art. 16 (concerning restrictive measures against the Democratic People’s Republic of Korea). 58   See, e.g., Council Decision 2013/​183/​CFSP (22 April 2013), Art. 17 (concerning restrictive measures against the Democratic People’s Republic of Korea). 47

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how eu sanctions work    615 have been at the forefront of efforts to introduce targeted sanctions. The EU thus routinely employs examples of targeted sanctions best practice identified by intergovernmental sanctions expert consultations such as the Interlaken, Stockholm, and Bonn-​Berlin processes. For instance, when the European Council applies sanctions against target individuals or entities, it provides clear descriptions of target actions warranting the application of sanctions.

Objectives EU sanctions are imposed in order to ‘bring about a change in policy or activity by the target country, part of country, government, entities or individuals, in line with the objectives set out in the Common Position (CFSP)’.59 The EU also makes explicit the desire that sanctions should be responsive to positive and negative developments, being repealed or adapted where objectives have been achieved.60 A significant difference between the legal bases for UN and EU sanctions is that the EU framework emphasizes the need for sanctions to be applied in accordance with international law.61 This is reinforced both by the CFSP objectives and the EU Guidelines pertaining to EU restrictive measures. All CFSP decisions must thus aim to ‘support democracy, the rule of law, human rights and the principles of international law’, as well as to ‘preserve peace, prevent conflicts and strengthen international security’.62

The Administration of EU Sanctions As discussed above, one of the main ways in which EU sanctions differ from UN sanctions is that the EU sanctions system does not contain directly equivalent actors to the UN sanctions committees and bodies of experts. The practical responsibility for the administration and monitoring of sanctions thus falls to the European Council’s Foreign Relations Counsellors Working Party, in particular through its ‘Sanctions Formation’ (RELEX/​Sanctions).63 The Sanctions Formation is tasked with ensuring ‘adequate follow-​up to EU decisions to impose restrictive measures’, including developing best 59   Council of the EU, EU Doc. 15114/​05 (2 December 2005):  Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, 4–​5 (paras. 2–​6), especially para. 4; Council of the EU, EU Doc. 11205/​12 (15 June 2012):  Guidelines on the implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, 5–​6 (paras. 2–​6), especially para. 4. 60   See both sources cited in the previous note. 61   EU Restrictive Measures Guidelines, paras. 9–​12. 62   See TEU, Art. 21(2), especially paras. (b) and (c). 63   Guidelines on EU Sanctions (2005), 31–​2 (paras. 82–​3); (2012), 42–​3 (paras. 94–​5). See also Mikael Eriksson, Targeting Peace:  Understanding UN and EU Targeted Sanctions (Farnham:  Ashgate, 2011), 173–​92 (ch. 8: “EU Sanctions Decision-​Making”).

 

616   sanctions practices on and evaluating difficulties in sanctions implementation.64 One of the Sanctions Formation’s most concrete contributions has been to publish a document on ‘EU Best Practices for the effective implementation of restrictive measures’.65 The EU’s Sanctions Formation thus performs a strategic evaluative role that approximates in a more centralized fashion the roles of the various ad hoc UN sanctions expert bodies. Yet the Formation has been criticized for meeting relatively infrequently (six times per year) and consequently for being incapable of responding flexibly and responsively to positive or negative developments in sanctions implementation.66 The EU’s mechanisms for sanctions administration and monitoring are thus less institutionalized and less substantial than those of the UN sanctions system. This has prompted some commentators to argue that the EU should consider following the UN’s lead, by creating expert bodies to monitor and evaluate sanctions implementation.67 Indeed, the 2008 update of the EU’s Best Practices document for the effective implementation of EU sanctions proposed that EU member states might consider the establishment of ‘special expertise groups’ in order to strengthen action against terrorist financing in particular.68

The Contest between Politics and the Rule of Law in International Organization Sanctions Reports that UN sanctions caused the deaths of more than half a million children in Iraq during the 1990s earned sanctions a notorious reputation as a blunt tool that harmed civilians more than they constrained rogue leaders.69 Sanctions critics have been particularly scathing about the use of comprehensive sanctions, denouncing them as at best ineffective,70 and at worst as measures that galvanize opposition to UN intervention and strengthen the target’s position of power.71 Some critics even   Guidelines on EU Sanctions (2005), para. 82; (2012), para. 94.   See European Council, EU Doc. 8666/​1/​08 REV 1 (24 April 2008), annex: “Update of the EU Best Practices for the effective implementation of restrictive measures.” 66   See, e.g., Eriksson, Targeting Peace, 173–​92. 67   See, e.g., Giumelli, How EU Sanctions Work, 40. 68   European Council, EU Doc. 8666/​1/​08 REV 1 (24 April 2008), annex: “Update of the EU Best Practices for the effective implementation of restrictive measures,” para. 67. 69   See Normand, “Iraqi Sanctions.” 70   R. A. Pape, “Why Economic Sanctions Do Not Work,” International Security 22 (1997): 90–​136. 71   Johan Galtung, “On the Effects of Economic Sanctions: With Examples from the Case of Rhodesia,” in Dilemmas of Economic Coercion, ed. Miroslav Nincic and Peter Wallensteen (New York: Praeger, 1983), 17–​60. 64 65

 

politics and the rule of law in io sanctions    617 went so far as to label sanctions ‘the UN’s weapon of mass destruction’,72 ‘a genocidal tool’,73 or ‘modern siege warfare’.74 These concerns about the civilian impact of comprehensive sanctions prompted a genuine shift in sanctions policy away from that type of blunt sanctions and towards sharper, smarter, more targeted sanctions. The typical contemporary sanctions applied by both the UN and the EU thus tend to involve one or more of the targeting trio of arms embargoes, asset freezes, and travel bans. The new generation of smart sanctions also targets specific individuals and entities, rather than whole populations. The sanctions measures most commonly employed against individual targets are travel bans and asset freezes. These individual sanctions have been applied against leaders like Saddam Hussein and Mu’ammar Gaddafi and their close associates and family members, against individuals associated with al-​Qaeda, and against rebel militia leaders who recruit and deploy child soldiers in places such as the DRC. Nevertheless, somewhat ironically, these more focused sanctions targeting individuals, which sought to increase both the legitimacy and effectiveness of sanctions, have attracted almost as much criticism as their blunt forebears. Individuals targeted by sanctions, and in particular those who have had their assets frozen, have pursued national and regional litigation to remedy what they argue is a denial of due process and to protest their inability to hear and challenge the grounds upon which they have been targeted. In legal terms the individuals claim that their due process rights have been violated unjustifiably. The most prominent example of such litigation is the Kadi case, in which the European Court overturned European Commission orders to EU member states to implement an individual asset freeze against blacklisted individuals associated with the Taliban and al-​Qaeda.75 The basis for overturning the European Commission’s orders was that the UN Security Council sanctions committee responsible for administering the sanctions did not provide adequate due process protections for individuals on the blacklist.76

72   Denis Halliday, “Iraq and the UN’s Weapon of Mass Destruction,” Current History 98 (1999): 65–​8; J. Mueller and K. Mueller, “Sanctions of Mass Destruction,” Foreign Affairs 78 (1999): 43–​53. 73   Geoffrey Simons, Imposing Economic Sanctions: Legal Remedy or Genocidal Tool? (London: Pluto Press, 1999); George E. Bisharat, “Sanctions as Genocide,” Transnational Law and Contemporary Problems 11 (2001): 379–​425. 74   Joy Gordon, “Sanctions as Siege Warfare,” The Nation, 22 March 1999. 75  See Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities, Joined Cases C-​402/​05 P and C-​415/​05 [2008] ECR I-​6351 (3 September 2008); and European Commission & the Council of the European Union v Yassin Abdullah Kadi, Joined Cases C-​584/​10 P, C-​593/​10 P, and C-​595/​10 P [2013] ECR not yet reported (18 July 2013). See also Yassin Adullah Kadi v Council of the European Union and Commission of the European Commmunities, Case T-​315/​01 [2005] ECR II-​3649 (21 September 2005); and Yassin Abdullah Kadi v European Commission, Case T-​85/​09 [2010] ECHR II-​0000 (30 September 2010). 76  See European Commission & the Council of the European Union v Yassin Abdullah Kadi, Joined Cases C-​584/​10 P, C-​593/​10 P, and C-​595/​10 P [2013] ECR not yet reported (18 July 2013), paras. 97–​135.

 

618   sanctions The sanctions systems employed by international organizations are thus in crisis. The legitimacy of sanctions is vigorously contested on both political and legal grounds. Yet despite the damaged reputation of both blunt and smart sanctions in terms of legitimacy and effectiveness, sanctions continue to represent a concrete, least-​worst policy option for international organizations under pressure to be seen to be doing something in the face of a crisis. The indelible presence of sanctions on the international policy landscape increases both the necessity and the urgency of maintaining momentum for efforts to increase the legitimacy of the processes by which sanctions are imposed, administered, and terminated. The primary contest here is between politics and security, on the one hand, and the rule of law, on the other. Policy-​makers, both at the UN and the EU, see political benefit in using sanctions as a tool for enforcing the objectives and norms of their organizations. At the UN, the overarching objective of sanctions is to maintain international peace and security.77 But the Security Council’s sanctions decisions must also be taken in accordance with the UN’s purposes and principles, one of which is the sovereign equality of all member states, and another of which is the importance of promoting human rights.78 At the EU, the primary objective of sanctions is to support the objectives of the CFSP, namely to ‘support democracy, the rule of law, human rights and the principles of international law’, as well as to ‘preserve peace, prevent conflicts and strengthen international security’.79 The legal frameworks for both UN and EU sanctions thus indicate, whether implicitly or explicitly, that sanctions should not undermine human rights and the rule of law. The rule of law is a political ideal and a principle of governance that aims to prevent the arbitrary exercise of political power.80 A central tenet of the rule of law is that that no person or institution should be above the law. The promise of the rule of law is both powerful and magnetic. The concept has been lauded by heads of state from a wide variety of political, social, and religious backgrounds.81 It appears to be a self-​evidently good idea, which is almost impossible to oppose. Yet such widespread support for the idea of the rule of law is only possible if one defines the concept at a broad and abstract level. Efforts to develop comprehensive definitions or models of the rule of law inevitably lead to vigorous contestation, as the rule of law can take different forms in different socio-​political contexts.82 The next two sections explore how the contest between politics and the rule of law plays out in the decision-​making processes leading to UN sanctions, on the one 78   See UN Charter, Arts. 1(1), 25, 39, 41.   See UN Charter, Arts. 1(2), 1(3), and 2(1).   See TEU Art. 21(2), especially paras. (b) and (c). 80  Farrall, United Nations Sanctions and the Rule of Law, 35, 39. 81  Brian Z. Tamanaha, On the Rule of Law:  History, Politics, Theory (Cambridge:  Cambridge University Press, 2005), 1–​2. 82   Jeremy Waldron, “Is the Rule of Law an Essentially Contested Concept (in Florida)?,” Law and Philosophy 21 (2002): 137–​64; David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press, 1991), 64. 77

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politics and the rule of law in io sanctions    619 hand, and to EU sanctions, on the other. Neither sanctions system has yet achieved the perfect balance in this contest. Whereas the legitimacy and effectiveness of UN sanctions are threatened by prioritizing politics to the detriment of the rule of law, ironically the legitimacy and effectiveness of EU sanctions are also threatened by prioritizing the rule of law to the detriment of politics.

The Rule of Law Problem Confronting UN Sanctions There are three major structural reasons why the UN sanctions decision-​making system tends to elevate politics over the rule of law. First, the primary objective of sanctions is to maintain international peace and security, rather than to maintain international law. Second, the primary UN sanctions decision-​maker, the UN Security Council, is explicitly set up as a political organ whose members are decidedly unequal, with five permanent members who possess the power to veto any substantive Council decision. Third, there is no clear path or mechanism to provide for judicial review of Security Council decisions in order to ensure the equal application of the law. These structural factors overwhelmingly tilt the UN sanctions decision-​making process in favour of politics rather than the rule of law. Nevertheless, despite these structural factors favouring politics, the Security Council’s sanctions policies have evolved in a direction that has gone some way towards addressing rule of law concerns. The move away from comprehensive sanctions and towards smart sanctions in the 1990s was in part motivated by a rule of law concern that sanctions should not have disproportionate effects on innocent civilian populations of the type caused by the Iraq comprehensive sanctions regime. More recently, the creation of the Sanctions Focal Point and the Office of the Ombudsperson on al-​Qaeda sanctions both demonstrated that the Security Council was endeavouring to respond to the rule of law concern that individuals targeted by sanctions should be accorded greater due process. At an abstract level, commentators have been arguing for some time that the credibility and legitimacy of the UN Security Council have been undermined by applying sanctions without due regard to their impact on human rights and the rule of law. The link between legitimacy and effectiveness has also been highlighted, due to the Security Council’s dependence on member states to act in good faith in accordance with their Article 25 obligation to implement its decisions. Since the Kadi case, however, it has become even clearer that the effectiveness of UN sanctions is at stake. On a very practical level, if the Security Council cannot apply sanctions in a way that satisfies the EU legal order’s requirement for full judicial protection of individual due process rights, then the implementation of UN sanctions throughout the EU will be jeopardized. The loss of guaranteed sanctions implementation in perhaps the sole region where the Council could previously expect dutiful

 

620   sanctions and uniform sanctions action would represent a mortal blow to the utility of UN sanctions.

The Political Problem Confronting EU Sanctions In a fascinating juxtaposition, the same three structural factors that marginalize rule of law concerns in the UN’s sanctions decision-​making process, actually serve to reinforce the rule of law in the EU’s sanctions decision-​making process. First, sanctions must be employed in pursuit of primary CFSP objectives that include supporting ‘the rule of law, human rights and … international law’.83 Whilst the CFSP objectives also stress the need to ‘preserve peace, prevent conflicts and strengthen international security’,84 these peace maintenance concerns are only mentioned later, thus implying that rule of law concerns should be prioritized. Second, the EU legal framework does a better job of delivering rather than simply promising sovereign equality. Every EU member rotates through the role of EU presidency and unanimity of all members is required for the European Council’s most important substantive decisions.85 Third, as the Kadi case illustrates, by stark contrast with its UN counterpart, the EU’s sanctions decision-​making process is very much subject to meaningful judicial review. EU sanctions decision-​makers are thus held to a fairly high rule of law standard when it comes to the implementation of sanctions. In theory, this deference to the rule of law should increase the legitimacy of EU sanctions and thus the extent to which member states will act in good faith to apply sanctions within their jurisdictions. Yet paradoxically there are two potential dangers in elevating the interests of the rule of law above those of peace and security. The first is that the more often the legal obligations contained in EU sanctions regimes are overturned by the European Courts, the more likely it will be that EU member states will start to take EU sanctions decisions with a grain of salt and refrain from implementing them as a matter of course. Thus, measures which have been taken with the putative objective of supporting the rule of law and human rights might actually cease to be effective due to concerns that they are undermining the rule of law and human rights. The second, more likely possibility, however, is that sanctions decision-​makers might decide to retreat from their targeted sanctions innovations to the more blunt tool of comprehensive sanctions, as it is less susceptible to judicial review.86 Thus the attempt by the Courts to reinforce the need for more rule of law-​friendly

84   See TEU, Art. 21(2), especially paras. (b) and (c).  Ibid.   See TEU, Art. 16(9) on the Presidency of the Council of the European Union, and TEU Art. 15(4) on European Council decision-​making. 86   This possibility is raised by Giumelli, “How EU Sanctions Work,” 41. 83

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conclusion   621 sanctions decision-​making might prompt a return to the type of disproportionate, retrograde comprehensive sanctions decision-​making that triggered the quest for targeted sanctions in the first place.

Conclusion This chapter has examined the most prominent forms of international organization sanctions, namely UN and EU sanctions. It has described how UN sanctions and EU sanctions work, identifying the similarities and differences between these two types of international organization sanctions. A key development in both UN and EU sanctions over the past two decades has been the move away from blunt, comprehensive sanctions and towards smarter, sharper, more targeted sanctions. This development has been strongly influenced by calls for sanctions to be more responsive to rule of law concerns. The contest between the dictates of peace and security, on the one hand, and the rule of law, on the other, will continue to shape and constrain sanctions policy-​making for the foreseeable future. For structural reasons, UN sanctions tend to prioritize peace and security needs over rule of law concerns, whereas EU sanctions tend to prioritize the rule of law. Looking to the future, the ability of each system to achieve a meaningful balance between the demands of the rule of law and peace and security will have a direct impact upon the credibility, legitimacy and effectiveness of each sanctions system.

 

Chapter 29

USE OF FORCE Marc Weller*

There are many reasons for violence. Human nature may contain an aggressive impulse. There is competition for resources, for social power, for real or imagined entitlements, or for values, such as honour or justice. And then, there is one rather different claim to the use of violence: the use of force to contain and constrain violence within a given society. Violence to end all violence, as it were. Indeed, social systems tend to be legitimized in the first place as mechanisms of controlling and reducing violence, promising stability and order instead of anarchy and chaos. Towards that end, they claim a monopoly of force. The threat or use of violence is to be employed to remove the option of using it from individuals, its use being assigned to those governing the social system alone. The system may be represented by the village elders, the local feudal lord, the king or emperor, or a government of some other description. The monopoly of violence is either imposed by those in control, or more freely accepted by those being controlled by the system. Indeed, an imposed dictatorship on the one hand, or a voluntary association of citizens on the other, both tend to deliver a modicum of stability. In a dictatorship, the monopoly of the use of force is used to guarantee the supremacy of those who control the levers of power—​the emperors, kings, dictators, or autocrats. The ruled are defenceless against the rulers, with no prospect of successful rebellion. The monopoly on the use of force is enforced with great dedication, as the system of despotic governance relies on it. * The author gratefully acknowledges the research assistance and comments provided by Mr Jake Rylatt.

 

use of force   623 In a rule of law society, on the other hand, the monopoly of force poses a different dilemma. To what extent shall the system interfere with personal freedoms it seeks to guarantee in order to deliver effective protection of the individual from the use of force or infringement of rights? Or, in other words, how far should the state interfere with personal autonomy in order to guarantee that autonomy? And can force only be used to deter or constrain the use of force by individuals within the system, or can it also be employed to other, broader ends. For some early social contract theorists, the removal of violence from daily discourse alone justified the existence of a given social system, or state, however repressive it may be. It need not deliver other functions in order to be considered legitimate. Given the horrors of unconstrained interpersonal violence and civil strife that had been witnessed by Hobbes and his contemporaries, it was argued that absolute subjection to the system is not too high a price to pay for systemic stability and personal security. A second school of thought often associated with John Locke added further functions to the aims of social organization, or of the state, such as the enjoyment of property and certain rights and freedoms in a climate of relative calm. Finally, a more modern view of the social contract would add to these minimum aims the achievement of social justice and other values, for instance through the concept of full and effective equality of all members of society (Rawls). These sets of public aims of the state appear to be closely mirrored in the rationale underpinning the modern understanding of the international system. At the minimum, the international system aims at the control of violence between the principal social units it is composed of—​classically the states. Wars are abolished. Yet, the use of force continues to exist, although it is to be employed as a means of guaranteeing a warless world. Potentially, the use of force in the common interest can also extend to implement other community interests, such as the freedom of citizens from absurd abuse by state authorities. As is the case with the internal organization of states, international organization has other aims going beyond the constraint of the use of force. These aims of international organization may relate to the preservation and protection of rights, to purely functional tasks, such as the advancement of telecommunications, or to the promotion or implementation of broader values held by a notional international society. However, at its root, the idea of international organization has always remained firmly wedded to the aim of controlling violence or war, just like the concept of the state has been rooted in the need to remove violence from the daily life of individuals. Indeed, many of the classical projects to banish war from international relations were focused on establishing a permanent alliance or even federal association to ensure perpetual peace—​in other words, a system for collective security maintained through international organization. Take the design of the Abbé de St Pierre for example. He was a realist statesman who had just participated in the negotiations of the Treaty of Utrecht when he penned his design for permanent peace of 1713.

 

624   use of force The Abbé proposed a ‘society’ among the Sovereigns of Europe, to make ‘peace unalterable’. This would extend beyond Europe, through alliances with the ‘Mahometan Sovereigns’ as he put it, and states in Asia would be assisted in establishing their own permanent society for peace. In essence, the organization aimed at universality to the extent possible at the time. Indeed, just like Article 2(5) of the UN Charter, the system provided for an objective regime. According to the design of the Abbé, it would become operative in relation to all other states outside of its membership as soon as it reached the threshold of fourteen. From that point onwards, non-​members would be compelled to join—​compelled by war, incidentally. The system would be maintained by a perpetual congress. Perhaps as an analogy of the modern immunities appertaining to the UN and other international bodies, the congress would be installed in a free city, ensuring that it would not be beholden to a particular sovereign controlling the territory on which it was based. In terms of substance, there was a pledge of non-​intervention in the internal affairs of states—​as is now provided in Article 2(7) of the UN Charter. Members would renounce the possibility to acquire territory by conquest or force—​Article 2(4) of the Charter backed by Resolution 2625 (XXV) and a number of other standards. Disputes would be settled by the congress through directed conciliation or arbitration. A state using force in violation of this settlement would be declared ‘the Enemy to the European Society’ and war would be made upon him by all. In cases calling for urgent action, provisional measures à la Article 40 could be adopted. There was even provision for an Article 43 arrangement concerning the preassignment of troops for this purpose, and there would be a jointly appointed Generalissimo, representing the Military Staff Committee, as it were. The expenses of the organization would be met according to a levie determined in proportion to the revenues and riches of the respective states, much like the UN system of apportionment of budgetary expenses. The form or shape of these kinds of proposals, starting with the design of Pierre Dupuis and the Duke of Sully, extending to the works of Bentham and Rousseau, and reaching their zenith in the plan for perpetual peace by Immanuel Kant, varied comparatively little over the centuries. The recipe was there, but over the century there was no appetite to apply it. Despite the Complaint of Peace and the evident horrors of warfare,1 the use of force amongst states remained a glorious pursuit. This fact is easily explained, of course. There exists a critical difference between international organization of states and the internal social system of the state. The classical state has developed through the very process of enforcing the monopoly of violence. That was the central issue in the process of the suppression of the feudal ranks in late medieval times which led to Jean Bodin’s proclamation of the

  Desiderius Erasmus, The Complaint of Peace (Chicago: Open Court, 1917).

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use of force   625 concept of sovereignty in 1576.2 But as the state controlled the use of force internally, it rejected inherent constraints on the external exercise of its powers. Sovereignty meant supreme authority in relation to internal and external affairs of the state for the state organs. There was no monopoly of force assigned to some higher authority within the international system, as states did not recognize any power superior to themselves. Hence, they retained the claim to the use of external organized violence. This divergence between the internal system of social organization, and the external application of state power in the cause of supposedly just wars, was noted and bemoaned. Nevertheless, it persisted within the Westphalian, or Grotian, international system, which continued to espouse the theory of justified wars, in large measures according to the medieval tradition. The same applied during the nineteenth century. During that period, the first examples of international organization emerged, most famously the Danube River Commission of 1858. This was an instance of functional cooperation administered through a standing international body, soon to be followed by a number of others. It was later argued that functional cooperation would reduce the risk of war, as states would become more and more interdependent and interested in maintaining stability and the functioning of these valuable mechanisms of international cooperation.3 However, during that initial period in the development of international organization, this optimistic theory was not borne out by the facts. States accepted the soft tool of conference diplomacy to try and maintain stability at the centre of the European-​dominated system, while continuing to compete violently for power and resources at the periphery. There was no sense of giving up the right to go to war as a means of national policy. Indeed, new justifications were added to the classical just war criteria, which had focused on self-​defence and the use of force to vindicate rights. These included claims to intervention and to preventative wars to maintain the balance of power between states.4 Instead, it took the catastrophe of World War I, which nearly wiped out a generation of young men under horrifying circumstances, to bring about a change of heart. Suddenly, the projects of the Abbé St Pierre and Kant no longer seemed utopian. War had lost its lustre. In an age of mechanized slaughter, where tens of

  Jean Bodin, On Sovereignty, ed. J. H. Franklin (Cambridge: Cambridge University Press, 1992).   See, e.g., Alfred Zimmern, Learning and Leadership:  A  Study of the Needs and Possibilities of International Intellectual Cooperation (London:  Oxford University Press, 1928); Alfred Zimmern, The League of Nations and the Rule of Law 1918–​1935 (London: Macmillan and Co., Limited, 1936); I. L. Claude, Power and International Relations (New  York:  Random House, 1962); and David Mitrany, A Working Peace System (Chicago: Quadrangle, 1966). 4  See, e.g., Ellery C. Stowell, Intervention in International Law (Washington, DC:  John Byrne and Co., 1921), ch. III; Robert Phillimore, Commentaries Upon International Law (New  York:  Fred B. Rotham & Co., 1985 [1854]), 315; G. F. v. Martens, The Law of Nations (London: Cobbet, 1829), 118; and Henry W. Halleck, International Law; or, Rules Regulating the Intercourse of States in Peace and War (Amsterdam: Rodopi, 1970 [1861]), 335. 2

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626   use of force thousands could be mown down in a day, no matter how brave or gallant they tried to be, war could no longer be a glorious pursuit. It was organized madness.

The League as an Organization against War In light of this experience, the view set in that states would never again willingly go to war. Wars might still occur, though. Many thought that World War I, triggered by the assassination of Archduke Ferdinand, had been a war by accident, set in motion by events that had escaped rational control. The slogan of ‘Let cooler heads prevail’ set in. It argued that conflict management tools could stop the downward spiral towards war by allowing for the application of reason. As no human being could rationally opt for war anymore, the assumption was that calm reflection would help arrest events and stop the slide into war. The League of Nations system was devised in this spirit. Under the League Covenant, the members of the system were expected to move to an obligation not to resort to war,5 and to preserve one another from external aggression against their territorial integrity and existing political independence.6 However, war was not, strictly, declared unlawful. Instead, a demanding set of dispute settlement procedures was established. This, it was thought, would suffice to allow for a reasonable adjustment of whatever issue threatened to bring about war. But, in the end, a ‘legal war’ remained possible when the dispute settlement mechanism was exhausted. On the other hand, where a state failed to honour this process and resorted to force in violation of these process requirements, such an attack against one would be treated as an attack against all. The League Council would ‘advise’ in a case of aggression, or a threat of aggression, upon the means by which the obligation to preserve the territorial integrity of member states would be fulfilled.7 The Council would in such a case recommend what military force they should contribute to ‘protect the Covenant of the League’.8 It is interesting to note that a significant shift had taken place. Pledges to states to protect one another from aggression had been known since the dawn of history, taking the shape of informal or formal alliances. But the League represented

  Covenant of the League of Nations (Adopted 28 April 1919), Preamble.   Ibid., Art. 10.    7 Ibid.   8  Ibid., Art. 16(2).

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the league as an organization against war    627 an advance on previous alliance policy. In an alliance, the members promise to defend any one member against aggression external to the alliance (collective defence). In this instance, the members pledged to defend one another against any aggression from among the members of the League—​from themselves (collective security). In fact, the League Covenant went further. It declared that any threat of war, whether immediately affecting any of the members, would be a concern for the whole League which would take any action deemed wise and effectual to safeguard the peace of nations.9 It may be going too far to assert that the League was asserting objective legal personality in relation to the international system as a whole. The collective security mechanism provided for in the Covenant was, after all, focused on the members of the League. Yet, the ambition of the League was universal. Its aim was to safeguard global peace. Moreover, the League paved the way for an important shift in the understanding of key rules of the international system of constitutional standing. In declaring that an act of war against a member in violation of the Covenant would be treated as an act of war against all members, it anticipated the modern concept of erga omnes obligations. An unlawful act of war against one state would give rise to a legal interest, or possibly even a violation of the rights, of all other states. Indeed, going beyond the concept of erga omnes obligations, all other members would be immediately injured states in consequence of the violation and could respond accordingly.10 The League Covenant also presaged an important change in the relationship between states and the international system. True, the object of protection of the collective security mechanism was the territorial integrity and political independence of states. Still, the League Covenant added that states acting in the application of the collective security mechanism were acting ‘to protect the Covenant of the League’.11 This declaration made the collective interest in maintaining an effective and credible collective security system the supreme aim of the system, along with the immediate preservation of the security of its members. Of course, the failings of the League are well known. While the Preamble directed states towards accepting an obligation not to resort to war, there was no legally binding prohibition against war. Even when this gap in the Covenant was plugged by way of the Briand-​Kellogg Pact of 1928, which prohibited war as a means of national policy, this left room for the application of inter-​state violence. For instance, the application of force short of war was not covered, perhaps along with the use of force in the absence of declarations of war. While it was hoped that ‘all   Ibid., Art. 11.   The International Law Commission (ILC) Articles on State Responsibility have proposed the concept of states “other than the injured state,” to describe those who are indirectly affected by a breach of an erga omnes obligation; ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/​56/​10), Chapter IV.E.1, Art. 48. 11   Covenant of the League of Nations (Adopted 28 April 1919), Art. 16(2). 9

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628   use of force the other powers in the world’ would join the commitment made, the obligation to refrain from war as a means of national policy only operated inter-​se, among the signatories. Force used, even by the signatories, against others outside of the League was not covered. In addition, there were broad reservations attached by states concerning a self-​judging right of self-​defence. Another deficiency concerned the absence of comprehensive compulsory jurisdiction, ultimately assigned to one particular court. If states are to refrain from settling their affairs violently, peaceful avenues of settling disputes need to be provided for. Indeed, the prohibition of the use of force is often seen as the reverse side of the coin in relation to the obligation to settle disputes by peaceful means only. Both are intimately connected. While the League introduced the Permanent Court of International Justice, its jurisdiction was not compulsory. The League Council or Assembly, in addition to other mechanisms, were available to help settle disputes. But once this process was exhausted, there was no requirement to settle through the Court. Again, after the completion of the League Covenant, the race was on to also plug this gap in the Covenant. The abortive Geneva Protocol for the Pacific Settlement of International Disputes of 1924, followed by the Geneva General Act for the Pacific Settlement of International Disputes of 1928, were both meant to serve this purpose. They provided for conciliation and ultimately an obligation to settle legal disputes through arbitration or adjudication. This was flanked by the provision of the Briand-​Kellogg pact which, in outlawing war as a means of national policy, amplified the obligation to settle all disputes through peaceful means. The new system was unworkable. True, the League scored some initial successes in defusing international crises. However, with the failure of its initiator, the United States, to join, it lacked universality and credibility. Moreover, when the last patches had been applied to the League’s peace structure by the end of the 1920s, a new challenge arose. The League was meant to avoid the accidental starting of wars. But the 1930s saw the revival of the idea of war as a means of policy. Japan started the process by invading Manchuria, with a view to absorbing its resources. Fascist Italy followed suit in occupying Abyssinia, or Ethiopia. The requirement of unanimity in the Council of the League meant it was incapable of responding to aggression by its own members or their allies. And, by the end of the decade, Nazi Germany was ready to trust in war again, supposedly to create Lebensraum for the German master-​race in Europe and ultimately to conquer the continent.

 

the un as a system of collective security    629

The United Nations Organization as  a System of Collective Security By 1945, Europe lay in ashes, along with many other parts of the world. Clearly, the application of reason, and of international legal processes, had failed to avoid a further catastrophic war. This time, the victorious allies concluded, force would be employed to prevent the resurgence of the aggressive impulse. A powerful council dominated by the remaining great powers would ensure that the enemy states would never again plunge the world into the abyss of global war. The design of the UN Charter addressed some of the shortcomings of the League. For the first time, it seemed, a comprehensive collective security organization had been created. Such an organization would require: • universal reach; • a monopoly on violence; • comprehensive, compulsory dispute settlement; and • an effective enforcement system. A first sight, the UN Charter appeared to meet all of these requirements. However, the picture is not as clear as might appear at first.

Universal Reach While the United Nations (‘UN’) was conceived by the victorious allies, it had universal aspirations. Its provisions would operate in relation to three constituencies: the membership of the organization, the enemy states of World War II which were not initially expected to rank among ‘peace-​loving states’ entitled to membership, and, finally, all others. While some have doubted the objective legal personality imposed by the founders of the UN on all others, it is clear that at least with respect to international peace and security, full universality would obtain. The organization ‘shall ensure that states which are not Members of the United Nations act in accordance with these principles [of the Charter] as far as may be necessary for the maintenance of international peace and security’.12 The wording chosen (‘shall ensure’) confirms 12   Charter of the United Nations (Signed 26 June 1945, Entered into Force 24 October 1945) 1 UNTS XVI, Art. 2(6) (UN Charter). An issue that is sometimes raised relates to the question of whether or not Chapter VII sanctions have universal effect, also in relation to non-​members. Switzerland traditionally opposed such a view while it was a non-​member, although it consistently acted in accordance with Chapter VII resolutions.

 

630   use of force the mandatory nature of decisions taken in relation to international peace and security. The founding of the UN was therefore indeed a world-​constitutive moment.

Monopoly of Violence: The Prohibition of the Use of Force The question of the monopoly of force is a more delicate one. Article 2(4) significantly advances on the terms of the Briand-​Kellogg Pact. It obliges members to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Although the article is focused on UN members, the obligation is now considered to be fully universal, by virtue of an underlying rule of customary law mirroring the terms of the Charter. Indeed, the prohibition of the threat or use of force is generally considered to be an essential element of the international rules of jus cogens.13 That is to say, no state can remove itself from its application. A new state is bound to observe the prohibition as part of general international law. No state can contract out of the rule through an agreement with another state that might purport to suspend it.14 And, in view of the erga omnes effect of the rule, all states have a legal interest in its performance by all others. According to the ILC Articles on State Responsibility, states are obliged to refuse recognition of the fruits of a violation of the prohibition of the use of force. They must not assist the commissioning state in keeping in place the benefits obtained through the violation, and they must consult with a view to taking collective action aiming to overturn these consequences.15 As Article 2(4) addresses the threat or use of force, forcible action short of war is proscribed. While there was some discussion in the 1970s about whether or not other means of coercion, including in particular the use of economic pressure, are covered, it is now clear that the provision concerns actual, physical force as is

  See, e.g., Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, 14, para. 190, stating that: “The International Law Commission, in the course of its work on the codification of the law of treaties, expressed the view that ‘the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens’ (paragraph (1) of the commentary of the Commission to Article 50 of its draft Articles on the Law of Treaties, Yearbook of the International Law Commission II (1966): 247)”; see also, e.g., A. Randelzhofer and O. Dörr, “Article 2(4),” in The Charter of the United Nations: A Commentary, ed. Bruno Simma et al. (Oxford: Oxford University Press, 2012), 200, 231. 14   Vienna Convention on the Law of Treaties (done at Vienna 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 53. 15   ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/​56/​10), Chapter IV.E.1, Arts. 40 and 41. 13

 

the un as a system of collective security    631 typically employed by the military.16 It is immaterial whether the states involved chose to accompany the use of force by a declaration of war. Moreover, a threat of the use of force is just as unlawful as the employment of such force would be.17 A conceptual difficulty arises, however, in relation to the breadth of coverage of the article. Some scholars have argued that it does not cover uses of force that do not permanently affect the territorial integrity or political independence of the victim states.18 Others argue that it does not prohibit forcible action undertaken in furtherance of the purposes and principles enunciated in the UN Charter.19 Both arguments fail. The negotiating history of the provision demonstrates that these references were meant to strengthen the comprehensive nature of the prohibition of the use of force, rather than undermine it.20 Instead, the wording chosen is in reference to the language of Article 10 of the League Covenant. Moreover, in actual practice, states invariably justify cross-​border armed action with reference to self-​ defence, whether or not such action permanently affects the territorial integrity or political independence of the target state.21 This confirms that states accept that any such use of force constitutes a prima facie violation of Article 2(4). On the other hand, there is some debate as to whether Article 2(4) displaces pre-​ existing claims to restrictions on the use of force. The issue is highlighted by Article 51 of the Charter, which refers to the ‘inherent’ right to self-​defence. If self-​defence is an inherent right, how could it be limited or circumscribed by the UN Charter? The issue is resolved if one accepts that the Charter clarifies what that inherent right actually is: the right to self-​defence as defined by the terms of Article 51. This is not the place to rehearse the well-​known arguments about the interpretation of Article 51. For the purposes of this discussion, it is sufficient to ask whether the right to self-​defence is sufficiently well defined to constitute a limited exception to the prohibition of the use of force, or whether the right is framed in such an open and self-​judging way that it fatally undermines the claim that the UN Charter imposes a comprehensive and universal prohibition of the use of force. The terms of Article 51 are in fact very clear. Individual and collective self-​defence can be invoked ‘if an armed attack occurs’. An armed attack consists of the use of military means against the territory of a state, or a ship or aircraft registered to it.   More recently, the question of whether or not so-​called cyber-​warfare would be prohibited by this article has been raised. However, this discussion really focuses on Art. 51 of the Charter, and the question of whether such action may amount to an “armed attack,” giving rise to a right to self-​defence. 17   Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, para. 48. 18   See, e.g., Julius Stone, Aggression and World Order (Berkeley: University of California Press, 1958), 43; and D. W. Bowett, Self-​Defence in International Law (New York: Praeger, 1958), 152. 19   See, e.g., Serge Sur, International Law, Power, Security and Justice: Essays on International Law and Relations (Oxford: Hart Publishing, 2010), 510. 20   Randelzhofer and Dörr, “Article 2(4),” 200, 216. 21   e.g., the UK recently justified a precision air strike in Syria against an ISIL vehicle on the basis of individual self-​defence:  Letter dated 7 September 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council, S/​2015/​688. 16

 

632   use of force Targets can also include groups of state nationals when abroad if they are targeted by virtue of their nationality. However, assaults against individuals would not normally be covered. In addition, the attack must be of some intensity—​mere border incidents, for instance, would not qualify.22 The author of the attack will ordinarily be a state. Since the attack of 9/​11 against the United States, it is also accepted that non-​state actors can mount an armed attack if it is commensurate with a regular military attack in terms of means and effect. Hence, the destruction of the World Trade Towers by means of civilian aircraft carrying a full load of aviation fuel was considered equivalent to a military attack, giving rise to the right to self-​defence.23 The term ‘occurs’ is interpreted in according with the traditional Caroline formula—​a formula which pre-​dates the UN Charter but which remains relevant in filling out its terms.24 In addition to the actual delivery of the armed attack, this includes a circumstance of instant and overwhelming necessity, leaving no choice of means and no moment of deliberation. Moreover, self-​defence has to remain proportionate in relation to the attack.25 Over the past years, it was argued that this traditional and well-​understood reading of self-​defence is no longer adequate to address the supposedly new threats of terrorism or of weapons of mass destruction, or the risk of the combination of both.26 However, in its World Summit Outcome Document in 2005, the UN General Assembly has found, rightly, that the law on the use of force adequately addresses such challenges.27 Hence, self-​defence as the only justification for the use of force outside of the application of collective security has remained sufficiently clearly circumscribed, at least for now, to allow the prohibition of the use of force to stand. The same applies to a further proposed justification of the use of force. It is asserted that the doctrine of forcible humanitarian action has also survived the adoption of Article 2(4) of the Charter or, if it has not, that it has resurfaced as a justification for the unilateral use of force.28 A third and persuasive view argues that   Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, 14, para. 195. 23   UNSC Res. 1368 (2001); UNSC Res. 1373 (2001). But cf. Antonio Cassesse, “Terrorism Is Also Disrupting Some Crucial Legal Categories of International Law,” European Journal of International Law 12 (2001): 993, 996–​7. 24   R. Y. Jennings, “The Caroline and McLeod Cases,” American Journal of International Law 32 (1938): 82. 25  Ibid. 26   See, e.g., the 2002 National Security Strategy of the US, in which the US affirmed their commitment to exercise their right of self-​defence pre-​emptively against terrorist threats, going beyond the strictures of the Caroline formulation (p. 6). This policy was affirmed in the 2006 National Security Strategy of the US (Section V.A). 27   World Summit Outcome Document, UNGA Res. 60/​1 (24 October 2005), A/​Res/​60/​1, para. 79. 28   See, e.g., Jean-​Pierre Fonteyne, “The Customary International Law Doctrine of Humanitarian Intervention:  Its Current Validity under the UN Charter,” in The Use of Force in International Law, ed. Tarcisio Gazzini and Nicholas Tsagourias (Farnham:  Ashgate, 2012); Christopher Greenwood, “Humanitarian Intervention:  The Case of Kosovo,” in Finnish Yearbook of International Law 22

 

the un as a system of collective security    633 force may be used in extreme circumstances of overwhelming humanitarian necessity when the system of collective security has failed to offer a remedy to an emergency threatening the existence of entire segments of the population of a state.29 The humanitarian necessity defence is complemented by the argument that in such circumstances international action can be taken directly on behalf of the population under threat. In that case, action is taken with the implied consent of the true sovereign of the state in question—​the population. The government of authority which is causing the emergency, or fails to address it, can no longer exclusively represent the will of such a population at the international level and action can be taken on its behalf. Ideally, such action is to be taken with the authorization of the UN Security Council (UNSC), enacting the doctrine of Responsibility to Protect.30 However, if that mechanism is blocked, and extreme necessity can be pleaded, other actors, such as regional organizations or even coalitions of states, can act instead. While forcible humanitarian action has traditionally been seen as destabilizing and prone to abuse, such abuses have in fact been very rare. The only instance that comes to mind since the end of the Cold War is the invocation of the doctrine by the Russian Federation in relation to Georgia and Ukraine—​Russia in fact being a vociferous opponent of the doctrine it found convenient to invoke in those instances. Instead of widespread abuse, the difficulty has been to find states willing to risk lives and treasure to help end desperate emergencies abroad. In addition, the criteria for the application of this doctrine are quite restrictive. Specifically, these are: the presence of an extreme humanitarian emergency threatening an entire segment of the population of a state; the absence of an alternative remedy; the restriction of force to the minimum necessary to achieve the humanitarian objective; and the focus of the use of force on that objective alone. While abuse is always possible, this fact is not unique to the issue of forcible humanitarian action, but applies equally to other uncontested justifications, such as self-​defence. (Helsinki: Kluwer Law, 2002), 141–​75; Christine Chinkin, “The Legality of NATO’s Action in the Former Republic of Yugoslavia (FRY) Under International Law,” International and Comparative Law Quarterly 49/​4 (2000):  910–​25; and Richard B. Lillich, “The Role of the UN Security Council in Protecting Human Rights in Crisis Situations:  UN Humanitarian Intervention in the Post-​Cold War World,” Tulane Journal of International and Comparative Law 3/​1–​2 (1995): 1–​17. But cf. Bruno Simma, “NATO, the UN and the Use of Force: Legal Aspects,” European Journal of International Law 10 (1999): 1; Louis Henkin, “NATO’s Kosovo Intervention: Kosovo and the Law of Humanitarian Intervention,” American Journal of International Law 93 (1999):  824; Christine Gray, International Law and the Use of Force (Cambridge: Cambridge University Press, 2008), 51.  See, e.g., Ian Johnstone, “The Plea of Necessity in International Legal Discourse:  Counter-​ Terrorism and Humanitarian Intervention,” Columbia Journal of Transnational Law 43 (2005):  337; Thomas Franck, “What, Eat the Cabin Boy? Uses of Force that Are Illegal but Justifiable,” in Recourse to Force:  State Action Against Threats and Armed Attacks (Cambridge:  Cambridge University Press, 2002), 174. 30   World Summit Outcome Document, UNGA Res. 60/​1 (24 October 2005), A/​Res/​60/​1, paras. 138–​40. See also, “Implementing the Responsibility to Protect: Report of the Secretary-​General” (12 January 2009), A/​63/​677. 29

 

634   use of force Overall, admission of this doctrine does not therefore put into question the existence of an otherwise comprehensive prohibition of the use of force. This does not mean, on the other hand, that the continued operation of a credible prohibition of the use of force is necessarily assured. In the past, this rule has proved quite resilient. The unlawful war against Iraq of 2003, for instance, resulted in a renewed recognition of the cardinal importance of compliance with international law, even where important state interests and national security are at stake. However, new challenges and challengers may emerge over time.

Dispute Settlement If force is no longer a means of national policy, then disputes and controversies among states must necessarily be settled through peaceful means. In the UN Charter, all states are committed to the adjustment or settlement of international disputes or situations which might lead to a breach of the peace.31 To that end, they accept the obligation to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.32 However, Chapter VI of the Charter concerning the pacific settlement of disputes does not advance on the provisions achieved during the League period. Indeed, the applicable provisions do not universalize the belated achievement of the Geneva General Act of 1928. Instead of determining that, ultimately, any dispute not settled through other means would be referred to binding arbitration or to the International Court of Justice (ICJ), no comprehensive compulsory jurisdiction was established. Arbitration or adjudication are merely two of the various means of dispute settlement available to states, but no more than that. Even when addressing disputes likely to endanger international peace and security, states are free to opt for any method of settlement they may prefer. The powers of the Security Council are modest. Under Article 36 of the Charter, the Council can only ‘recommend’ appropriate procedures or methods of settlement. It is generally thought that such a recommendation cannot be a substitute for the necessary element of state consent to the jurisdiction of the ICJ.33 Hence, short of a voluntary commitment to that effect, there is no comprehensive compulsory jurisdiction for the ICJ. In addition, the Council merely possesses competence to recommend substantive terms of a settlement. Hence, very strong deference is paid to the two structural 32   UN Charter, Art. 1(1).   Ibid., Art. 2(3).   This issue arose in the context of the Corfu Channel case, but was not resolved, as the Court relied on forum prorogatum, rather than Art. 36 of its constitutive statute; Corfu Channel (UK v Albania), Preliminary Objections, ICJ Reports 1948, 15, 29. 31

33

 

the un as a system of collective security    635 outflows of traditional sovereignty doctrine. No state can be brought before an international tribunal without its consent, and no outside agency can impose a settlement upon states that are unwilling to accept it, even in the interest of the general peace of nations. The question is whether this structural defect in relation to disputes is counterbalanced by an effective system of enforcement.

Enforcement It was noted above that the prohibition of the use of force (minus its exceptions) is sufficiently comprehensive to form the basis of a monopoly on the use of force. This intention is confirmed in other parts of the UN Charter, which declares that ‘force shall not be used, save in the common interest’.34 A few remarks have already been made concerning the right to individual or collective self-​defence. Even in a domestic society, this right remains in the hands of individuals facing attack and being unable to rely on state agencies for protection at that moment. The existence of such a right at the international level is therefore unlikely to be regarded as a deviation from the general presumption of the monopoly of the use of force exercised by central authorities, provided the right is carefully circumscribed. Indeed, Article 51 of the UN Charter on self-​defence is located within Chapter VII on collective security. According to the design of the Charter, self-​defence is indeed a right that applies only for as long as the collective security mechanism does not take over and takes the measures necessary for the maintenance of international peace and security. Any state using force in self-​defence is obliged to report to the Security Council.35 This offers the opportunity to the Council to terminate the exercise of the right to self-​defence. It might determine that the claim to self-​defence is unfounded. It might find that the right has been exercised to the full, and that no further self-​ defence action is required. Or, it might take over the defence of the victim state through the application of collective security action. It is disputed whether any action of the Council under Chapter VII suspends the right of self-​defence of the victim state or whether only such action as is regarded sufficient by the victim state to terminate the armed attack and restore the status quo would have this effect. The latter view would be consistent with a more traditional, sovereignty-​conscious approach, which would argue that the supreme aim of the international system is to secure the survival of the individual states of which it is

  UN Charter, Preamble.   

34

  Ibid., Art. 51.

35

 

636   use of force composed. Only the state under attack is competent to judge whether sufficient action has been taken by any system of collective security to assure its survival and safety. The more modern view notes that the aim of the modern international system in this regard is not focused exclusively or even principally on the survival of individual states. Instead, the supreme aim of the system is to maintain its own credibility as an effective instrument for the maintenance of general peace. In subscribing to the UN Charter, states have assigned to the Security Council ‘primary responsibility for the maintenance of international peace and security’.36 Their own actions, including potentially action in the exercise of self-​defence, remain subordinated to this global security function. Hence, the Security Council does have the authority to suspend the exercise of the right of self-​defence of any state. It can do so expressly, or it can do so impliedly, by taking action that would necessarily displace any action mounted by the victim state. In consequence, in the case of the first Gulf war, the sponsors of Resolution 661 (1990), which imposed very comprehensive economic sanctions on Iraq, ensured that its text expressly preserved the right of self-​defence of Kuwait. Much like the domestic system, therefore, self-​defence has become ancillary to the application of the centralized security mechanism. It is a temporary right available only until that mechanism can grip. However, there is of course a crucial difference between domestic systems, offering a central governmental authority, and executive agencies (the police), which can be deployed within minutes. At the international level, such a central authority cannot really be expected to operate, short of the creation of a world state which would claim the monopoly of force. In the system of collective security, a somewhat more cumbersome collective mechanism for the maintenance of peace and security needs to be constructed. It is a truism to state that the UN Charter mechanism was constructed to address the security challenges of a bygone age, in this instance the League era of dictatorships bent on conquest and global domination. Even during the period of its inception, the UN system did not enjoy a golden age where it could establish itself and mature. Instead, the collective security mechanism could not come into effective operation. The Cold War froze the operation of a system that relied on the consensus of the great powers—​the very powers which found themselves at the heart of a deadly ideological contest. The anatomy of the enforcement system provided by the Charter nevertheless remains instructive. The first issue to note is that enforcement is not focused on vindicating the prohibition of the use of force established in Article 2(4). Instead, the enforcement mechanism exists to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.37 That is to say, the authority of the monopolist administering the use of force in international relations is very broad. The Security

  Ibid., Art. 24.   

36

  Ibid., Art. 1(1).

37

 

the un as a system of collective security    637 Council does not have to wait for an armed attack to occur before it acts. Instead, it can take preventative measures, addressing emergent threats to the peace—​a right denied to individual states which cannot claim preventative self-​defence. However, the price to be paid for such wide authority is the process requirement attached to it. Individual states can use force in self-​defence as soon as an armed attack occurs. The right is immediately available without the need to go through any requirements of process other than reporting to the Council after the fact. But if force is to be used for purposes other than answering an actual or imminent armed attack, or responding to an overwhelming humanitarian emergency, a formal decision authorizing such action has to be obtained from the UN Security Council. This was the issue in the second Gulf War of 2003. The United States, the United Kingdom and some others argued that they could exercise elements of authority that appertained to the Security Council, without having obtained the necessary authority from the Council. The United States in particular, claimed a right to act in the common interest as perceived by Washington. This common interest had indeed been articulated by the Security Council in a whole series of mandatory resolutions.38 However, in the absence of a (so-​called second) Security Council resolution that would have authorized the use of force to vindicate what had been mandatory demands by the Council, there existed no authority to use force. In addition to the authority to use force for purposes other than opposing an armed attack, the extent of force that may be used is also an issue. Self-​defence ceases as soon as the armed attack has been defeated. Force mandated under collective security provisions extends until such a point as the mandate granted by the Council has been fulfilled and international peace and security has been restored, or the Council terminates the mandate. However, in authorizing force, the Council remains bound by jus cogens rules and certain general principles of law. For instance, the Council would not be entitled to determine that an armed action can be undertaken without due compliance with essential principles of humanitarian law. Moreover, the principle of proportionality would limit the extent of force that might be employed under a Council mandate. The Council also enjoys unique authority to determine who is to be empowered by a mandate to use force. According to the provisions of Chapter VII, it was foreseen that armed forces would be assigned to the Council by member states. This has not occurred. Nevertheless, the Council routinely deploys peacekeeping operations which are under UN command. On occasion, the UN has also deployed its own enforcement missions (UNOSOM II in relation to Somalia), in the absence of the consent of the local sovereign. In view of unhappy experiences with such operations in the 1990s, enforcement operations were then mainly delegated to regional organizations or arrangements, or to coalition operations led by a particular

  UNSC Res. 678 (1990); UNSC Res. 687 (1991); and UNSC Res. 1441 (2002).

38

 

638   use of force state. More recently, the UN has returned to some aspects of enforcement under its own flag and operational control, for instance in its operation in the Congo.39

Hierarchies within the Organizations in Relation to the Use of Force While the UN Security Council enjoys primary responsibility in relation to international peace and security, it does not enjoy exclusive responsibility. First, there is the issue of the UN’s own organs in relation to this issue area. Then there is the question of organizations external to the UN. The authority of the UN General Assembly to concern itself with matters of international peace and security was originally fairly limited. The Assembly was empowered to consider general principles of cooperation in the maintenance of international peace and security, including disarmament. However, Article 12 of the UN Charter barred it from making recommendations in relation to disputes or situations addressed by the Security Council. In reality, however, the General Assembly routinely concerns itself with matters on the agenda of the Council. It has also not been shy to make recommendations on issues under consideration in the Council chamber. On rare occasions, there has been a risk of a clash between the Council and the Assembly, for instance in relation to the proposal to lift the arms embargo against Bosnia and Herzegovina, which failed in the Council.40 A more relevant question is whether the General Assembly can act instead of the Council where the Council is blocked by a veto. In the Uniting for Peace Resolution 377A, the Assembly appeared to arrogate that power to itself in the early history of the UN.41 More recently, it has been proposed that the Assembly should act under this provision to authorize forcible humanitarian action where a mandate towards that end has been blocked in the Council.42 A theory of ‘devolution’ suggests that the Assembly can take over the powers of the Security Council under such circumstances. 39  UNSC Res. 2098 (2013), establishing the Intervention Brigade within the UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). The Intervention Brigade is the first UN-​led offensive combat force, authorized “on an exceptional basis and without creating a precedent or any prejudice to the agreed principles of peacekeeping.” 40   In this situation, the General Assembly adopted a resolution recommending the exemption of Bosnia and Herzegovina from an arms embargo earlier imposed by the Security Council; UNGA Res. 47/​121 (18 December 1992), A/​Res/​47/​121. 41   UNGA Res. 377A (V) (3 November 1950). 42   Nigel White, “The Legality of Bombing in the Name of Humanity,” Journal of Conflict and Security Law 5/​1 (2000): 27, 42; B. De Schutter, “Humanitarian Intervention: A United Nations Task,” California Western International Law Journal 3 (1972–​3): 21.

 

hierarchies in relation to the use of force    639 This view is, however, confused. The Assembly only enjoys the power to make recommendations. It is not possible to migrate the collective security functions, including the mandatory Chapter VII powers which are safeguarded by the process requirement of the Council to another body acting under different process rules. The General Assembly, in particular, cannot arrogate to itself binding powers, including the power to authorize the use of force, by way of a resolution which is itself only recommendatory. This, however, does not render the General Assembly irrelevant. Its pronouncements, especially in situations where the Council has been blocked, can be highly important. For instance, the Assembly might make a determination that the forcible incorporation of a piece of territory by one state is unlawful and must not be recognized.43 While such a pronouncement merely reflects the situation that already exists in international law, it has high value in confirming that position. A pronouncement by the General Assembly in relation to the use of force may also be of relevance in another way. It may confirm a right to act forcibly on the part of individual states or groups of states. This may be a determination that one state is the victim and another the author of an armed attack, clarifying which states are entitled to invoke the right of self-​defence in a genuine way. Alternatively, the Assembly may authoritatively determine that there exists an overwhelming humanitarian emergency in a particular state demanding immediate international action, including potentially the use of force. Such a finding would not amount to an authorization for the use of force. The underlying right to humanitarian action would need to be found in general international law. However, the resolution would be an authoritative confirmation that the criteria triggering a right of forcible humanitarian action have been fulfilled. Such confirmation would add to the credibility of the legal claim put forward by the state, coalition of states, or regional organization or arrangement in question. The application by the Security Council of its own broad powers in relation to international peace and security has also given rise to considerable debate about possible judicial review of its actions. The purview of the Council has expanded significantly since the end of the Cold War. It has applied its powers to a broader range of cases and issues, addressing international crimes, terrorism, humanitarian concerns, governance within states, and even the environment. Accordingly, it is argued, the emphasis of the work of the Council is less the taking of effective measures in the face of aggression, and more the exercise of functions of international governance. If so, the argument against judicial review of the decisions of the Security Council is significantly undermined. When addressing pressing threats to international peace and security, it

  See, e.g., UNGA Res. 68/​262 (27 March 2014), A/​Res/​68/​262 on the territorial integrity of Ukraine in light of the 2014 annexation of Crimea by Russia. 43

 

640   use of force is asserted, the Council should not be second-​guessed by a Court. This would undermine the need for all states to accept immediately the decisions of the Council and to carry them out without conditions. States might argue that they will delay, for instance, the implementation of a decision to impose sanctions until the Court has confirmed that they were adopted lawfully by the Council. However, this concern would not apply to other decisions that are more of a legislative nature. In practice, the ICJ has not been hesitant in pronouncing on cases that were considered at the same time by the Security Council,44 or clarifying procedural issues.45 It has also amplified the decisions of the Council.46 The Court has even on occasion considered the procedural probity of Council decisions.47 However, it has not, as yet, challenged substantive decisions of the Council, as might have been the case had the Lockerbie case progressed beyond the jurisdictional phase.48

Regional Organizations and Arrangements The UN Charter recognizes the existence and value of regional organizations and arrangements. It encourages their use in relation to matters of international peace and security.49 Member states of such organizations are enjoined to attempt to settle local disputes through such arrangements.50 However, there is no requirement to exhaust regional processes before a state may bring a situation or dispute before the UN Security Council. In the early practice of the UN, there was considerable debate about the definition of regional organizations and arrangements. In more recent practice, this debate has lost much of its relevance. The UN organs have recognized bodies that 44   Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, 14. 45   Admission of a State to the United Nations (Article 4 of the UN Charter), Advisory Opinion, ICJ Reports 1948, 57. 46   United States Diplomatic and Consular Staff in Tehran, Merits, ICJ Reports 1980, 3. 47   Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, ICJ Reports 1962, 151; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 16. 48  See e.g Bernd Martenczuk, “The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?,” European Journal of International Law 10/​3 (1999): 517. 49   UN Charter, Art. 52. 50   Ibid., Art. 52(3).

 

conclusion   641 are not strictly international organizations as regional organizations or arrangements in the sense of Chapter VIII of the Charter, such as the Organization for Security and Co-​operation in Europe. The UN has repeatedly drawn on a defensive alliance, NATO, as if it were a regional organization, and assigned enforcement mandates to it, for example in Libya. Moreover, in addition to developing a range of modalities of cooperation with genuine regional organizations, such as the Organization of American States and particularly the African Union, the UN has utilized sub-​regional organizations. This latter tendency has given rise to some criticism. At times, sub-​regional actors have appeared as cover for the interests of more powerful regional states. This is said to apply to the Economic Community of West African States in relation to Nigeria and the Southern African Development Community in relation to South Africa. This has been coupled with a somewhat flexible interpretation of Article 53 of the Charter. This provision states that no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council. In some instances, regional or sub-​regional organizations have taken action first, and then sought, and generally obtained, the retroactive blessing of the Council. This trend may well risk action being taken at a regional level that may, in the end, not warrant such eventual endorsement.

Conclusion International law and international organizations are deployed for an innumerable number of important and indeed essential purposes. This includes the preservation of the environment, creation of food security, encouragement of development, the fight against highly contagious diseases, and many other tasks. Yet, the preservation of international peace remains the key function of international law and international organization. Indeed, the performance of international institutions in this regard is generally seen as the touchstone when seeking to characterize the international system either as one marked by chaos or anarchy, or as a system moving towards the establishment of an international constitutional order. Given the decentralized nature of international law, the function of preserving and validating the international system falls to its principal constituents, states. International organizations have been utilized as the key means through which states have sought to discharge this task in relation to the most demanding area—​the question of war and peace. Associations of states to end all wars have been proposed since the late Middle Ages and most of the designs that have been proposed over

 

642   use of force the centuries are surprisingly similar. More surprisingly still, the great twentieth-​ century experiments with collective security, the League of Nations and the United Nations Organization, largely comply with these designs which were considered, when they were drawn up, to be entirely utopian. The present system of international organization for the maintenance of international security remains incomplete or at times dysfunctional. This applies to the lack of comprehensive compulsory dispute settlement; the problem of representation and the veto in the Security Council; and allegations of double standards which allow some issues to be addressed, but not others, etc. Some of these deficiencies are being addressed over time. For instance, the lack of one central, comprehensive and compulsory jurisdiction for the settlement of disputes is being overcome gradually through more and more treaties bearing compromissory clauses; regional and functional institutions offering their own, dedicated dispute settlement mechanisms; and a number of other developments. However, as progress is made in some areas, developments in others appear depressing. This concerns both the appearance of new threats to peace, and the lack of sufficient international consensus on the part of governments to address these. The development of an effective system for the maintenance of international peace and security tends to lag behind the emergence of new security challenges. When the UN system reawoke with the end of the Cold War, it was most effective in terminating the long-​running and horribly destructive Iran–​Iraq war. It also provided a forum for concerted international action to reverse the attempt by Iraq forcibly to absorb Kuwait. But then, it turned out that the principal challenges for collective security did not lie in conflicts between states, but rather conflicts within states. This applied to the first wave of ethnic conflicts in Eastern and Central Europe and to the no less dramatic conflicts in Rwanda, Congo, and other places in Africa. The wars in Afghanistan and Iraq added additional challenges which traditional international organizations and states seem ill-​equipped to address. Finally, the political conflicts about the demand for transitions in the Middle East added yet another set of demands—​demands that had not been met at a point when ISIS and related phenomena required urgent attention. In view of this widespread violence, it seems difficult to argue that the inter­ national system has achieved the one key element that any society strives for—​the monopolization of the use of force and the use of force only for common ends. And yet, whatever the turbulence of international politics, international organizations, and in particular the United Nations Organization, remain the only stable work-​ horses that are available to address these ever more complex challenges. It takes time, and time lost means immense suffering for countless individuals exposed to violence and conflict. While governments lack the decisive will to engage robustly in favour of such often voiceless constituencies, international organizations continue to offer some relief and, in the end, hope of an eventual settlement.

 

conclusion   643 In truth, we have in fact already nearly achieved what the utopian designs for perpetual peace foresaw for international organizations. There is an organization of universal reach designed to enforce peace. There is a monopoly on the use of force assigned to that organization. However, the exceptions allowing states to act until the organization fulfils its responsibility will continue to be invoked frequently as long as the organization cannot act decisively and consistently in the face of armed aggression or overwhelming humanitarian circumstances. The functioning of the organization is not so much a matter of its design and structure, but rather a matter of the genuine willingness of the states controlling it to allow it to function effectively. In the end, the UN remains a tool of governments to help ensure that force is only used in the common interest. Where governments cannot use the facility of the UN organs to shape a common interest, the application of its enforcement powers must remain haphazard.

 

Chapter 30

DISPUTE SETTLEMENT John R. Crook

International organizations often play significant roles in settling disputes. They do so in many different ways, reflecting the great variety of international organizations’ structures, mandates, and political contexts. This chapter considers two broad categories of dispute settlement: roles and procedures that seek to resolve disputes on nonlegal grounds, and those involving application of legal principles and procedures. This parallels the division applied by Professor John Merrills in his celebrated treatise on international dispute settlement.1 While legal writers tend to equate “dispute settlement” with settlement through legal procedures,2 other nonlegal procedures such as diplomatic negotiations, mediation, and good offices are more often used. Indeed, “it is generally recognized that negotiation is the simplest and most frequently used mode of international dispute settlement.”3 However, the line between these two categories can be far from clear, and settlement of a dispute can involve both legal and nonlegal processes.4

1   John G. Merrills, International Dispute Settlement, 5th ed. (Cambridge:  Cambridge University Press, 2011), xx. 2  See, e.g., Duncan French, Matthew Saul, and Nigel D. White, International Law and Dispute Settlement: New Problems and Techniques (Oxford: Hart, 2010), xix. 3   Nii Lante Wallace-​Bruce, The Settlement of International Disputes: The Contribution of Australia and New Zealand (The Hague: Martinus Nijhoff, 1998), 38. 4   French, Saul, and White, International Law and Dispute Settlement, xxvi.

 

dispute settlement   645

What Is an “International Dispute”? International law scholarship and the decisions of international courts and tribunals seek to give both “international” and “dispute” clear definitions. For a leading treatise, “[a]‌dispute arises when a state addresses specific claims to another state, which the latter state rejects.”5 In the Mavrommatis Palestine Concessions case, the Permanent Court of International Justice defined a dispute as “a disagreement on a point of law or fact, a conflict of legal views or interests between two persons.”6 Such efforts of definition are necessary for some purposes; absent a clearly defined legal “dispute” an international court or tribunal may not have jurisdiction.7 Nevertheless, attempts at definition can obscure the difficulty and complexity of many international organizations’ dispute settlement activities. International lawyers’ definitions presume clarity about the nature of a dispute, such that an observer can say with reasonable certainly what a dispute is about.8 This does not reflect the complexity of many conflict situations. Disputes often involve multiple parties and angry and imprecise mixtures of claims, assertions of fact, and recent or inherited grievances.9 The resulting mélange may not lend itself to neat and lawyerly formulation. A critical threshold part of international organizations’ dispute settlement efforts can often be to untangle knots of claims and grievances to determine what the dispute is indeed about. Only then can other techniques of dispute settlement be effectively brought to bear. The focus on “international” disputes can also obscure important aspects of international organizations’ contemporary roles in dispute settlement. As discussed below, the UN Charter’s dispute settlement provisions emphasize disputes between states, reflecting the state-​centric conceptions of international law prevailing when the Charter was drafted. Indeed, Article 2(7) of the UN Charter warns that nothing in the Charter “shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state,” or requires states “to submit such matters for settlement” under the Charter. However, as international law has grown to embrace nonstate actors in some important settings, international organizations’ dispute settlement roles have likewise grown to include significant types of disputes involving nonstate actors. 5  Bruno Simma (ed.), The Charter of the United Nations:  A  Commentary (New  York:  Oxford University Press, 1994), 102. 6   Mavrommatis Palestine Concessions (Greece v UK) 1924 PCIJ Ser. A No. 21, at 11 (Judgment of August 13). 7   Electricity Company of Sofia (Preliminary Objection) (Belgium v Bulgaria), 1939 PCIJ, Ser. A/​B No. 77, at 64, 83 (Judgment of April 4). 8   See, e.g., Richard B. Bilder, “An Overview of International Dispute Settlement,” Emory Journal of International Dispute Resolution 1/​1 (1986): 1–​32. 9  See, e.g., Carnegie Commission on Preventing Deadly Conflict, Words over War:  Mediation and Arbitration to Prevent Deadly Conflict, ed. Melanie Greenberg, John H. Barton, and Margaret McGuinness (Lanham, MD: Rowman & Littlefield Publishers, Inc., 2000).

 

646   dispute settlement

Dispute Settlement Not Based on Application of Legal Principles The Early Days International organizations created during the nineteenth century, such as the Central Commission for the Navigation the Rhine (1815), the International Telecommunications Union (1865), and the Universal Postal Union (1874) emphasized practical aspects of coordinating national activities involving international communications, transportation, and the like. While their constituent treaties sometimes provided for arbitration to resolve disputes between members regarding interpretation of the treaty,10 dispute settlement was peripheral to their primary roles. The 1899 Hague Peace Conference introduced a new role for international organizations: supporting peaceful settlement of disputes between states. In Article 1 of the 1899 Hague Convention for the Pacific Settlement of International Disputes,11 the emperors, kings, queens, and presidents represented at the conference undertook “to use their best efforts to insure the pacific settlement of international disputes.” To this end, they agreed to utilize good offices and mediation “as far as circumstances allow” before resorting to war, and encouraged use of commissions of inquiry. The 1899 Hague Conference also created a significant legal institution, the Permanent Court of Arbitration (PCA), discussed later in the chapter. In the aftermath of World War I, the League of Nations Covenant emphasized the peaceful settlement of international disputes “likely to lead to rupture” in relations between League members. Articles 12–​15 of the Covenant prescribed procedures and mechanisms for this purpose. In 1928, the League took a further step, adopting the General Act for the Pacific Settlement of International Disputes,12 a multilateral convention establishing a mandatory framework of methods for settling international disputes that included conciliation by commissions created “to endeavour to bring the parties to an agreement,”13 adjudication, and arbitration. Critics have dismissed the League for failing to counter the rising tide of inter­ national violence in the 1930s marked by Italy’s invasion of Ethiopia, Japan’s invasion of China, and the Spanish Civil War. Nevertheless, particularly in its earlier years,

  See, e.g., Art. 16 of the 1874 Convention of Bern (forerunner of the Universal Postal Union).  Convention for the Pacific Settlement of International Disputes, The Hague, 1899 (Hague Convention). 12   General Act (Pacific Settlement of International Disputes), Geneva, September 26, 1928 [1929] LNT Ser. 220; 93 LNTS 343. 13   Ibid., Art. 15(1). 10 11

 

dispute settlement not based on legal principles    647 the organization helped to settle significant disputes, including the rival claims of Finland and Sweden to the Aaland Islands, dueling claims of Germany and Poland to Upper Silesia, and a conflict between Greece and Bulgaria.

The United Nations At the end of World War II, the drafters of the United Nations (UN) Charter assigned the settlement of international disputes a prominent role in the new organization, making “[t]‌he principle of the peaceful settlement of disputes … a cornerstone of the contemporary world order.”14 Article 2(3) of the Charter mandates that “[a]ll members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” This obligation to seek peaceful settlement is reinforced by detailed institutional arrangements. Before considering various UN organs’ roles in dispute settlement, it is important to consider a vital if unofficial role played by the organization. The UN provides an important setting for conducting bilateral and multilateral diplomacy to resolve international disputes. Most international disputes are settled by direct negotiation between the parties. Almost all countries maintain missions of capable diplomats at the UN’s headquarters in New York; many maintain missions at the UN Office in Geneva as well. This combination of neutral venues and diplomatic competence makes the UN an important forum for direct contacts and dispute resolution through quiet diplomacy.15 The UN Charter assigns three of the UN’s principal organs—​the Security Council (UNSC), the Secretariat, and the International Court of Justice—​the most significant roles in settling international disputes.16 The dispute settlement functions of all three have evolved over time; only brief comments on them are possible here. While the General Assembly is also a principal organ, it plays a somewhat lesser role in dispute settlement. Under Articles 10–​14 of the Charter, the General Assembly’s powers center on discussion and recommendation. Article 14, authorizes it to “recommend measures for the peaceful adjustment of any situation … which it deems likely to impair the general welfare or friendly relations among nations,” but it cannot do so with respect to any situation being addressed by the Security Council. Under Chapter VI of the Charter (entitled “Pacific Settlement of Disputes”), the Security Council exercises primary responsibility for addressing disputes likely to threaten international peace and security. Article 37(1) of the Charter requires that parties who fail to settle any such dispute refer it to the Security Council.   Simma (ed.), The Charter of the United Nations, 99.  Merrills, International Dispute Settlement, 222–​ 3.   16  Ibid., 219.

14 15

 

648   dispute settlement The Council can then “recommend appropriate procedures or methods of settlement” (Art. 36); it can also recommend specific terms of settlement if the parties to a dispute so request (Art. 38). In graver situations involving threats to the peace, breaches of the peace, and acts of aggression, Chapter VII gives the Council much greater powers, up to and including authorizing the use of armed force (Art. 42). During the Cold War, the Security Council was often rendered ineffective by hostility and rivalry between the United States and its allies and the Union of Soviet Socialist Republics (USSR). With the end of the Cold War and dissolution of the USSR, the Council has come to play a more active role in pressing for and assisting in settlement of significant international disputes,17 although differences among the Council’s veto-​wielding permanent members continue to prevent it from involvement in some significant disputes. However, even such differences can be overcome, as evidenced by the Council’s role in September 2013 in adopting an important resolution implementing arrangements developed by the United States and Russia aimed at eliminating Syria’s chemical weapons.18 In practice, both the General Assembly and the Security Council have used various techniques to assist in settling international disputes. Both have called on disputing parties to bring about peaceful settlements. Both have created subsidiary bodies to carry out various kinds of investigation and fact-​finding.19 Both have appointed distinguished individuals to serve as mediators or facilitators in particular disputes.20 The dispute settlement role of the UN Secretariat, and most importantly, its head, the Secretary-​General, has grown dramatically since the Charter’s early days. The Secretary-​General is today the organization’s most visible agent in efforts to settle significant disputes. This role is not foreseen in the Charter, which makes the Secretary-​General the organization’s “chief administrative officer” (Art. 97). The Charter authorizes him to bring situations threatening international peace and security to the Security Council’s attention (Art. 99), but does not assign the Secretary-​General any other specific responsibilities for dispute settlement. However, particularly from the time of Dag Hammarskjöld as Secretary-​ General, successive Secretaries-General or their special representatives have served as mediators or facilitators, offering their good offices to assist in resolving significant international disputes, particularly those that have crossed the line to armed conflict.21 “[I]‌t is the Secretary-​General, in fact, who has taken most of the initiatives to prevent or end the armed conflicts which threaten peace between

  Michael J. Matheson, Council Unbound (Washington, DC: US Institute of Peace Press, 2006).   UNSC Res. 2118 (September 27, 2013). 19 20  Merrills, International Dispute Settlement, 222.   Ibid., 223. 21   See UN Office of Legal Affairs, Codification Division, Handbook on the Peaceful Settlement of Disputes between States (New York: United Nations, 1992), 37, ¶112 and cases listed there. (“Good offices has been more widely used recently by the United Nations and has continued to gain prominence … ”) 17

18

 

dispute settlement not based on legal principles    649 and within nations.”22 This role is not limited to interstate disputes. SecretariesGeneral or their representatives have sought to resolve disputes between states, between states and nonstate entities or groups, and between rival nonstate groups. According to a 2012 report by the Secretary-​General, since 2009: parties to disputes and conflicts have utilized United Nations-​ led or supported mediation, facilitation and good offices efforts in Afghanistan, Bangladesh, Côte d’Ivoire, Cyprus, Ecuador, Equatorial Guinea-​Gabon, Fiji, Georgia, the Great Lakes region, Guinea, Guyana-​Venezuela, Iraq, Honduras, Kenya, the Korean Peninsula, Kyrgyzstan, Lebanon, Libya, Madagascar, Malawi, Maldives, the Middle East (Israel-​Palestine), Myanmar, Nepal, Panama, Peru, Solomon Islands, Sri Lanka, Sudan (Darfur), Sudan-​South Sudan, Syrian Arab Republic, Thailand, Tunisia, Western Sahara and Yemen.23

There is no single model for the Secretary-​General’s functions in promoting or facilitating settlement of disputes. The techniques are shaped by the circumstances, the actors’ personalities, and available resources. Past efforts have included facilitating negotiations, mediation, fact-​finding, and other techniques. In one widely noted case, the Secretary-​General was asked by New Zealand and France to rule on disputed questions resulting from the destruction of Greenpeace’s vessel Rainbow Warrior by French intelligence agents in Auckland harbor in 1985.24

Other Regional Organizations In addition to the UN, there is an array of regional international organizations which often play substantial roles in settling disputes affecting their regions. Under Article 52(2) of the UN Charter, UN members belonging to such regional organizations “shall make every effort to achieve pacific settlement of local disputes” through or by the organization before referring them to the Security Council. The varying roles of such organizations are a function of their charters, their traditions, and the regions in which they operate. However, like the UN, they all offer neutral forums for disputants to meet for consultations and negotiation.25 Some regional organizations’ constituent documents expressly envision a role for the organization in settling regional disputes between their members. Article 4(e) of the Constitutive Act of the African Union (formerly the Organization of African Unity) thus establishes as a governing principle of the Union the “[p]‌eaceful 22   Thomas M. Franck, “The Secretary-​General’s Role in Conflict Resolution: Past, Present and Pure Conjecture,” European Journal of International Law 6 (1995): 360. 23   Report of the Secretary-​General, Strengthening the Role of Mediation in the Peaceful Settlement of Disputes, Conflict Prevention and Resolution, UN Doc., A/​66/​811 (2012), 6. 24   Case concerning the differences between New Zealand and France arising from the Rainbow Warrior Affair (July 6, 1986), XIX RIAA 199. 25  Merrills, International Dispute Settlement, 264.

 

650   dispute settlement resolution of conflicts among Member States of the Union through such appropriate means as may be decided upon by the Assembly.”26 Chapter V of the Charter of the Organization of American States directs that disputes between Member States “shall be submitted to the peaceful procedures set forth in this Charter.” The specified procedures include “direct negotiation, good offices, mediation, investigation and conciliation, judicial settlement, arbitration, and those which the parties to the dispute may especially agree upon at any time.” Regional international organizations often serve as mediators in regional disputes. The Organization for Security and Co-operation in Europe has been involved in mediation efforts in several conflict areas, including Nagorno-​ Karabakh, Transdniestria, and the post-​2008 conflict in Georgia.27 The Organization of African Unity assisted in bringing about the ceasefire and subsequent peace agreement that ended the 1998–​2000 war between Eritrea and Ethiopia.28 The Organization of American States has worked with the governments of Belize and Guatemala for many years in pursuit of a solution to a long-​running boundary dispute.29

Inquiry, Fact-​Finding In the past, international organizations made considerable use of commissions of inquiry to seek to ascertain the facts of disputed situations, reflecting a conviction that given the same facts, national leaders should arrive at similar conclusions regarding resolution of a dispute.30 The 1899 Hague Convention listed such commissions among its recommended dispute settlement provisions; Article 9 directs that “[i]‌n differences of an international nature involving neither honour nor vital interests, and arising from a difference of opinion on points of fact, the Signatory Powers recommend that the parties … should, as far as circumstances allow, institute an International Commission of Inquiry … ” Several such commissions were conducted, several under the auspices of the PCA, prior to World War I.31   Ibid., 257, 261–​2.  Organization for Security and Co-​operation in Europe, Conflict prevention and resolution, http://​www.osce.org/​what/​conflict-​prevention. 28  Merrills, International Dispute Settlement, 265. 29   See Belize and Guatemala Dispute, http://​www.oas.org/​sap/​peacefund/​belizeandguatemala/​. 30   Nissim Bar-​Yaacov, The Handling of International Disputes by Means of Inquiry (London: Oxford University Press, 1974). 31   See P. Hamilton et al. (eds.), The Permanent Court of Arbitration: International Arbitration and Dispute Resolution. Summaries of Awards, Settlement Agreements and Reports (The Hague: Kluwer Law International, 1999). The best-​known such commission was established by Great Britain and Russia to inquire into the 1904 Dogger Bank incident, when a Russian fleet en route to annihilation in the Russo-​Japanese War fired on British fishing vessels. However, this commission was created pursuant to a separate agreement between the two countries and was not linked to the PCA. 26 27

 

dispute settlement based on legal principles    651 In general, formal commissions of inquiry appear to “have lost their attraction” as a dispute settlement procedure.32 The International Humanitarian Fact-​ Finding Commission33 created by the 1977 First Protocol Additional to the Geneva Conventions has never been called upon to act.34 However, some international organizations continue to utilize similar techniques. The United States–​Canada International Joint Commission created by the Boundary Waters Treaty of 1909 has a long history of joint technical inquiries, resulting in assessments of water and other resources questions that both parties’ technical experts accept as correct.35 The UN Human Rights Council authorized a “Fact Finding Mission on the Gaza Conflict” to inquire into the conflicts in Gaza in 2008–​936 and in 2014 created a commission “to investigate purported violations of international humanitarian and human rights laws in the Occupied Palestinian Territory, including East Jerusalem, and particularly in the Gaza Strip since the conflict began on 13 June [2014].”37 The limited use of fact-​finding procedures in other settings may reflect the fact that such inquiries typically require a neutral mandate, cooperation by both parties to the dispute, and a shared belief that a neutral assessment of the facts can contribute to a solution. If any of these elements is absent, efforts at fact-​finding, such as the Human Rights Council’s investigations of the 2008–​9 and 2014 conflicts in Gaza, can become politically charged and result in recriminations rather than solutions.

Dispute Settlement Based on Application of Legal Principles The connection between international organizations and law-​based settlement mechanisms has a long history; legal methods and principles continue to play a large role in international organizations’ dispute settlement activities.   Wallace-​Bruce, The Settlement of International Disputes, 43.  See http://​www.ihffc.org. 34   Statement before the 6th Committee of the UN General Assembly New York, October 22, 2012 by Hugo Corujo, Member of the IHFFC, http://​www.ihffc.org/​Files/​en/​news/​statement_​unga_​2012.pdf: “The Commission has offered its services and its good offices in a number of previous situations and it has carried out delicate negotiations with various parties, but none of these initiatives had been successful?” 35  See http://​www.ijc.org/​en_​/​boards. 36   “Human Rights in Palestine and Other Occupied Arab Territories,” Report of the United Nations Fact-​Finding Mission on the Gaza Conflict, UN Doc. A/​HRC/​12/​48 (September 25, 2009), http://​ www2.ohchr.org/​english/​bodies/​hrcouncil/​docs/​12session/​A-​HRC-​12-​48.pdf. 37  UN News Centre, “UN Rights Council Appoints Members of Commission to Investigate Purported Gaza Violations” (August 11, 2014), http://​www.un.org/​apps/​news/​story.asp?NewsID=48459#. VFpWkksYJ4M. 32 33

 

652   dispute settlement

International Arbitration In arbitration, the parties to a dispute agree to submit the dispute to impartial arbitrators for binding decision on the basis of respect for law. The parties usually exercise considerable control over the design of the proceedings, appointing some or all of the arbitrators and determining the procedural rules the arbitrators are to apply. Arbitration is characterized by considerable flexibility, allowing procedures and schedules to be adapted to reflect the characteristics of a dispute. The closing years of the nineteenth century were marked by a widely held conviction that arbitration of disputes between states offered a road to international peace.38 This belief drew support from the successful arbitration of US claims against Great Britain stemming from the depredations of the Confederate commerce raiders built in British shipyards, notably the CSS Alabama.39 Reflecting this enthusiasm for arbitration, the 1899 Hague Peace Conference agreed that for “questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized … as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”40 The 1899 conference created a new institution—​the PCA—​to facilitate recourse to interstate arbitration of such legal disputes. The PCA’s title is misleading: it is neither permanent nor a court. It is a panel of distinguished arbitrators nominated by states party to the 1899 and 1907 Hague Conventions and a skilled staff that assists in conducting arbitrations. The organization hosted several proceedings prior to World War I, but was overshadowed by the Permanent Court of International Justice during the interwar years. Following World War II, the PCA became largely moribund, leading one writer to conclude that it had “lost its relevance as in institution for international dispute settlement.” 41 Despite such gloomy assessments, the PCA has undergone a notable revival in recent years. The organization currently hosts and supports both significant interstate proceedings and a substantial docket of investment and contract-​based arbitrations between states and private parties. Recently concluded intergovernmental proceedings supported by the PCA include boundary and claims commissions established after the 1998–​2000 war between Eritrea and Ethiopia; maritime boundary tribunals in disputes between Barbados and Trinidad and Tobago, Guyana and Surinam, and Eritrea and Yemen; an unusual tribunal that addressed issues affecting the future boundary in the Abyei region between Sudan and South Sudan; and a tribunal that resolved disputed issues under the Indus River Treaty between India

  John W. Foster, Arbitration and the Hague Court (Boston: Houghton, Mifflin & Co., 1904).   Alabama Claims of the United States of America against Great Britain, Award of September 14, 1872, XXIX RIAA 125. 40   1899 Hague Convention, Art. 16. 41   Wallace-​Bruce, The Settlement of International Disputes, 58. 38 39

 

dispute settlement based on legal principles    653 and Pakistan. As of late 2014, the PCA’s current cases included seven interstate controversies, including a dispute over maritime jurisdiction between China and the Philippines. The PCA was also supporting fifty-​three investor–​state arbitrations and thirty-​two other arbitrations in which one party was a state, state-​controlled entity, or intergovernmental organization.42 A little-​known UN agency has made a major contribution to the growth of international arbitration in multiple settings, including in disputes between private parties, between private parties and governments or government agencies, and even in some directly between governments. In the 1970s, the UN Commission on International Trade Law (UNCITRAL) developed a set of arbitration rules that effectively bridged differences between various legal systems and have come to be widely used. The UNCITRAL Arbitration Rules were adopted by the UN General Assembly in 1976 and revised in 2010.43

International Courts The commitments and mechanisms set out in the 1899 Hague Convention and its 1907 successor did not slow the onset of World War I, but belief in international adjudication survived the war. In Article 12 of the League of Nations Covenant,44 League members agreed that “if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the [League] Council … ” Members also agreed in Article 13 that “whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject matter to arbitration or judicial settlement.” The League Covenant provided for creation of the Permanent Court of International Justice (PCIJ), an international court composed of fifteen elected judges that was the predecessor of the International Court of Justice.45 The PCIJ began operation in 1922 and was dissolved in 1946. Its jurisdiction in contentious cases was limited to disputes between states in which both parties consented to jurisdiction, either generally, under a particular treaty or agreement, or for purposes of the specific case. Many of the PCIJ’s opinions addressed questions arising from the treaties and territorial arrangements concluded after World War I.  Between   PCA pending and past cases, http://​www.pca-​cpa.org/​showpage.asp?pag_​id=1029.  The UNCITRAL Arbitration Rules (2010) http://​www.uncitral.org/​uncitral/​en/​uncitral_​texts/​ arbitration/​2010Arbitration_​rules.html. 44   Covenant of the League of Nations, April 28, 2019. 45   A detailed history of the PCIJ prepared by the Registry of the International Court of Justice is available at http://​www.icj-​cij.org/​pcij/​serie_​other/​cpji-​pcij.pdf. 42 43

 

654   dispute settlement 1922 and 1940, sixty-​six cases were filed with the PCIJ and it rendered twenty-​seven advisory opinions and thirty-​two judgments.46 Its decisions and advisory opinions have contributed significantly to the development of international law. The PCIJ’s decision in a dispute between Poland and Germany involving a chemical factory at Chorzów,47 for example, articulated basic principles regarding state responsibility that continue to be regularly cited and relied upon. The PCIJ was closely associated with the League of Nations,48 but League members had to separately ratify the PCIJ Statute, and did not become parties to the Statute by virtue of membership in the League. The drafters of the UN Charter decided that the new world organization should have an international court building from the foundations laid by the PCIJ, but that the court should have a closer relationship with the organization. Article 92 of the UN Charter thus provides “[t]‌he International Court of Justice [ICJ] shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.” Under Article 93, all UN members are ipso facto parties to the ICJ Statute, and by Article 94, “[e]ach Member of the United Nations undertakes to comply with” the ICJ’s decision in any case to which it is a party. The Court, composed of fifteen judges elected by both the UN General Assembly and UN Security Council, considers both contentious cases and requests for advisory opinions from certain UN bodies. Under Article 34(1) of the ICJ Statute, “[o]‌nly states may be parties in cases before the Court.” In this regard, the Court differs from some more recent tribunals that can consider cases involving nonstate entities. Like the PCIJ, the ICJ can only address the merits of a claim if both parties have consented to jurisdiction. Consent can be given by means of parties’ declarations under Article 36(2) of the Statute by which they accept jurisdiction, by dispute settlement clauses in treaties, by special agreements conferring jurisdiction in a particular case, or by consenting to jurisdiction after a case is brought by the opposing state (forum prorogatum). Except for cases brought by special agreement, it is common for defendant states to contest jurisdiction. A good deal of the Court’s time and attention in contentious cases is thus spent in proceedings to determine whether it has jurisdiction in the case. Under Article 43 of the ICJ’s Statute, the proceedings in contentious cases consist of oral and written parts. States litigating before the Court usually submit extensive written pleadings supported by voluminous exhibits; the Court has sought to encourage states to submit more manageable volumes of paper. The written procedure usually consists of sequential memorials by the claimant and the respondent,   Wallace-​Bruce, The Settlement of International Disputes, 100.   Factory at Chorzów (Merits), PCIJ Ser. A, No. 17. 48  Manley O. Hudson, International Tribunals (Washington:  Brookings Institution & Carnegie Endowment for International Peace, 1944), 144–​5. 46 47

 

dispute settlement based on legal principles    655 followed by a claimant’s reply and the respondent’s rejoinder. The Court then holds an oral hearing open to the public. Oral hearings are usually formal affairs at which each party’s agent and advocates read from carefully prepared written statements in French or English while their words are simultaneously interpreted into the other of the Court’s two official languages. Witnesses can be heard and examined, and judges can put questions to parties and to witnesses, but neither practice is routine. In addition to contentious cases between states, Article 96 of the Charter authorizes the General Assembly and the Security Council to request advisory opinions “on any legal question.” (The Security Council has never made such a request.) UN specialized agencies can also request advisory opinions on legal questions “arising within the scope of their activities” if authorized by the General Assembly, as almost all have been. (For reasons not clear, the Universal Postal Union (UPU) is a rare exception.49) The procedures for advisory opinions are detailed in Chapter IV of the Court’s Statute. Under Article 65 of the Statute, the process is initiated by a request from an authorized UN body “containing an exact statement of the question upon which an opinion is required,” accompanied by “all documents likely to throw light upon the question.” All states entitled to appear before the Court are then entitled to submit written statements on the question and to make oral statements at a hearing. In recent years, requests for advisory opinions have increasingly involved disputed questions with significant political overtones. The General Assembly, for example, has requested advisory opinions on the Legality of the Threat or Use of Nuclear Weapons50 and on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.51 The Court has consistently rejected arguments that it should exercise its discretion not to render advisory opinions in such cases. However, it did reject the World Health Organization’s (WHO) request for an advisory opinion regarding Legality of the Use by a State of Nuclear Weapons in Armed Conflict, concluding that issue raised by the question did not arise within the scope of WHO’s activities.52 The ICJ’s workload has ebbed and flowed over the years. In the UN’s early years, it rendered both important judgments in a number of contested cases and influential advisory opinions interpreting the UN Charter and clarifying and confirming the organization’s powers and procedures. However, in 1966, the Court, reversing an earlier decision, decided on the casting vote of its president to reject cases by Ethiopia and Liberia disputing South Africa’s practice of apartheid in South West   Simma (ed.), The Charter of the United Nations, 1012. The UPU has its own system of arbitration for settling disputes between postal administrations; a note to Art. 32 of the UPU Constitution lists twenty-​eight such cases, the most recent in 1981. 50   Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226. 51   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136. 52   Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66. 49

 

656   dispute settlement Africa.53 (Under Art. 55(2) of the ICJ Statute, in case of a tie vote by the judges, the President of the Court shall have an additional “casting vote” to break the tie. As a result of the President’s tie-​breaking vote, the Court ruled that Ethiopia and Liberia lacked legal standing to bring their claims.) Thereafter, the Court lost favor in many quarters. For a time in the 1970s, it had no cases on its docket. In recent years, the Court has had a significant revival and now has substantial volume of judicial business. As of late 2014, its docket of pending cases included fifteen contentious cases, involving parties from Africa, the Americas, Asia, Europe, and Oceania.54 Throughout its history, about half of the Court’s contentious cases have involved land and maritime boundary issues. The others extend across an array of issues, including treaty interpretation, the environment, state immunity, diplomatic relations, and the Genocide Convention. The Court has also decided a small but significant group of cases involving uses of armed force.

Regional Courts In addition to the ICJ—​truly the “World Court”—​courts have been created that are related in varying manners to regional international organizations. These institutions vary in jurisdiction and procedures, although their basic architecture is often similar to the ICJ’s. Several regions have also established human rights procedures and courts, where individuals can pursue claims of violation of their rights against states under relevant human rights instruments. These latter procedures and courts are considered in Chapter 14 of this volume dealing with humanitarian action and are not addressed here. A considerable number of regional courts and tribunal have been established. A leading treatise on international organizations law discusses nineteen such bodies55 and a chart prepared by the Project on International Courts and Tribunals lists ten currently active institutions and many others that are either dormant or in the process of establishment.56 However, several regional organs have ceased operations and some of the others have never had any cases. Among active regional judicial institutions: • The European Court of Justice, the highest court of the European Union, interprets European Union law. 53   South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase), Judgment, ICJ Reports 1966, 6. 54   International Court of Justice, Pending Cases, http://​www.icj-​cij.org/​docket/​index.php?p1=3&p2=1. 55   Henry G. Scheremers and Niels M. Blokker, International Institutional Law, 4th rev. ed. (Martinus Nijhoff Publishers, 2003), 439–​52, §§ 618–​41A. 56   PICT Chart, http://​www.pict-​pcti.org/​publications/​synoptic_​chart/​synop_​c4.pdf.

 

dispute settlement based on legal principles    657 • The Caribbean Court of Justice is a hybrid, serving as the highest appellate tribunal in civil and criminal cases for several Caribbean countries, as well as exercising original jurisdiction in cases involving interpretation of the Revised Treaty of Chaguaramas (establishing the Caribbean Community).57 • The Andean Tribunal of Justice58 applies and enforces Andean Community law. The tribunal has been described as “the world’s third most active international court, having issued over fourteen hundred rulings to date,” more than 90 percent involving application of Andean intellectual property rules.59

The World Trade Organization and Law of  the Sea Dispute Settlement Regimes Many international organizations have procedures for settling interstate disputes related to the work of the organization. Such provisions frequently appear in the case of organizations with significant rulemaking or regulatory powers, such as those dealing with trade, environment, fisheries, and marine pollution.60 Probably the best-​known multilateral dispute settlement regime is that associated with the World Trade Organization (WTO), described as “one of the most effective, as well as one of the most important systems of international dispute settlement.”61 The WTO dispute settlement regime addresses claims by WTO members that another WTO member has not complied with its obligations under internationally agreed trade rules. The elements of the regime are contained in the Dispute Settlement Undertaking (DSU),62 which is annexed to the Agreement Establishing the World Trade Organization. The DSU system is complex;63 detailed discussion is not possible here. The system is rule-​based, imposes timetables for arriving at decisions, and utilizes compulsory neutral procedures to assess and decide disputes that cannot be settled by agreement.   See the Caribbean Court of Justice, http://​www.caribbeancourtofjustice.org.  See Tribunal de Justicia de la Comunidad Andina, http://​www.tribunalandino.org.ec/​sitetjca/​ index.php. 59   Lawrence R. Helfer, Karen J. Alter, and M. Florencia Guerzovich, “Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community,” American Journal of International Law 103 (2009): 1, 2. 60   Robin Churchill, “Trends in Settlement in the Law of the Sea: Towards the Increasing Availability of Compulsory Means,” in International Law and Dispute Settlement, ed. D. French, M. Saul, and N. D. White (Portland, OR: Hart, 2010), 156, 166. 61  Merrills, International Dispute Settlement, 194. 62   WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, April 15, 1994, 33 ILM 1226 (1994). 63   See WTO, “Understanding the WTO:  Settling Disputes. A  Unique Contribution,” http://​www. wto.org/​english/​thewto_​e/​whatis_​e/​tif_​e/​disp1_​e.htm. 57

58

 

658   dispute settlement The system includes threshold options for consultation, mediation, and good offices during a limited period. Disputes are often settled at this initial stage. Those that cannot be resolved promptly through consultation or related procedures are considered and decided by panels of experts who serve in their individual capacities. Panel proceedings increasingly resemble arbitrations, with formal briefing and hearings in which some governments are represented by private counsel specializing in WTO law. The Dispute Settlement Body (DSB), composed of high-​ level representatives of all WTO members, considers a dispute panel’s recommendation. The recommendation is adopted unless the DSB agrees by consensus to reject it. Parties who contend that a dispute panel committed an error of law regarding operation of the DSU or the trade commitments at issue can seek relief from a standing Appellate Body that is essentially judicial in character. If a losing party does not bring its policies into conformity with an adverse ruling, or agree with the complainant regarding mutually agreed compensation, the winner may apply to the DSB for permission to retaliate. When it was adopted in 1982 (prior to the WTO DSU), the Law of the Sea (LOS) Convention’s dispute settlement regime was seen as “the most far-​reaching, detailed and ambitious system of dispute settlement found in a multilateral treaty.”64 The Convention’s robust dispute settlement regime was the product of long and intensive negotiations. The dispute settlement regime created by Part XV of the Convention builds upon existing international institutions and also authorizes a new one, the International Tribunal for the Law of the Sea (ITLOS).65 Article 279 of the Convention obliges parties to settle “any dispute between them concerning the interpretation or application” of the Convention by the peaceful means listed in Article 33(1) of the UN Charter. Where no settlement is reached, disputes shall be submitted to a court or tribunal having jurisdiction under the Convention. Under Article 287, states can make declarations agreeing to refer future disputes to the ITLOS, to the ICJ, to an arbitral tribunal constituted under Annex VII of the Convention, or to a special tribunal under Annex VIII in cases involving fisheries, environmental protection, marine scientific research, and navigation, including pollution from vessels. If a party has not made a declaration indicating its preferences for dispute settlement, or if the disputants’ declarations do not overlap, arbitration under Annex VII is the default. In such cases, a five-​member panel of arbitrators is constituted utilizing a procedure established under Article 3 of Annex VII, making use of a list of arbitrators maintained by the UN Secretary-​General. The PCA (discussed earlier in the chapter) has administered several such Annex VII arbitrations.

64   Churchill, “Trends in Settlement in the Law of the Sea: Towards the Increasing Availability of Compulsory Means,” 155. 65   See “The Tribunal,” http://​www.itlos.org/​index.php?id=15.

 

dispute settlement based on legal principles    659

Dispute Settlement in  Other International Organizations From the earliest days in the history of international organizations, their constituent instruments often included provisions for resolving disputes regarding interpretation of the organization’s basic treaty. Article 16 of the 1874 Bern Convention,66 the forerunner of the IPU, thus provided that “[i]‌n case of disagreement between two or more members of the Union as to the interpretation of the present treaty, the question in dispute shall be decided by arbitration.” Similar provisions appear in the basic instruments of many international organizations, but these procedures have rarely been used. There have been a few dispute settlement proceedings before the International Civil Aviation Organization (ICAO). ICAO is a UN specialized agency that exercises significant standard-​setting and regulatory authority with respect to aviation safety, security, efficiency, and environmental protection. It was created pursuant to the 1944 Chicago Convention.67 Under Article 84 of the Convention: If any disagreement between two or more contracting States relating to the interpretation of application of this Convention and its Annexes cannot be settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by the Council … Any contracting State may, subject to Article 85, appeal from the decision of the Council to an ad hoc tribunal agreed upon with the other parties to the dispute or to the Permanent Court of International Justice.

ICAO’s dispute settlement procedure is unusual in that it makes the ICAO Council—​a political body—​the first-​tier decision-​maker in the dispute resolution process, followed by resort to arbitration. In one of the handful of ICAO dispute settlement cases, the United States brought a complaint against fifteen EU member states challenging an EU noise regulation utilizing bypass ratios rather than actual noise emissions to measure how much noise an aircraft could emit. The effect of the regulation was to limit use of “Hushkits” to reduce noise emitted by older aircraft flown by some US carriers. After the ICAO Council found the US complaint to be admissible,68 the dispute was settled and the regulation withdrawn.69

66   Treaty Concerning the Formation of a General Postal Union, October 9, 1874, http://​avalon.law. yale.edu/​19th_​century/​usmu010.asp. 67   Convention on International Civil Aviation, December 7, 1944, http://​www.icao.int/​publications/​ Documents/​7300_​cons.pdf. 68   Note, “Admissibility of the US–​EU ‘Hushkits’ Dispute before the ICAO,” American Journal of International Law 95 (2001): 410. 69   See Paul Stephen Dempsey, “Flights of Fancy and Flights of Fury: Arbitration and Adjudication of Commercial and Political Disputes in International Aviation,” 32 Georgia Journal of International & Comparative Law 32 (2004): 233, 277–​86.

 

660   dispute settlement

Internal Administrative Tribunals International organizations are generally immune from the jurisdiction of national courts, so their staff members complaining of breaches of contract or other legal injuries cannot sue in local courts. To remedy this, many organizations have created independent internal administrative tribunals to ensure fairness and due process in employment matters. Smaller organizations often employ tribunals created by larger ones; the International Labour Organization’s (ILO) tribunal is open to about 46,000 employees of some sixty organizations.70 The larger administrative tribunals handle substantial caseloads; the UN’s Dispute Tribunal disposed of 325 cases in 2013, while the UN Appeals Tribunal disposed of 137.71 International organizations’ administrative tribunals are considered in detail elsewhere in this volume.

Resolving Legal Disputes between States and Private Parties While international organizations’ roles in dispute settlement have traditionally involved disputes between two states, recent years have seen significant increases in the availability and use of such procedures in claims against states by investors and other nonstate entities. The most visible manifestation of this development is the dramatic increase in the caseload of the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). ICSID is an autonomous institution with 150 members established by the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Under Article 25(1) of the ICSID Convention, ICSID has jurisdiction over “any legal dispute arising directly out of an investment” between a contracting state and the national of another contracting state where the parties have agreed in writing to submit the dispute to the Centre. ICSID supports such arbitrations by, inter alia, appointing tribunal chairpersons when necessary; its small secretariat assists in administering cases. The Convention also includes provisions intended to facilitate enforcement of awards. As of June 30, 2014, ICSID had registered 473 cases under the Convention and its Additional Facility Rules; fifty of these were initially registered in 2012 and forty more in 201372 (ICSID’s Additional Facility allows the organization to provide 70  See http://​www.ilo.org/​global/​about-​the-​ilo/​who-​we-​are/​ilo-​administrative-​tribunal/​lang-​-​en/​ index.htm. 71   UN Office of Administration of Justice Seventh Activity Report (January 1 to December 31, 2013), 5, 13, http://​www.un.org/​en/​oaj/​unjs/​pdf/​Seventh_​activity_​report_​OAJ.pdf. 72   The ICSID Caseload—​Statistics (Issue 2014-​2), 7, https://​icsid.worldbank.org/​apps/​ICSIDWEB/​ resources/​Documents/​ICSID%20Web%20Stats%202014-​2%20%28English%29.pdf.

 

dispute settlement based on legal principles    661 administrative support in cases involving states that are not party to the ICSID Convention.) ICSID tribunals have issued a number of substantial awards in favor of investors, although they have also dismissed many investors’ claims. Some critics have charged that investment treaties and ICSID arbitration are skewed in favor of investors and wrongly interfere with national economic and regulatory policies. Citing such concerns, beginning in 2007, Bolivia, Ecuador, and Venezuela have withdrawn from the ICSID Convention. (As noted above, the PCA also hosts a substantial number of investor–​state arbitrations brought under bilateral investment treaties and other treaties and agreements.) International organizations in other fields also have procedures addressing disputes between states and nonstate actors. The ILO has a complaints procedure governed by Articles 26–​34 of the ILO Constitution that allows complaints to be filed against an ILO member state for failure to comply with ILO Conventions it has ratified. Complaints can be filed by another ratifying state, by a delegate to the International Labour Conference, or by the ILO Governing Body. Upon receiving a complaint, the Governing Body may form a three-​member Commission of Inquiry to investigate the complaint, ascertain the facts, and make recommendations to address issues raised by the complaint. Commissions of Inquiry are generally created in situations involving accusations of persistent and serious violations that a state has failed to address. Thirteen such commissions have made reports.73 The report of a commission established following Poland’s declaration of martial law in 1981 found grave violations of the ILO’s Conventions on freedom of association and the right to organize. The report stimulated significant international pressure on the Polish government and contributed to its eventual decision to recognize the Solidarnosc trade union.74 The docket of the Andean Tribunal of Justice (discussed earlier) largely involves challenges by individuals or businesses regarding trademark and patent registration decisions by national intellectual property agencies.75

Resolving Legal Disputes between Private Parties In an unusual initiative, the World Intellectual Property Organization (WIPO) has established sophisticated dispute settlement procedures that can be used by private parties to resolve disputes regarding ownership of Internet domain names and other types of intellectual property disputes. As described on WIPO’s website, “the   ILO, Complaints/​Commissions of Inquiry (Art. 26), http://​www.ilo.org/​dyn/​normlex/​en/​f ?p=N ORMLEXPUB:50011:0::NO::P50011_​ARTICLE_​NO:26. 74   ILO, “Complaints,” http://​www.ilo.org/​global/​standards/​applying-​and-​promoting-​international-​ labour-​standards/​complaints/​lang-​-​en/​index.htm. 75   Helfer, Alter, and Guerzovich, “Islands of Effective International Adjudication,” 13. 73

 

662   dispute settlement WIPO Arbitration and Mediation Center was established in 1994 to offer Alternative Dispute Resolution (ADR) options, in particular arbitration and mediation, for the resolution of international commercial disputes between private parties.”76 The Center’s processes are designed to be particularly appropriate for disputes involving intellectual property.

Conclusion The drafters of the 1899 Hague Convention for the Pacific Settlement of International Disputes viewed the settlement of international disputes though narrow lenses that narrowed the range of both relevant disputes (only those involving states) and of possible dispute settlement mechanisms. Since 1899, the variety and complexity of international organizations’ dispute settlement activities have grown enormously. Multiple organizations today carry on a wide range of dispute settlement activities involving both legal and nonlegal disputes. The field is dynamic, with many organizations demonstrating the capacity and resolve to create new mechanisms and procedures for peaceful settlement in response to a rapidly changing world.

  WIPO Arbitration and Mediation Center, http://​www.wipo.int/​amc/​en/​index.html.

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Chapter 31

INFORMATION GATHERING, ANALYSIS, AND DISSEMINATION David Le Blanc Jean-​Marc Coicaud

This chapter focuses on the relationship between international organizations (IOs) and information. The topic is particularly important for two reasons. First, in IOs, as in other types of institutions, information and knowledge are required as a basis for sound decision-​making. In this regard, because of their global mandates and institutional reach, IOs occupy a specific and unique position in the global policy picture. They are both aggregators of data produced at the national level, and producers of information, in particular at the global level, in relation to issues that are truly global in nature (e.g., trade, peace and security, and environmental issues). This is to say that the relevance of IOs, broadly measured in terms of how well they fulfill their mandates, is largely dependent on the quality of the information that is collected, produced, and disseminated by them as a basis for policy decisions. Second, globalization and greater interconnectedness have arguably contributed to increasing policy demands for comprehensive and timely data and information on the part of international institutions. To be sure, one could argue that this has always been the case. Yet, this dimension has acquired more importance recently, in the context of growing attention given to the impact and value added of IOs and of a changing landscape resulting from new information technologies.

 

664    information gathering, analysis, and dissemination This creates a number of challenges, which this chapter in part examines. In doing so, it considers only intergovernmental IOs, and primarily looks at their functions at the global level. In particular, the management and use of information for important functions of IOs carried out at lower geographical levels (e.g., in development work) are not systematically examined here. The chapter is organized in four parts. In the first, we explain why we think that mandates provide the best analysis category for information management by IOs. We also give examples illustrating the different categories of information managed by IOs. The second part briefly surveys common ways by which IOs gather, analyze, and disseminate information. In the third part, we identify criteria by which the “performance” of IOs in the gathering, analysis, and dissemination of information might be assessed. The fourth part concludes the chapter with an overview of some of the opportunities and challenges facing IOs with respect to information production and dissemination.

Mandates as a Way of Understanding the Type and Content of Information Managed by International Organizations IOs collect, produce, and use an extraordinary variety of information. This reflects the diversity of international institutions and the variety of issues that they are mandated to address. This also reflects the all-​encompassing nature of their functions. Many IOs operate as independent (self-​reliant) organizations, implying a range of information-​related functions as diverse as public information, collection and production of data, and dissemination of information of various types and in various formats to various constituencies. Against this background, describing the main types and sources of information managed by all IOs could be overwhelming and cover well over the length of this chapter.1 By contrast, what IOs do and how they do it in terms of information collection, production, and dissemination can economically be analyzed by adopting the lens of mandates, that is the functions that IOs receive from 1   In this chapter, we often use “manage” and “management” as shorthand for the range of tasks that relate to information processing, including data collection, data production, production of analytical material from raw information, dissemination in various forms, knowledge generation, and communication.

 

understanding the information managed by ios    665 their constituents (in a broad sense). Such an approach recognizes that information is never produced or used in a vacuum and sheds a light on the critical questions of the nature and type of information that is produced and used (“Information on what?”) and the use that is made of the information (“Information for what?”). First, collection, production, and dissemination of information carry costs. Hence, the type of information managed by IOs will be in large part determined by the resources that they can allocate to specific tasks and functions. Those in turn are determined by the mandates that the organization receives from its constituents. This is most obvious in the case of the United Nations (UN), where each broad task undertaken by the organization is based on a mandate given by political organs, for example, the UN General Assembly (UNGA). Second, because the management of information by IOs is based on the political directives they receive from their members,2 the way information is treated, packaged, and used has to be analyzed from a political perspective. These two dimensions both define and limit the broad context for information management in IOs, as other criteria would influence it for private firms, civil society organizations, governments, academia, and other types of institutions. Thus, an analysis of information in the context of IOs is perhaps best undertaken through looking at their mandates. In this perspective, we distinguish the following nine broad categories of mandates: Gathering and using information for compliance and enforcement. This encompasses functions such as gathering of compliance data under the Nuclear Non-​ Proliferation Treaty; national reports to UN Conventions (e.g., under the Kyoto Protocol); as well as reports from IOs themselves regarding enforcement and compliance. Two examples are reports produced by the International Atomic Energy Agency regarding nuclear programs in specific countries, and reports of experts produced for the use of the United Nations Security Council. Information related to international norms-​setting. This encompasses all the information gathered and produced within the process of generating new international norms and standards. This is a vast area, which includes UN Conventions and attached protocols; both “hard” (e.g., third-​party verified) and softer guidelines or codes of conduct for the private sector; international standards for public statistics; and international standards for policy monitoring. A shared characteristic of these processes and products is that they involve the creation of new norms through collective, negotiated processes—​with obviously a great diversity in terms of who participates in those collective deliberations. Production and dissemination of raw data and information. This area encompasses the production of basic international data, understood both as centralization   Here, “political” is taken in its primary meaning, i.e. emanating from the political sphere. It conveys no value judgment. 2

 

666    information gathering, analysis, and dissemination and compilation of national data and statistics, and generation of international statistics and data that are not produced by national governments. These data and information can be used for the IOs’ internal purposes, but most often they are also made available to the general public and specialized audiences (e.g., academia). Production and use of information for reviewing, monitoring, and reporting. This category can be seen as an extension of the former. We include in this category information that is not “raw”—​that is, information that has been processed and treated to make meaningful content emerge from the raw data. It includes analytical reports produced by the International Monetary Fund (IMF), the World Bank, and UN agencies on specific sectors or topics; periodic reports from intergovernmental panels, for example the Intergovernmental Panel on Climate Change (IPCC), as well as reports that aim to share practices among IO members (e.g., environmental performance reviews done by the Organisation for Economic Co-​operation and Development (OECD)). This is perhaps the area with which the general public may be the most familiar. Production of information aimed at providing the basis for international action. This includes studies and reports produced with the objective of providing a basis for international action and legislation—​in the UN context, this function is often referred to as “agenda-​setting.” Such reports intend to catalyze or trigger action by IO members. This encompasses, for example, reports from high-​level panels appointed by the UN Secretary-​General, reports of intergovernmental commissions and committees; initial drafts of international conferences outcomes; and reports of the UN Secretary-​General. Information produced and disseminated by IOs as conveners of international discussions. This category encompasses all the documentation and information that is generated in the course of interactions between IO members, from member statements to paper and video recordings of debates to background documentation produced in support of specific processes. Compared to other categories, the importance of this type of information depends on the nature of the IO; in some cases it represents a significant portion of the information that is generated and managed. Information produced for knowledge generation and capacity-​building functions. Many IOs have direct mandates to produce knowledge, either as direct producers or as central repositories for information and data collected from different sources. Many IOs also have capacity-​building within their core functions or mandates. This category includes encyclopedias and atlases produced by the UN Educational, Scientific and Cultural Organization (UNESCO) and other UN organizations; capacity-​building material put at the disposal of the general public or directly administered by IOs through courses and training; and other knowledge products.

 

understanding the information managed by ios    667 Table 31.1 Examples of information managed by IOs according to different types of mandates and functions Function/​mandate

Examples of information produced, used, and disseminated

Compliance and enforcement

Reports from the UN Security Council Reports from the International Atomic Energy Agency National submissions to UN Commissions and UN Conventions (e.g., NAPAs, NAPs, National Communications)

Norm-​setting: conventions, standards, guidelines, templates.

UN Conventions (e.g., UN Framework Convention on Climate Change, UN Convention on Biological Diversity) System of Environmental-​Economic Accounting (SEEA) Sustainable development indicators (OECD, Eurostat, EU, UN) ISO standards Codex Alimentarius (FAO) OECD guidelines for multinational enterprises IFC guidelines on investment Report of the World Commission on Dams

Production of raw information and data

World Development Indicators (World Bank) Data from UN Statistics Division Millennium Development Goals (MDGs) indicators Financial data collected by the IMF and the World Bank Topical surveys done by the World Bank (e.g., Living Standards Measurement Study—​LSMS) OECD DAC data on international development assistance

Reviewing, monitoring and reporting

World Development Report (World Bank) MDG progress reports (UNDESA) OECD DAC reports on international aid Human Development report (UNDP) OECD environmental performance reviews (peer reviews) Reports produced by intergovernmental assessments panels (e.g., IPCC) Millennium Ecosystem Assessment Reports exploring past and future trends (e.g., UNEP’s Global Environmental Outlook, OECD Environmental Outlook)

(continued)

 

668    information gathering, analysis, and dissemination Table 31.1  Continued Function/​mandate

Examples of information produced, used, and disseminated Research papers produced by IOs’ own research teams (e.g., OECD, World Bank, IMF) State of the sector reports by UN specialized agencies and programs and the Secretariats of UN Conventions (e.g., Global Biodiversity Outlook)

Providing the basis for Resolutions of the UNGA international action Reports of the UN Secretary-​General and cooperation/​ agenda-​setting Report from the UN Commission on Environment and Development (“Brundtland report”) UN “Zedillo Commission” report Topical policy reports (e.g., OECD’s Towards Green Growth) IOs as conveners of international processes

Speeches, statements, declarations of UN member states Inputs to UN summits and conferences from governments, UN agencies, civil society organizations (e.g., for the Rio+20 conference) Electronic forums on specific issues (e.g., World Bank)

Knowledge generation Encyclopaedia of Life Support Systems (UNESCO) and capacity-​building World Bank Institute, UNITAR, UNU, capacity-​building-​centered units in UN organizations Databases of publicly available resources Public information

UN, World Bank Press releases Global UN communication campaigns World Bank, UN, OECD, public websites Project Information Documents (World Bank) World Bank’s Inspection Panel reports

Information relating to IOs’ own actions and performance

World Bank sector strategies Reports of the UN’s Joint Inspection Unit World Bank’s Independent Evaluation Group’s reports UN Secretary-​General report on the Quadrennial comprehensive policy review of operational activities for development of the United Nations system (QCPR) UN Secretary-​General’s reports

Source: Authors’ elaboration.

 

information gathering, analysis, and dissemination    669 Public information. Virtually all IOs have public information departments, in charge of communicating the organization’s messages and ensuring the visibility of its actions. Public information also encompasses material related to public disclosure, such as project information documents. Production and use of information relating to the IO’s own actions and performance. As any organization does, IOs produce internal documentation for the purpose of their daily work. This involves information gathering, analysis, and varying degrees of dissemination. A specific subcategory that is of interest to the public is information related to the evaluation of IOs’ performance—​ for example, in the form of reports produced in-​house or by independent institutions. Obviously, at times the boundaries of these categories may overlap with one another. As such, assigning specific information-​related tasks or products to one category involves some dose of arbitrariness. However, since the various categories correspond quite closely to different characteristics in terms of information gathering, analysis, and dissemination, as is shown further in the text, this categorization is useful as a tool. Table 31.1 gives examples of information-​related tasks, functions, and products pertaining to the various mandates identified in this section. The table is by no means exhaustive. Indeed, a systematic assessment of any of the cells of Table 31.1 for a comprehensive sample of IOs would already represent a formidable challenge.

Information Gathering, Analysis, and Dissemination This section briefly surveys the different ways in which IOs gather, analyze, and disseminate information.

Gathering of Information IOs use many different ways to gather information. A cursory look reveals, among other things, the following five distinctions or classifications concerning the activities of gathering information:

 

670    information gathering, analysis, and dissemination • First, there is the information, often in the form of statistics, that is collected by IOs on the basis of nationally produced information with some degree of reprocessing, for the purpose of displaying the information and data. It encompasses national data published by the UN Statistics Division.3 It also covers financial and macroeconomic data collected from Central Banks by the IMF and donor data on official aid collected by the OECD. • Second, there is the production of original information from multiple sources by IOs, alone or in partnership with outside organizations. An example of this is the agro-​ecological zones, jointly produced by the UN Food and Agriculture Organization (FAO) and the International Institute for Applied Systems Analysis.4 This is also the case with statistics that are not produced by national institutions and which IOs take the lead in producing, thereby becoming the de facto reference source for such data. International poverty lines and poverty figures produced by the World Bank fit in this category, as does the Human Development Index and other composite indices produced by the United Nations Development Programme (UNDP). • Third, there is the collective production of new information by members and stakeholders of IOs. This encompasses the production of new legislation (hard and soft), for example Agenda 215 or the UN Declaration on the Rights of Indigenous People.6 It encompasses as well the production of new international norms—​for example, the System of Economic and Environmental Accounting (SEEA), the International Organization for Standardization (ISO) standards, and other soft standards. • Fourth, we have the compilation of inputs from members and stakeholders. This is distinct from the previous category in the sense that, in this case, IOs do not or only very minimally reprocess information submitted by members or stakeholders. An example of this is the inputs submitted by governments, UN organizations, and civil society organizations for the UN Conference on Sustainable Development (UNCSD or Rio+20).7

  Statistical Databases (n.d.), UN Statistics Division, http://​unstats.un.org/​unsd/​databases.htm.   GAEZ-​Global Agro-​Ecological Zones (n.d.), Food and Agriculture Organization of the United Nations, http://​www.fao.org/​nr/​gaez/​en/​. 5   UN, 1992, Agenda 21, UN Conference on Environment and Development, UN Sustainable Develop­ ment Knowledge Platform, http://​sustainabledevelopment.un.org/​content/​documents/​Agenda21.pdf. 6   UN Declaration on the Rights of Indigenous Peoples (September 13, 2007), UN, http://​www. un.org/​esa/​socdev/​unpfii/​documents/​DRIPS_​en.pdf. 7   Here, the UN Secretariat served as a mailbox for reception of the inputs, put them in a standard PDF format, and uploaded them in a web-​based repository where they can be searched by the general public based on keywords or author. Inputs are available at the Official Site:  UN Conference on Sustainable Development, Compilation Document (n.d.), http://​w ww.uncsd2012. org/​compdocument.html. 3

4

 

information gathering, analysis, and dissemination    671 • Fifth, there are the electronic dialogues, consultations, and forums. With the advent of internet-​based technologies in IOs, this type of communication and information has increased very significantly during the last decade. Interactive dialogues and forums have started to become a way by which IOs engage more broadly with their “old” constituencies and audiences, and also reach out to new audiences.8 Other methods for collecting and producing information exist, especially new types based on information technologies. This includes co-​ production and crowdsourcing. The latter—​ generally understood as the practice of obtaining needed services, ideas, or content by soliciting contributions from a large g​ roup of people, and particularly from an online community, rather than from traditional employees or suppliers—​has started to be used by IOs, for instance to collect inputs and priorities from the general public or targeted constituencies before summits or for the preparation of assessments. Overall, however, the use of crowdsourcing by IOs as a practical tool for knowledge-​building and sharing has so far remained relatively marginal.9 The emergence of “big data” (including, e.g., aggregated data produced by individuals from mobile devices) has not gone unnoticed by IOs. The use of methods based on data analytics for specific tasks and missions started to emerge in the first decade of the century, and has developed very rapidly since. In particular, in 2009 the UN created Global Pulse, a dedicated unit tasked with examining how decentralized data could be harnessed to improve on the delivery of the organization’s mandates.10 The initiative has resulted in an extensive exploration of the possibilities offered by big data for development purposes as well as a number of pilot initiatives. Recently, the use of big data for the purpose of assisting in the delivery of the international development agenda for post 2015 became an organization-​ wide conversation in the UN, as a component of what is dubbed an “information revolution.”11 In spite of these developments, it seems fair to say that IOs have only begun to take the measure of how these new data sources could and should be

8  Knowledge Sharing (n.d.), World Bank, http://​web.worldbank.org/​WBSITE/​EXTERNAL/​ TOPICS/​ C SO/​ 0 ,contentMDK:20126464~menuPK:285681~pagePK:220503~piPK:220476~theSit ePK:228717,00.html. 9   Jessica Heinzelman and Carol Waters, Crowdsourcing Crisis Information in Disaster-​Affected Haiti (Washington, DC: United States Institute of Peace, 2010). 10   See Global Pulse, Big Data for Development:  Challenges and Opportunities (2012, May), http://​ www. unglobalpulse.org/​sites/​default/​files/​BigDataforDevelopment-​GlobalPulseMay2012.pdf. One of the most publicized uses of big data in a crisis context was the use of localized data on cellular phone calls to track impacts of the earthquake and its aftermath in Haiti. 11   A World that Counts, Mobilising the Data Revolution for Sustainable Development, Report prepared at the request of the UN Secretary-​General by the Independent Expert Advisory Group on a Data Revolution for Sustainable Development, November 2014, New York.

 

Table 31.2  Common methods used by IOs for gathering information Function/​mandate

Methods for gathering information Collection and compilation of national information, data, and statistics

Compliance and enforcement

X

Production of original information, data, and statistics by the IO (including in partnership with other organizations) X

Norm-​setting (meta-​information: standards, templates), conventions X

X

Reviewing, monitoring, and reporting

X

X

Providing the basis for international action and cooperation/​ agenda-​setting

X

X

Knowledge generation and capacity-​building

X

X

IOs as conveners of international processes

X

Source: Authors’ elaboration.

X X

Compilation of inputs from members and stakeholders

Electronic dialogues, consultations, and forums

X X

Production of raw information and data

Information relating to IOs’ own actions and performance

Collective production of new information by members and stakeholders

X

X

X

X

X

X

X

 

information gathering, analysis, and dissemination    673 used, somewhat lagging behind other groups and actors, especially the private sector and nongovernmental organizations (NGOs). Table 31.2 illustrates methods commonly used by IOs such as the UN to collect information and data. As one can see, the methods chosen depend on the type of function or mandate whose delivery the information is supporting. Note that more innovative methods such as crowdsourcing do not figure here, as they have not yet achieved a mainstream status in many IOs. Another dimension of interest for understanding how international institutions gather information is the distinction between information that is produced regularly over time, such as statistical series and recurring overview reports of specific themes and sectors, and ad hoc information produced to answer infrequent or unforeseeable needs (e.g., to respond to a crisis). On the one hand, mirroring the organization of national governments, many IOs are organized by broad themes, issues, and sectors, with specialized units in charge of collecting information on one theme. For example, within a department concerned with demographic and social issues, separate units may be in charge of managing data from censuses and issue-​based surveys. Information and data from those disparate sources may or may not be consolidated and centralized in other units of the IO (see later in this chapter for the discussion of dissemination). On the other hand, many functions of IOs are related to specific issues that need to be addressed (from emergency response to development projects) and for which tailor-​made data is necessary. As a rule, data from multiple sources will be needed for decision-​making. The units in charge of delivering those functions will therefore look for data from different sources and producers, with the objectives of obtaining the most complete picture allowed by data availability. An example is peacekeeping activities, which essentially have to rely on custom-​made information systems, and preferably from multiple sources. Another illustration is sector work done by the OECD or the World Bank.12 In such cases, IOs are in need of comprehensive assessments, which will require collecting information from various sources. More often than not, informative data sources will be of qualitative nature, such as based on interviews of key decision-​makers in government, the private sector, and civil society organizations. Data collection will tend to be a “one-​shot” exercise geared to the purposes of the project, and not a permanent data collection process. Information collected by IOs is repackaged in different ways to serve specific thematic purposes. For example, the World Bank centralizes the indicators relevant 12   Taking the housing sector as an example, policy projects done in “client countries” will typically need to rely on a comprehensive assessment of the sector in all its components, from land markets to the construction industry, household income distribution, mortgage markets, capital markets, and other issues. There is no ready-​made data source that covers all these areas.

 

674    information gathering, analysis, and dissemination for the monitoring of the Millennium Development Goals (MDGs)13 in one website, providing user-​friendly data extraction, aggregating, and mapping interactive tools that allow users to configure their own products from the raw data.14 This case is clearly a hybrid of the two scenarios presented above. On the one hand, the basis for the selection of indicators is not the source, but the goals that the indicators serve to monitor. On the other hand, the tool is part of a permanent (rather than a one-​shot deal) monitoring and reviewing exercise.

Information Analysis The production of original content and analysis from raw data (either internal or external) is a defining feature of most IOs. Such content includes studies and analytical reports (both for public dissemination and for specific clients), research papers and other literature, analyses of IO member’s inputs, corporate strategies, political position papers, policy briefs and training material, among others. There is much competition for legitimacy among IOs through the production of information, with IOs vying for representing the “mainstream” paradigms. Among the main vehicles for general public or outside professional communities’ recognition are the flagship reports that IOs produce, often yearly. For example, the World Development Report from the World Bank, the World Economic Outlook from the IMF, and the Human Development Report from UNDP all command attention from practitioners and are widely featured in the press. Sector reports produced by the World Bank and UN agencies (see examples in Table 31.1) also are reference pieces for large communities. Knowledge generation was recognized early by some international organizations as a strategic asset and a useful way of positioning themselves. The examples of the OECD and the World Bank come to mind. As for the latter, it has been advanced that it identified a role as a knowledge hub as early as the 1960s.15 In-​house research departments have been created in many IOs, with the objectives of generating knowledge and establishing the credibility of the institutions through presence in the scientific peer-​reviewed literature. Many IOs have chief scientists or chief economists, heading research units that serve these purposes while feeding analytical work to other units in the organization.

  World Bank, Millennium Development Goals (n.d.), http://​www.worldbank.org/​mdgs/​.   World bank, Data Catalog (n.d.), http://​datacatalog.worldbank.org/​. 15   Anne Krueger, “Whither the World Bank and the IMF?,” Journal of Economic Literature 36/​4 (1998): 1983–​2020. 13

14

 

information gathering, analysis, and dissemination    675

Dissemination IOs disseminate information in many different ways. Similar to other organizations (e.g., national governments or the military), IOs have an implicit or explicit classification system for the confidentiality of the information they produce or control, which influences the audience to which it is disseminated and possibly the format used for dissemination. Confidentiality in turn is largely determined by the purpose for which information is produced. For instance, analytical reports produced for client countries in the course of a project are owned by the country’s government, which decides what kind of dissemination is appropriate. Many other products with information content produced by IOs are intended for the general public or more targeted but still broad audiences from the start: for example, flagship reports, policy briefs, and corporate press releases. Information is also packaged for the purpose of training, presentations, workshops, and conferences, whose intended audience may vary from purely internal to communities of practice to the broader public. Table 31.3 gives examples of dissemination types and formats used by IOs for information produced under different functions. Sharing with outside audiences can involve different degrees of proactiveness from IOs, varying from the IOs posting documents on their public websites and playing a passive repository role, to providing access to the data with interactive interfaces, to more active dissemination done through targeted advertising through listservs, press releases, sending physical copies of reports to key recipients, etc. IOs have developed products using these opportunities, including online tools such as interactive maps and graph-​generation interfaces.16 A notable trend over the past twenty years has been that an increasing share of information produced by IOs has been made accessible through the internet, even though in many cases the underlying processes for information gathering and processing may not have fundamentally changed. For instance, statistical data and reports from the OECD can be downloaded from the OECD website, some of it for subscribers only. The World Development Indicators produced by the World Bank have been available to outside researchers for a long time, most recently as part of the central data repository put in place by the Bank.17 For many IOs, information production is one of the main windows that they have to the general public beyond core professional communities who know their work in detail. Many IOs have thus spent considerable resources developing information and communication tools. While hard numbers are not available to the authors, it is quite clear that the breadth and impact of dissemination of information   United Nations Statistics Division, UNSD Environmental Indicators (2013), http://​unstats.un.org/​ unsd/​environment/​qindicators.htm. 17   The World Development Indicators are a comprehensive collection of national statistics covering themes as diverse as geography, macroeconomy, finance, demographics, and a wide range of socioeconomic themes. 16

 

Table 31.3  Examples of information dissemination by IOs Function/​mandate

Types of dissemination Internal only

Compliance and enforcement

Shared with clients

Draft resolutions of the Security Council

Norm-​setting n.a. (meta-​information: standards, templates), conventions Production of raw information and data

Information collected for peacekeeping operations

Reviewing monitoring and reporting

Security maps in UN peacekeeping operations

Sharing among members

Sharing with broader public

UN Security Council reports

UN Security Council reports

Passive dissemination (repository)

Information/​data with user interface

Active dissemination

Resolutions of UN Security Council

ISO standards

UN Statistics data World Development Indicators Analytical work done by the World Bank during project preparation

MDG report (UNDESA) IPCC reports

Policy briefs (many IOs)

 

Providing the basis for international action and cooperation/​ agenda-​setting

Drafts of UN resolutions

Knowledge generation and capacity-​building

Training material produced by IOs

IOs as conveners of international processes

Minutes of internal meetings

Public information

n.a.

Information relating to IOs’ own actions and performance Source: Authors’ elaboration.

Encyclopaedia of Life Support Systems (EOLSS) Minutes of closed meetings

n.a.

World Bank’s Country Assistance Strategy

Outcomes of intergovernmental processes (resolutions, declarations, communiqués, etc.)

Analytical reports, background documents produced by the UN for intergovernmental negotiations Project Information Documents (World Bank)

Reports of the World Bank Inspection Panel

Inputs to Rio+20 conference

Press releases by UN, OECD, World Bank UN agencies websites World Bank website

 

678    information gathering, analysis, and dissemination produced by IOs are highly variable within and across IOs. Some material receives high exposure and its message becomes (in a simplified way due to media filters) part of “street knowledge.” The messages from reports produced regularly by the Intergovernmental Panel on Climate Change fall in this category due to high mediatization and polarized public opinions on the topic. At the other end of the spectrum, other outputs hardly get noticed, even when they are publicly available on the websites of IOs, due to absence of dissemination efforts or lack of media interest. In between these extremes, a variety of cases apply, including information, data, and reports that have broad dissemination and impact on targeted groups and communities while remaining largely unknown to the general public. It is worth noting that in specific cases, IOs are important vehicles for producing and making public information that is “inconvenient” to interest groups.18 In this respect, IOs have a critical role to play in terms of transparency (see later in this chapter). In the past decade, many IOs have responded to calls for easier and broader access to the data they collect and produce by adopting so-​called “Open data” policies and platforms. This mirrors the move for open data in national governments. UNdata is a platform that links to data produced by many UN organizations. The FAO has adopted a centralized web platform where its main statistical databases are accessible. The World Bank put its new platform online in 2010. The data are made available under an explicit license which allows for use, reuse, and redistribution by anyone. This is a change from the previous situation, where, for example, commercial use was restricted and many datasets were only available to paying users.

Assessing the Performance of International Institutions in Producing, Using, and Disseminating Information Information collected, produced, and used by IOs often involves the use of public resources. Therefore, they should be accountable to their members (and, by extension, to taxpayers and the general public) on “how well” they are doing in this area.

  e.g. reports from groups of experts to the UN Security Council available on the UN Security Council website. 18

 

assessing the performance of ios    679 Thus, an obvious question is: what are the criteria for analyzing the “performance of IOs” in producing, using, and disseminating information? Clearly, this question cannot be reduced to marketplace criteria of costs, or even to standard cost–​benefit considerations, as would often be the case with private sector endeavors. Some of the information produced, used, and disseminated by IOs (global data, collection of national data, compliance reports) has a global public-​ good dimension, especially since the benefits from such information are largely collective in nature (as opposed to private). In addition, IOs often provide information that otherwise would not be available to all their members on an equal basis, or that nobody else would have an incentive to collect.19 Against this background, in order to find sensible criteria of evaluation, it is helpful to look at public economics or public law; and among a range of possible choices, for the purpose of this chapter, we have selected six broad criteria: legitimacy, economic efficiency, effectiveness, transparency and participation, relevance, and adaptability.20 From our standpoint, these criteria provide a relevant grid for the analysis of the management of information by IOs. That said, the “appropriate” criteria to assess IOs vary according to the type of information considered. For example, information produced in support of a negotiation process is likely to be seen as adequate if the negotiations succeed, or if the compromise reached is perceived as satisfactory by all parties. Thus, relevance and effectiveness may be the most relevant performance criteria in this case, and concerns of economic efficiency may be secondary. Similarly, analyses of economic issues done by IOs are prone to be viewed as successful if they contribute to clarifying issues of international importance and help forge consensus among IO members. Also, production of statistical data will be evaluated in positive terms if it is accessible to a wide audience in a user-​friendly manner and helps outside research. As for information produced in the context of disaster recovery management, it will be considered successful if it is produced in a timely fashion, updated, and made relevant to the recovery process itself, etc. Additionally, different people and institutions will assign different degrees of importance to the various criteria, depending on their own interests and objectives.

  Among many examples, one can mention evaluations of the performance of the global trade system, information on the status of delivery of internationally agreed development goals, and policy reviews of thematic areas. 20   For a more comprehensive understanding of these criteria than the one offered in this chapter, see the other chapters in this book that address these issues. 19

 

680    information gathering, analysis, and dissemination

Legitimacy In the narrow context of this chapter, the concept of legitimacy refers to the perception by outside groups and the public at large of an IO as the rightful or “natural” institution to produce, analyze, or disseminate information, and the perceived fairness (or lack thereof) that transpires from the management of information by the IO. Legitimacy for an IO to produce information may stem from several sources. In some cases, legitimacy is a straightforward consequence of an IO having a privileged or unique place in the international institutional system: as the place at the center of action on specific issues or in specific processes, it derives a monopoly on the information that emanates from them. This is the case for the UN Security Council when it comes to collective security issues. The UN Statistics Division serves as a Secretariat for the UN Commission on Statistics, and is consequently the “natural” producer of harmonized national statistics and convener and promoter of international statistical standards. In the same way, IOs concerned with development work have a monopoly on a large part of the information that relates to their portfolios of projects. Legitimacy of IOs stems from universality as well. Universality of access to the information by IO members and the general public provides a key public good for collective governance at the international level. The role played by the IO in this case is that of an “independent third party.” UN data on development issues, for example, is relied upon by all countries as a neutral, reliable source of information. This role is perceived by governments in particular as strongly contributing to the legitimacy of the UN system.21 Depending on the mandate under which information is being produced, the legitimacy of IOs as information producers can be threatened by “natural” competitors. Actors with which IOs can have at times difficulties keeping up include universities producing “repackaged” data, figures, and maps; think tanks, when they produce concepts and information relevant to development issues; the private sector, for leadership on policy; NGOs, on advocacy and awareness raising; and the press and, increasingly, the general public through social media for updates on conflicts, natural disasters, and for perspectives on international events and summits. Interestingly, all these actors are also avid users of information produced by IOs. Computerization has led as well to the development by universities and consortia of public databases or indexes on specific topics that have become de facto standards for researchers in economic and social fields. Examples include conflicts, corruption, productivity, material flows, floods and other natural disasters, and other fields. 21   See, e.g., the UNGA Resolution on the QCPR (GA/​Res/​67/​226), para. 6, in which the UNGA “Recognizes that the strength of the United Nations lies in its legitimacy, at the country level, as a neutral, objective and trusted partner for both programme countries and donor countries.”

 

assessing the performance of ios    681 Challenges to the legitimacy of IOs in relation to the information they produce are often linked with claims of unevenness of treatment or partiality vis-​à-​vis some members or interest groups, as well as perceived bias and lack of balance in the way information is produced, kept, and disseminated. It seems to be a commonly held belief that IOs, who often represent the public and have a de facto monopoly political rent, have to fairly represent everyone’s voice and concerns. When IOs are perceived to use information to impose their own agenda or to confiscate the debate, this sense of impartiality is lost. To conclude on this point, it seems clear that legitimacy of IOs is greater for the production of information directly linked with their core mandates. The space for criticism increases as one moves from the production of basic data or information to sophisticated reports encompassing interpretations of data and strong policy content and recommendations. For example, while there may not be strong criticisms of the World Development Indicators produced by the World Bank, there are often strong views on the messages put forward by their flagship World Development Reports—​not everybody interprets the data the same way.

Economic Efficiency Economic efficiency is traditionally examined in terms of value added, return on investment, or cost–​benefit ratios. Clearly, there are some types of information produced by IOs for which these criteria make sense. For example, one may enquire what the output of a research unit has been in terms of number of articles published, quality of reports as measured by different standards, and most economic use of available dissemination technologies. However, there are reasons to think that for a number of other types of information that IOs produce, economic efficiency criteria are not very relevant. A case in point is the fact that information provided by IOs is often widely disseminated and made available for free or well below production cost, which enables all countries and many organizations and individuals to access it. In this regard, arguably, in many cases profit-​driven institutions undertaking the same tasks on behalf of IOs or the international community could do “better”—​producing better-​quality information, producing it at lower cost, providing more efficient user interfaces, enabling a more widespread awareness and dissemination, etc. The same or equivalent information could be (or is) provided and sold by private companies at significant price. But this would entail a trade-​off: universality would be lost. A clear case where standard cost–​benefit analysis does not seem to apply is the information produced and stored by IOs as conveners of international processes, from peace talks to climate talks to development debates. Records of these debates,

 

682    information gathering, analysis, and dissemination UN statements, documents, and declarations provide precious and sometimes irreplaceable evidence, and are “time markers” that can inform society about the change in paradigms, norms, the geopolitical dynamics, and the causes and consequences of international politics across time. Those records clearly have a tremendous public-​good value.

Effectiveness Effectiveness refers to the perceived degree of success of an IO in using information to achieve its stated goals or mandate. A key measure of effectiveness that can be used is the extent and impact of the dissemination of information produced by IOs. On this issue, four aspects deserve special attention. First, the use of web technologies by IOs to publicize their work has extended their reach, although the extent to which this has happened varies across IOs. In this perspective, it can be said that more compact and focused organizations may have an easier job in defining clear strategies relating to the production and dissemination of information than ones with large and broad mandates. Second, the flexibility of organizations to allocate resources to the various components of information management differs from one IO to another, with some having more resources and leeway than others to adapt quickly to perceived requirements in this domain (e.g., to respond to the emergence of new technologies, or to changed expectations from the outside). Third, taking a broader view, in many important global policy areas IOs are expected, because of their clout and political legitimacy, to be the main vehicles for awareness raising and facilitation of consensus for global action and coordination of policies. Not surprisingly, success or failure in these strongly affects the credibility of IOs and their perceived effectiveness. Recent examples of this dynamic include the perceived failure of IOs to facilitate consensus on significant action on climate change, peace and security issues, and global economic governance. Fourth, many examples illustrate the power of IOs to cause, enable or accompany social change, implying high effectiveness of their actions related to information. Arguably, the most visible area in which this has happened is norms-​setting. In certain circumstances, international norms-​setting has driven the conversation and even change at a global level by affecting social norms and paradigms across the world. Among many examples, one can think of the contribution of the UN in turning sustainable development from a rather arcane concept to a “street word,” if not yet a broad objective that all governments follow. Also striking is the popularization and codification of the concept of ecosystem services caused by

 

assessing the performance of ios    683 information produced by an IO, the Millennium Ecosystem Assessment.22 By assembling disparate evidence from multiple disciplines and providing a unifying concept to analyze it, the Assessment has influenced the discourse of the policy community within a few years. In a different area, the generalization of gender-​ disaggregated statistics and, more broadly, the inclusion of gender as a relevant category for the analysis of all development problems have much to owe to IOs, through both their political and statistics arms. This has been concomitant with a rapid swath of national legislation to limit gender gaps across the world, with deep implications for national policies and polities.23 To this, one could add the narrative function of international standards (e.g., environmental accounting standards24), which, by providing avenues for collecting and analyzing information in a different way, provide society with an arsenal of data that contributes to changing the social discourse. In summary, information management connected with norm-​setting by IOs has had a deep influence both on the production of knowledge and on the way the political discourse has reflected knowledge.

Transparency and Participation Transparency and participation have become increasingly important dimensions for the accountability of IOs, particularly in areas related to information production and dissemination. The global social norms in terms of transparency for both national governments and IOs have evolved rapidly toward accommodating growing expectations from actors and sectors of societies. Demands for increased data availability and broader information dissemination have also emanated from various groups, including academics, communities or groups affected by projects, and others. In the case of the World Bank, this has led to a new disclosure policy that basically reverses the “burden of proof ” in terms of disclosure and states that, by default, information should be public unless explicitly determined otherwise.25 More transparency is also expected from IOs regarding their methods of work and the allocation of their resources, as addressed in other chapters of this book. For example, in June 2006 the World Bank publicly disclosed for the first time the  UNEP, Millennium Ecosystem Assessment (n.d.), http://​www.unep.org/​maweb/​en/​Index.aspx.   Mark A. Pollack and Emilie Hafner-​Burton, “Mainstreaming Gender in the European Union,” Journal of European Public Policy 7/​3 (2000): 432–​56. 24  G.-​M. Lange (ed.), “Special Issue on Environmental Accounting: Introducing the System of Integrated Environmental and Economic Accounting SEEA-​2003,” Ecological Economics 61/​4 (2007): 589–​724. 25  Operations Policy and Country Services, Toward Greater Transparency Through Access to Information: The World Bank’s Disclosure Policy (October 16, 2009), http://​siteresources.worldbank. org/​INFODISCLOSURE/​Resources/​5033530-​1236640024078/​AccesstoInformationPolicy_​Oct16.pdf. 22 23

 

684    information gathering, analysis, and dissemination numerical scores of its 2005 Country Policy and Institutional Assessment, which the Bank uses to determine the sizes of the Bank’s concessional lending and grants to low-​income countries. Previously, this parameter was not made public.26 Lastly, the norms in terms of independence and transparency in reporting on one’s own performance have also increased.27

Relevance and Adaptability Relevance relates to the ability of the information produced by IOs to provide a sound basis for decision-​making and action. Adaptability reflects the ability of IOs to adjust and respond to changes in their external environment, in particular changes in the information technology landscape and changes in public expectations relating to information availability. While the two notions are different, in the context of our topic they are strongly related and we tackle them together.

Relevance Problems associated with the relevance of information produced by IOs can be broadly divided in three categories:  lack of coverage of important areas for policymaking; data quality issues and irrelevance of the information produced in specific fields; and irrelevance of the technologies or media used for data sharing and dissemination. Starting with the first category, globalization and increased interdependence have generated the need for better information on various issues, including the actions of multinational companies, international financial and capital flows, trade in conflict minerals, cyberspace, and many others. Crises of global or regional nature, such as the financial crisis, can expose the lack of relevant data in these areas. This lack of data can be perceived by the public as contributing to the inability of international institutions to anticipate, prevent, and successfully handle crises. More generally, slow changes in information production systems in IOs compared to rapid changes in the international landscape may result in situations where some areas are well covered, while other—​potentially as (or

26   S. Claessens, D. Cassimon, and B. van Campenhout, “Evidence on Changes in Aid Allocation Criteria,” The World Bank Economic Review 23/​ 2 (2009):  185–​ 208; International Development Association, Country Policy and Institutional Assessment, Frequently Asked Questions, http://​web. worldbank.org/​WBSITE/​EXTERNAL/​EXTABOUTUS/​IDA/​0,contentMDK:21378540~menuPK:2626 968~pagePK:51236175~piPK:437394~theSitePK:73154,00.html. 27   J. E. Stiglitz, “Democratizing the International Monetary Fund and the World Bank: Governance and Accountability,” Governance 16/​1 (2003): 111–​35.

 

assessing the performance of ios    685 more) relevant—​areas are not systematically monitored.28 In turn, this slowness may reflect or even bring about delays by IO members in adapting international monitoring, regulation, and governance on emerging questions. Here the challenge for IOs is both one of gaining the legitimacy to address these issues (versus, e.g., national governments or other IOs) and of acquiring the capacity to mobilize adequate information and data to enable the international community to deal with them. In terms of data quality, an often-​mentioned problem is that data collected and compiled from the IO’s members are only as good as those produced by national statistical institutes, ministries, and central banks (and others). Data from many countries are patchy, reflecting differences in resources and capacities, for example in national statistical offices. For instance, in many developing countries basic data necessary to use analytical tools such as economy input/​output tables do not exist.29 An additional dimension of this issue of data quality is, at times, the sense of irrelevance of the information produced due to its difficulty of access and use. For example, it has been a frequently voiced concern in development circles that different groups of society affected by specific projects do not have the capacity to understand and use the information produced by IOs that concern them, making some of this information irrelevant. Sometimes solutions to the issue at stake can be as simple as translating documents in vernacular languages relevant to directly affected stakeholders. Irrelevance of content and technology includes difficulties in adapting to modern information technologies (web, GIS, interactive maps, and software) and difficulties in adopting new methods for knowledge production and dissemination (e.g., old, static encyclopedias versus Wikipedia-​style platforms). As argued earlier, IOs in general are only beginning to fully harness the power of new information technologies.30

Adaptability This is where adaptability comes into the picture. While adaptability may be a desirable feature of any organization, in the context of information it critically affects the capacity of IOs to deliver on their mandates. The rapid diffusion of

28   e.g., while the paradigm of development has recognized the critical importance of private financial flows for many years, official data on these remain incomplete in many sectors and areas, and therefore, arguably, inadequate for sound decision-​making at the global level. Similarly, lack of data on shadow banking and OTC financial operations was highlighted during the financial crisis. 29   The Millennium Development Goals Report (2010), 7, http://​www.un.org/​millenniumgoals/​pdf/​ MDG%20Report%202010%20En%20r15%20-​low%20res%2020100615%20-​.pdf. 30   T. Unwin, ICT4D:  Information and Communication Technology for Development (Cambridge: Cambridge University Press, 2009).

 

686    information gathering, analysis, and dissemination mobile technologies has enabled a previously unseen increase in the quantity and speed of information available to the general public, as illustrated in recent years in countries suffering from crises and conflict. Availability in real time of information that is not controlled by governments or IOs has put the onus on these to match this new degree of transparency and speed. However, in many cases the timescales associated with delivery of information in IOs, which are often influenced by political timescales, have not fundamentally changed. This arguably has created or enlarged the gap between what IOs are able to provide and rapidly evolving standards and expectations in the outside world. Criticism of IOs on how fast they react to health crises, or how fast they are acting on conflict situations, are only two examples of this, in which information plays a key role.

The Way Ahead: Some Opportunities and Challenges for IOs Related to Information This last section briefly examines the opportunities and challenges that IOs face or could face in the future in relation with their information-​related functions. The variety in nature, purposes, and internal organization of IOs precludes a detailed diagnosis that would apply with equal relevance to all of them. Aware of this, we point to four broad areas that may be to some degree of concern to all IOs and may require strategic reflection in the future: questions of legitimacy; issues of relevance due to lags in take-​up of new information technologies in the face of changed social norms and expectations; the need for IOs to adapt to “big data”; and the question of the evaluation of the IOs’ performance in managing information. First, as we have seen, IOs have been essential, sometimes irreplaceable hubs for producing information—​as norms-​setters, convenors, repositories, and other functions of direct relevance to international policy. However, in a number of areas IOs face clear challenges of legitimacy because the issues they are addressing lose international traction, or because the way they produce, keep, and disseminate information is perceived as inadequate. This state of affairs is not made easier by the fact that, in certain circumstances, IOs are caught in a difficult bind: they have to answer to their primary constituencies (e.g., nation states) while being challenged to integrate the perspectives of other groups (e.g., indigenous people, the poor, civil society), which may differ from or

 

the way ahead   687 squarely oppose one another. Thus, in the production of information, IOs have to navigate between accountability to members—​in the case of the UN, the whole or almost whole set of national governments—​and relevance in a sense that is defined from outside but increasingly important in terms of legitimacy. It may be that a way forward for IOs finding themselves in this position would be to adopt a methodological approach that is more explicitly based on the recognition that most issues can better be understood when differences in perspectives and worldviews are taken into account. Such an approach would strive to document different views, and ground them in their implicit and explicit assumptions (or pre-​analytic visions). This is of course a difficult step, especially for action-​oriented institutions that feel pressure from their constituents to deliver. Development is a case in point. Second, IOs will have to address the opportunities and challenges that increased availability of new information technologies in other organizations and the general public present for their legitimacy and relevance. This will likely require an examination of the links between the core functions of IOs and information, and this at two levels. So far, IOs (as many other types of institutions) have tended to focus on how new information technologies could enhance the products or services they are delivering (e.g., making data available on the web for easy access by outside users). IOs do not appear to have done worse than other institutions such as academia and national governments in seizing opportunities and adapting to the challenges posed by rapid changes in the IT landscape, and there is reason to believe that they will improve further in this domain. This is a first step, yet one that is far from being sufficient. To take an analogy from the environmental field, this is like addressing pollution through end-​of-​pipe solutions. More important, although much more difficult, is the need to examine how changes in information technology would require fundamental changes in the way the functions or services should be produced or even to reconsider the functions of IOs in light of the changing information landscape. This debate, which mirrors national-​level debates on the changing role of government in the information age, is still in its infancy, and it is difficult to foresee the direction it may take.31 One thing that seems clear is that societal norms in terms of transparency and stakeholder involvement in decision-​making are evolving rapidly in response to development in information and communication technologies. As a result, IOs, if they do not want to run the risk of being perceived as out of touch with 31   At the national level, there seems to be a wide range of perspectives, between two extreme positions. At one end, some expect that the trend that has been observed so far since the Internet revolution began will continue, and that services and information produced by governments in the future will continue to be much like today, but will be delivered increasingly online. At the other end, there is the view that, in coming decades, IT will make possible profound changes in the way governments work and deliver their main functions.

 

688    information gathering, analysis, and dissemination global society, will have to respond, and do so in ways that are perceived as being more than simply cosmetic. Third, and related to the previous point, IOs will have to position themselves in the game that has emerged around “big data.” This is all the more important considering that some of the mandates of the IOs are unique and will arguably not be fulfilled adequately by the private sector. As digital data are growing, consolidating them with traditional data in order to create an overall system of information that is adapted to global governance needs will be crucial for IOs. Pilot initiatives like Global Pulse at the UN have exposed a range of challenges that will have to be addressed to progress in that direction. First, the utilization of decentralized data produced by individuals and firms by IOs poses immediate questions in terms of respect of privacy and other basic rights. Second, in exploiting “big data” IOs are dependent on partnerships with the private sector that owns the data; in this respect, there are legitimate concerns that disparity in financial resources and commitment between IOs and the private sector may not play in favor of IOs. In order to go beyond pilot initiatives, these issues will have to be addressed appropriately, including by drawing adequate legal frameworks for the use of the data. Nevertheless, once again this presupposes financial resources and institutional dynamism and innovation that may not be the forte of IOs. Finally, issues of evaluation of the performance of IOs relating to production and dissemination of information will continue to be important. First, internally, evaluation would provide a tool for increased efficiency, relevance, and resource allocation. Second, given increased scrutiny and questioning of IOs, being able to assess the value added that information produced by them brings and how it improves over the years is destined to become more important. Many of the issues mentioned here, starting with evaluating the impact of information production and dissemination, do not seem to have been systematically investigated by IOs themselves. Given the stakes at play for IOs and the rapidly changing information landscape, this is surprising. Undoubtedly, more systematic investigations of this area could benefit many IOs and their members. This may change as IOs realize that information is one of the strategic dimensions that critically condition the ability to deliver their mandates.

 

Part V I

RELATIONSHIPS OF INTERNATIONAL ORGANIZATIONS WITH OTHER ACTORS

 

 

Chapter 32

RELATIONS WITH OTHER INTERNATIONAL ORGANIZATIONS Laurence Boisson de Chazournes

International organizations are numerous, reflecting the ever increasing need to conduct activities at the international level. At the same time, each organization sees its mandate growing, which leads to overlaps among them. In this context, calls have been made for international organizations to collaborate, cooperate, or jointly carry out activities. Various types of relationships between international organizations have been devised. Those types referred to in the present chapter concern, for the most part, various forms of cooperation or coordination among international organizations. International organizations may exchange information or participate in their respective forums of discussion. They can establish institutional arrangements to implement a given activity and provide a framework for common purposes. They can also receive logistical, material, or financial aid from each other for operational purposes (see the first section of this chapter). The establishment of public–​private partnerships allows international organizations to work with nonstate actors to achieve goals. The latter contribute by mobilizing resources (the second section). Due to the specific character of the European Union (EU), its relationship with other international organizations is unique. They have had to accommodate the EU through various modes of adaptation (the third section). Lastly, relationships with other organizations may give rise to complex forms of

 

692    relations with other international organizations collaboration. The topic of responsibility sheds light on the difficulty of apprehending these relationships (the fourth section).

Elements of the Relationships between International Organizations From the League of Nations to the UN System As early as 1919, coordination was foreseen in the League of Nations Covenant, for example having reference to the relationships between international administrative unions. Calls were made for a centralized and hierarchical organizational system. According to this scheme, international offices were to be placed under the direction of the League.1 However, only six offices opted for this type of relationship. The others preferred to keep their full independence.2 In the aftermath of World War II, the emergence of functionalist theory led to another conception of relationships between international organizations. Relying on a bottom-​up perspective, the practical necessities “of the base” led to the creation of institutions “at the top” in order to meet them. David Mitrany,3 regarded as one of the first to conceptualize this theory, highlighted the fact that identifying material interdependencies among states facing collective concerns leads to the creation of international institutions with sectoral and technical expertise. Within these institutions, states would work together in an effective manner because of their common and objective interest in tackling practical problems at the international level. Given their awareness of existing interdependencies, as well as of the efficiency linked to increased collaboration, states would favor de facto solidarities through   Article 24 of the Covenant of the League of Nations, April 28, 1919, provided:  “There shall be placed under the direction of the League all international bureaux already established by general treaties if the parties to such treaties consent. All such international bureaux and all commissions for the regulation of matters of international interest hereafter constituted shall be placed under the direction of the League.” 2   See Werner Meng, “Article 57,” in The Charter of the United Nations: A Commentary, ed. Bruno Simma et al. (Oxford: Oxford University Press, 2012), 1623; Péter Kovacs, “Article 57,” in La Charte des Nations Unies: commentaire article par article, ed. Alain Pellet, Jean-​Pierre Cot, and Mathias Forteau (Paris: Economica, 2005), 2:1521. 3  David Mitrany, A Working Peace System:  An Argument for the Functional Development of International Organization (London:  Royal Institute of International Affairs, 1943). On the origin of functionalism, see Jan Klabbers, “The EJIL Foreword:  The Transformation of International Organizations Law,” European Journal of International Law 26/​1 (2015): 9–​82. 1

 

relationships between international organizations    693 institutional cooperation. Cooperation and coordination in related technical areas were considered noncontroversial, and as such sheltered from political vicissitudes. International organizations are vehicles institutionalizing these relationships. This theoretical scheme undoubtedly influenced the conception of the UN institutional architecture and is considered as the very conceptual core of the European construction.4 The functionalist approach was given a direct translation in the UN system, designed at the outset as a decentralized system of independent institutions with no explicitly formal hierarchy.5 Specialized institutions as defined in Article 57 of the Charter are consequently related to the UN through agreements to be negotiated “individually” in accordance with Article 63, § 1.6 This conventional basis was designed to facilitate flexibility, allowing each organization to define its degree of dependence or independence, in the context of this cooperative scheme. Coordination within the system occurs at the intergovernmental level and between secretariats. The task of coordinating the work of the secretariats was entrusted to the Administrative Committee on Coordination (ACC) created by the Economic and Social Council (ECOSOC)7 and to the Advisory Committee on Administrative and Budgetary Questions, a subsidiary body of the General Assembly. The mandate of the ACC has evolved over time, including the coordination of specialized agencies within the UN and, more broadly, the promotion of cooperation within the system.8 4   See the speech of the President of the European Commission, “The Logic of Interdependence and its Consequences,” made during the conference “Building Bridges,” (Brussels, March 7, 2013): “European integration only followed once the old nations of Europe started to realise that the degree of interdependence had surpassed and eroded their national sovereignty and that nation-​states needed mechanisms and structures that made cooperation inevitable and war impossible … Promoting cooperation, preventing conflicts, turning the logic of interdependence into a force for good … This logic is as relevant today as it was 60 years ago; relevant for Europe, now 27 member states, very soon 28, instead of the original 6; and relevant for the world, so long dominated by 2 blocs succeeded by 1 hyperpower, and now so much changed that even the idea of a ‘G20-​world’ doesn’t adequately reflect its multipolarity.” “European Commission—​SPEECH/​13/​206,” http://​europa.eu/​rapid/​press-​release_​ SPEECH-​13-​206_​en.htm. 5  Clarence Wilfred Jenks, “Co-​Ordination:  A  New Problem of International Organizations,” in Collected Courses of the Hague Academy of International Law (Leiden/​Boston: Martinus Nijhoff, 1950), 77: 151–​303, 162; Kovacs, “Article 57,” 1530; Meng, “Article 57,” 1623–​7. 6  Vincent Tomkiewicz, “Concurrence, chevauchements de compétences et coordination entre organisations internationales,” in Droit des organisations internationales, ed. Evelyne Lagrange and Jean-​Marc Sorel (Paris: LGDJ Lextenso Editions, 2013), 906. 7   Although created by ECOSOC, the legal qualification of the ACC is complex: some authors consider it as a subsidiary organ common to the UN and to the specialized institutions. See Jean-​François Marchi, “Article 63,” in La Charte des Nations Unies: commentaire article par article, ed. Alain Pellet, Jean-​Pierre Cot, and Mathias Forteau (Paris: Economica, 2005), 1655; Werner Meng, “Article 60,” in The Charter of the United Nations: A Commentary, ed. Bruno Simma et al. (Oxford: Oxford University Press, 2012), 1661. 8  In UN General Assembly (UNGA) Res. 32/​197, “Restructuring of the Economic and Social Sectors of the United Nations System,” December 20, 1977, UN Doc. A/​RES/​32/​197, the UNGA expressed:  “The machinery for interagency co-​ordination at the intersecretariat level should centre on the Administrative Committee on Co-​ordination under the leadership of the Secretary-​General.”

 

694    relations with other international organizations This has not prevented recurrent criticisms that the multiplication of coordination bodies would not deal effectively with duplications and overlaps. Criticisms also target the resulting economic and practical inefficiencies.9 Indeed, the difficulty of effective and efficient reconciliation of the cardinal principles of the UN operation, namely decentralization and coordination, was notably highlighted by the Joint Inspection Unit in the 1999 report on the ACC.10 In 2000, ECOSOC saw fit to proceed to the “renewal of the Administrative Committee on Coordination.” This reform was carried out through three priorities:11 reaffirming the central role of the Secretary-​General, streamlining the subsidiary machinery, and strengthening the support that the interagency machinery provided to the intergovernmental processes, in particular to the Economic and Social Council.12 Consequently, the machinery was replaced in 2001 by the UN Chief Executives Board for Coordination (CEB), composed of two committees:  the High-​Level Committee on Programmes (HLCP)13 and the High-​Level Committee on Management (HLCM).14 Both committees are comprised of the senior representatives from the CEB member organizations, namely the fifteen specialized agencies, eleven funds and programs, and two related organizations (namely, the World Trade Organization and the International Atomic Energy Agency).15 The HLCP advises the CEB on its political mandate and program and operational issues of systemic importance. In turn, the HLCM advises on matters relating to administration and management with, in the same manner, an emphasis on system-​wide issues. In 2008, the Committee institutionalized an ad hoc working group, which acquired a permanent character: the UN Development Group 9   See Maurice Bertrand, “The UN as an Organisation:  A  Critique of its Functioning,” European Journal of International Law 6 (1995): 349–​59. 10   “Some specialized agencies felt that coordination was tantamount to overcentralization in favour of the United Nations itself. Some also felt that coordination was too often considered as an end in itself, rather than as a means to achieve improved delivery of outputs to different stakeholders, and thus resulted in a proliferation of coordination mechanisms, meetings and reports. There was consensus on the need to further strengthen information flows and the process of policy consultations, to improve the decision-​making process and set up a more effective follow-​up and monitoring mechanism”: Joint Inspection Unit, “Review of the Administrative Committee on Coordination and its Machinery,” March 15, 2000, UN Doc. JIU/​REP/​99/​1, 10. 11   Ibid., 2. See also “Annual Overview Report of the Administrative Committee on Coordination for 2000,” May 29, 2001, UN Doc. E/​2001/​55, 15. 12  See Repertory of Practice of United Nations Organs, Supplement no. 10, Vol. IV, Art. 63, § 19, 6. 13   It is composed of senior representatives of the member organizations in charge of issues related to programs implemented and empowered to make decisions on behalf of the heads of secretariats. It established the following three interagency mechanisms: UN-​Water, UN Energy, and UN Oceans; it also oversees the work of the HLCP Working Group on Climate Change. 14  The HLCM is composed of the management heads of the fourteen specialized agencies, International Atomic Energy Agency, World Trade Organization, and the heads of the twelve UN funds and programs. 15   See “United Nations System: Chief Executives Board for Coordination—​How We Work,” http://​ www.unsceb.org/​content/​how-​we-​work.

 

relationships between international organizations    695 (UNDG) mechanism. As a third pillar of the CEB, UNDG is responsible for coordinating operational activities at the country level and complements the work of the two High-​Level Committees.16 Despite the satisfaction displayed by ECOSOC, some question the effectiveness of the streamlining performed. Maurice Bertrand, a former member of the Joint Inspection Unit of the UN, estimated that system reforms for effective coordination should not focus on the issue of centralization, but rather on the reorganization of structures established around a clear objective. The method of making recommendations to coordinate also raises problems.17

Cooperative Arrangements for the Sake of Effectiveness Relationships among international organizations have also developed around the need for effectiveness in the pursuance of a wide range of activities and objectives. Taking into account the large number of concerned stakeholders, new methods of cooperation have been designed.18 This has been the case with multi-​sectoral cooperation. Such a type of relationship embodies the principle of the division of labor—​considering each institution’s expertise and the resulting comparative advantages—​but in a coordinated upstream framework based on specific and identified purposes. Cooperation is therefore carried out primarily through the identification of specific goals. The activities recognized as being essential to achieving these goals are subsequently distributed among the various agencies with a view to making their coordinated pooling truly effective.19 With respect to the fight against pandemics, the Secretary-​General appointed a special coordinator in 2005 for avian and human influenza20 and in 2014 for Ebola.21 In 2006, the UN system’s joint strategic approach was published in 16  See “United Nations System:  Chief Executives Board for Coordination—​ United Nations Development Group (UNDG),” http://​www.unsceb.org/​content/​undg. 17   Maurice Bertrand, “Article 58,” in La Charte des Nations Unies: commentaire article par article, ed. Alain Pellet, Jean-​Pierre Cot, and Mathias Forteau (Paris: Economica, 2005), 1543–​54. 18   Laurence Boisson de Chazournes, “Les Relations entre organisations régionales et organisations universelles,” in Collected Courses of the Hague Academy of International Law (Leiden/​Boston: Martinus Nijhoff, 2011), vol. 347, 79–​406 stating: “While concern for pragmatism demands flexibility to render cooperation between the UN and regional organizations more efficient, the diverse relations between organizations creates more complexity, at times obscuring their legal profiles.” (Original in French; translation by the author.) 19   For a detailed analysis of methods of coordination see Hélène De Pooter, Le Droit international face aux pandémies: vers un système de sécurité collective? (Paris: Pedone, 2015), 247–​68. 20   See decisions of the UN Secretary-​General, September 29, 2005, UN Doc. SG/​A/​946 SAG/​398. 21   See decisions of the UN Secretary-​General, August 25, 2014, UN Doc. SG/​A/​1499.

 

696    relations with other international organizations the “Avian and Human Pandemic Influenza:  UN System Contributions and Requirements:  Strategic Approach” (UNSIC strategy),22 and was later followed by the publication of the “UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza” (UNCAPAHI).23 This “multi-​sector, multi-​ level, ‘Whole of Society’ approach,”24 involving non-​ UN intergovernmental institutions,25 is defined by its goal-​oriented nature (namely the realization of seven goals in the UNCAPAHI26) and by the flexibility27 of the coordination conducted by the special coordinator. A similar approach has also been followed in the fight against Ebola. In the road map28 issued by the World Health Organization (WHO) as an emergency response to the intensification of the disease spread, the organization identified common goals29 to be achieved by a multiplicity of actors,30 including private sector, civil society, and religious leaders. Within this framework, the special representative of the Secretary-​General has been assigned to play an important coordinating role

 UNSIC, Avian and Human Pandemic Influenza:  UN System Contributions and Requirements: A Strategic Approach, UNSIC/​Strategy/​DN/​Final (January 13, 2006), http://​siteresources.worldbank. org/​PROJECTS/​Resources/​40940-​1136754783560/​UNSIC-​Strategy.pdf. 23  UNSIC, UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza, Revisions July 2011, http://​un-​influenza.org/​sites/​default/​files/​UNCAPAHI-​June2011.pdf. 24  UNSIC, 2011 Annual Report, 3, http://​www.un-​influenza.org/​sites/​default/​files/​UNSIC%202011% 20Annual%20Report%20%20Final_​0_​0.pdf. This approach is defined by the following guiding principles: “Multi-​sectoral action is essential, Actions are implemented at many levels … A multiplicity of actors should be involved … Interventions must be sustainable … The implementation approach should be flexible … Continuity of vital operations matters during a pandemic.” UNSIC, Avian and Human Pandemic Influenza, 6, § 12. 25   This involvement is an application of the multiplicity of actors principle: “UNSIC is building close linkages with other stakeholders including development banks … private entities, professional bodies, non-​governmental organizations … to secure high level international commitment to joint action at the political level … ”: UNSIC, Avian and Human Pandemic Influenza, 14, § 43. 26   See UNSIC, UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza, Revisions July 2011, 8 et seq. 27   Due to the specificity of the subject matter, flexibility is an essential feature of the actions taken at all levels: “The global response needs to be flexible and capable of continuous and swift evidence-​based adaptation as new information about the virus and the effectiveness of interventions becomes available”: UNSIC, Avian and Human Pandemic Influenza, 7, § 12.5. 28   “Ebola Response Roadmap,” http://​apps.who.int/​iris/​bitstream/​10665/​131596/​1/​EbolaResponse Roadmap.pdf?ua=1. 29   “1. To achieve full geographic coverage with complementary Ebola response activities in countries with widespread and intense transmission. 2. To ensure emergency and immediate application of comprehensive Ebola response interventions in countries with an initial case(s) or with localized transmission. 3. To strengthen preparedness of all countries to rapidly detect and respond to an Ebola exposure, especially those sharing land borders with an intense transmission area and those with international transportation hubs”: ibid., 6. 30   The plan enumerates: national governments, local political, community, traditional and religious leaders, WHO, UN agencies, NGOs, national and international technical agencies and academic institutions, humanitarian organizations, donors, private sector: see ibid., 16–​18. 22

 

relationships between international organizations    697 at the international level31, both before the launch of the UN-​led plan setting up a common operational platform and thereafter.32 Another important feature of this approach, enshrined in § 12 of the UNSIC strategy, is the involvement of diverse actors. For instance, the Central Fund for Influenza Action, established by the special coordinator, designed as a central financing mechanism, gives form and substance to this feature, allowing for the participation of organizations from outside the UN system.33 Within the joint UN program to combat HIV/​AIDS, the eleven co-​sponsors operate in a similar pattern of concrete target identification.34 Once the objectives have been determined, their coordination is aided by their distribution among different agencies. The completion of each objective is supported by a clearly identified number of organizations,35 one of which assumes a leadership role. For example, within the UNCAPAHI, the objective of “Protecting Human Health” lies with the WHO, the International Labour Organization (ILO), the UN Children’s Fund (UNICEF), International Organization for Migration, and the UN High Commissioner for Refugees, while the task of “Coordination of National, Regional and International Stakeholders” lies under the mandate of the UN Development Programme (UNDP), UNSIC, the UN Office for the Coordination of Humanitarian Affairs, and the World Food Programme.36 Within the UNAIDS framework, as the lead agency, the UN Educational, Scientific and Cultural Organization (UNESCO) works in partnership with the ILO, the UNs Population Fund, UNICEF, and the WHO on the subject of “HIV prevention with young people in educational institutions.”37 International organizations have also confronted concerns regarding the risk of overlaps and gaps for the sake of effectiveness. This has induced them to include a breakdown of their activities within the framework of cooperation agreements. The agreement between the UN Food and Agriculture Organization (FAO) and the   “The UN through the UNSG’s Special Representative has responsibility for coordinating the overall, multisectoral support to States with intense, widespread transmission (currently Guinea, Liberia, and Sierra Leone)”: ibid., 15. 32   “UN-​led plan will be launched to complement the Ebola Response Roadmap by providing a common operational platform for enhancing response activities and for addressing the broader consequences of the outbreak. The UN-​led plan is expected to underpin support for the increasingly acute problems associated with food security, protection, water, sanitation and hygiene, primary and secondary health care … ”:  ibid., 7.  See also “2015 WHO Strategic Response Plan:  West Africa Ebola Outbreak,” http://​apps.who.int/​iris/​bitstream/​10665/​163360/​1/​9789241508698_​eng.pdf. 33   De Pooter, Le Droit international face aux pandémies, 256. 34  See “UNAIDS Strategy 2011–​2015,” http://​www.unaids.org/​en/​aboutunaids/​unaidsstrategygoals by2015/​. 35   See UNSIC, UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza, Revisions July 2011, 6. 36  Ibid. 37  See http://​www.unesdoc.unesco.org/​images/​0014/​001473/​147360E.pdf, 16, or “UNAIDS Division of Labour: Consolidated Guidance Note 2010,” http://​www.unaids.org/​en/​media/​unaids/​contentassets/​ documents/​unaidspublication/​2011/​JC2063_​DivisionOfLabour_​en.pdf, 5. 31

 

698    relations with other international organizations International Office of Epizootics (IOE), adopted in May 2004,38 lists the responsibilities of each organization, as well as the activities that are subject to joint action. In the development area, there have been attempts to prevent overlaps and wasteful competition in the activities of the concerned institutions and organizations. The UNDP expanded its original coordination mission39 by gradually establishing technical assistance and operational activities. This resulted in interference with specialized institutions’ activities as well as competition for funding. A  recent restructuring resulting from a decline in UNDP’s resources offers space for reform. It is proposed to make the Program a “manager of a field network”40 by focusing on its coordination role. As a critical coordinator, UNDP could be the central “brain” in the development area, as was foreseen by Sir Robert Jackson in his study of the capacity of the UN Development System in 1965.41 Actions undertaken to tackle overlapping issues can sometimes take place through the establishment of a joint body. As part of this pooled activities approach, the FAO and IOE have created a Global Framework for the Progressive Control of Transboundary Animal Diseases, which “combines the strengths of both organizations to achieve agreed common objectives”42 in accordance with the approach described above. These initiatives aim to assist regional coalitions in combating transboundary animal diseases. Cooperative arrangements between organizations may include a financial component. Financing is usually pursued through ad hoc arrangements, ranging from fully fledged formal agreements43 and informal instruments such as Memoranda of Understanding (MoUs),44 to agreements incorporating the standard conditions adopted by one organization.45   “Agreement between the Food and Agriculture Organization of the United Nations (FAO) and the Office International Des Epizooties (OIE),” http://​www.oie.int/​en/​about-​us/​key-​texts/​cooperation-​ agreements/​agreement-​with-​the-​food-​and-​agriculture-​organization-​of-​the-​united-​nations-​fao/​. 39  GA Res. 2029 (XX), “Consolidation of the Special Fund and Expanded Programme of Technical Assistance in a United Nations Development Programme,” November 22, 1965, UN Doc. A/​RES/​2029 (XX). 40   Stephen Browne and Thomas G. Weiss, “The UN Development Program: A New Crisis or a New Opportunity?,” http://​passblue.com/​2014/​06/​10/​the-​un-​development-​program-​a-​new-​crisis-​or-​a-​new-​ opportunity/​. 41   “I have looked for the ‘brain’ which guides the policies and operations of the UN development system. The search has been in vain”: Sir Robert Jackson, A Study of the Capacity of the United Nations Development System (Geneva: UN Publications, 1969), vol. 1, 13. 42  Text approved by FAO and OIE, The Global Framework for the Progressive Control of Transboundary Animal Diseases (GF-​TADs) (May 24, 2004), 3, http://​www.oie.int/​rr-​europe/​eng/​Projects/​GF-​TADs_​2004.pdf. 43  See, e.g., the Co-​financing Agreement between the Nordic Development Fund, the African Development Bank, and the African Development Fund (1995), http://​www.afdb.org. 44   See, e.g., the MoU on an Enhanced Strategic Partnership for Cooperation in the African Countries between the European Commission, the European Investment Bank, and the African Development Bank (2005), http://​www.afdb.org. See also the MoU between the European Bank for Reconstruction and Development, the African Development Bank and the African Development Fund (2011), http://​www.afdb.org. 45   See, e.g., the World Bank Standard Conditions for Grants Made by the World Bank out of Various Funds (2010), http://​www.worldbank.org. 38

 

relationships between international organizations    699 These cooperative agreements among international organizations represent an important vector of emulation for adopting similar operational standards. They also lead to procedural harmonization.46 In the development assistance field, emulation between institutions helps, in fact, to reduce transaction costs and, in turn, to facilitate collaboration among institutions. Another form of cooperative practices among institutions is the establishment of mechanisms for cooperation and mutual recognition. The fight against corruption is illustrative of such practices. The actions undertaken and policies adopted by the World Bank and other financial institutions have inspired cooperation. In this respect, in September 2006, the Uniform Framework for Preventing and Combating Fraud and Corruption was put in place by the leaders of the African Development Bank (AfDB) Group, the Asian Development Bank (ADB), the European Bank for Reconstruction and Development, the European Investment Bank Group, the International Monetary Fund (IMF), the Inter-​ American Development Bank (IDB), and the World Bank Group.47 The uniform framework has two main components:  the adoption of common definitions of fraud and corruption and the development of common investigatory principles. Each institution has a distinct mechanism for addressing and sanctioning violations of its respective anticorruption policies. The task force that had been established laid the groundwork for the mutual recognition of decisions made by each of the enforcement mechanisms. An additional step was taken by ensuring the mutual recognition and enforcement of decisions taken by competent bodies within these institutions. The AfDB Group, the ADB, the ERDB, the IDB Group, and the World Bank Group affirmed their mutual commitment to implementing each other’s decisions in an agreement concluded on April 9, 2010.48 Although each organization generally carries out its own investigation, in some cases one organization may need to share information with another. In fact, financial institutions share information routinely on matters of common interest, such as in cases of co-​financed projects. In this context, rather than duplicating efforts through parallel investigations, the institutions may coordinate investigations or one financial institution may take the lead in an investigation.49 These situations 46  Laurence Boisson de Chazournes, “Partnerships, Emulation, and Coordination:  Toward the Emergence of a Droit Commun in the Field of Development Finance,” in The World Bank Legal Review: International Financial Institutions and Global Legal Governance, ed. Hassane Cissé, Daniel D. Bradlow, and Benedict Kingsbury (Washington, DC: The World Bank, 2012), III, 179–​82. 47  “International Financial Institutions Anti-​C orruption Task Force,” http://​w ww.afdb.org/ ​ f ileadmin/​ u ploads/​ a fdb/​ D ocuments/​ G eneric-​ D ocuments/ ​ 3 07 16700- ​ E N- ​ U NIFORM​FRAMEWORK-​FOR-​COMBATTING-​FRAUD-​V6.PDF. 48   “Agreement for Mutual Enforcement of Debarment Decisions,” http://​siteresources.worldbank. org/​NEWS/​Resources/​AgreementForMutualEnforcementofDebarmentDecisions.pdf. 49   See World Bank Group, “The World Bank Group: Mutual Enforcement of Debarment Decisions among Multilateral Development Banks,” 3, para. 9, http://​siteresources.worldbank.org/​INTDOII/​ Resources/​Bank_​paper_​cross_​debar.pdf.

 

700    relations with other international organizations call for enhancing common approaches such as the harmonization of policies and practices in relation to sanctions.50

Other Types of Relationships Relationships with other international organizations can include situations in which the activities of an organization are subject to logistical, financial, or material support from another organization. For the purpose of protecting the global environment and as part of actions for sustainable development, partnerships between international organizations have been encouraged and developed. For example, the Agenda 21 action plan, adopted in 1992 at the UN Conference on Environment and Development, encourages the UNDP, the World Bank, and regional development banks to implement actions and programs to promote capacity-​building and resources on environmental protection in developing countries.51 Other examples are the partnerships established by the UN Environment Programme (UNEP) in the context of the Regional Seas Program.52 Several regional organizations function as a secretariat for the agreements negotiated under the auspices of UNEP. Regional organizations can also be executing agencies of UNEP strategies. This is the case of the Permanent Commission for the South Pacific, the Regional Organization for the Protection of the Marine Environment, and several regional fisheries organizations.53 In the field of protected marine areas, mention can also be made of the cooperation between the implementing agencies of the Global Environment Facility, namely the World Bank, UNDP, and UNEP, and the Organization for the Conservation of the Environment of the Red Sea and Gulf of Aden.54 Lastly, besides institutional arrangements aimed at dealing with relationships, one should mention the practice of granting observer status.55 It is the most 50   See Stephen Zimmermann and Frank A. Fariello Jr., “Coordinating the Fight against the Fraud and Corruption: Agreement on Cross-​Debarment among Multilateral Development Banks,” in The World Bank Legal Review: International Financial Institutions and Global Legal Governance, ed. Hassane Cissé, Daniel D. Bradlow, and Benedict Kingsbury (Washington, DC: The World Bank, 2012), vol. 3, 189–​204. 51   See “Agenda 21,” ch. 37.11, http://​sustainabledevelopment.un.org/​content/​documents/​Agenda21.pdf. 52   See “UNEP Regional Seas Programme,” http://​www.unep.org/​regionalseas/​. 53   For the list of regional organizations concerned, see “Regional Organizations,” http://​www.unep. org/​regionalseas/​partners/​regional/​default.asp. 54   Information available at http://​www.gefcountrysupport.org/​report_​detail.cfm?projectId=156 and http://​www.persga.org/​inner.php?id=96. 55   e.g., eight international organizations were granted an observer status with the WTO General Council meetings (the FAO, the IMF, International Trade Centre, the OECD, the UN, UN Conference on Trade and Development (UNCTAD), the World Bank, and the World Intellectual Property Organization).

 

public–private partnerships   701 widespread and direct way of establishing institutional relations. Observer status is important because it allows the organizations concerned to exchange information and coordinate their respective policies. It is also an act of diplomatic recognition which can contribute to more transparency between organizations, as well as greater harmonization and coherence in the activities of international organizations.56

Public–​Private Partnerships as  a Means of Diversifying Relationships International organizations increasingly interact and cooperate with a wide range of new actors for achieving public goals. In some circumstances an organization may have the mandate and the ability to accomplish a new task but lack the technical or financial means to do so in an efficient manner. In this context, the assistance provided by nonstate actors can be useful. Nonstate actors—​such as individuals, nongovernmental organizations, foundations, scientific associations, and the private sector—​play an increasingly important role in the life of international organizations. New tools have been put in place to allow for close collaboration between these actors. Due to the need to mobilize new resources, partnerships have been established in the area of fresh water.57 As a transversal issue, the various facets of water governance concern a number of international organizations, including UNEP, UNDP, the World Bank, UNESCO, and the WHO, to name a few. As a result, the various stakeholders felt it necessary to coordinate water-​related activities to prevent overlaps and render water governance more effective. In addition, there is a wide array of nonstate actors—​public and private—​involved in this area. Institutional partnerships were established whereby states, international organizations, and nonstate actors work together to pool their respective competences. During the 1990s, two new institutions were created to deal with fresh water issues: the World Water Council and the Global Water Partnership.58   See René-​Jean Dupuy, “Le Droit des relations entre les organisations internationales,” in Collected Courses of the Hague Academy of International Law (Leiden/​Boston: Martinus Nijhoff, 1960), vol. 100, 457–​589. 57  See Laurence Boisson de Chazournes, Fresh Water in International Law (Oxford:  Oxford University Press, 2013), 189. 58   See Edouard Fromageau, “The Global Water Partnership: Between Institutional Flexibility and Legal Legitimacy,” International Organizations Law Review 8 (2011): 367–​95. See also “Global Water Partnership,” http://​www.gwp.org. 56

 

702    relations with other international organizations The former was established in 1996 as an association under French law. It acts as a think-​ tank on water resource matters and aims to identify, raise awareness of, and catalyze action on critical water issues, as well as to promote the efficient management and use of water in an environmentally sustainable way.59 The Global Water Partnership, also established in 1996, was conceived as a partnership among all entities—​national and international, public and private—​involved in water resources management. The mission of the Global Water Partnership is to strive for an integrated approach to managing the world’s water resources through operational activities, while taking its guiding principles from the Dublin and Rio statements, the Millennium Development Goals,60 and the Plan of Implementation of the World Summit on Sustainable Development 2002 (Johannesburg Plan of Implementation).61 In 1990, the UN General Assembly (UNGA) established the Water Supply and Sanitation Collaborative Council (WSSCC).62 It serves as a body to coordinate collaboration in respect of water supply, sanitation, and hygiene sectors, and is composed of a wide variety of stakeholders. These include over 4,000 individual members in more than 160 countries, as well as coalitions of professionals in thirty-​ five different countries. The coalitions are led by national coordinators that serve as coalition heads, spokespersons, and advocates for sanitation, hygiene, and water supply issues. The WSSCC has a Secretariat based in Geneva within the UN Office for Project Services.63 It is committed to delivering a universal sustained water supply, as well as sanitation and hygiene, and also engages with issues of finance in the context of contributing to the fulfillment of the Millennium Development Goals and the Johannesburg Plan of Implementation (2002). The importance of private sector involvement has also been seen as critical in the health field.64 Public institutions consider private sector involvement to be crucial in the fight against pandemics, as highlighted in the UNCAPAHI,65 because they

59   See “World Water Council,” http://​www.worldwatercouncil.org/​index.php?id=1. See also World Water Council, A New Water Politics:  Strategy 2010–​2012 (Marseille:  World Water Council, 2010), http://​www.worldwatercouncil.org/​fileadmin/​wwc/​Library/​Publications_​and_​reports/​New_​Water_​ Politics.pdf. 60   GA Res. 55/​2, “United Nations Millennium Declaration,” September 8, 2000, UN Doc. A/​RES/​55/​2. 61   Plan of Implementation of the World Summit on Sustainable Development (Johannesburg Plan of Implementation), September 4, 2002, UN Doc. A/​CONF/​.199/​20, Chapter 1, Res. 2. 62   GA Res. 45/​181, “International Drinking Water Supply and Sanitation Decade,” December 21, 1990, UN Doc. A/​RES/​45/​181. 63  See “Water Supply & Sanitation Collaborative Council,” http://​w ww.wsscc.org/​about-​us/​ organization. 64   See Gian Luca Burci, “Public/​Private Partnerships in the Public Health Sector,” International Organizations Law Review 6 (2009): 359–​82. 65  UNSIC, UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza, Revisions July 2011, 5.

 

public–private partnerships   703 recognize their inability to fight alone in a decisive manner all the deleterious effects of these threats.66 The multi-​sectoral nature of the global pandemic threat, as well as the need for a multilevel approach,67 require participation of nongovernmental actors. This is clearly stated in the “Avian and Human Pandemic Influenza:  UN System Contributions and Requirements:  Strategic Approach” (UNSIC) report, which mentions broad participation as one of its guiding principles.68 UNSIC regularly stresses the importance of these implications.69 Partnerships conducted by UNAIDS have proved to be powerful catalysts to bolster the establishment of public–​private partnerships. Although some partnerships initially focused on the fight against AIDS, they have since expanded their mission to cover health problems in general.70 In the anti-​malaria framework, the WHO provides both funding and support to the public–​private partnership “Medicines for Malaria Venture,” which was established as a foundation in Switzerland in 1999. Other contributors include Exxon Mobil and the Swiss Agency for Development and Cooperation.71 If the added value of partnerships is quite clear from functional and operational points of view, the multiplication and coexistence of different structures of partnership create complexity. Partnerships can take many forms. They can be laid down in formal or informal agreements. However, these agreements are sometimes far from clear about their objectives and the role and responsibilities of each participant. In practice, a wide range of institutional models have been used, ranging from loosely structured entities, such as networks, to collaboration through semi-​autonomous entities.

  “SARS and AIDS experience revealed that no set of national, regional or global institutions has sufficient capacity or reach to minimize the potential health, economic, governance, and societal impacts of the avian and human influenza threat. Well focused and coordinated engagement of public institutions, private sector actors, commissions (regional and functional) and community based organizations is necessary to meet global intervention requirements”:  UNSIC, Avian and Human Pandemic Influenza, 7. 67  UNSIC, UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza, Revisions July 2011, 2. 68  UNSIC, Avian and Human Pandemic Influenza, 7 § 12.2 and 12.3. 69  UNSIC, 2011 Annual Report, 6, “Public-​Private-​Civil Society Partnerships Are an Important Area to be Developed for Better API Response,” http://​www.un-​influenza.org/​sites/​default/​files/​UNSIC%20 2011%20Annual%20Report%20-​%20Final_​0_​0.pdf. 70  On these points, see UNAIDS, “HIV-​ Related Public-​ Private Partnerships and Health Systems Strengthening,” http://​data.unaids.org/​pub/​Report/​2009/​jc1721_​publicprivatepartnerships_​ en.pdf. 71   See “Medicines for Malaria Venture (MMV):  Our Donors,” http://​w ww.mmv.org/​about-​us/​ our-​donors. 66

 

704    relations with other international organizations

Participation of the European Union in International Organizations:  Need for Adaptation from Other International Organizations The EU is distinct in many respects from other organizations. Due to the specific character of this institution, its relationship with other international organizations is unique. This is a regional organization which has been transferred competences from its member states. The transfer process has evolved over time. Starting with trade policy, the external powers of the EU developed with the expansion of the Union’s internal powers. This was inevitable given that member states could have affected the internal progress by assuming individual obligations with nonmembers.72 The growth of the external competences of the EU in economic, social, and regulatory areas, as well as the need to participate in other organizations, went hand in hand. Meanwhile, within the EU, member states felt the need to achieve a high degree of cooperation in foreign policy and defense.73 The Lisbon Treaty74 has consolidated the institutional evolution by providing for a merger into one organization, the EU, with a single legal personality. The above discussion helps to illustrate that relations between the EU and other international organizations are the result of internal developments in the European Community.75 Difficulties were often compounded because of the gradual nature of the transfer of powers from member states to the EU. In addition, many competences concerning external relationships had to be shared between the EU and its member states. Therefore, the organization has often tried to gain membership in international organizations alongside, rather than in lieu of, its member states. Specific techniques were then developed to address these needs, such as declarations on the division of powers between the Community and its member states and special agreements regarding the exercise of the right to speak and vote. 72   Case 22-​70, Commission of the European Communities v Council of the European Communities—​ European agreement concerning the work of crews of vehicles engaged in international road transport (1971) ECJ Rep 263 (March 31, 1971), § 17. 73   Article 1, § 3 of the Consolidated Versions of the Treaty on European Union and Treaty on the Functioning of the European Union, 2008/​C 115/​01. See also, Pieter-​Jan Kuijper, “Superpower Frustrated? The Costs of Non-​Lisbon in EU External Affairs,” German Yearbook of International Law 51 (2008): 9–​37, 10. 74  Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, December 13, 2007, Official Journal of the European Union, Notice no. 2007/​ C 306/​01. 75   The European Community (EC) was one of the three pillars of the EU with a Common Foreign and Security Policy pillar and a Police and Judicial Cooperation in Criminal Matters pillar.

 

participation of the eu in international organizations    705 Four models of the adaptation of international organizations to accommodate the EU have emerged in practice:  automatic succession of the member states, autonomous or shared membership, observer membership status, and enhanced participation. Under the General Agreement on Tariffs and Trade (GATT), the European Community succeeded its member states automatically in the negotiation of the European Economic Community’s common external tariff, which replaced the tariffs of all member states. Thus, all obligations of member states on tariffs and customs under the GATT were assumed by the European Community, while member states remained parties to the GATT. The Court of Justice of the European Communities confirmed this in 1972, noting that the other contracting parties had consented to and accepted the Community as the legitimate interlocutor for tariff negotiations.76 The first international organization to grant membership to the European Community was the FAO in 1991. This was in large part due to the fact that the European Community had obtained significant powers in the field of agriculture with the implementation of the common agricultural policy. In addition, in the field of fisheries, the conservation of the living resources of the seas had become an exclusive competence of the Community in 1972.77 On the other hand, competences of the member states were also covered by the activities of the FAO. The accession of the European Community required a revision of the FAO Constitution.78 To determine clearly when the Community and individual member states could each exercise their own powers, an elaborate system of declarations was established concerning competence in general and the right to speak and vote during the general meetings of the FAO in particular.79 A similar arrangement was developed when the European Community acceded in 2003 to the Codex Alimentarius.80 Since the de facto succession of the European Community to the GATT, it has become a founding member of the WTO alongside its member states.81 There were no arrangements made regarding the allocation of competences between the Community and its member states or as to who could speak and vote on any given subject. The European Commission was de facto accepted to be the sole spokesperson for the Community and its member states, including on new issues to be 76   Joined Cases, 21 to 24-​72, International Fruit Company NV and others/​Produktschap voor Groenten en Fruit (1972) ECJ Rep 1219 (December 12, 1972), §§ 15–​19. 77   Joined Cases, 3, 4, and 6–​76, Cornelis Kramer and others (1976) ECJ Rep 1279 (July 14, 1976), §§ 30–​3 and 40. 78   Available at http://​www.fao.org/​docrep/​meeting/​022/​K8024E.pdf. 79   Rachel Frid, “The European Economic Community: A Member of a Specialized Agency of the United Nations,” European Journal of International Law 4 (1993): 239–​55, 250. 80   See “Accession of the European Community to the Codex Alimentarius Commission,” http://​ europa.eu/​legislation_​summaries/​food_​safety/​international_​dimension_​enlargement/​f84006_​fr.htm. 81  See Art. XI of the WTO Agreement:  Marrakesh Agreement Establishing the World Trade Organization, April 15, 1994, http://​www.wto.org/​english/​docs_​e/​legal_​e/​04-​wto.pdf.

 

706    relations with other international organizations discussed at the WTO, such as trade in services and intellectual property, in which member states had retained some powers.82 The EU was accepted as an observer to the UNGA when it became clear that its activity was no longer simply of an economic nature.83 The European Commission has also been accepted as an observer member of ECOSOC because of its significant contribution to the economic field.84 Recently, the UNGA granted a strengthened observer status to the EU.85 The EU has been invited as an observer member in other universal international organizations without much difficulty. The EU, usually represented by the Commission, has obtained observer status in several institutions and organizations of the UN family, such as the UN Conference on Trade and Development (UNCTAD), UNEP, the UN Industrial Development Organization, UNESCO, the International Atomic Energy Agency, the International Civil Aviation Organization (ICAO), and the International Maritime Organization (IMO). In some cases, the status of being an observer may become insufficient in light of the growing importance and nature of activities of the Community, such as in the field of civil aviation and navigation. Thus, confining the EU to having observer status in the ICAO and IMO is unsuitable or, at least, no longer realistic. Faced with such situations, the EU has been able (although only in specific cases) to obtain a sort of right to greater participation from organs of other international organizations. Observers have no real right to participate since they can only speak with the permission of the president of the meeting, and only at the end of a session. This is insufficient if the organization needs to respond effectively in a debate to, inter alia, make suggestions or propose amendments or to intervene when necessary to influence discussions. It is from this insufficiency that the right to increased participation (a kind of enhanced observer status) is born. At present, this right has been used to take part in important legislative activities of international organizations. This was particularly the case within the WHO and UNESCO during the drafting of the 82   Agreement Establishing the WTO, Opinion of the Court of Justice of the European Communities 1/​94, (1994) ECJ Rep I-​5267 (November 15, 1994), § 105. 83   See GA Res. 3208, “Status of the European Economic Community in the General Assembly,” October 1, 1974, UN Doc. A/​RES/​3208 (XXIX). 84  ECOSOC Res. 1949 (LVIII), reproduced in UN Doc. E/​5715/​Rev.2. See Frank Hoffmeister and Pieter Jan Kuijper, “The Status of the European Union at the United Nations: Institutional Ambiguities and Political Realities,” in The United Nations and the European Union: An Ever Stronger Partnership, ed. Frank Hoffmeister, Jan Wouters, and Tom Ruys (The Hague: T. M. C. Asser Press, 2006), 19. 85   See GA Res. 65/​276, “Participation of the European Union in the Work of the United Nations,” May 3, 2011, UN Doc. A/​RES/​65/​276; see also Pieter-​Jan Kuijper et al., “The Procedure of Accession under Union Law,” in The Law of EU External Relations, Cases, Materials, and Commentary on the EU as an International Legal Actor, ed. Pieter-​Jan Kuijper et al., 2nd ed. (Oxford: Oxford University Press, 2015), 178.

 

relationships and responsibility issues    707 WHO’s Framework Convention on Tobacco Control86 and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions.87 This was also the case when the new International Health Regulations were negotiated and adopted.88 Many aspects of these instruments fall precisely within the Community’s competence, such as within trade or other domains. In each of these institutions, the EU has achieved a status that allows it to intervene in debates when it is necessary, without the permission of the president of the meeting, and to make proposals and amendments to those initiatives made by other participants.

Relationships with Other International Organizations and Responsibility Issues Development Assistance Cooperation is often sought to curb inefficiencies, and in particular with respect to resource allocations. That gives rise to complex and fast-​changing bundles of relationships, such as for example in the field of development assistance.89 That international law struggles to apprehend such manifestations of collaboration is palpable when one takes up the topic of international responsibility. The International Law Commission (ILC) tried to grapple with this problem in the articles on the responsibility of international organizations it adopted in 2011.90 From the outset, the acknowledgement that an international organization can incur responsibility in relation to a conduct other than its own (a situation referred to as derived responsibility), particularly in the cases spelled out in Chapter IV of the   Toward a WHO framework convention on tobacco control (WHA52.18), May 24, 1999, Resolution of the 52nd Assembly of the WHO. See “WHO Framework Convention on Tobacco Control,” http://​ whqlibdoc.who.int/​publications/​2003/​9241591013.pdf. 87   See “Convention on the Protection and Promotion of the Diversity of Cultural Expressions,” http://​unesdoc.unesco.org/​images/​0014/​001429/​142919e.pdf. 88  See “International Health Regulations 2005,” http://​whqlibdoc.who.int/​publications/​2008/​ 9789241580410_​eng.pdf. 89  Laurence Boisson de Chazournes, “United in Joy and Sorrow:  Some Considerations on Responsibility Issues under Partnerships among International Financial Institutions,” in Responsibility of International Organizations:  Essays in Memory of Sir Ian Brownlie, ed. Maurizio Ragazzi (Oxford: Oxford University Press, 2013), 211–​24. 90   See GA Res. 66/​100, “Responsibility of International Organizations,” December 9, 2011, UN Doc. A/​RES/​66/​100. 86

 

708    relations with other international organizations articles,91 ushers in a concept of responsibility that is more balanced and potentially more ambitious than its equivalent in the field of state responsibility. It is more balanced because derived responsibility stands on an equal footing with responsibility for one’s own acts, while this is a mere exception in the articles on state responsibility, which the ILC adopted in 2001.92 In the context of the legal framework of partnerships, the model of derived responsibility comes to mind first, but that of independent responsibility also deserves attention. Such paradigms, in fact, complement and eventually overlap with one another to grasp the many modes of partnership-​based collaboration. The shared responsibility of partner international organizations could arise from a single wrongful act attributable to more than one organization, from the sum of the distinct, individual wrongful acts of two or more organizations, as well as from the contribution of one international organization to the wrongful conduct of another. In the broad panorama of partnerships, the category of independent responsibility may prove valuable to address one of the most common forms of collaboration among international financial institutions, namely project co-​f inancing. Another option for framing the relationship between two or more partner organizations under the articles on the responsibility of international organizations is to attribute responsibility to an organization in connection with the wrongful acts of others. The provisions in question—​namely, Articles 14, 15, and 16—​have not generated much debate, the assumption being widely shared that international organizations could incur responsibility without being attributed the acts of other states or organizations.93 Yet, despite an apparent consensus, derived responsibility is hardly straightforward. The circumstances under which it arises and its consequences have largely remained underdeveloped, in the shade of the dominant paradigm of independent responsibility.94

  See particularly Arts 1(1) and 14–​19. Aside from Chapter IV-​t ype situations, the Commission stated:  “Another case in which an international organization may be held responsible is that of an internationally wrongful act committed by another organization of which the first organization is a member.” Draft Articles on the Responsibility of International Organizations, with commentaries 2011 (ARIO Commentaries), Report of the International Law Commission on the Work of its 63rd Session, Gen. Ass. Off. Recs. Sixty-​Sixth Session, Supp. No. 10 (A/​6 6/​10), 69–​1 72, at 72, § 4. 92   Article 1 on State Responsibility speaks of responsibility for “every internationally wrongful act of a State,” contrary to the Special Rapporteur’s proposal that “every internationally wrongful act by a State gives rise to international responsibility”: Roberto Ago, “Second Report on State Responsibility (A/​CN.4/​233),” Yearbook of the International Law Commission II (1970): 177–​97, 187, § 29. 93   Giorgio Gaja, “Third Report on the Responsibility of International Organizations,” May 13, 2005, UN Doc. A/​CN.4/​553, 13, § 25. 94  According to Ian Brownlie, the principles of the allocation of responsibility among multiple actors are “indistinct”: James Crawford, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012), 554. 91

 

relationships and responsibility issues    709

Peace and Security Legal and operational relationships between the UN Security Council (UNSC) and regional organizations have evolved in the area of the maintenance of international peace and security. This has implications in terms of the division of responsibilities between the UN and regional organizations. The end of the Cold War was accompanied by a reactivation of the UNSC and a strengthening of the use of regional organizations in a new environment for the decentralized execution of coercive force. Moreover, the lack of resources, financial and military, available to the Council for the implementation of the collective security system has led this body to turn more often to regional organizations to share the burden of this responsibility. This could lead one to think that there would be an increasing invocation of Chapter VIII of the UN Charter, which deals with regional arrangements. This is not the case, however.95 The practice of the UNSC has become very flexible in referring to Chapter VII as well as to Chapter VIII for authorizing security operations by a regional organization.96 This shows that, in reality, the discussions on the conditions for the invocation of Chapter VII or VIII are of little interest to the UNSC,97 with the latter using different legal forms for its cooperation with regional organizations. The pragmatism of the UNSC has prevented the emergence of tensions between the UN and regional organizations. The practice of the UNSC in this highly political area bears the risk of creating conceptual confusion that has implications for the analysis of the interrelationship between legal institutions. This confusion is compounded by, for example, the emergence of hybrid models of cooperation between the UN and regional organizations. In fact, the UN and regional organizations may find themselves in situations that require close cooperation. Such is the case with the hybrid force model used in Darfur. This hybrid model raises many questions with regard to the attribution of responsibility for the wrongful uses of force. One can wonder whether the “ultimate authority and control” test proposed by the European Court of Human Rights in Behrami and Saramati98 could be applicable here, and how this can be distinguished

 See the observations of Linos-​ Alexandre Sicilianos, “Entre multilatéralisme et unilatéralisme: l’autorisation par le Conseil de sécurité de recourir à la force,” Collected Courses of the Hague Academy of International Law (Leiden/​Boston: Martinus Nijhoff, 2008), vol. 339, 9–​436, 267. 96   Patrick Daillier, “L’Intervention des organisations internationales dans les conflits armés. Sécurité ‘collective’ et sécurité régionale,” in Les Organisations internationales et les conflits armés, ed. Madjid Benchikh (Paris: L’Harmattan, 2002), 63; Christine Gray, International Law and the Use of Force, 3rd ed. (Oxford: Oxford University Press, 2008), 284. 97   Giorgio Gaja, “The Use of Force Made or Authorized by the United Nations,” in United Nations at Age Fifty: A Legal Perspective, ed. Christian Tomuschat (The Hague/​Boston/​London: Kluwer Law International, 1995), 53. 98   Behrami v France, Saramati v France, Germany and Norway, ECHR, Applications 71412/​01 and 78166/​01, Judgment (May 2, 2007). In this case, to assess the attribution of KFOR actions to the UN in Kosovo, the Court considered whether the UNSC “retained ultimate authority and control so that 95

 

710    relations with other international organizations in the context of international responsibility in joint operations. The question is whether the difference between the two types of operation—​namely, the unification of command, control, and operational authority in the field of the hybrid operation, and the command and operational control reserved separately for other operations—​has implications for the application of a system of joint or autonomous responsibility. One should also note that the complexity of relations between the UN and regional organizations in maintaining peace and international security makes the joint-​responsibility option increasingly plausible. In his reports on the responsibility of international organizations, the Special Rapporteur Giorgio Gaja offers some examples of such a scenario. He raises the possibility of joint responsibility in the case of an operation conducted by an international organization in which another organization has contributed to the planning or execution of military action.99 This scenario could be applicable in the case of joint operations by the UN and a regional organization100 or as part of the hybrid operation, as in Darfur. The Draft Articles of the ILC also make reference to the case in which “an international organization which aids or assists … another international organization … in the commission of an internationally wrongful act.”101 This scenario of joint responsibility might occur when a regional organization (particularly NATO, the EU, or ECOWAS) lends its military contingents to the UN.102 Increased partnerships between the UN and regional organizations in the field of peace and security have contributed to the occurrence of complex issues of responsibility. Whether joint or concurrent responsibility, the strengthening of institutional and operational cooperation creates new legal problems in the law applicable to relationships with other organizations. operational command only was delegated”: § 133. See Laurence Boisson de Chazournes and Vassilis Pergantis, “A propos de l’arrêt Behrami et Saramati: un jeu d’ombre et de lumière dans les relations entre l’ONU et les organisations régionales,” in Perspectives of International Law in the 21st Century/​ Perspectives du droit international au 21ème siècle: Liber Amicorum Christian Dominicé in Honour of its 80th Birthday, ed. Marcelo G. Kohen, Robert Kolb, and Djacoba Liva Tehindrazanarivelo (Leiden/​ Boston: Brill, 2011), 193–​223.   See ILC, Special Rapporteur, “Second Report on Responsibility of International Organizations,” April 2, 2004, UN Doc. A/​CN.4/​541 (prepared by Giorgio Gaja), 4, § 7. 100   See International Civilian Mission in Haiti. 101   ILC, “Report of the ILC to the General Assembly for the Year 2009,” 64th Session, Supplement No. 10, UN Doc. A/​64/​10, 86. 102  Marten Zwanenburg, “Toward a More Mature ESDP: Responsibility for Violations of International Humanitarian Law by EU Crisis Management Operations,” in The European Union and Crisis Management, ed. Steven Blockmans (The Hague: T. M. C. Asser Press, 2008), 395–​415, 407; Sicilianos, “Entre multilatéralisme et unilatéralisme: l’autorisation par le Conseil de sécurité de recourir à la force,” 389; see also, mutatis mutandis, the ILC, “Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly, during its Sixty-​First Session, Prepared by the Secretariat, Report of the ILC on the work of the Fifty-Eighth Session (2006),” January 19, 2007, UN Doc. A/​CN.4/​577, 15, § 35. 99

 

concluding remarks   711

Concluding Remarks:  From an Interstate Model to  an Inter-​International Organizations Model The continuous expansion of mandates and activities of international organizations and the ever increasing interactions among them have highlighted the need for a better grasp of the relationship between them. In the various areas of international concern there is a common dynamic toward the increased involvement of international organizations. The functions and malfunctions of a UN decentralized system without an explicit hierarchy—​as well as the burst of competences among specialized institutions, programs and funds, and related organizations—​have revealed the limitations of the model. Successive reforms have attempted to improve the operation of the system. Cooperative schemes based on pragmatism, deference, and comparative advantages have emerged in response to these difficulties. They involve a variety of actors and are structured around a common objective. Neither vertical nor horizontal, they are organized in a network-​like pattern. They can include both public and private actors. Interestingly enough, the functionalist analytical grid sheds light on this phenomenon. It is the identification of collective concerns and of practical necessities for tackling them that have induced new forms of cooperation. They are based on de facto solidarities. However, in contrast to the post-​World War II interstate model, they are based on an inter-​international organization model. Moreover, there is a quest for a reconcentration on specific goals and activities involving an array of institutional actors. These new types of relationship raise legal challenges in terms of accountability and international responsibility. Solidarities and partnerships require a departure from an atomized perspective focused on the individual behavior of an organization and call for an approach that takes into account the multiple interactions and partnerships between international institutions.103

  See Boisson de Chazournes, “United in Joy and Sorrow.”

103

 

Chapter 33

RELATIONS WITH  CIVIL SOCIETY Jan Aart Scholte

A prominent development in recent decades of international organization has been the growing involvement of nongovernmental organizations (NGOs) and civil society actors more generally. Some 3,500 NGOs now have consultative status with the United Nations Economic and Social Council (ECOSOC). Since the 1990s hundreds of civil society associations attend the Annual Meetings of the International Monetary Fund (IMF) and the World Bank, as well as Ministerial Conferences of the World Trade Organization (WTO). Summits of the Group of 8 (G8) and the Group of 20 (G20) can attract thousands of street protesters. Questions of global governance have also figured prominently in the World Social Forum movement since 2001. In some cases, such as the Forest Stewardship Council (FSC) and the World Fair Trade Organization (WFTO), civil society actors themselves are making and implementing the rules of global governance. As global institutions have gained more importance in regulating contemporary society, civil society associations have, not surprisingly, turned more attention to these regimes. Modern political theory has generally conceived of civil society as a counterpart of the state. However, these state-​centric conceptions must now be adjusted to reflect altered circumstances where civil society actors also substantially engage with global regulatory processes, sometimes even bypassing national governments altogether.

 

what is civil society?    713 This chapter examines forms, consequences, and challenges of civil society involvement in contemporary global governance. The first section considers definitions of civil society. The second section maps the various involvements of civil society actors in global regulatory processes. The third section surveys different theoretical understandings of the relationship between civil society and global governance. The fourth section assesses the substantive impacts of civil society interventions in global governance—​that is, how civil society groups affect institutional developments, agendas, decisions, discourses, and deeper structures of global governance. The fifth section considers the relationship between civil society and legitimacy in global governance. The conclusion includes several suggestions for future enhancement of civil society engagement of global-​scale regulation.

What Is Civil Society? Like any key analytical concept, ‘civil society’ is open to multiple and often conflicting interpretations. These debates begin with the very definition of the term. What sorts of activities and circumstances does ‘civil society’ cover? Many researchers as well as practitioners of global governance treat civil society as synonymous with NGOs. From this perspective civil society is a collection of formally structured, legally registered, and professionally staffed organizations outside official and commercial sectors that undertake a variety of advocacy and service delivery operations. This is the civil society of Amnesty International, Friends of the Earth, Global Policy Forum, International Rescue Committee, Oxfam, Tax Justice Network, Women’s Environment & Development Organization, and so on. Yet the equation of civil society with NGOs can be overly narrow. Such a conception tends to ignore many informal and grassroots engagements of global governance. These might occur, for example, through Facebook groups, paramilitary cells, and spontaneous street demonstrations. In addition, conceptions of ‘NGOs’ often overlook the activities of social movements such as faith groups, labour unions, nationalist fronts, and peasant mobilizations. Discussions of ‘NGOs’ also generally neglect the important role in contemporary global governance of business lobbies such as chambers of commerce, employer federations, and industry associations. Foundations and research institutes arguably occupy the civil society field as well. Thus, while NGOs are certainly part of civil society, the net can be cast more widely in order to encompass a fuller scope of non-​official voices and influences in global regulatory processes.

 

714    relations with civil society That said, in another sense the equation of civil society with NGOs can be overly broad, particularly when the range of activities in question is extended to include service delivery. Many NGOs are today involved in global governance as implementers of projects under contract with bodies such as multilateral development banks and the UN Refugee Agency. Yet ‘civil society’ has traditionally been about overtly political concerns, such as relations between authorities and subjects, the dynamics of obtaining and exercising social power, and processes of constructing and embedding norms and rules. Of course, the provision of services such as humanitarian relief, health care, schooling, and policing has political dimensions. However, service delivery by NGOs is often mainly assessed for its efficiency and effectiveness as outsourced policy execution, without explicit attention to the politics of these activities. In such cases treating civil society as synonymous with NGOs can have a depoliticizing effect that underplays the workings of power in global governance. In order both to widen and to narrow the field relative to NGOs, civil society might be conceptualized as ‘a political space where associations of citizens seek, from outside political parties, to shape societal rules’. Such a definition restores the centrality of politics to civil society. Moreover, reference to a ‘space’ treats civil society less as an organization and more as an arena where people congregate to deliberate, strategize, and mobilize. Reference to ‘associations’ indicates that civil society involves group activities, whether through formal bodies or informal networks. Reference to ‘citizens’ signifies that people enter civil society to exercise their rights and fulfil their obligations as members of a political community. The exclusion of political parties is specified in order to underline that civil society operations do not normally aspire to occupy positions of official authority. However, civil society activities do aim ‘to shape societal rules’—​that is, to influence the principles, norms, laws, and standards that govern the collective life of human beings. Note also what this conception of civil society does not imply. It does not say that civil society is always wholly and neatly distinguishable from commercial, official, and political party activities:  in practice these sectors can partly overlap. In addition, this conception does not restrict civil society to a Western-​liberal-​modern cultural frame: one can also find civil society among clans, religious revivalists, and movements of indigenous peoples. Nor does the phrase ‘civil society’ imply anything about ideological outlook:  civil society activities can pursue mainstream, reactionary, reformist, or transformational visions. Civil society is not necessarily ‘civil’ either: this space can be as crowded with arrogance, fraud, greed, and violence as any other realm of society. The Mafia and the Ku Klux Klan also inhabit civil society. Nor is civil society necessarily a level playing field: both the overall civil society arena and many individual civil society groups are marked by hierarchies of age, class, gender, geography, race, sexual orientation, and other inequalities. Civil society—​with its various promises as well as perils—​has become increasingly relevant to global governance as more and more societal rules in contemporary

 

civil society involvement in global governance    715 history emanate from institutions and processes of worldwide, transplanetary proportions. For several hundred years prior to the middle of the twentieth century, societal rules were formulated and implemented almost exclusively through states. Hence at this earlier time civil society engaged almost exclusively with individual national-​territorial governments, and political theorists related civil society wholly and solely to the state. Yet today, when much societal regulation comes from global quarters, considerable civil society activities are now understandably directed at sites such as the UN system, the G8/​20, the Asia-​Europe Meeting (ASEM), institutions of private global governance like the Internet Corporation for Assigned Names and Numbers (ICANN), and multi-​stakeholder forums like the Global Fund to Fight AIDS, Tuberculosis, and Malaria (GFATM). So a twenty-​first-​century handbook on global governance definitely wants a chapter on civil society.

Civil Society Involvement in Global Governance NGOs, social movements, business forums, research institutes, and other civil society associations engage with global governance in many ways, both direct and indirect. Modes of direct participation include accreditation, membership of government delegations, policy consultations, seats on official committees and boards, evaluation exercises, and actual global regulation itself. Through indirect engagement civil society groups seek to shape global governance institutions via other sites such as governments, political parties, and the mass media. In other cases civil society associations involve themselves in global governance by openly opposing it through street demonstrations and other acts of resistance.

Direct Participation Direct participation by civil society actors in global governance processes dates back to the early international organizations. For example, employer federations and trade unions have worked alongside governments in the International Labour Organization (ILO) since its beginnings in 1920. The Conference of Non-​ Governmental Organizations in Consultative Relationship with the United Nations (CONGO) was set up in 1948. Some 400 NGOs assembled around the Stockholm Conference on the Human Environment in 1972.

 

716    relations with civil society However, the main growth of civil society participation in global governance has occurred since the 1990s. This period has seen most major public global regulatory bodies establish offices for liaison with civil society groups. The World Bank has the largest such staff contingent, with some 120 civil society specialists. Several private global governance bodies such as ICANN have also created civil society liaison bureaux within their organization. In addition, most multilateral development banks and various UN agencies have in the past two decades developed official guidelines for their staff to follow in relations with civil society organizations. One formalized way that civil society associations can be involved in global governance is through accreditation. In this case a global regulatory institution accords approved citizen groups official recognition and related possibilities to observe and intervene in policy processes. The most elaborate civil society accreditation scheme exists in respect of the UN. NGOs apply and, if accepted, obtain different degrees of access to UN buildings and deliberations, depending on whether they hold ‘general consultative status’, ‘special consultative status’, or ‘roster’ status. In other cases civil society associations can apply for short-​term accreditation with a global governance body in order to attend a particular meeting. An accreditation badge gives approved civil society actors entry into official meeting areas and in some instances also a right to speak in the proceedings. The UN operates such arrangements in respect of global gatherings such as the annual Conference of the Parties on climate change and other summits on food, health, population, social development, and further issues. Likewise the IMF and the World Bank have civil society accreditation schemes for their Annual and Spring Meetings, while the WTO permits vetted civil society groups to have entry to its Ministerial Conferences. Hundreds of civil society associations typically obtain accreditation for such global governance events. Sometimes certain civil society actors are invited to be members of government delegations to global governance meetings. In these situations civil society activists have a formally equivalent status with government officials. For example, a number of small island states have invited NGO advisers onto their official teams in global conferences on ecological matters. Officers from business associations and development NGOs have regularly joined the delegations of some governments to WTO meetings. Much additional civil society participation in global governance occurs through ongoing policy consultations in between the big conferences. For this purpose the UN maintains a Department of Public Information and a Non-​Governmental Liaison Service (NGLS). Since the 1990s the so-​called Arria Formula has opened space for civil society associations to brief members of the UN Security Council, particularly on issues of human rights and humanitarian intervention. Among specialized agencies the UN Environment Programme (UNEP) has a Global Civil Society Forum, and the UN Development Programme (UNDP) has a Civil Society Advisory Committee. The World Bank now consults civil society groups

 

civil society involvement in global governance    717 on the design and implementation of most of its projects and programs. IMF teams normally meet with some local civil society groups during their country visits to advise governments on macroeconomic policy. Since 1998 the WTO has accepted some submissions from civil society groups in its dispute settlement process. The Organisation for Economic Co-​operation and Development maintains continuing consultations inter alia through its Business and Industry Advisory Committee and Trade Union Advisory Committee. ICANN does the same through its At-​ Large Advisory Committee and Noncommercial Users Constituency. Since 1965 the Commonwealth Foundation has assembled civil society groups, while the Commonwealth Secretariat next door has focused on the member governments. The GFATM engages local civil society for its country activities and also holds a biennial Partnership Forum with civil society actors from around the world. The Organization of the Islamic Conference has also undertaken some informal interactions with NGOs. Through these numerous formalized and ad hoc practices consultation with civil society has become a general norm of contemporary global governance. To be sure, global governance consultations of civil society have not always reached desired levels of quality. Indeed, the preparation, execution, and follow-​ up of these dialogues have often been wanting. For example, ‘consultation’ of civil society can occur late in the policy process, after the important decisions have already been taken. In addition, global governance officials can undermine consultations with negative attitudes of arrogance, inflexibility, reluctance, and secrecy. For their part civil society associations can neglect opportunities to engage global governance and/​or can bring to the table inaccurate information and underdeveloped analysis. The quality of global governance engagement of civil society has also suffered, both democratically and practically, when the consultations disproportionately involve associations from the Global North and elite circles, with the result that disadvantaged geographical and social circles are marginalized. Beyond consultation, in certain cases civil society associations have obtained formal representation at the decision table in global governance. In addition to the already mentioned ILO tripartism, the International Organization for Standardization (ISO) involves trade associations, professional societies, and universities in its technical committees. Civil society actors have also held several seats on the board and committees of ICANN and on the global board and the country coordinating mechanisms of the GFATM. The bureau of the International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD), conducted in 2005–2007, involved twenty-​ two civil society representatives along with thirty governments. The Global Reporting Initiative (GRI) is one of several schemes for corporate social responsibility (CSR) that involve business, labour, and NGOs along with government. To be sure, civil society membership of official boards and committees remains far from the norm in contemporary global governance; nevertheless,

 

718    relations with civil society the multiplication since the late 1990s of so-​called ‘multi-​stakeholder’ arrangements is striking. Civil society associations also participate in global governance through performance evaluations. For example, think-​tanks have conducted commissioned official policy reviews for ICANN, and NGOs have contributed to studies by the IMF’s Independent Evaluation Office. Civil society groups have also brought various cases to the World Bank’s Inspection Panel since its creation in 1994. In addition, civil society organizations are continually publishing their own (often critical) assessments of global governance institutions and policies, thereby serving an important external monitoring function and contributing to public awareness and debate. Finally among modes of direct participation in global governance, certain civil society bodies act as regulatory bodies. In these cases it is the civil society associations themselves who do the formulation and administration of global rules, without direct involvement by official actors. For example, the FSC regime for sustainable forestry involves collaboration between business, environmental, indigenous, and labour groups. The WFTO framework of fair trade standards is run by consumer and producer associations. Other examples of global governance by civil society organizations include the Marine Stewardship Council (providing sustainability standards in fisheries) and the Worker Rights Consortium (suggesting labour codes in the sourcing of university and college apparel).

Indirect Involvement In countless other instances civil society associations pursue involvement in global governance indirectly, through third parties. For example, business forums, trade unions, and NGOs commonly bring their concerns about global governance to member states, in hopes of influencing the positions that governments take in global institutions. In this vein civil society groups have engaged foreign ministries regarding the UN, finance ministries regarding the IMF, trade ministries regarding the WTO, and so on. Indeed, some governments actively solicit civil society inputs before attending major global conferences. Sometimes states (especially the major states) are targeted on global governance matters not only by civil society associations from their own country, but also by transnational organizations. Thus, for instance, Global Unions and Oxfam International maintain offices in Washington, DC to engage US government departments as well as the Bretton Woods institutions. In other cases civil society groups take questions of global governance to the legislative branch of government: for instance, the French National Assembly, the Japanese Diet, and the US Congress. Civil society groups on these occasions seek to shape parliamentary debates on global governance and/​or to engage parliamentary committees that scrutinize government policy on global governance. Occasionally,

 

civil society involvement in global governance    719 as in Malawi, civil society associations have sponsored workshops and other activities to raise the capacities of national parliamentarians to address issues of global regulation. In respect of the European Union (EU), civil society associations have also gone to a regional parliament on global governance matters, particularly in the area of trade, where the EU is a member of the WTO in its own right. More generally, too, regional institutions can be indirect channels to global governance for civil society. The European Commission continually addresses global issues, and civil society groups have engaged with, for example, its Sub-​Committee on IMF Matters. In Latin America, Mercosur (Common Market of the South) has an Economic and Social Consultation Forum where civil society representatives inter alia discuss global issues. Similarly, civil society has been involved with the Southern African Development Community on global governance questions such as debt, HIV/​AIDS, and trade. Engagement with sub-​state authorities, as well, can be a mode of indirect civil society involvement in global governance. For example, ecology campaigners urged hundreds of ‘greening cities’ in the US to back the Kyoto Protocol on climate change when the George W. Bush Administration refused to ratify this global instrument. Other civil society groups have engaged global organizations of cities, including United Cities and Local Governments and Metropolis, which in turn relate to intergovernmental institutions through agencies like the Commonwealth Local Government Forum and the UN Global Cities Compact. Multiple non-​official channels for indirect civil society engagement of global governance are also available. Outside government, citizen associations can take concerns about global institutions to political parties, the mass media, companies, online social networks, and other deliberative spaces such as the World Economic Forum and the World Social Forum. NGOs have sometimes also called on celebrities to publicize global issues, as when pop stars Bob Geldof and Bono amplified civil society demands for debt relief vis-​à-​vis global financial institutions.

Resistance In addition to the direct participation and indirect pressures reviewed above, civil society actors have also related to global governance by refusing it. Rejectionist groups decline overtures to interact with global institutions. Alternatively these challengers so disrupt the exchanges that officials do not invite them again. Resistance movements have on various occasions taken to the streets to protest against what they regard as harmful, undemocratic, and unjust global governance arrangements. In the so-​called ‘Battle of Seattle’ in 1999, street demonstrations severely disrupted a Ministerial Conference of the WTO. G8/​G20 summits and IMF/​World Bank meetings have also often drawn mass protests.

 

720    relations with civil society In another resistance tactic, NGO-​inspired boycotts of several major multinational companies have promoted the growth of CSR as an informal global governance of production and investment. Street theatre, videos, and monuments are other media through which civil society groups have expressed renunciation of some or all global governance. In multiple ways, then, civil society engagement of global governance has become widespread since the 1990s. This is not to suggest that business forums, NGOs, and social movements are displacing states in global governance. However, understandings of contemporary politics which restrict civil society to the domestic sphere are clearly obsolete.

Theories of Civil Society and Global Governance How can one make sense of the many and often intense ways that civil society associations relate to contemporary global governance? The activities and conditions of civil society can be described, explained, and evaluated from many theoretical perspectives on world politics. The following paragraphs briefly outline how realist, liberal, constructivist, Marxist, post-​structuralist, post-​colonialist, feminist, and other theories interpret the relationship of civil society to global governance. Needless to say, the summary accounts below cannot do justice to the full depth, diversity, and nuance that is found within each theoretical approach. The more modest aim here is to show that civil society involvement in global governance can be understood in multiple and highly divergent ways. From realist perspectives, civil society figures in global governance as a function of inter-​state struggles for power. Through a realist lens civil society activities only shape global governance as and when it suits states in pursuit of their national interests. Indeed, a realist might well expect a state to deploy and manipulate civil society actors to advance its power struggles with other states. Thus a realist might argue that, for example, the World Council of Churches (WCC) only has influence at the UN when WCC aims coincide with the interests of member states, especially one or more of the stronger states. In contrast to realism, liberal theories of world politics do allow for an autonomous influence in global politics of non-​ state actors such as civil society associations. In liberal understandings, civil society groups can have their own interests, resources, and influences in respect of global governance, distinct from those of states. A liberal analysis typically maps and measures the complex ways

 

theories of civil society and global governance    721 that civil society organizations interact, bargain, cooperate, and clash with each other and with the many other official and commercial actors that seek to shape global governance. Whereas realist theories regard civil society associations mainly as pawns in interstate power struggles, liberal approaches usually assess civil society activities vis-​à-​vis global governance in terms of their relationship to (modern) development and (liberal) democracy. Polanyian analysis provides a more structural variant of liberal theories. Karl Polanyi discerned a ‘double movement’ in economic history. In the first movement far-​reaching liberalization distances or ‘disembeds’ the market from society, resulting in various dislocations and sufferings. To counter these harms a second movement of ‘habitation’ serves to ‘re-​embed’ the market with measures that restore social and environmental sustainability. Thus Polanyian perspectives assess how civil society engagement with global governance relates to disembedding processes and re-​embedding processes. Illustrating the first tendency, many business forums and economic policy think-​tanks promoted liberalizing global governance in the late twentieth century. Illustrating a re-​embedding movement, many NGOs have campaigned for the Sustainable Development Goals and measures against climate change in the early twenty-​first century. Constructivist theories explore civil society involvement in global governance with principal concern for the formulation, maintenance, and transformation of ideas, identities, and norms in world politics. Whereas liberals generally take a political economy approach that emphasizes the importance of resources and institutions in shaping outcomes, constructivists take an ideational approach that stresses the roles of subjectivities and communication. Constructivists consider how ‘intersubjective’ exchanges between civil society and other actors around global governance could affect, for example, ideas of sovereignty, norms of human rights, and the strength of national and other identities in world politics. In contrast to constructivism, Marxist perspectives adopt a more materialist analysis of civil society involvement in global governance. Marxists are principally concerned with relating interactions between citizen groups and global institutions to the historical development of modes of production—​and the course of the capitalist mode of production more specifically. Marxists assess how civil society interventions into global regulation relate to surplus accumulation processes, class interests, and class struggles. How do business forums, labour unions, NGOs, think-​tanks, faith groups, and other citizen action movements shape contemporary (globalizing) capitalism? The key question for Marxists is how civil society engagement of global governance reproduces, reconfigures, challenges, or transcends capitalism. One variant of Marxism that has figured with particular prominence in scholarship on civil society and global governance is neo-​Gramscian analysis. Building on the theory that Antonio Gramsci developed in the early twentieth century regarding civil society in national capitalism, neo-​Gramscians identify hegemonic and counter-​hegemonic tendencies in civil society relations with global capitalism

 

722    relations with civil society today. Hegemonic forces (which could include reformist trade unions and liberal NGOs) serve to legitimate global capitalism. With ‘legitimation’, civil society can bring even people whose class interests are harmed by globalizing accumulation to support that process. In contrast, counter-​hegemonic forces in civil society (including radical social movements of indigenous peoples, peasants, youth, etc.) refuse any global governance that reinforces capitalism. For neo-​Gramscians civil society engagement with global regulation is an arena where struggles between hegemony and counter-​hegemony shape the possibilities of social transformation. Post-​structuralist (sometimes also called postmodernist) theories share with constructivist approaches a concern with the ideational dynamics of civil society relations with global governance. However, whereas constructivists generally focus on actors and their intersubjective communications, post-​structuralists relate ideas and norms to deeper social structures of knowledge, often with particular reference to Enlightenment-​inspired modern-​rationalist epistemologies. In this vein, post-​ structuralism assesses how civil society engagement of global governance might, on the one hand, reinforce the dominance of modernist knowledge in world politics or, on the other hand, open space for alternative modes of understanding. In post-​ structuralist eyes most business associations, labour unions, NGOs, and research institutes are purveyors of a modernist cultural imperialism that suppresses other ways of knowing. In contrast, many movements of indigenous peoples, religious revivalists, so-​called ‘deep ecologists’, and alternative sexualities challenge modernist ‘common sense’. Post-​ colonialist perspectives on civil society relations to global governance overlap with Marxism and post-​structuralism in their concern with deeper structural patterns of dominance and subordination in world politics. Post-​colonialism focuses in particular on colonial and neocolonial repressions and the resistances that rise up against them. Post-​ colonialists often highlight ‘intersectionality’, namely, the ways that various structural hierarchies (e.g. of age, caste, class, gender, nationality, race, and sexual orientation) are interconnected with each other in social relations. Post-​colonialist investigations therefore consider how civil society engagement with global governance reproduces or challenges the marginalization of various subaltern populations, in particular groups (e.g. indigenous cultivators and Dalit women) who lie at the intersection of several structural subordinations. Post-​colonialists are also especially interested in highlighting movements in world politics (e.g. of Afro-​descendent youth in the Americas) that promote recognition, respect, voice, and influence for excluded groups. Feminist understandings of civil society involvement in global governance place the spotlight on gender: that is, the social attributes (femininity and masculinity) and social inequalities (male chauvinism and patriarchy) which are associated with biological sex. Feminism often combines with other theories to generate liberal feminism, Marxist feminism, post-​colonialist feminism, etc. Whatever the specific variant, however, all feminisms interpret civil society engagement with global

 

impacts of civil society on global governance    723 regulation through a gender lens. Feminists ask how NGOs, social movements, and other citizen associations through their interventions in global governance affect social constructions of femininity and masculinity as well as the pervasive subordinations of women. Feminists have particular interest in the struggles of women’s movements to advance, for example, concerns with gender and human rights at the UN, gender and trade at the WTO, and gender and development in the global financial institutions. Even the preceding wide-​ranging survey of theories of civil society and global governance is not exhaustive. Scholars can in principle also pursue ecological, psychoanalytical, and theological approaches to the question. In addition, a study of civil society and global governance can combine inspirations from several strands of theory. The choice of theoretical framework lies with each researcher and student. On what grounds can one select a preference between the various perspectives on civil society and global governance? After all, when elaborated with care each of these theories has its own internal logical coherence. Moreover, usually empirical evidence is available to corroborate several different analytical framings of the same concrete scenario. When several theories offer coherent logics and sound evidence, then the choice between them tends to come down to the personal priorities and political proclivities of the researcher. For instance, scholars who are more interested in—​and perhaps also politically committed to—​state power gravitate towards realism, while those who are more concerned with—​and perhaps keen to change—​ gender inequalities incline more towards feminism.

Impacts of Civil Society on Global Governance As just noted, a full account of civil society and global governance needs to relate theory to empirical evidence; hence this discussion next reviews various possible effects of citizen activism on concrete situations of global regulation. The record shows many correlations between circumstances in civil society on the one hand and developments in global governance on the other. The following paragraphs identify five general dimensions of possible civil society impacts on global governance, namely, in relation to institutions, agendas, decisions, discourses, and deeper structures. Of course it is one thing to observe a concurrence of phenomena and quite another to establish a causal connection between them. How can one demonstrate

 

724    relations with civil society that civil society actually impacted a given situation of global governance? As seen in the previous section, different theories and methodologies yield different interpretations of whether, in what ways, and how far civil society could influence a particular scenario of global regulation. Moreover, it is generally difficult to disentangle the influence of civil society from other forces (states, capitalism, etc.) that might shape the course of global governance. Clearly, then, ‘proving’ civil society impacts on global governance is anything but straightforward. Regarding the first of the five dimensions of impact named above, civil society can shape the institutional evolution of global regulation. Citizen associations have often advocated for the establishment, reform, and/​or dissolution of one or the other global governance agency. For example, numerous internationalist groups urged the creation of first the League of Nations and later the UN. Some 200 NGOs were present at the San Francisco Conference that founded the UN in 1945, 42 of them as consultants to the US government delegation. Proposals to launch the Uruguay Round negotiations that spawned the WTO emanated initially from the World Economic Forum, a high-​profile business association. A major civil society campaign in the 1990s propelled the establishment of the International Criminal Court. Civil society groups have also figured prominently in drives for various institutional reforms of global governance, such as the establishment of a Human Rights Council in the UN, reallocations of quotas at the IMF, and the inclusion of a vote for Affected Communities on the board of the GFATM. Rejectionist voices in civil society have not succeeded in their aims to close certain or all global governance agencies. However, these movements have severely disrupted some official proceedings, such as the WTO Ministerial Conference in Seattle in 1999. Moreover, the challenge of strong radical opposition has perhaps made global governance bodies more amenable to institutional reform. A second general area where civil society can impact global governance is by influencing the agenda. Citizen activism can influence what issues are considered in global regulatory processes and with what relative priorities. Indeed, civil society associations have highlighted a number of global problems that might otherwise have received (considerably) less attention. The many examples include AIDS, arms control, corruption, debt, democracy, disabilities, ecological degradation, gender, human rights, humanitarian intervention, indigenous peoples, labour standards, land grabs, poverty, and the use of non-​Western scripts on the Internet. It seems unlikely that, without civil society pressure, global governance would have addressed such questions, or at any rate given them as much prominence. In addition to institutional evolution and agenda formation, civil society pressure can be linked to a host of policy decisions taken in global governance. For instance, the WTO move in 2003 to relax intellectual property provisions on essential medicines followed a concerted NGO campaign. Persistent civil society mobilization likewise fed into the reduction and cancellation of substantial external debts of many low-​income countries in the 1990s and 2000s, as well as support

 

impacts of civil society on global governance    725 by various European governments for a financial transactions tax in 2012. Civil society associations have arguably also contributed to ratifications of global human rights instruments, initiatives to undertake humanitarian intervention, adjustments to many World Bank projects, and countless other policy decisions in global governance. In a fourth dimension of impact, civil society involvement can go beyond individual decisions to shape the discourses of global governance. By ‘discourse’ is meant here the overarching concepts, language, and analytical framings that are employed in policy discussions. Civil society associations have arguably furthered innovations in the core vocabulary of global governance by promoting notions such as ‘fair trade’, ‘human security’, ‘sustainable development’, and ‘global public goods’. More generally, civil society critiques have encouraged a shift in discourses of global economic governance from a laissez-​faire neo-​liberalism that prevailed in the late twentieth century to greater rhetoric of socially and environmentally oriented markets in the early twenty-​first century. Fifth and finally, civil society impacts can reach still deeper to influence the underlying social structures—​the primary patterns—​of global governance. To give one example, by circumventing states to engage directly with global regulatory institutions, civil society associations have promoted a shift in the overall mode of governance from statism (where societal rules emanate more or less entirely from the state) to polycentrism (where governance transpires through multi-​actor networks). In addition, civil society involvement in global governance has, by mobilizing multiple types of political community besides nations (e.g., solidarity on lines of caste, class, faith, gender, race, sexual orientation, etc.), encouraged a shift in the primary structure of identity in world politics from nation-​centrism to greater pluralism. Also, inasmuch as citizen activism on global governance has enlarged political space for indigenous peoples and religious revivalists, civil society has facilitated challenges to the predominant modern-​rationalist knowledge structure in today’s world. Considering in sum these five types of impact—​ on institutional evolution, agenda formation, policy decision, discourse construction, and deeper structure—​ is civil society a force of continuity or change in global governance? Moreover, to the extent that civil society brings changes to global governance, do these alterations have more of an incremental, reformist character or more of a systemic, transformational quality? In Gramscian terms, is civil society on the whole a hegemonic force that reinforces established interests in global governance; or does civil society play a counter-​hegemonic role of resisting established power? Clear and definitive answers to these questions are not available. The picture is messy partly because evidence from civil society involvement in global governance often points in several directions. In addition, as seen earlier, different theories emphasize different kinds of evidence and/​or interpret the same data in highly different ways. Cumulative experience certainly suggests that civil society has impact

 

726    relations with civil society in contemporary global governance, but the precise significance is and will remain debated.

Civil Society and Legitimacy in Global Governance In addition to the substantive impacts considered above, it is important also to assess the consequences that civil society might have in terms of the legitimacy of global regulation. Legitimacy refers to a condition where people consent to being governed by one or the other authority. With legitimacy political subjects accord a given regime the right to rule. Without legitimacy a governance apparatus collapses—​or survives only through trickery, coercion, and/​or violence towards its subjects. Shortfalls in legitimacy are a major problem for contemporary global governance. Challenges such as climate change, financial instability, and humanitarian crises demand enlarged and strengthened global regulation. However, on the whole citizens have not ascribed legitimacy to global governance in the way that people have generally accepted the authority of national and local government. With low legitimacy, global institutions have struggled to acquire the necessary mandates and resources to deliver effective global public policy. Many commentators hope that civil society might help to fill this legitimacy gap and thereby promote more effective global responses to urgent global problems.1 As an arena of public deliberation and mobilization, civil society offers major possibilities to link citizens with global issues, global organizations, and global rules. Indeed, at a time when fully developed global political parties, global parliaments, and global plebiscites seem remote prospects, civil society arguably provides some of the greatest available potential for a democratization of global governance.2 Certainly many civil society associations have highlighted democratic frailties that afflict most existing global governance, and have urged corrective action. NGOs and social movements have also furthered democratic global governance when they provide channels of voice and influence for affected people, including in particular constituencies (e.g., indigenous peoples and sexual minorities) that tend 1   Jan Aart Scholte, “Civil Society and the Legitimation of Global Governance,” Journal of Civil Society 3/​3 (December 2007): 305–​26. 2   Jan Aart Scholte, “Civil Society and Democratically Accountable Global Governance,” Government and Opposition 39/​2 (Spring 2004): 211–​33.

 

civil society and legitimacy in global governance    727 otherwise to be silenced in global politics. Civil society groups have often worked to make global governance more transparent and more consultative vis-​à-​vis implicated publics. Many civil society organizations have in addition promoted learning and debate about global issues and global regulation, so that people can undertake more informed and influential actions in respect of global governance. Civil society actors have moreover often served as watchdogs who scrutinize global governance in the public interest. Advocacy groups have also regularly demanded redress for harmed people when global regulatory agencies have caused damage. And numerous civil society initiatives have urged, on social-​democratic lines, a progressive redistribution of world resources, so as to create a more level playing field in global politics. That said, the relationship between civil society and democracy in global governance is not unconditionally positive. For one thing, civil society could do much more to advance democracy in global regulation. So far the scale of these democratizing activities has remained quite modest, especially relative to the need. Moreover, civil society interventions in global governance have to date disproportionately favoured already privileged circles of society, such as the Global North, urban professional classes, and white men. Also, civil society contains some decidedly undemocratic elements, such as secretive clubs of corporate capital and terrorist cells. Even ‘progressive’ civil society groups often show shortfalls of democratic accountability in their own practices.3 Hence civil society involvement in global governance does not automatically generate greater democratic legitimacy: this outcome has to be deliberately and concertedly nurtured. Democracy is not the only basis for legitimate governance, of course. Civil society activism can also bolster public support for global governance by lending it moral force. In this vein, citizen group initiatives have prodded global regulatory agencies to promote just ends like decolonization, gender equality, human rights, poverty eradication, fair trade, anti-​corruption, peace, and ecological integrity. True, civil society also comprises ‘uncivil’ groups of fundamentalists, militarists, racists, and ultra-​nationalists; so civil society interventions in global governance do not always and inherently bolster moral legitimacy. However, civil society pressures have often helped to persuade global regulatory authorities to champion just causes, and this has raised the moral standing of global governance in the public eye. On other occasions civil society has enhanced the legitimacy of global governance by improving its technical performance. In this case people consent to rule by global authorities because the institutions deliver desired operational outcomes: for instance, a working Internet, food security, disease control, solvent banks, etc. Civil society can contribute to this operational aspect of legitimacy by providing global governance institutions with valuable information, insights, methods, and advice.

  Lisa Jordan and Peter van Tuijll (eds.), NGO Accountability (London: Earthscan, 2006).

3

 

728    relations with civil society In addition, civil society associations can, with challenges to established policies, provoke a global governance agency to sharpen its thinking and improve its instruments. Moreover, sometimes subcontracted NGOs can execute global governance policies more effectively than official bureaucracies. Needless to say, when civil society inputs undermine performance—​such as with faulty information or flawed execution—​they sooner contribute to a delegitimation of global governance. Thus the record of civil society consequences for the legitimacy of global governance is mixed. On the one hand, considerable evidence suggests that civil society can be a major source of democracy, moral force, and expertise for global regulation. On the other hand, civil society also includes unaccountable, morally dubious, and incompetent elements. Moreover, many critical theorists worry that much civil society involvement can (however well-​meaning the intentions) serve to legitimate global governance arrangements that in practice undermine human dignity and a good society.

Conclusion This chapter has considered the place of civil society in contemporary global governance. The discussion has identified multifarious involvements by NGOs, social movements, and other citizen groups in global regulatory processes. As seen throughout the chapter, assessments of these activities are much contested:  definitions, explanations, and evidence go in many directions. Normative evaluations of civil society engagement of global governance have also stirred much disagreement. Some commentators have celebrated civil society as a major source of democracy, expertise, and moral force for global regulation. In contrast, critics have regarded civil society groups as incompetent and unaccountable meddlers in global governance. On normative judgements, too, each researcher must arrive at their own judgements. Quite undeniable, however, is that civil society has gained a considerable presence in contemporary global governance, an involvement which looks likely to increase still further in the future. Such greater engagement could in principle be welcomed, given that civil society currently offers some of the best possibilities to connect global regulation with affected people on the ground. Indeed, civil society may provide the most promising path for the democratization of global governance, particularly since global parliaments and plebiscites seem unlikely in the foreseeable future. Yet to achieve such benefits, the quality of civil society relations with global regimes is as important as their quantity, and in this regard a number of improvements

 

conclusion   729 are wanted for the future. Five can be briefly mentioned here. First, both sides—​ civil society organizations as well as global governance agencies—​could raise their capacities for meaningful interaction: greater mutual comprehension, improved institutional arrangements, etc. Second, better coordination of campaigns could allow civil society groups to increase their impact, as witnessed in collective advocacy for debt relief and the prohibition of land-​mines. Third, all parties to civil society relations with global governance institutions could make deliberate and sustained efforts to increase voice and influence for geographically and socially marginalized groups, who have so far had limited opportunities for engagement. Fourth, civil society associations could more strenuously resist cooptation and reinforce their role as critical watchdogs of global governance. Finally, civil society interlocutors with global governance could turn greater critical spotlight on themselves, with more rigorous attention to their own democratic accountability. In the words of one human rights activist in conversation with the author, ‘When you point a finger, you need to do it with a clean hand.’

 

Chapter 34

RELATIONS WITH THE PRIVATE SECTOR Georg Kell

Relationships between International Organizations (IOs) and the private sector are continuously shaped by political, social, and market-​led changes, on the one hand, and the ability of IOs to adapt to these changes, on the other. Most IOs were established without a mandate to work with the private sector. In the past, the governance, procedures, and culture of most IOs reflected the dominance of state-​to-​ state relations, with little or no appreciation for the role of the private sector. During the long decades of the Cold War rivalry, most IOs had to be neutral with regard to business and in many instances suspicion, if not distrust, became part of the institutional culture. With the fall of the Berlin Wall and the acceleration of business-​led global integration during the 1990s, it became increasingly clear that many IOs needed to find ways to engage with the private sector in order to stay relevant and achieve their stated missions. However, institutional procedures and deeply embedded mistrust toward the private sector combined with the absence of required skills and institutional support proved to delay the development of a balanced relationship with the private sector. For the United Nations (UN) system, a historical turning point was the launch in June 2000 of the UN Global Compact, a call to companies around the world to align their strategies and operations with ten universal principles in the areas of human rights, labor, environment, and anticorruption, and to take action in support of broader UN goals. Since then, cooperation with the private sector has

 

relations with the private sector    731 become politically feasible and operationally desirable. Ad hoc experimentation has gradually been replaced with more strategic and scalable efforts to engage with the private sector to advance their respective missions. However, progress across IOs has been uneven. Many IOs continue to struggle to bring cooperation and forms of governance to scale that would support the growth of this agenda. At the same time, markets have undergone fundamental transformations. Business has gone global while global governance has not kept pace. Technology has spread and foreign direct investment increasingly seeks to grow markets rather than just source cheap inputs. And transparency has been on the rise. Increasingly, corporate sustainability performance has become a key driver of brand-​building, risk mitigation, and value creation. As a consequence, a growing number of companies realize that they cannot succeed if the societies they invest in fail and that long-​term financial success is increasingly tied to the ability to overcome barriers—​be it corruption, lack of skill development, limited access to healthcare, or the management of scarce natural resources. The growing material relevance of nontraditional financial issues for long-​term market success, especially in the environmental, social, and governance (ESG) domain, has made IOs more relevant partners for business both in order to fill governance voids as well as to partner at country level to find scalable solutions to market barriers. Already, across many IOs major efforts are underway to learn how to build effective relationships with business. IOs have engaged with the private sector in a range of ways, from fundraising to jointly developing normative principles and frameworks. IOs are becoming more adept at managing the risks of partnering with the private sector, both by improving due diligence and integrity measures and by leveraging their reputations and normative strength to align the business community with universal values. IOs with relevant missions, operational capacity at the country level, and the proper strategy have moved from opportunistic ventures to structural engagement with the private sector. Provided there is political will to ensure market openness, as well as cooperation to secure peace, the IO–​private sector relationship will become ever more important. Whether and to what extent IOs will be able to leverage private sector engagement to advance their common objectives will depend on several factors. First, many IOs are still struggling with the institutional fatigue of the past. Institutional leadership and political will are required to unlock the full potential of an effective IO–​private sector relationship. Second, an effective partnership depends on the ability to discover institutional advantage in relation to the private sector and on the corresponding strength of IOs’ normative legitimacy to broker “respect” for its underlying principles. This allows an IO to become integral to market transactions and to mobilize “support” in terms of operational alignment that advances the IO’s goals. Finally, IOs will need to develop procedures and mechanisms assuring the highest level of accountability with effective governance structures and operational

 

732    relations with the private sector mechanisms. However, there is no one-​size-​fits-​all approach. Depending on its mission, products, operational capacity, and the scalability of its approach to business engagement, each IO entity will have to devise its own distinctive methodology for partnering with the private sector. Mobilizing private sector engagement in support of public policy objectives requires balancing the goals of both sectors with overlapping interests. At the heart of any overall IO strategy is the normative legitimacy of its associated values and principles. Asking the private sector to respect and support universal principles and build transparent accountability frameworks is one way to move ahead.

Contextual Factors Shaping UN–​Private Sector Relations This chapter maps out the broad developments that have shaped UN–​private sector relations. It also takes stock of the current state of affairs and reflects on possible futures. The basic contention is that the UN–​private sector1 interaction is continuously shaped by the interplay of political, market economy, and institutional changes. Political changes define to a large extent the space within which the UN–​private sector relationships can grow. Governments’ views about the role of the private sector in creating “conditions of stability and well-​being” through the promotion of “higher standards of living, full employment and conditions of economic and social progress and development,” as articulated in Article 55 of the UN Charter, define their willingness to delegate authority and prescribe how the UN should deal with the private sector, either directly through mandates or implicitly by simply allowing the relationship to grow. Besides the changing political context, dynamic economic processes are fundamentally influencing UN–​private sector relationships. The real or perceived advantage that the private sector sees in building a relationship with the UN is largely the outcome of market changes themselves. Not too long ago, business could take shelter and find relative predictability in national consensus regarding broader business and social questions. But three decades of technology-​ driven global economic integration have exposed business to new risks without having the recourse of shelter behind the 1   Based upon the report of the UN Secretary-​General on “Cooperation between the United Nations and all Relevant Partners, in Particular the Private Sector” (Doc/​A.56.323 (August 28, 2001), 45), the term “private sector” here is defined as “all individuals, for-​profit, commercial enterprises or business, business associations and coalitions and corporate philanthropic foundations.”

 

six decades of un–private sector relationships    733 government where its headquarters are situated.2 As business has gone global while governments remain local, a transformed world economy with global value chains exposes business to higher public scrutiny on issues that also are typical of the UN global agenda: environmental protection, human rights, social inclusion, and good governance. Markets have started to take such issues into account and increasingly integrate ESG qualifications into investment analysis and evaluation.3 The private sector accordingly develops a growing affinity with UN issues. The third dimension shaping the relationship is undoubtedly the UN’s own ability to adapt to political and market changes and to project core institutional strengths such as a claim to universal legitimacy, convening power, brand value, and technical knowledge.4 The political and economic contexts can be seen as defining the possible space within which the UN–​private sector relationship can evolve. However, unless there is institutional leadership, a willingness to innovate and to exercise thought leadership and creativity, and an institutional ability to create effective and viable engagement opportunities for the private sector, the relationship will not evolve. The UN’s intergovernmental nature and the quite inflexible procedures that govern all relevant functions, such as use of name and logo,5 recruitment, budget, and administrative oversight, represent huge cultural differences between the UN and the efficiency-​oriented private sector.

The First Six Decades of the UN–​Private Sector Relationships (1945–​2000) Given the sweeping political and economic changes that have occurred over the past decades, it should not come as a surprise that the nature of UN–​private sector 2   Between 1990 and 2012, the global stock of outward foreign direct investment soared from US$2.1 trillion to US$23.6 trillion. See UN Conference on Trade and Development (UNCTAD), World Investment Report 2013—​Global Value Chains: Investment and Trade for Development (New York and Geneva: UN Conference on Trade and Development 2013), xvi. 3  Since 2005, there was a steady increase in the number of signatories to the UN-​supported Principles for Responsible Investment (PRI), reaching 1,085 in July 2012. This includes 258 asset owners and 651 investment managers. Collectively they represent US$32 trillion of assets under management, or about 25 percent of the world’s total financial assets. See PRI Signatories, Principles for Responsible Investment:  Official Home, http://​www.unpri.org/​signatories/​ PRI, Annual Report. 2012; The Boston Consulting Group, Global Wealth 2011: Shaping a New Tomorrow: How to Capitalize on the Momentum Change (New York: Boston Consulting Group, 2011). 4   For an institutional analysis and the growth of the UN Global Compact, see Georg Kell, “Twelve Years Later: Reflections on the Growth of the UN Global Compact,” Business & Society 52/​1 (2012): 31–​52. 5  “Official Seal and Emblem of the United Nations,” Report of the Secretary-​General, A/​107 (October 15, 1946), 4.

 

734    relations with the private sector relations has fluctuated widely from mutual suspicion and, at times, outright hostility to a “Global Compact” of shared values.6 Yet several specialized UN entities have long-​standing working relations with the private sector on technical standard-​setting and social norms, especially related to the workplace (the International Labour Organization (ILO)) and on trade (the UN Commission on International Trade Law (UNCITRAL)). These entities are part of the decentralized UN system.7 Some of them were created decades before the UN was established in 1945. With the notable exception of the ILO, whose unique tripartite structure accommodates governments, employers, and labor,8 the work of these UN bodies is by definition technical, receiving scant public attention. But as a study commissioned by the UN has shown, the resulting body of technical standards and norms forms an important part of the “soft infrastructure” of the world economy, with enormous benefit for consumers and producers alike.9 At the creation of the UN itself, business was a strong supporter of the organization. Numerous business representatives participated in the 1945 San Francisco conference, including the International Chamber of Commerce, whose own creation in 1919 was premised on the belief that commerce and peace were complementary. For example, Philip D. Reed, then Chairman of General Electric, sent a telegram to the Chairman of the US Senate Foreign Relations Committee expressing the “earnest and enthusiastic support of the US Chamber of the Charter” and urging unanimous ratification.10 This founding spirit of the UN—​principled pragmatism and the belief that peace and prosperity can only be built on the foundations of interdependence and commerce—​was soon challenged, especially with regard to the role of the private sector. The decentralized design of the UN system protected specialized UN entities, especially the small technical ones, from the Cold War rivalry and competing ideologies regarding the role of the private sector. But ideological elements soon 6   Kofi Annan, “Business and the U.N.: A Global Compact of Shared Values and Principles,” World Economic Forum, Davos, Switzerland, reprinted in Vital Speeches of the Day 65/​9 (1999): 260–​1. For further information on the Global Compact, see http://​unglobalcompact.org/​. 7   In addition to the ILO and UNCITRAL, the International Maritime Organization, International Telecommunications Union, International Civil Aviation Organization, Universal Postal Union, and the World Intellectual Property Organization are specialized agencies which have been the setting for the production of global norms, standards, and regulatory frameworks in a wide array of economic activities. 8   For an analysis on the key role that well-​structured institutions play in the quest for global justice through labor standards, see Edward C. Lorenz, Defining Global Justice: The History of U.S. International Labor Standards Policy (South Bend, IN: University of Notre Dame Press, 2001). 9   Mark W. Zacher, Uniting Nations: Global Regimes and the UN System (Vancouver, BC: Institute of International Relations, University of British Columbia, 1998) and his subsequent The United Nations and Global Commerce (New York: UN, 1999). See also Richard M. Price and Mark Zacher, The United Nations and Global Security (New York: Palgrave, 2004). 10   S. Tessner, The United Nations and Business: A Partnership Recovered (New York: St Martin’s Press, 2000), xix.

 

six decades of un–private sector relationships    735 defined the UN proper, and it subsequently cost the UN in its private sector North–​ South relations. For decades to come, the “embedded liberalism” of the UN Charter had no chance to come to a fore.11 The ideological rivalry of the Cold War meant that the UN had to be neutral as to the role of the private sector.12 And the long struggle of colonies to gain independence put an emphasis on state-​driven development and transfer payments in the form of Official Development Assistance,13 rather than on private sector-​driven growth. The overlapping East–​West rivalry and the concerns entailed in the independence struggle of the South reached their joint apex in the call for a statist-​oriented New International Economic Order.14 Against this background, the UN published a seminal study on “Multinational Corporations in World Development,” which highlights some of the tensions and problems on multinational companies operating in developing economies.15 Immediately following was the appointment by the Economic and Social Council (ECOSOC) of a Group of Eminent Persons to advise the Council on the role and influence of transnational corporations in development. The Group called for the “continuing involvement in the issue of multinational corporations of the Economic and Social Council assisted by a commission specifically designed for that purpose.” It also recommended the establishment of an information and research center “to provide services for the commission.”16 The UN Commission on Transnational Corporations (UNCTC) commenced work in 1974 and dealt with a wide-​ranging set of developmental finance issues. But its main concern throughout its existence was negotiating a code of conduct on transnational corporations consistent with UN General Assembly (UNGA) call for the establishment of a New International Economic Order. Negotiations eventually

11   John G. Ruggie, “International Regimes, Transactions and Change: Embedded Liberalism in the Post War Economic Order,” International Organization 26 (1982): 379–​415. 12   When the author of this article joined UNCTAD in 1987 with a financial analyst background and having worked on all continents, it was more than bizarre to discover that terms like “business” and “profit,” or simply “efficiency” and “social impact,” were off-​limits—​not to mention “intellectual property rights.” 13   The idea to raise official development assistance to 0.7 per cent of donors’ national income was taken up by the Pearson Commission and endorsed by the UN General Assembly (UNGA) in a 1970 resolution, launching an international development strategy for the decade. See Lester B. Pearson, Partners in Development:  Report of the Commission on International Development (New  York, Washington and London: Praeger, 1969); UNGA Res. 2626 (XXV) (1970), International Development Strategy for the Second United Nations Development Decade, October 24, 1970, para. 43. 14   Declaration and Programme of Action on the Establishment of a New International Economic Order, A/​Res/​3201 and 3202 (S-​VI) and Res. 3281 (XXIX) (December 12, 1974), Charter of Economic Rights and Duties of States. 15   UN Department of Economic and Social Affairs, Multinational Corporations in World Development (New York: UN, 1973). 16   UN Department of Economic and Social Affairs, The Impact of Multinational Corporations on Development and on International Relations (New York: UN, 1974), 5.

 

736    relations with the private sector stalled over the legal nature of the code, with Northern countries insisting that it should be purely voluntary while the Southern countries argued that it should be binding. Talks came to an end altogether in 1992, when the UNCTC was closed down by Secretary-​General Boutros-​Ghali.17 With the fall of the Berlin Wall in 1989 and the concurrent acceleration of global market integration fueled by liberalization and technology, a growing number of developing countries embraced export-​led growth and trade and investment liberalization.18 Throughout the 1990s, a statist view on development increasingly gave way to greater autonomy for the private sector. The intergovernmental processes of the UN, however, were slow in adapting to new realities. Early efforts by the United States to build political support for the role of business were met with skepticism.19 Most developing countries preferred the UN to remain within the old North–​South paradigm, in the hope of increasing development assistance or, more generally, of expressing numerous and varied grievances. Remnants of this manner of thinking continue up to the present.20 The UN, however, ultimately did find a way to connect with the zeitgeist, in the rapid rise of other global nonstate actors, especially NGOs.21 This comes through clearly in the format of major global meetings on sustainable development, gender, population, and urbanization.22 Through its global conferences, the UN found 17   For a review of the former UN Center on Transnational Corporations, which was abolished in 1992, see Tagi Sagafi-​nejad, John H. Dunning, and Howard V. Perlmutter, The UN and Transnational Corporations: From Code of Conduct to Global Compact (Bloomington, IN: Indiana University Press, 2008). Professor Sagafi-​nejad’s review has a critical omission of the fact that the Code of Conduct on transnational corporations was ultimately accepted by all parties involved, including the US business community as represented by the US Council for International Business (USCIB). However, the US business community recommended against delegating authority to the UN to implement the Code of Conduct. On this important point, see testimony by Abraham Katz, former president of the USCIB, before the US Senate’s Sub-​Committee on International Economic Policy, Trade, Oceans, and Environment, which held hearings to review the United Nation’s Code of Conduct on Transnational Corporations on October 10, 1990. 18  UNCTAD, Foreign Direct Investment and Financing for Development: Trends and Selected Issues, UNCTAD Doc. TD/​B/​COM.2/​80 (2008). 19   See the 45th Session of the UNGA Res. 45/​188 on Entreprenuership (a/​Res/​45/​188), the 46th Session of the UNGA Res. 46/​166 on Entrepreneurship (a/​Res/​46/​166), the 48th Session of the UNGA Res. 48/​180 on Entrepreneurship and Privatization for Economic Growth and Sustainable Development (a/​Res/​48/​ 180), and the 50th Session of the UNGA Res. 50/​106 on Business and Development (a/​Res/​50/​106). 20   The deliberate choice of China and the G77 to use the UN to keep alive and advance issues of the past, often in contradiction to actual national policies, poses a major constraint for modernization of the Organization. 21   T. G. Weiss, International NGOs, Global Governance, and Social Policy in the UN System, GASPP Occasional Papers No. 3/​1999 (Helsinki: Stakes, 1999). 22   Throughout the 1990s, the UN convened major global conferences, which included “parallel” gatherings of thousands of civil society actors, and others for the private sector, in Beijing (4th World Conference on Women, 1995), Cairo (International Conference on Population and Development, 1994), Copenhagen (World Summit for Social Development, 1995), and Istanbul (The 2nd UN Conference on Human Settlements, 1996).

 

six decades of un–private sector relationships    737 a way to work with thousands of social groups and civil society organizations. By far the most important was the 1992 Earth Summit in Rio de Janeiro, where a small group of pioneer executives instituted the first business participation in an official UN event.23 As a consequence of these conferences, the UN established various offices to support civil society engagement.24 The effort later would stall, however, for political reasons.25 In an effort to give more coherence and stronger institutional support to civil society organizations, former UN Secretary-​General Kofi Annan appointed Fernando Henrique Cardoso, former president of Brazil to work out proposals. “We the Peoples:  Civil Society, the UN and Global Governance, Report of the Panel of Eminent Persons on United Nations–​Civil Society Relations”—​(the Cardoso Report)—​brought together recommendations to better support NGO engagement. However, this report was not supported by governments, and subsequent political turmoil associated with the Oil-​for-​Food story marginalized these issues altogether. Since then, the civil society composed of “We the Peoples” has been sidelined. The Cardoso Report was rejected by member states for a variety of reasons. First, at that point, Oil-​for-​Food debates were unfolding, and significantly undermining the former Secretary-​General’s capacity to initiate and carry through institutional change. Second, a growing number of governments stalled as they were concerned about the rapid growth of civil society influence on global debates.26 Despite such global outreach efforts, the UN failed to engage the private sector on a substantive, ongoing basis. Decades of statist planning and thinking and outdated hierarchical bureaucracies stifled innovation, and the human resources base of the organization was dominated by past ideological debates. Prevailing procedures, often dating back to 1946, cramped the possibilities for experimentation. The UN, in other words, was ill prepared to work with the private sector and the private sector had long ago formed a negative view of the Organization.

  The World Business Council for Sustainable Development was formed in January 1995 with the merger of the Business Council for Sustainable Development (BCSD) and the World Industry Council for the Environment. The BCSD was a direct outgrowth of the 1992 Earth Summit process. For a general review of the Earth Summit, see UN Conference on Environment & Development—​Agenda 21. 24   The Department of Public Information and the Department of Economic and Social Affairs dealt with NGOs, as part of the “major groups” concept that emerged from the Earth Summit. 25   “We the Peoples:  Civil Society, the UN and Global Governance, Report of the Panel of Eminent Persons on United Nations–​Civil Society Relations,” UN Doc. A/​59/​354 (June 21, 2004) (New York: UN), 7. 26   The number of ECOSOC-​accredited NGOs has grown dramatically—​from 176 NGOs with consultative status to over 2,000 NGOs in 2000. This rapid growth brought its own problems as some NGOs had strong backing from some governments or political groups. For example, the US-​based National Rifle Association was quite effective in undermining efforts to regulate illicit arms trade through the Arms Trade Treaty. In 2001, as a compromise, a nonbinding agreement called Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects was adopted, and faith-​based civil society organizations and Nobel Peace Laureates played a key role in pushing this agenda. 23

 

738    relations with the private sector

A New Beginning on the UN–Private Sector Relationships (2000–​Present) But a fundamental change in relationship between the UN and the private sector started to take shape with the 1997 appointment of Kofi Annan as the UN Secretary-​ General. With a charismatic and courageous personality and deep understanding of the strengths and weaknesses of the Organization, Annan led an unprecedented phase of innovation. This included a complete reversal of the direction taken in the relationship with business. The “Global Compact” speech, on January 27, 1999 delivered in front of an audience of CEOs marked the beginning of the new era.27 The launch of the Global Compact of “shared values” coincided with several other major innovations taking place directly prior to the terror attacks of 9/​11.28 After that point, the political climate around multilateralism started to deteriorate and unrealistic preferences undermined global collaboration.29 The extraordinary phase of creativity early in Kofi Annan’s tenure was the result of a unique constellation of institutional leadership, political trends that favored multilateral solutions and economic change. At the institutional level, it was recognized that an increasingly pluralized international society and networked forms of state and nonstate governance30 were opening up new opportunities. Through “entrepreneurial” and “intellectual” leadership through norm-​and agenda-​setting and through identification of novel ways of advancing collective interests,31 there could be a response to transnational challenges—​the so-​called “problems without passport”—​and to the backlash against global openness and nondiscrimination. At the political level, there was a unique constellation of world leaders supporting UN aspirations, and a general mood of positive thinking regarding multilateralism and market integration prevailed.32 This unique political constellation enabled “norm   Georg Kell, “Note on Linking Universal UN Values with the Global Reach of Business” (1998), http://​www.unglobalcompact.org/​AboutTheGC/​stages_​of_​development.html. 28   The Millennium Declaration and the creation of the Millennium Development Goals, the creation of the Global Fund to Fight AIDS, Tuberculosis, and Malaria, and a series of institutional reforms which reshaped the organization. A US$1 billion donation by the founder of CNN, Ted Turner, on behalf of UN causes in 1997, added much excitement about new forms of financial contributions to the Organization. 29   For an uplifting and more credible counter perspective, see David Cannadine, The Undivided Past Humanity beyond Our Differences (New York: Alfred A. Knopf, 2013). 30  See Anne Marie Slaughter, “Sovereignty and Power in a Networked World Order,” Stanford Journal of International Law 40 (2004):  283; Jan Martin Witte, Wolfgang Reinicke, and Thorsten Benner, Networked Governance: Developing a Research Agenda (New Orleans: Annual Convention of the International Studies Association Meetings, 2002). 31   For a detailed analysis of this “constructivist” interpretation, see Richard Jolly, Louis Emmerij, and Thomas Weiss, UN Ideas That Changed the World (Bloomington, IN: Indiana University Press, 2009). 32   Tony Blair, Luiz Inácio, Lula da Silva, Bill Clinton, as well as Jacque Chirac, were frequently supporting UN causes. 27

 

new beginning on the un–private sector relationships    739 entrepreneurs”33 to create new forms of engagement with nonstate actors, especially the private sector, that went beyond the Organization’s traditional domains.34 Prior to the tragedy of 9/​11, governments were not only willing to lend political support to the intellectual leadership of the UN, but also were interested in bringing ideas there.35 Market-​related developments also favored a UN opening to commercial forces. China’s decision to join the World Trade Organization (WTO), transportation and communication innovations, and sustained market opening around the globe spread know-​how and investments at unprecedented levels. But even as business went global, trade unions and environmental, human rights, and protest groups railed against global corporations and against organizations concerned with rulemaking for markets.36 Against this background the Global Compact idea was constructed as an optimistic concept to leverage the best the UN had to offer—​universal principles derived from international frameworks—​as part of the solution to contemporary policy and market dilemmas.37 While the first efforts to reach out to the business community were made as early as 1997,38 it was the speedy establishment of the Global Compact and subsequent engagements that brought about a historic shift in the relationship.39 This 33   For case studies on “norm entrepreneurs,” and the emergence of norms, see Simon Rushton, “The UN Secretary-​ General and Norm Entrepreneurship:  Boutros-​ Ghali and Democracy Promotion,” Global Governance 14 (2008): 95–​110; Navroz K. Dubash, “Global Norms Through Global Deliberations? Reflections on the World Commission on Dams,” Global Governance 15 (2009): 218–​38; Giobanni Mantilla, “Emerging International Human Rights Norms for Transnational Corporations,” Global Governance 15 (2009):  279–​98; and Justin Gest et  al., “Tracking the Process of International Norm Emergence:  A  Comparative Analysis of Six Agendas and Emerging Migrants Rights,” Global Governance 19 (2013): 153–​85. 34   Following the formal launch of the UN Global Compact on June 26, 2000, in the ECOSOC Chamber, several governments stepped forward to a Trust Fund without solicitation. 35   In 2000, the author of this article was asked to review and to advise on a twenty-​page technical note from the UK’s Prime Minister’s office and the office of Kofi Annan, to advance the idea contained therein. It was the outline of a global fund to fight HIV/​AIDS, of what would soon become the UN’s largest health-​related fund, known today as the Global Fund to Fight AIDS, Tuberculosis, and Malaria. 36   The World Bank and the WTO were primary targets, with protests (especially around the 2001 WTO ministerial meeting in Seattle) attracting a high level of public attention. 37   A series of meetings with CEOs under the auspices of the International Chamber of Commerce helped to prepare the ground for overcoming past hostilities. See Kell, “Twelve Years Later.” 38  The speech was developed between June and December 1998. Please see the internal note developed by the author, making the case for embedding universal UN values into the business community—​Georg Kell, “Note on Linking Universal UN Values with the Global Reach of Business.” In addition, the two key architects of the idea published a joint article shortly after the speech was delivered. See Georg Kell and John Ruggie, “Global Markets and Social Legitimacy: The Case of the ‘Global Compact’,” in The Market or the Public Domain? Global Governance and Asymmetry of Power, ed. D. Drache (London: Routledge, 2001), 321–​34. 39   The Global Compact was launched on June 26, 2000, based on the engagement notions of “learning,” “dialogue,” and “partnership.” Forty-​seven CEOs from all continents meeting in the ECOSOC Chamber made a public commitment to the principles of the UN Global Compact. The International Chamber of Commerce would advocate the Global Compact to its members and over sixty national employers federations welcomed and endorsed the body.

 

740    relations with the private sector relationship now has come full circle. What started off in 1945 as a promising albeit brief partnership, but was buried for decades under the ideological clouds of the Cold War, was resurrected through alignment with political and economic change and enabled by constructive institutional leadership.40 The 1999 Global Compact speech laid the foundation for a thriving initiative while simultaneously enabling other UN entities to explore cooperation with the private sector. It gave strong impulse to the articulation of the role of business in the work of the Organization. The Millennium Declaration of 200041 and the Monterrey Consensus of 2002 articulated at the level of heads of state that the private sector has an important role to play. The spread of voluntary schemes for corporate social responsibility was encouraged in particular by the sweeping Declaration endorsed by 150 heads of state and government in New York. The Millennium Declaration, from which the Millennium Development Goals are derived, contained proposals on cooperation with business and called for “greater opportunities for the private sector, non​governmental organizations and civil society in general to contribute to the realization of the Organization’s goals and programmes.” The Consensus reached at the International Conference on Financing for Development in 2002 in Monterrey, Mexico, placed economic issues—​domestic resource mobilization, trade, external debt, cross-​border investment, and global financial architecture—​squarely on the UN agenda. It brought together finance ministers with heads of state and foreign ministers and was the first ever high-​level UN gathering to involve an exchange of views between governments, civil society, and the business community. Sandwiched between these two seminal summits, the UNGA introduced in 2001 a new plenary item, “Towards Global Partnerships,” which formulated a constructive basis for the UN–​private sector relationship. Succeeding resolutions elaborated on the relationship and provided critical political support.42 At last the political consensus at the UN had caught up with the fact that almost all countries had long ago embraced market-​based approaches to growth and development. Former calls for stiff regulatory regimes, such as those articulated in the Code of Conduct on Transnational Corporation of the New International Economic Order, had given way to voluntary codes.43 Civil society organizations have also played an important role in influencing the behavior of business in general, both in their “watch dog” function and as legitimate partners in implementation of sustainability exercises. While 40   Kofi Annan surrounded himself with highly competent and dedicated advisors, who had a deep understanding of the Organization’s topography. 41   A/​RES/​55/​2 (September 18, 2000), para. 30. See also the Millennium Report of the Secretary-​ General, We the People: The Role of the United Nations in the 21st Century, A/​54/​2000 (March 27, 2000). 42   For political background, see Kell, “Twelve Years Later.” 43   Sagafi-nejad, Dunning, and Perlmutter, The UN and Transnational Corporations.

 

new beginning on the un–private sector relationships    741 wide diversity—​from small, local single-​issue groups to multi-​issue, international NGOs—​makes generalization difficult, it can be said with confidence that they have exerted a distinct influence on the UN–​private sector relationship. Campaigns against sweat shops by human rights organizations or environmental groups’ exposure of pollution caused by multinational corporations have played a key role in shifting corporate respect for communities and the environment. Voluntary private sector engagement is dependent not only on government mandates, explicit or implicit; it must also be earned in the public domain, where NGOs wield considerable influence. Following their ascendance as participants in major UN conferences of the 1990s, NGOs voiced considerable suspicion, if not opposition, when the UN started to reach out to business. Various groups were formed explicitly to counter private sector engagement after the Global Compact was formed, even though from inception the Compact included cross-​sectoral leaders, labor organizations, and civil society representatives on its Board. Subsequent governance reforms within the Global Compact further articulated the respective roles of the private sector and civil society. Over time, more and more NGOs have aligned themselves with the UN Global Compact and its emphasis on engagement with the private sector. They are valuable partners whose critical voice continues to be of great importance across all Global Compact activities. After a decade of experimentation, a parallel Private Sector Track was organized at the Fourth UN Conference on the Least Developed Countries (LDC-​IV), taking place in Istanbul, Turkey, in 2011, to explore ways to overcome barriers to investment in LDCs and to form risk-​mitigating collaborations.44 The largest ever private sector gathering held in parallel with a UN conference, the Corporate Sustainability Forum in Rio De Janeiro in June 2012, attracted over 3,000 corporate and civil society participants. Emerging from workshops and meetings were numerous new initiatives and a new global narrative on the corporate sustainability agenda.45 The Corporate Sustainability Forum influenced the official Rio+20 outcome document,46 inspired over 200 commitments from business, and helped to launch new initiatives and scale up existing ones. It showed for the first time that business was willing to move ahead on sustainability irrespective of progress logged at intergovernmental negotiations. Against this background, the following section highlights how UN–​private sector relationships have been shaped by the interplay of political, market economy, and institutional change since the launch of the UN Global Compact.   More than 400 executives participated in over thirty sessions, together with numerous delegates of the intergovernmental conference. See http://​www.un.org/​wcm/​webdav/​site/​ldc/​shared/​A_​66_​134.pdf. 45  See http://​unglobalcompact.org/​docs/​news_​events/​2012_​CSF/​Rio_​CSF_​Overview_​Outcomes.pdf. 46   See para. 46 of the outcome document—​A/​RES/​66/​288—​GA Resolution: The Future We Want (2012), http://​www.un.org/​ga/​search/​view_​doc.asp?symbol=A/​RES/​66/​288&Lang=E. 44

 

742    relations with the private sector

Institutional Developments At the institutional level, efforts were made as early as 2000 to modernize the Organization to make it fit for engaging the private sector.47 Mostly young professionals across many UN entities spearheaded a quiet revolution from within. A  first-​ever “Private Sector Focal Point,” organized in 1999, brought together fifteen UN staff and about the same number of business and civil society representatives. Annual meetings would attract an ever greater and more senior participation. The most recent, held in 2013 again at ILO Headquarters in Geneva, attracted over 300 participants for three full days to review lessons and to formulate proposals to heads of UN entities on how to improve the environment for cooperation.48 Additional learning tools have emerged, such as quarterly newsletters and a shared UN system-​wide website49 to foster coherence. Moreover, the Global Compact from its inception commissioned numerous guidance and resource materials to advance political understanding of the UN–​private sector relationship,50 its conceptual development, and its operational application.51 The Organization had to learn the hard way, in the context of the Iraq invasion and the subsequent Oil-​for-​Food crisis, that its biggest asset in building relationships with the private sector is its brand value. Most reform efforts such as devising robust engagement for civil society as well as other institutional reforms not linked to procurement came to a sudden halt, as did movement on relationships with the private sector.52 The Global Compact, however, responded with an outburst of innovation, engaging institutional investors and launching the “Principles for Responsible Investment” (PRI)53 at the New York Stock Exchange in 2005. PRI, whose aim is to integrate ESG   In 2000, just before the launch of the Global Compact as an initiative, the first UN Business Guidelines were issues to give guidance to UN staff. See http://​www.un.org/​partners/​business/​otherpages/​guide.htm. These Guidelines were updated in 2009. See http://​www.un.org/​wcm/​webdav/​site/​ ldc/​shared/​A_​66_​134.pdf. 48  See http://​unglobalcompact.org/​Issues/​Business_​Partnerships/​meetings_​workshops.html for reports on the UN System Private Sector Focal Points Meetings. 49  See http://​business.un.org/​. 50   Starting 2001, reports of the Secretary-​General to the UNGA formed the basis for consensus building. See http://​unglobalcompact.org/​Issues/​Business_​Partnerships/​reports_​resolutions.html. 51  For an overview of relevant resources, see UN Global Compact and GPPI, UN Business Partnerships: A Handbook (2013); Jane Nelson, Building Partnerships: Cooperation Between the United Nations System and the Private Sector (New York: UN Department of Public Information, 2002). 52   At the peak of the Oil-​for-​Food crisis in 2006, even the strongest corporate supporters of the UN, companies from the Nordic countries, slowed down their engagement and in private discussions raised concerns on brand issues. 53  See http://​www.unpri.org/​. 47

 

institutional developments   743 issues54 into investment analysis and decision-​making, has since been spun off and has evolved into the world’s largest investor-​led initiative, representing over US$30 billion in assets under management. The now London-​based PRI maintains close and important working relationships with the Global Compact across a wide range of issues. With the appointment of Ban Ki-​moon as Secretary-​General, private sector engagement took a decisive step forward. He showed gracious leadership by embracing the Global Compact and accepting an invitation to chair its board. Under his leadership, new engagements were developed, including the CEO Water Mandate, Principles for Responsible Management Education (PRME), Sustainable Stock Exchanges Initiative (a joint initiative of the PRI, United Nations Environment Programme-​ Finance Initiative (UNEP-​ FI), UN Conference on Trade and Development (UNCTAD) and United Nations Global Compact (UNGC)), Caring for Climate (a joint initiative of the United Nations Framework for Climate Change Convention (UNFCCC), United Nations Environment Programme (UNEP), and UN Global Compact), and Women’s Empowerment Principles (a joint initiative of the UN Women and UN Global Compact). Further initiatives since then involving philanthropists and civil society in Every Woman Every Child (EWEC), Sustainable Energy for All (SE4All), and Education First55 have produced remarkable uptake. In addition, Secretary-​General Ban made specific efforts to engage with business participants through Global Compact country networks during his various country visits.56 Starting in 2008, he institutionalized the Annual Private Sector Forum, a Global Compact-​organized event for CEOs and government officials in conjunction with the opening of each annual UNGA. This mechanism ensures that private sector solutions garnered from an informal setting will inform subsequent Assembly debate.57 Secretary-​General Ban’s institutional leadership has played a critical role in bringing the private sector into intergovernmental processes via, for example, the Private Sector Track of the Fourth Conference on the Least Developed Countries and the Corporate Sustainability Forum adjunct to the Rio+20 UN Conference on Sustainable Development.   The term “ESG,” now globally used in the global finance and investment community, was coined at one of the most successful projects undertaken by the Global Compact, called “Who Cares Wins”: http://​www.unglobalcompact.org/​docs/​issues_​doc/​Financial_​markets/​who_​cares_​who_​wins.pdf. The project established that investors have a fiduciary responsibility regarding nontraditional financial issues that possess material relevance. 55  See http://​www.everywomaneverychild.org/​, www.sustainableenergyforall.org/​, and http://​www. globaleducationfirst.org/​. 56   He met a delegation of business leaders around the world during his official missions. Such encounters occurred in Brazil, Bulgaria, China, Denmark, Myanmar, Nigeria, Japan, the Republic of Korea, and Spain among others. 57   Topics covered so far include the Millennium Development Goals, food security, energy, and climate change. For reports on these meetings, see http://​www.unglobalcompact.org/​Issues/​Business_​ Partnerships/​meetings_​workshops.html. 54

 

744    relations with the private sector

Economic Developments Besides institutional changes, a number of market-​led and broader business-​society issues are deeply influencing the UN–​private sector relationship, as global market integration progresses. They also take in upheavals such as the financial crisis of 2008 and outbreaks of social unrest in diverse parts of the world.58 First, as companies have gone global, they no longer can count on the relative predictability of national consensus on business-​society questions in the country where they are headquartered. As companies have grown eastward and southward following migrating economic growth, they are building global value chains and investing in new markets. This brings with it a rapid diffusion of know-​how and has helped hundreds of millions to escape abject poverty while ensuring economic growth.59 But it also exposes corporations to risks that must be managed without the advantage of government support. Traditional boundaries between public and private goals have become fuzzy. Since power and responsibility go hand in hand, business is expected to do more in areas that used to be the exclusive domain of the public sector, ranging from health and education, to community investment and environmental stewardship. Global companies today operate subsidiaries in locations exposed to extreme poverty, unacceptable working conditions, environmental degradation, systemic corruption, and daily violence. Under such conditions, corporations have a choice to make. They can either uphold high standards, based on universal principles agreed upon by governments and advanced by the UN Global Compact, or they can muddle through. Large domestic companies in emerging and developing markets face similar choices. For these companies, corporate sustainability and responsibility have immediate material relevance. Complying with principles of corporate sustainability and responsibility can mean the difference between costly damage to growth prospects, on the one hand, or the opportunity to build long-​term trust in the communities where they operate, on the other. Second, the rapid diffusion of communication technologies and the empowerment of people through access to information have powerful implications for corporate responsibility. Hiding missteps or negative fall-​out from investments and operations, no matter how far down the supply chain, is no longer an option. Transparency, including significant improvements in disclosure on social,   For a good review of broader business-​society trends, see Joanne T. Lawrence and Paul W. Beamish (eds.), Globally Responsible Leadership: Managing According to the UN Global Compact (London: Sage, 2013); and Andreas Rasche and Georg Kell (eds.), The United Nations Global Compact: Achievement, Trends and Challenges ( Cambridge/​New York: Cambridge University Press, 2010). 59   Millennium Development Goals Report 2014 (New York: UN, 2014) 58

 

economic developments   745 environmental, and governance issues, has become a necessary tool for management and societal engagement. Furthermore, information accessibility and the spread of social networks on the Internet are challenging traditional forms of authority. Earning “a license to operate” increasingly requires public legitimacy. And this can only be earned through proactive engagement on the topics that move societies. The ascendancy of the stakeholder concept over the past decade is a testimonial to this crucial development. Moreover, as technology and market interdependencies connect people and nations ever closer, debate about values and morals has moved to the forefront of corporate strategy. For corporations searching for globally applicable benchmarks, the decades of work by the UN obviously play an important role. This is where the UN Global Compact and the “power of the principles” lend a unique value: its guiding Ten Principles are derived from frameworks on human rights, labor, environment, and anticorruption to which all governments have agreed. Having a reference point is a helpful first step. But the real challenge comes when principles are tested in difficult environments. By joining together with like-​ minded corporations either at global level or through the over eighty Global Compact country networks, businesses are learning how to advance and partner on challenging business issues such as corruption, climate adaptation, child labor, gender equality, and water scarcity, with an array of innovative collaboration models emerging. And as planetary boundaries place an ever greater premium on natural goods such as air, water, and biodiversity, fundamental questions of valuation and accounting are bound to gain relevance, blurring accepted definitions and challenging old concepts. The search for new boundaries that define the responsibilities of the private sector is taking place locally and varies greatly from country to country. Finally, long-​term trends of inequality and youth unemployment, laid bare and exacerbated by the 2008 financial crisis, pressure business to search for new forms of responsible capitalism,60 including a willingness to engage stakeholders over and above shareholders;61 development of brand affinity with public organizations; and commitment to responsible practices,62 especially through partnerships with

  Already low, trust in business and public institutions plumbed new depths following the financial crisis. The 2013 Edelman Trust Barometer demonstrates this amply. See http://​www.edelman.com/​ insights/​intellectual-​property/​trust-​2013/​. 61   The “stakeholder” model traditionally has been seen as an ideological counter to the position of Milton Friedman. Most multinational corporations now accept it. For an early conceptual description of the model, see Jim Bendell (ed.), Terms for Endearment: Business, NGOs and Sustainable Development (Sheffield:  Greenleaf, 2000). See also Milton Friedman, “The Social Responsibility of Business is to Increase its Profits,” New York Times Magazine, September 13, 1970, 122–​6. 62   For a recent comprehensive review, see Oliver F. Williams, Corporate Social Responsibility: The Role of Business in Sustainable Development (Global Institutions, Routledge, 2013). 60

 

746    relations with the private sector UN organizations. The above trends not only increase the propensity of the private sector to seek engagement with the UN and with its various bodies.63 At a more fundamental level, they change the valuation of what used to be external to business: environment, social stability, human rights, and good governance (anticorruption). These factors are now integral to the corporate risk-​and-​opportunity equation and give rise to what today can be called a new global movement of corporate sustainability.64 Based on universal values, where long-​term success trumps short-​term shareholder return, this movement is defined as the ability to deliver long-​term value in financial, environmental, social, and ethical terms.65 Global trends, and the intensifying impact of nontraditional financial issues on investment decisions, significantly strengthen market-​led incentives for sustainable development66 and open up new opportunities to align on a massive scale with global challenges on the UN agenda.

Political Developments The introduction in 2001 of a new plenary item “Towards Global Partnerships” has created a space to articulate UN member states’ vision of the UN–​private sector relationships. Initially contentious debates soon evolved into effective deliberations, gradually leading to recognition of the role of the private sector. Succeeding resolutions highlighting the importance of responsible corporate citizenship, public–​ private partnerships, and the supportive role of the UN Global Compact drew on support from governments in the North and South, East and West alike, that see the UN Global Compact as an approach that does not compete with but is complementary to regulatory intervention. They comprehend that engagement through the UN Global Compact is an additional means of mobilizing private sector activities in support of public policy goals.   The increase of partnerships between the UN and business is documented in the Global Compact Annual Implementation survey. 64   This “updated narrative” of the role of business in society first articulated around the Corporate Sustainability Forum, held in June 2012 in Rio de Janeiro. See http://​unglobalcompact.org/​docs/​news_​ events/​2012_​CSF/​Rio_​CSF_​Overview_​Outcomes.pdf. 65  For detailed definitions, see the UN Global Compact Blueprint for Corporate Sustainability Leadership, http://​www.unglobalcompact.org/​docs/​news_​events/​8.1/​Blueprint.pdf. 66   Robert G. Eccles, Ioannis Ioannou, and George Serafeim, The Impact of a Corporate Culture of Sustainability on Corporate Behavior and Performance, Harvard Business School Working Paper 12-​035 (2012). 63

 

political developments   747 Governments also support the UN–​private sector agenda and responsible business practices through other platforms such as the Group of Eight, African Union, and diverse multilateral declarations. This support is due to a variety of reasons. In many developing countries, the UN Global Compact is viewed as a way to support modernization and economic integration. In Organisation for Economic Co-​ operation and Development  (OECD) nations, the UN Global Compact is often regarded favorably as a policy option to address the backlash against global integration and trade liberalization. Political support of governments plays a critical role in that it lends political legitimacy to UN–​private sector engagement. But the launch of the Global Compact and other voluntary private sector initiatives hardly silenced calls for legally binding treaty approaches to regulate business behavior through multilateral organizations. Already in 1976, the OECD Guidelines for Multinational Enterprises defined ethical principles and standards for transnational corporations. And in 1977, the ILO followed with a Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy. These government-​based instruments include provisions for dialogue at the national level. Nevertheless, calls for international regulation surfaced again within the UN. This time they came from an obscure working group of a subcommittee of the former Geneva-​based Commission on Human Rights. The working group produced a code of conduct on Human Rights in 2003, with “draft norms” that included UN monitoring and verification of compliance by enterprises, despite the UN’s patent lack of capacity or mandate to do so. The Commission on Human Rights rejected the draft norms, while granting that they contained “useful elements and ideas.” A  year later, the Commission requested the appointment of a special representative to develop a conceptual and policy framework clarifying the human rights responsibilities of transnational corporations under international law. Immediately after the failure of the draft norms to command sufficient support in the Human Rights Council (the successor body to the Commission), Special Representative of the UN Secretary-​General John Ruggie set in motion a three-​year process of research and consultations with governments, business, and civil society. It resulted in the submission of a proposal, “Protect, Respect and Remedy: A Framework for Business and Human Rights,” which the Council endorsed in 2008.67 Mindful of the long-​standing and deeply divisive debates that had split the UN, Ruggie from the outset made it clear that he would take a different approach. Instead of seeking to create new legal norms imposing direct obligations on transnational corporations, his aim would be to build a consensual “conceptual framework”   Special Representative of the Secretary-​General, Protect, Respect and Remedy: A Framework for Business and Human Rights, UN Doc. A/​HRC/​8/​5 (2008) (‘the Framework’). 67

 

748    relations with the private sector identifying normative guidelines for the application of current human rights standards in regard to the human rights responsibilities of states, corporations, and other social actors. His “framework” is thus based on the notion of “differentiated but complementary responsibilities” and rests upon three pillars: the state’s responsibility to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights—​that is, the obligation to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that occur; and greater access by victims to effective judicial and nonjudicial remedies. In March 2011, Ruggie issued his “Guiding Principles on Business and Human Rights: Implementing the UN ‘Protect, Respect and Remedy’ Framework,” outlining means for implementation by states and businesses. An online consultation on the draft running from November 2010 through January 2011 preceded final adoption by the Council in June 2011.68 Since its adoption by the Human Rights Council, the Guiding Principles have been endorsed by numerous organizations. As an implementation mechanism of its own, the OECD revised its guidelines to fully incorporate the Guiding Principles of the Framework.69 The UN Global Compact itself, through its human rights and workplace principles, has advanced the Guiding Principles, especially via the “Corporate Responsibilities to Respect.” The drafting and adoption by consensus by the Human Rights Commission are an extraordinary accomplishment of norm entrepreneurship. But they also have provided critical support to protect other voluntary initiatives and more generally, they have helped to underscore the importance of the UN’s normative word, which arguably is the most important comparative institutional advantage the UN has while working with the private sector.

Outlook for the Future Political and market-​led changes have greatly influenced the UN–​private sector relationships from the founding of the UN in 1945. The conviction that peace and 68  Special Representative of the Secretary-​General, Guiding Principles on Business and Human Rights: Implementing the UN “Protect, Respect and Remedy” Framework, UN Doc. A/​HCR/​17/​31 (March 21, 2011) (‘the Guiding Principles’). The document can also be retrieved from http://​www.ohchr.org/​ Documents/​Publications/​GuidingPrinciplesBusinessHR_​EN.pdf. 69  John Ruggie, Just Business: Multinational Corporations and Human Rights (New York: W. W. Norton & Company, Inc., 2013).

 

outlook for the future    749 prosperity, on the one hand, and trade and investment, on the other, are mutually supportive, and can only be built on the foundations of rule-​based interdependence, were soon overshadowed by Cold War ideological battles and statist views on growth and development. But more than five decades later, the partnership of San Francisco was recovered. Following the launch of the UN Global Compact in 2000, cooperation with the private sector became politically acceptable and institutionally supported. Although the UN was initially ill-​prepared to work with the private sector, lacking skills and required operational infrastructure, a decade of experimentation and learning by doing, often starting at the periphery of the UN entities, has brought about numerous changes at the intergovernmental, institutional, and operational levels.70 This “silent reform” within the UN71 has also started to change the culture and methods of work in some UN entities, and has helped to introduce brand management, modern management formats, more effective use of technology, and, in some instances, opensourced, networked collaborations. Given the diversity of mandates, missions, institutional leadership, and operational competencies, especially at the country level, engagement with the private sector has evolved unevenly across UN organizations. A few general rules nevertheless stand out: • Private sector engagement is a complement and not a substitute for government and civil society engagement. UN entities need government support and mandates to engage with the private sector. Lasting impact and substantive change can only be achieved if governments play their role in enabling and empowering private sector solutions to go to scale.72 • Early expectations that private sector engagement would be a panacea, especially regarding fundraising, have given way to more realistic expectations. Along with this realism has come understanding of differentiation between for-​ profit enterprises, on one hand, and foundations and wealthy individuals, on the other. • An opportunistic “partnership for the sake of partnership” has given way to more strategic and transformational approaches. These methodologies distinguish between the motives of the private sector regarding (a) core business operations 70   These changes are documented in biannual reports to the UNGA:  A/​RES/​66/​223, A/​RES/​64/​ 223, A/​RES/​62/​211, A/​RES/​60/​215, A/​RES/​58/​129, A/​RES/​56/​76, http://​www.unglobalcompact.org/​ AboutTheGC/​Government_​Support/​general_​assembly_​resolutions.html. 71   Georg Kell, Ann-​Marie Slaughter, and Thomas Hale, “Silent Reform through the Global Compact,” UN Chronicle 44/​1 (2007). 72   Government governance failure itself is a major cause of human suffering as is evidenced by systemic violence and corruption across many countries. See the Rio+20​CSF Overview Outcomes for an overview of policy measures that can scale up corporate best practices: http://​unglobalcompact.org/​ docs/​news_​events/​2012_​CSF/​Rio_​CSF_​Overview_​Outcomes.pdf.

 

750    relations with the private sector and value chain, (b)  social investment, and (c)  advocacy.73 Specific modalities within the Organization have been developed accordingly.74 Guidance, knowledge, and learning facilities have been developed for this relationship and are readily accessible. However, a number of institutional barriers constrain further evolution of the relationship with the private sector. Many UN entities lack the human resources capacities to effectively make use of the relationship, or are constrained by outdated procedures and policies. The lack of reform75 is especially grave at country levels, where the absence of coherence undermines the ability to engage with the private sector. Clearly, the future of the UN–​private sector relationship will be influenced by how UN entities deal with these challenges. Cultural and organizational differences between the UN and the private sector have long formed a hurdle that had to be overcome to build effective collaboration. Private sector engagement began on an experimental basis, often on the periphery of the UN system. Very few UN entities so far have demonstrated institutional leadership and put in place strategies, procedures, and the right human capital. Many have not yet undertaken the required institutional changes, and private sector engagement remains a precarious venture. UN efforts to engage the private sector are often centered around Headquarter affairs—​celebratory dinners, banquets, etc. But nearly 90 per cent of all private sector partnerships are conceived locally, in lands faraway from New York. To achieve greater impact and scale, the UN and its entities will need to build more coherent country networks.76 Local engagements are also a key to securing political support from emerging market and developing countries, as Headquarters activities tend to be dominated by multinationals from OECD countries. Despite some progress, policy gaps and institutional barriers hold back development of the relationship and pose risks to its future and to the reputation of the Organization. Important aspects of the relationship lack internal guidance and a strategic approach, in particular as regards raising funds from the private sector. Other

  “One UN” was an important reform issue in 2005–​7. For more information, see the Secretary-​ General’s High-​Level Panel Report on UN System-​wide Coherence in the areas of Development, Humanitarian Assistance, and the Environment: Delivering as One (2006), http://​www.un.org/​events/​ panel/​resources/​pdfs/​HLP-​SWC-​FinalReport.pdf. 74   For an overview, see UN Global Compact and GPPI, UN Business Partnerships:  A  Handbook (2013). 75   At UN Headquarters, outdated and defensive procedures and guidance regarding the use and name of logo and pro-​bono policies as well as the absence of any guidance on fundraising with the private sector are examples of this lack of institutional reform. 76   The UN Global Compact, partly out of frustration with the lack of progress to embed the UN values through UN operations at the country level created its own local infrastructure with now over 100 Local Networks, increasingly driving activities bottom-​up. See UN Global Compact, Local Networks Report 2012. 73

 

outlook for the future    751 policy measures, such as the UN’s stipulations on pro bono assistance, are outdated. Accountability and transparency measures, as well as proper impact assessments, are underdeveloped and not evenly applied. Filling these voids and building strategic capacities to assess risks and opportunities on an ongoing basis are required for the relationship to grow with integrity, and to avoid or to better manage associated risk. An even more serious constraint is the lack of institutional capacity to scale up the relationship. The UN Global Compact could not have grown to its current size without its unique public–​private, network-​based governance structure and the efficiency of its foundation.77 Conversely, transactional one-​to-​one partnerships are constrained in their impact due to the institutional capacity limitations. Large-​scale and transformative cooperation requires long-​term investment in governance and in partnership role definitions. A few UN entities—​notably, UNICEF—​have recognized this and have adapted their procedures for scalable engagement. A successful strategy requires not only a deep understanding of market-​led changes and motives for private sector engagement, but also a realization of the institutional advantage the UN brings to the table. Its convening power, universal membership, and technical knowledge in certain areas are important aspects. But arguably even more important is the UN’s ability to leverage moral authority and to convey legitimacy. This quality constitutes its unique comparative advantage. It can be leveraged to ensure that the private sector adheres to basic UN principles and values, while encouraging actions and partnerships that advance UN goals. This moral legitimization takes place through the key values of “respect” and “support.” “Respect” signifies doing no harm and abiding by international minimum standards. This quality confers upon the UN a standard-​setting role that no other world actor can play, underpinning efforts to strengthen the rule of law and to realize humanity’s shared aspiration to live in peace and dignity. It is a critical value that the private sector should tap in building trust and stakeholder engagement and in demonstrating the commitment to “do no harm” is now expected of all businesses by stakeholders. “Support” defines the opportunities for action, collaboration, and engagement beyond the avoidance of harm. There are many opportunities to advance the concept of “support.” Quite often the same methods that identify risk and adverse impacts produce knowledge and practical solutions that can be called upon while actively doing good. There is thus a mirror relation between “respect” and “support.” UN–​business collaboration promotes both “respect” and “support” to ensure that partnerships are instilled with strong UN values.78 The concept of corporate

77   For more information on the Foundation for the Global Compact, see http://​unglobalcompact. org/​AboutTheGC/​The_​GC_​Foundation.html. 78   Successful examples of scalable engagement that strike a balance between “respect” and “support” include Children’s Rights and Business Principles (http://​childrenandbusiness.org/​), Women’s Empowerment Principles (http://​weprinciples.org/​), the CEO Water Mandate (http://​ceowatermandate.org/​), and Caring for Climate (http://​caringforclimate.org/​).

 

752    relations with the private sector sustainability advocated by the UN Global Compact marries the notions of respect and support to that of responsibility and partnership. Nevertheless, there is no one-​size-​fits-​all approach for UN entities. Each one will have to devise its own distinctive methodology for partnering with the private sector, depending on its mission, products, operational capacity, and the scalability of its approach to business engagement. Broad political and market trends continue to support the UN–​private sector relationship. Almost all countries have embraced market models with private sector development at the center. So long as the world remains committed to openness and rule-​based market integration,79 governments will by and large support UN–​private sector development, provided of course that it is impartial in regard to national interests and genuinely global, with the exclusive objective of serving the public good. Governments, however, are unlikely to overtly support major institutional reform to advance the relationship, as this would be perceived as potentially weakening their own exclusive status as member states. It is therefore likely that hybrid models will be the main vehicle to extend this agenda further. Market-​led changes are arguably the most powerful driver of the relationship. Private investment has become the dominant engine of development,80 as investment undergoes a paradigm shift away from the classic lowest-​cost sourcing model toward a long-​term market-​building model.81 One fundamental consequence of this trend is the increasing overlap of public and private goals. Classic UN issues and global agenda items, such as peace, human rights, environmental protection, anticorruption, water, education, and social inclusion, are no longer external to business. Business is influenced by these issues, and influences them, through its core operations and its external relations. Since power and responsibility cannot be separated, the case for becoming part of the solution rather than a cause of the problem is growing stronger. While the great majority of private sector actors are still reluctant to commit to a role of contributing to public good issues, a growing number of them are willingly adapting their strategies and operations and exploring partnerships with the UN. They are looking for ethical, operational partnerships grounded in universally 79   Volunteer private sector engagement could not function on a global scale if protectionism and inward orientation were to gain the upper hand. 80   Net official development assistance (ODA) to developing country recipients rose from only $53.9 billion in 2000 to $128.5 billion in 2010 and $133.5 billion in 2011 before falling to $125.6 billion in 2012. But foreign direct investment (FDI) with a destination in developing countries had already reached $240 billion in 2000 (out of a worldwide total of $1.3 trillion). It rose to $500 billion in 2007 (when FDI hit an all-​time worldwide peak of $1.8 trillion), and then to $700 billion in 2012 (out of $1.35 trillion worldwide). See UNCTAD, World Investment Report 2013—​Global Value Chains: Investment and Trade for Development, UN Conference on Trade and Development, New  York and Geneva (2013). 81   Global integration as corporate strategy also involves the relocation of core functions, including R&D, product development, and human resources management.

 

outlook for the future    753 applicable principles to reduce risks and to build a better enabling environment.82 As long as a state of openness supports the flow of know-​how and information, the business case for engaging will become stronger. Against the background of a favorable yet uncertain political background, rapid technological change, and market development in the East and South, the UN possesses a historic opportunity to leverage its unique institutional advantage. The UN–​private sector relationship has the potential to spread UN values and principles around the world, and thereby contribute to greater stability and cooperation and better environmental stewardship, respect for human rights, social inclusion, and governance. It holds the promise of accelerating the wide application of solutions to global challenges by blending public authority with private sector know-​how, technologies, and resources. To unlock the full potential of the relationship, however, the UN needs to reform itself, to build new forms of public–​private governance, and to bring to scale what is currently mostly along the lines of ad hoc cooperation. It will need to engage in a more strategic manner with civil society, whose voices are critical to keep the UN itself honest and to build the public legitimacy without which the private sector relationship cannot flourish. The Organization will also need to cultivate government support of this undertaking by demonstrating the highest ethical standards and impartiality.

  The UN Global Compact now has over 8,000 corporate participants, with half of them from non-​ OECD countries, where growth is the strongest. 82

 

 

Part VI I

STRUCTURE AND OPERATIONS

 

 

Chapter 35

GENERAL ASSEMBLIES AND ASSEMBLIES OF STATES PARTIES Margaret P. Karns

In December 2012, the United Nations General Assembly (UNGA) replaced the UN Environment Programme’s Governing Council with the larger, universal membership UN Environment Assembly of the UN Environment Programme (UNEP), accepting the Council’s request.1 As then UN Under-​Secretary-​General and UNEP Executive Director Achim Steiner noted: The decision by the General Assembly to strengthen and upgrade UNEP is a watershed moment. Universal membership … establishes a new, fully-​representative platform to strengthen the environmental dimension of sustainable development, and provides all governments with an equal voice on the decisions and action needed to support the global environment, and ensure a fairer share of the world’s resources for all.2

1  I  am grateful to Maria Ivanova for calling my attention to this important development in global environmental governance. See Maria Ivanova, “The Contested Legacy of Rio+20,” Global Environmental Politics 13 (2013): 1–​11. 2   “United Nations Environment Programme Upgraded to Universal Membership Following Rio+20 Summit,” December 21, 2012, http://​www.unep.org/​newscentre/​default.aspx?DocumentID+2700&Art icleID=9363.

 

758    general assemblies and assemblies of states parties This major step for UNEP demonstrates the continuing strength of an idea that took root in the mid nineteenth century, namely the importance of assemblies of all member states as primary governing bodies in intergovernmental organizations (IGOs). This idea represents the internationalization of the democratic ideal of equal representation of states, regardless of size, wealth, population, or other characteristics and constitutes a form of procedural legitimacy.3 Member states’ delegations to IGO assemblies are typically headed by an individual holding ambassadorial rank designated as the state’s “permanent representative to X.” Participation by ministers and other government officials, including presidents and prime ministers depends on the particular organization and agenda. The core idea, however, is the representation of all member states on the basis of their sovereign equality and making decisions or recommendations on the basis of one-​state-​one-​vote unanimity, simple or qualified majority, or consensus. As IGO governing bodies, general assemblies often have very broad purposes. In the case of the UNGA, those purposes extend to the entire scope of the Organization’s work. Hence, assemblies tend to be the forums within which organizational agendas are set; issues are raised and debated; budgets are set; committee and subsidiary body reports and recommendations for action are considered; and decisions made. Assemblies may have a role in the selection of a Secretary-​General or DirectorGeneral of the organization; they may also have a role in the election of member states to limited-​membership subsidiary bodies. Historically, assemblies have also been viewed as “talk shops”—​forums where member states large and small can have their say on many issues of concern to them; often, however, such talk results in little action except perhaps for “ritual resolutions” passed year after year. As a result, from an outsider’s viewpoint, many general assemblies may seem to “do” very little; from an insider’s view, they are usually a key part of the organization’s operation and a reminder that those who work within the organization are agents of its principals: the member states. The roots of this democratic idea of representation are to be found in the mid nineteenth-​century creation of several public international unions by European states to deal with international problems resulting from the Industrial Revolution, expanding commerce, communications, and technological innovation. These included the International Telegraph Union (ITU, 1865) and the Universal Postal Union (UPU, 1874). Other roots lie in the two international conferences convened by Czar Nicholas II in The Hague (Netherlands) in 1899 and 1907. The League of Nations built upon the precedents set by both the public international unions and the Hague Conferences, thereby creating a basic model for IGO structure that has 3   To be sure, equal representation of states, like the makeup of the US Senate, is not democratic in its representation of equal numbers of people. Historically, however, it has been viewed as an important step away from international bodies like the UN Security Council whose makeup and voting are determined by relative power and/​or wealth.

 

historical roots   759 been adapted by many different types of organizations over the past century. This includes the UN and its specialized agencies, some regional organizations, and other IGOs such as the International Criminal Court (ICC) and the Organisation for the Prohibition of Chemical Weapons (OPCW). This essay provides an overview of these assemblies, their purposes, and workings. In addition it touches on the somewhat different phenomenon of assemblies of states parties to international treaties. First, however, we turn back to the antecedents of the concept of general assemblies.

Historical Roots As Inis L. Claude noted in his pioneering book, Swords into Plowshares: In addition to establishing bureaus [permanent staff to provide continuity to the organization], the public international unions … introduced the dichotomy between the general policy-​making conference of all the member states and the council or governing body, consisting of representatives of a few selected members and functioning as a policy directorate on behalf of the organization in the intervals between general conferences. Thus was established the structural pattern of bureau, council, and conference which, with many elaborations but few deviations, serves as the blueprint of international organization today.4

Because the ITU and UPU are specialized, functional organizations based on international conventions neither has a direct counterpart to a general assembly. The ITU’s initial convention called for periodic plenipotentiary conferences of parties and was revised in 1875 to call for periodic “administrative conferences” composed of delegates with technical expertise representing members’ telegraph administrations, each with one vote with decisions made by majority. These conferences dealt with periodic modification of the telegraph regulations and rates, admission of new parties, and the creation of new organs. The plenipotentiary conferences remain the supreme organ, meeting every four years while separate administrative conferences for radio and telecommunications retain responsibility for addressing technical issues.5 The UPU’s International Postal Congress, meeting every five years is “the supreme authority of the Union” with responsibility for directing its affairs, revising

4   Inis L. Claude, Jr., Swords into Plowshares: The Problems and Progress of International Organization, 3rd ed. rev. (New York: Random House, 1964), 32. 5  George Arthur Codding, Jr., The International Telecommunication Union:  An Experiment in International Cooperation (Leiden: E. J. Brill, 1952).

 

760    general assemblies and assemblies of states parties the convention, regulations, and annexes as well as overseeing the international postal system.6 The majority of delegates are experts in postal affairs. It appoints members of the Council of Administration, sets limits on expenses, reviews reports of committees and the international bureau director, and makes improvements in the system where judged necessary.7 The Hague Conferences in 1899 and 1907 were convened to consider techniques to prevent war and the conditions under which arbitration, negotiation, and legal recourse would be appropriate. Twenty-​six states participated in the first conference, including China, Siam, Turkey, Mexico, and Japan—​the first time that participants included both small and non-​European states. The second conference with forty-​five states included almost all the Latin American states, thereby achieving near universal participation of the then-​existing sovereign states. All were given an equal voice, establishing the principles of universality and legal equality, thereby providing weaker states with protection in the face of power differences.8 The conferences produced several procedural innovations that have become standard features of multilateral conferences and twentieth-​century IGOs. The 1907 conference, for example, created commissions and sub-​commissions that reported to the plenary sessions where final decisions were made. It also introduced the election of chairs and roll-​call votes. A third Hague Conference was never convened due to the outbreak of war in 1914. Yet the first two along with the numerous other conferences held during the nineteenth century, including those of the ITU and UPU, represented the early collective efforts to address problems of war, emergencies, and issues arising from new technologies and greater commerce on a regular, universal basis.9 Liberal internationalist and idealist aspirations led to the creation of parliamentary, administrative, and judicial mechanisms and, through the creation of assemblies, provided democratic representation in assemblies of the peoples of the world.10 The next major step was the founding of the League of Nations after World War I.   In 1994, power to revise the General Regulations for Implementation of the Convention and subsequent agreements shifted to the Postal Operations Council. 7  George Arthur Codding, Jr., The Universal Postal Union:  Coordinator of International Mails (New York: New York University Press, 1964), 133. 8   James Brown Scott, The Hague Peace Conferences of 1899 and 1907: A Series of Lectures Delivered Before the Johns Hopkins University in the Year 1908, I: The Conferences (New York and London: Garland Publishing Inc., 1972), 155. Scott’s lectures quote participants who affirmed the way the conferences empowered small states. On this subject, see also A. A. Cançado Trindade, “The Presence and Participation of Latin America at the Second Hague Peace Conference of 1970,” in Topicality of the 1907 Hague Conference: The Second Peace Conference Workshop, The Hague 6–​7 September 2007, ed. Yves Daudet (Leiden: Martinus Nijhoff Publisher, 2008). 9   Alfred Zimmern, The League and The Rule of Law 1918–​1935 (London: Macmillan, 1945), 36, cites 257 conferences between the Geneva Conference of 1864 that established the International Red Cross and 1914. 10   Michael Barnett and Martha Finnemore, “The Power of Liberal International Organizations,” in Power in Global Governance, ed. Michael Barnett and Raymond Duvall (New  York:  Cambridge University Press, 2005), 161–​84. 6

 

the league of nations    761

The League of Nations Maligned as the League of Nations has been, it enjoyed a number of successes and played an important part in developing systems of governance for dealing with various issues and problems. As Claude has noted, “International organizations are never simply the products of creative planning and institutional evolution; they find their sources deep in the context of national interests and the power configuration of the international setting out of which they arise.”11 In the League’s case, that involved a victorious coalition of great powers. The international setting following World War I, however, also included many small states who valued the equality afforded at the second Hague Conference and had the sympathy of US President Woodrow Wilson as well as France and Britain. The ideological climate at the time also influenced the League’s design—​“an expression on the international level of nineteenth-​century liberalism and … the assumptions and values democratic theory.”12 The League’s Assembly was central to this. As President Wilson said, “Nothing is going to keep this world fit to live in like exposing in public every crooked thing that is going on … A bad cause will fare ill, but a good cause is bound to be triumphant in such a forum.”13 In his vision, the League was “to make the world safe by democracy.”14 The formation of the League of Nations, however, owed much to nongovernmental groups such as the League to Enforce Peace in the United States as well as the League of Nations Society and the Fabians in England that actively pushed for the creation of a new international organization and drafted plans for it. There were also French and British government committees appointed to consider the form of a new institution.15 All of the plans called for a congress, conference, or assembly of national representatives to serve as a quasi-​legislative body, “sitting regularly to promote the common interests of nations,” suggesting amendments, codifying international law, and considering general international questions.16 The League Covenant followed these plans in establishing the Assembly as a quasi-​legislative body, meeting at stated intervals and other times, and consisting of representatives of all member states, each with one vote. It was authorized to admit new members (Art. 1); approve the budget and set the proportions of expenses to be borne by

12  Claude, Swords into Plowshares, 43.   Ibid., 46.   Quoted in Hamilton Foley, Woodrow Wilson’s Case for the League of Nations (Princeton: Princeton University Press, 1923), 64. 14  Claude, Swords into Plowshares, 47. Italics in original. 15   See F. P. Walters, A History of the League of Nations (London:  Oxford University Press, 1952), vol. 1, ch. 4. 16   Henry R. Winkler, The League of Nations Movement in Great Britain 1914–​1919 (New Brunswick, NJ: Rutgers University Press, 1952), 26. 11

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762    general assemblies and assemblies of states parties members (Art. 6); elect the nonpermanent members to the League Council (Art. 4); appoint a Secretary-​General (Art. 6); and to act on matters referred by the Council and on any matter “within the sphere of action of the League or affecting the peace of the world.”17 The Assembly shared with the League Council responsibility for electing justices to the Permanent Court of International Justice (PCIJ).18 Although approval of new members required a two-​thirds majority vote, substantive decisions required agreement of all members represented at the meeting, that is to say unanimity—​a provision that has long been considered one of the League’s handicaps. Walters notes that this was intended to forestall opposition in the US Senate although the drafters “were agreed that such a rule was the normal condition of international action.”19 In practice, strict unanimity was tempered, however, by special procedures requiring less than majority votes and by states’ preference to abstain, rather than block action. Once the Assembly began to function, it set a number of precedents regarding its own organization and procedure, some based on suggestions of the Secretariat, others proposed by member states. As Zimmern notes, “When the delegates to the first Assembly came together on November 15, 1920, they had no previous experience to guide them in their deliberations … a standing Conference of the majority of the states of the world, great and small alike, was something entirely new.” In fact, he concludes, “the first meeting proved decisive in fixing the place of the Assembly in the scheme of the League.”20 At that first session, for example, the Assembly decided to meet annually in the autumn and to devote its first week to general debate with speeches by heads of delegations, its second to committees, and its third week to reports and the conclusion of work. Delegates used the innovation of general debate to address any question of international concern they wished to raise: The small powers did not fear to criticize the great, and the great powers did not disdain to explain and defend their policy. It was an extraordinary and unprecedented inrush of democracy and publicity into the world of international affairs … possible only because the Assembly maintained a firm tradition of moderation and courtesy.21

Over time, the Assembly established other precedents such as requiring the Secretary-​General to submit an annual report on the organization’s activities (a practice continued by the UNGA), reviewing Council reports, controlling the budget, and overseeing all the areas of the League’s work. As Zimmern noted, “any   The Covenant of the League of Nations, Art. 3, para. 3.   The only modification of this provision for the joint Assembly and Council selection of judges that was made in the transition from the PCIJ to the International Court of Justice (ICJ) was to stagger elections to ensure continuity on the Court. 19  Walters, A History of the League of Nations, 47. 20  Zimmern, The League of Nations, 469–​7 1. 21  Walters, A History of the League of Nations, 119. 17

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the league of nations    763 overt collision [between the Assembly and Council] has been avoided by careful handling.”22 It is worth noting, however, that the UN Charter (Art. 12) specifically precludes the UNGA from making any recommendation with regard to a dispute or situation “while the Security Council is exercising … the functions assigned to it … unless the Security Council so requests,” thus resolving the issue created by the absence of such provision in the League Covenant. In creating six main committees, the League Assembly accepted the Secretariat’s recommendation to give every delegation the right to sit on each committee rather than continuing an older practice in general conferences of permitting only representatives of powerful states and those with special concerns to participate. The six committees were as follows: First Committee—​legal questions; Second Committee—​ economic, social, and technical work; Third Committee—​ disarmament; Fourth Committee—​budget and finance; Fifth Committee—​social and humanitarian questions; and Sixth Committee—​political questions including the mandate system, minority questions, and admission of new members. Walters notes, “the relation between the main Committees and the plenary Assembly turned out to be exactly what was hoped … [i.e. not repetitious, but] relatively informal and businesslike methods, leaving formal speech-​making to the plenary sessions.”23 Decisions within committees were by majority in contrast to the Assembly itself where decisions required unanimity. In addition to the main committees, the Assembly set up advisory committees dealing with health, drug traffic, slavery, traffic in women, child welfare, transit, economics and finance, and intellectual cooperation. It shared with the Council responsibility for relations with specialized, technical organizations such as the Communications and Transit Organization, the International Health Assembly, and the International Labour Organization. The reflections of Lord Robert Cecil on the earliest days of the League Assembly convey a sense of just how revolutionary it was at the time: The mere existence of the Assembly is a great achievement. The mere bringing together of representatives of all the different nations and languages and religions into one room, and asking them to sit down together and examine world-​questions, not in the interests of individual nations but as they affect the prosperity and progress of mankind, this, I repeat, is a great thing, and produces a great effect … of the different nations, gathering together and working for common objects.24

Walters notes in his history of the League, “In later years it was the general view that the Assembly was at once the most original and the most satisfactory of all the institutions of the League. This was due above all to its unique character as the  Zimmern, The League of Nations, 474.  Walters, A History of the League of Nations, 118. 24   Rt. Hon. Lord Robert Cecil, Lord Privy Seal, The Moral Basis of the League of Nations (The Essex Hall Lecture, 1923) (London: The Lindsey Press, 1923), 35–​6. 22 23

 

764    general assemblies and assemblies of states parties parliament of the nations, in which each member possessed the same rights and obeyed the same rules.”25 He also credits the small powers for helping to make it a central organ of the League.

The UN General Assembly The drafters of the UN Charter drew on the experience of the League of Nations, The Hague Conferences, the ITU, and the UPU in crafting the provisions for the UN General Assembly. Goodrich, Hambro, and Simons note that in spite of efforts to “avoid the overlapping and alleged confusion that attended the granting of wide and undifferentiated powers to the Assembly and Council of the League,” the 1945 San Francisco Conference “left the definition of the respective powers and responsibilities of the two organs [UNGA and Security Council] somewhat unclear, thus opening the way to subsequent controversy and a substantial expansion in practice of the Assembly’s powers and influence in the peace and security field.” Similarly, the Economic and Social Council (ECOSOC) and Trusteeship Council were given specific functions and powers but: expected to discharge their responsibilities “under the authority of the General Assembly.” In practice the Assembly has chosen to exercise this authority to the full, with the result that the Councils have come to resemble more closely subsidiary organs than principal organs of the United Nations which the Charter declares them to be.26

With regard to voting in the General Assembly, the Charter’s drafters rejected weighted voting because: [it] would provoke the traditional resistance of a majority of states to overt denials of the equality of states, and it would be difficult to secure general support for any index of power with its corresponding system of voting. While weighted voting may well be utilized in the organization of certain technical agencies it constitutes too direct a violation of the traditional system to be proposed for the plenary body of The United Nations.27

Like the League Assembly, the UNGA is the arena where all members are equally represented according to a one-​state, one-​vote formula. It is the organization’s hub,  Walters, A History of the League of Nations, 118.  Leland M. Goodrich, Edvard Hambro, and Anne Patricia Simons, Charter of the United Nations: Commentary and Documents, 3rd and rev. ed. (New York: Columbia University Press, 1969), 106–​7. 27  Ruth B. Russell, assisted by Jeannette E. Muther, A History of the United Nations Charter (Washington, DC: The Brookings Institution, 1958), 357. 25

26

 

the un general assembly    765 with a diverse agenda and responsibility for coordinating and supervising subsidiary bodies but with power only to make recommendations to members, except on internal matters such as elections and the budget where it has exclusive competence. It elects the nonpermanent members of the Security Council, ECOSOC, and the Trusteeship Council; appoints judges to the ICJ; and, upon the recommendation of the Security Council, admits states to UN membership and appoints the Secretary-​ General. It shares responsibilities with the Security Council for Charter revision. The UNGA can propose amendments with a two-​thirds majority; two-​thirds of the member states, including all the permanent members of the Security Council, must then ratify the changes. The two bodies together may also call a general conference for the purpose of Charter review. There have been only two instances to date, however, of Charter amendment, both enlarging the membership of the Security Council (1965) and ECOSOC (1965 and 1973). The UNGA can consider any matter within the purview of the UN Charter (Art. 10) and make nonbinding recommendations. Although the Security Council is the UN’s primary organ for dealing with threats to international peace and security, the UNGA can make inquiries and studies with respect to conflicts (Arts. 13 and 14); it may discuss a situation and make recommendations if the Council is not exercising its functions (Arts. 11 and 12); and it has the right to be kept informed by the Security Council and the Secretary-​General (Arts. 10–​12). The Uniting for Peace Resolution passed during the Korean War in 1950, however, ignited controversy over the respective roles of the two bodies. Under the resolution, the UNGA claimed authority to recommend collective measures when the Security Council was deadlocked by a veto. It was subsequently used to deal with crises in Suez and Hungary (1956), the Middle East (1958, 1967, 1980, and 1982), the Congo (1960), and the Palestinian–​Israeli crisis (1997). In all, ten emergency special sessions of the UNGA have dealt with threats to international peace when the Security Council was deadlocked. Since the early 1990s, there has been consensus, however, that only the Security Council should authorize the use of armed force.28 In any case, the UNGA is a cumbersome body for dealing with situations concerning peace and security. It is a far better organ for the symbolic politics of agenda-​setting and for mustering large majorities in support of resolutions. In this regard, one of the Assembly’s roles has been to provide collective legitimation (or delegitimation) of norms, rules, and actions, including those of its member countries.29 The UNGA has an important role in the development of international law (Art. 13), which it has carried out through its Sixth (Legal) Committee, the   Bruce Cronin, “International Consensus and the Changing Legal Authority of the UN Security Council,” in The UN Security Council and the Politics of International Authority, ed. Bruce Cronin and Ian Hurd (New York: Routledge, 2008), 57–​79. 29   On the subject of collective legitimation, see Inis L. Claude, Jr., The Changing United Nations (New York: Random House, 1967), 73–​103. 28

 

766    general assemblies and assemblies of states parties International Law Commission whose thirty-​four jurists are elected by the assembly, and UNGA-​sponsored global conferences. Over time, the Assembly has produced many multilateral lawmaking treaties, including the 1961 Vienna Convention on Diplomatic Relations, the 1969 Vienna Convention on the Law of Treaties, the 1968 Treaty on the Nonproliferation of Nuclear Weapons, and the 1994 Convention on the Safety of United Nations and Associated Personnel. Assembly resolutions have also approved all the UN-​initiated conventions on international human rights, although most were drafted in the former ECOSOC Commission on Human Rights. Scholars regard some Assembly resolutions as laying the basis for new international law by articulating new principles, such as one that called the seas the “common heritage of mankind.”30 These can become the basis for “soft law” or norms that represent a broad international consensus. Some new norms may be subsequently incorporated in “hard” law, namely in treaties drafted under UNGA authorization as when the “common heritage” principle was incorporated into the 1967 Treaty on Outer Space and 1982 Convention on Law of the Sea. In many ways, the UNGA comes closer than any other international body to embodying what today is often called the “international community.” Over time and with the growth of UN membership from 51 to 193, the number of items on the Assembly’s agenda has increased from 46 in 1946 to more than 150 in recent years, not counting sub-​items. Many items, however, are repeated year after year either because they constitute routine UN business or represent efforts by member states to reiterate support for some cause. Topics range from conflict situations such as the Israeli–​Palestinian conflict to arms control, development, global resource management, human rights, legal issues, and the UN’s administration and finances. Resolutions may be aimed at individual member states, nonmembers, the Security Council or other organs, the Secretary-​General, or even the Assembly itself. Part of the agenda also includes receiving reports on the work of other UN entities, including the annual report of the Secretary-​General. A major question, however, concerns the authority of UNGA actions. The Charter is clear on the Assembly’s authority within the UN as noted above and the Assembly has used that authority to create a wide variety of subsidiary agencies, programs, committees, and funds. It has convened a host of global conferences and world summits. Article 10 defines its resolutions addressed to states as recommendations and, as noted above, some of these resolutions may acquire the status of “soft law.” 30  See, e.g., Jorge Castaneda, Legal Effects of United Nations Resolutions (New  York:  Columbia University Press, 1969); Stephen M. Schwebel, “The Effects of Resolutions of the U.N. General Assembly on Customary International Law,” Proceedings of the 101st Annual Meeting, American Society of International Law, vol. 73 (April 26–​28, 1979), 301–​9; Marko Divac Őberg, “The Legal Effect of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ,” European Journal of International Law 16/​5 (2005): 879–​906.

 

the un general assembly    767 Still, for many observers and participants, the UNGA’s primary role is as the arena within which major currents in world politics are on display. As became evident even with The Hague Conferences at the beginning of the twentieth century, however, large assemblies of states cannot function without clear rules of procedure to organize debate, the use of committees, consideration of proposed resolutions and amendments, and decision-​making.

How the General Assembly Functions Regular annual meetings of the UNGA are held for three months (or longer) each fall, often resuming at other times during the year; they begin with a “general debate” period when heads of state, prime ministers, and foreign ministers speak before the Assembly, continuing the pattern set at the first League Assembly session in 1920. Each year, the UNGA elects a president and twenty-​one vice presidents for that session. By tradition, presidents come from small and middle power states; the vice presidents are drawn from the five major regions and five permanent members of the Security Council. Only three times (in 1953, 1969, and 2006) has a woman been elected. The president’s powers come largely from personal influence and political skills in guiding the Assembly’s work, bringing parties to agreement, and ensuring that procedures are respected. In addition to regular sessions, there have been twenty-​eight special sessions to address specific problems (e.g., with HIV/​AIDS in 2001 and children in 2002) and ten emergency special sessions. Following the precedents of the League Assembly, the bulk of the UNGA’s work is done in six functional committees on which all members sit: the First, or Disarmament and International Security Committee; the Second, or Economic and Financial Committee; the Third, or Social, Humanitarian, and Cultural Committee; the Fourth, or Special Political and Decolonization Committee; the Fifth, or Administrative and Budgetary Committee; and the Sixth, or Legal Committee. The Assembly also has created other, smaller committees to carry out specific tasks, such as studying a question (the ad hoc Committee on International Terrorism) or framing proposals and monitoring (the Committee on Peaceful Uses of Outer Space and the Disarmament Commission). A Credentials Committee of nine members appointed each session reviews the credentials of representatives and has rejected them on occasions where the majority of UN members reject the legitimacy of a country’s government such as the disputes over China’s seat from 1950 to 1971 and South Africa’s apartheid regime in the 1970s. The General Committee, consisting of the UNGA president, vice presidents, and six main committee chairs, reviews the agenda before each session. Member states’ delegations are key to the UNGA’s functioning. The Charter proides that each member can have no more than five representatives in the Assembly, but

 

768    general assemblies and assemblies of states parties alternates and advisers are permitted. Delegates are organized in permanent missions that vary in size from about 120 to one or two persons of diplomatic rank, growing significantly during the fall Assembly sessions and sometimes including parliamentarians or legislators. Some delegations have considerable autonomy in dealing with issues on Assembly agendas and determining how best to represent their countries’ interests and to vote. Others must seek instructions from their capitals. Delegates’ expertise varies widely, enabling some to be more influential than others, especially those with long UN experience since parliamentary skills often matter more than diplomatic skills in shaping agendas, debate, and drafting resolutions. The UNGA has granted observer status to a handful of nonmember states and other international organizations. Currently, there are two nonmember state observers—​the Holy See (Vatican) and the State of Palestine. The European Union (EU) has observer status as do the International Federation of Red Cross and Red Crescent Societies, the Inter-​Parliamentary Union, and the International Criminal Court. Depending on the precise terms granted, observers may have the right to speak, submit proposals, circulate documents, but never to vote.

Politics and Decision-​Making in the General Assembly Politics within the UNGA has generally mirrored world politics; it is the place to set the agendas of world politics, to get ideas endorsed or condemned, to have actions taken or rejected. Any state can propose an agenda item, and the Assembly has been an especially valued tool of small and developing states, much as the League and The Hague Conferences proved to be. Under the one-​state, one-​vote system, it takes a simple majority of member states present and voting (50 percent plus one) to approve most resolutions. For those items determined to be “important questions,” such as resolutions dealing with the maintenance of peace and security, admission of new members, suspension or expulsion of a member, and budgetary questions, a two-​thirds majority is required. Since the UNGA functions much like a national parliament, just as a majority political party (or a coalition) can control parliamentary decisions, so can a stable coalition of states comprising a majority of UN member states dominate the UNGA. Early in the UN’s history, states in the same geographic region, or those sharing economic or political interests, formed coalitions to shape common positions on issues and to control a bloc of votes. The UN Charter specified that the Assembly should give consideration to “equitable geographic distribution” in electing the nonpermanent members of the Security Council and members of ECOSOC, though it offered no guidance about how to do so. By informal agreement, these groups correspond roughly to the major regions of the world: Western European and Others (a group

 

the un general assembly    769 that now also includes Israel, Turkey, Canada, Australia, and New Zealand), Eastern Europe, Africa, Latin America, Asia, and the Middle East. Each regional group has adopted different rules and procedures for selecting candidates. During the Cold War, UNGA politics was dominated by two competing coalitions composed of states aligned with either the United States or the Soviet Union. The Eastern European states voted consistently with the Soviet Union, forming a true bloc. Many members of the Nonaligned Movement also voted regularly with the Soviet bloc. The US-​dominated coalition held a controlling position until 1955 with Western European, Latin American, and some British Commonwealth states voting closely with the United States on issues that involved Cold War competition, and also often on human rights, social concerns, and UN administration. After the influx of newly independent African and Asian states in the early 1960s, a new coalition emerged, the Group of 77 (G77), whose membership heavily overlapped that of the Nonaligned group established in the mid 1950s. By 1971, the G77 constituted two-​thirds of the UN’s membership. With a high level of cohesion on a range of development and other issues, it set agendas in the UNGA, ECOSOC, and many specialized agencies, often supported by the Soviet bloc. With a majority of Assembly votes and the support of the Organization of Petroleum Exporting Countries, the G77 countries thought they could act with little heed to how offensive resolutions such as that linking Zionism with racism or the radical demands contained in the proposals for a New International Economic Order (NIEO) would be received by others. Thus, while the UNGA’s agenda was dominated by Cold War and decolonization issues in the 1950s, from the 1960s to the 1980s, G​77 countries used their voting power to push many of their goals, especially those relating to development and the NIEO, and UNGA politics often reflected the North–​South division. Assembly agendas still largely reflect developing countries’ interests in self-​ determination, economic development, global inequalities, and neocolonialism. Since the early 1980s, however, diverging social and economic conditions among Asian, African, and Latin American countries have made common policy positions more difficult to forge. Today, the South is splintered between emerging countries such as Brazil, China, India, and South Africa, a large number of very poor countries, and others in between. The North was never as cohesive as the South during the period of most intense North–​South conflict. Many European states were more supportive of G77 concerns than the United States which weakened the North’s ability to operate as a coalition. Other interests and some subregional groups also serve as the basis for coalitions in the UNGA. Thirty landlocked countries that coalesced during law of the sea negotiations in the 1970s often vote together on issues of trade and transportation. Likewise, forty-​five small-​island states who are deeply concerned about climate change vote together on related issues. Democratic states formed the UN Democracy Caucus in the 1990s to push for including good governance norms

 

770    general assemblies and assemblies of states parties in UN development programs and international financial institutions’ aid conditions and for a concerted human rights agenda. The EU has the most formalized process for continual consultation among its member states and its members have increasingly voted as a bloc on social and economic issues. The Nordic states and members of the Caribbean Community also show notable unity in the UNGA. In the 1960s and 1970s, many studies of dynamics in the UNGA included analyses of blocs, coalitions, and roll-​call voting patterns.31 A study in 2000 found that the Cold War’s end had brought some shifts in alignment within the UNGA. It also showed a striking Western versus non-​Western pattern with the United States and its Western allies at one end and rising powers along with anti-​ Western, nondemocratic states like Cuba, Libya, North Korea, and Iran at the other—​a division more closely resembling the old East–​West dimension than the North–​South dimension.32 Most UNGA decision-​making over the years has been done by consensus—​that is, without a recorded vote, meaning a decision is “supported by, or at least not objectionable to, all parties involved.”33 The Assembly president consults with delegations then announces that a resolution is adopted. Only one-​third of UNGA decisions between the first and sixty-​fourth sessions involved recorded votes with the highest percentage of these occurring in the 1980s on Middle East issues.34 Coalitions and blocs are as active in trying to forge consensus as in marshaling votes, but the outcome is less divisive because states’ individual positions are not revealed as in a roll-​call vote.

Assessing the UNGA’s Role and the Potential for Reform The importance of the UNGA in international politics and within the UN itself has varied over time. In its earliest years, it was closely watched. When the Cold War divide paralyzed the Security Council, the Assembly became the central forum.

  See, e.g., Hayward R. Alker, Jr. and Bruce M. Russett, World Politics in the General Assembly (New Haven: Yale University Press, 1965); Thomas Hovet, Jr., Bloc Politics in the United Nations (Cambridge: Harvard University Press, 1960); and Hanna Newcombe, Michael Ross, and Alan G. Newcombe, “United Nations Voting Patterns,” International Organization 24 (1970): 100–​21. 32   Eric Voeten, “Clashes in the Assembly,” International Organization 54 (2000): 185–​215. Other voting studies include Soo Yeon Kim and Bruce M. Russet, “The New Politics of Voting Alignments in the UN General Assembly,” International Organization 50 (1996): 629–​52; and Miguel Marín-​Bosch, Votes in the UN General Assembly (The Hague: Kluwer Law International, 1998). 33   Courtney B. Smith, Politics and Process at the United Nations: The Global Dance (Boulder: Lynne Rienner, 2006), 218. Smith’s book also contains an excellent chapter on “Groups and Blocs.” 34   Simon Hug, “What’s in a vote?,” paper prepared for presentation at the Annual Meeting of the American Political Science Association, New Orleans, August 30–​September 2, 2012, http://​www. un.org/​Depts/​dhl/​resguide/​gavote.htm. 31

 

the un general assembly    771 It was immensely important through the colonial peoples’ struggle for independence in the 1950s and 1960s as anti-​colonialist countries used it to build majorities in support of decolonization, culminating in Resolution 1514 in 1960 (Declaration on the Granting of Independence to Colonial Peoples and Countries) that legitimated the right of all peoples to self-​determination. Throughout the 1960s and 1970s, the UNGA was an important forum for developing countries’ efforts to translate independence into economic sovereignty, control over resources, more development aid, and greater say in international economic and trade rules. Since they controlled UNGA votes but not the political and economic resources to achieve these goals, however, they contributed to the stagnation of the Assembly’s role in international politics generally. And, since the United States was the frequent target of criticism in these years and was the UN’s leading funder, it became increasingly disillusioned with the UN in general and the Assembly in particular by the early 1980s. As Peterson has observed: The Assembly looked more effective during the era of the US-​led majority … because control of votes inside was matched by possession of ample resources for action outside. The G-​77 majority was hobbled by a serious disjuncture between its control of votes inside and lack of resources for action outside, exposing all the weaknesses of a deliberative body that commands no effective administrative and coercive institutions.35

Since the Cold War’s end, the UNGA’s importance has declined even further as the epicenter of UN activity shifted to the Security Council and the Secretariat. Many criticisms of the UN, then, are really criticisms of the UNGA. Many UNGA resolutions are “ritual resolutions”—​their texts repeated almost verbatim year after year. The number of resolutions steadily increased over time, from about 117 annually during the first five years to a peak of 360 in 2001–​2. In short, too many resolutions with redundant or watered down content, calling for too many reports, and delegates showing too little concern about commitments made have contributed to the GA’s need for reform. World Summits and UN-​sponsored global conferences have for many years now drawn more attention than the GA itself. Yet, Smouts argues: The success of these giant gatherings, which receive wide media coverage and draw heads of state and of government as well as representatives from civil society, attest to the obsolete nature of the General Assembly as it has been organized traditionally and the need to rethink the classic modes of international cooperation.36

35   M. J. Peterson, “General Assembly,” in The Oxford Handbook on the United Nations, ed. Sam Daws and Thomas G. Weiss (New York: Oxford University Press, 2009), 17, http://​www.oxfordhandbooks. com/​view/​10.1093/​oxfordhb/​9780199560103.001.0001/​oxfordhb-​9780199560103-​e-​005. 36   Marie-​Claude Smouts, “The General Assembly: Grandeur and Decadence,” in The United Nations at the Millennium: The Principal Organs, ed. Paul Taylor and A. J. R. Groom (New York: Continuum, 2000), 50.

 

772    general assemblies and assemblies of states parties Unquestionably, the UNGA needs reform and revitalization—​more than just a shorter agenda, less time given to speeches, clear priorities, and fewer resolutions. Given its central role as a global deliberative forum with oversight over the entire UN system, meaningful UNGA reform will also require a significant overhaul of tasks and activities among the principal organs and rest of the system. The subject was first raised in 1949 and over time many committees have been charged with making recommendations; reports have been filed; and little has happened. In Smouts’s view, “the Assembly is too ailing to find the strength to regenerate itself from within … [and] no country or group of countries is motivated enough to lead the GA’s renewal.” “If a reform were to take place,” she adds, “it would instead be fuelled by private initiatives, by ‘epistemic communities’, major foundations and NGOs. However, nothing can be done unless a state or group of states instills the necessary degree of political will into the machine.”37 For many, an Assembly only of states is insufficient in today’s world. They argue that ways must be found to bring representatives of civil society and NGOs, perhaps even parliamentarians and business representatives, together with those of states and to ensure that the former do not represent just the best-​organized and funded groups. Proponents generally ignore the issues of how participating groups would be selected as well as the reality that most NGOs are not themselves representative in the sense of having been chosen to represent certain groups such as the poor, women, or children whose rights they champion. Others, however, are concerned with how such participation undermines state sovereignty and whether democratic politics can work in IGOs to which governments have delegated authority. There are various proposals for a second kind of assembly and the Millennium Forum convened prior to the 2000 Millennium Assembly was one step in that direction. Despite the lack of progress, in a networked world of many nonstate actors, the opening words of the UN Charter—​“We the peoples”—​encourage a rethinking of the nature of the world’s primary forum as part of the overall process of UNGA reform.38

  Ibid., 54. One example of a private initiative was the 2003 High-​Level Retreat convened by the International Peace Academy with a small group of permanent and deputy permanent representations, a member of the Secretariat, and an outside expert. Like so many others, the report and its concrete suggestions had little impact. 38   See, e.g., proposals contained in the report of the Commission on Global Governance, Our Global Neighborhood (New  York:  Oxford University Press, 1995), 257–​63; Richard Falk and Andrew Strauss, “On the Creation of a Global Peoples’ Assembly:  Legitimacy and the Power of Popular Sovereignty,” Stanford Journal of International Law 36/​2 (2000): 191–​219; and Chadwick Alger, “The Emerging Roles of NGOs in the UN System: From Article 71 to a People’s Millennium Assembly,” Global Governance 8/​1 (January–​March 2002): 93–​117. 37

 

the un specialized agencies and other un bodies    773

The UN Specialized Agencies and Other UN Bodies Thirteen of the nineteen UN specialized agencies have plenary assemblies or general conferences that serve as policymaking bodies, the exceptions being the International Monetary Fund and the five institutions in the World Bank group. They vary not only in their names, but also in their importance within the organization. In some cases such as the International Atomic Energy Agency (IAEA) and International Maritime Organization (IMO), a smaller council or governing body has the primary role in governance with the assembly being subordinate; in other organizations such as the World Health Organization (WHO), UN Educational, Scientific and Cultural Organization (UNESCO), and Food and Agricultural Organization (FAO), the assembly or conference determines general policies. Some, like the International Labour Organization’s (ILO) General Conference and the World Health Assembly have legislative or rule-​creating powers to adopt conventions, standards, or regulations, although these may still be subject to states’ ratification or ability to opt out. The UNEP Assembly is charged with setting strategic guidance for the organization’s future and organizing a multi-​ stakeholder dialogue. Most of these assemblies meet less often than annually and, because of the specialized, often technical nature of the organizations’ work, delegates are typically experts in the related field. The ILO is unique in that its General Conference includes tripartite representation of labor and management organizations in addition to governmental representatives. (See Chapter 22 of this volume for further discussion of this unique provision.) Table 35.1 illustrates the variations among the plenary bodies of UN specialized and other agencies. Two other entities within the UN system have assemblies as part of their governance arrangements. One is the Global Environmental Facility (GEF) established by the World Bank, UN Development Programme (UNDP), and UNEP in 1990 to provide grants to developing countries for investment projects, technical assistance, and research relating to environmental protection. GEF’s Assembly, created in 1994, is composed of representatives of all member states. It is unique in requiring a double-​weighted majority when votes are taken in order to ensure that there is support from majorities of both members and contributors. The second entity is the still-​to-​be fully implemented International Seabed Authority. A  1994 agreement revising the original provisions in the 1982 Law of the Sea Convention calls for an assembly composed of representatives of member states that among other things will elect the thirty-​six members of the Council—​the Authority’s executive organ.

 

Table 35.1  Plenary bodies of UN specialized and related agencies UN agency

Name of plenary body Frequency of sessions Competence

Food and Agriculture Organization (FAO)

Conference

Biennial

Determine general policy; approve budget; elect Council members; make recommendations to member states

International Civil Aviation Organization (ICAO)

Assembly

Triennial

Take actions on reports of the Council; approve budget; elect Council members

International Fund for Agricultural Development (IFAD)

Governing Council

Annual

Adopt regulations, policies, and criteria for financing projects

International Labour Organization (ILO)

General Conference

Annual

Legislative powers to adopt labor conventions; approve budget

International Maritime Organization (IMO)

Assembly

Biennial

Approval of budget; review reports of Council; make recommendations to member states; elect Council

International Telecommunications Union (ITU)

Plenipotentiary Conference

Every 5 years

Determine general policies; set budget; revise convention; enter agreements with other international bodies

UN Educational, Scientific and Cultural Organization (UNESCO)

General Conference

Biennial

Determine policies and main lines of work; elect Executive Board

UN Industrial Development Organization (UNIDO)

General Conference

Biennial

Determine guiding principles and policies

Universal Postal Union (UPU)

Congress

Every 5 years

Revise or complete Acts of previous congress

World Health Organization (WHO)

World Health Assembly

Annual

Determine policies; approve health regulations; review and approve Board and Director-General activities

World Intellectual Property Organization (WIPO)

Assembly

Biennial

Appoint Director-General; review reports; adopt budget; amend WIPO convention

World Meteorological Organization (WMO)

World Meteorological Congress

Every 4 years

Determine general policies; elect members of other organs; adopt technical regulations

World Tourism Organization (UNWTO)

General Assembly

Biennial

Approve program of work and budget; elect Secretary-​General

International Atomic Energy Agency (IAEA)

General Conference

Annual

Admit/​suspend members; approve reports; amend statute

UN Environment Programme (UNEP)

UN Environment Assembly

Biennial

Set global environment agenda; provide policy guidance and review; set strategic guidance for UNEP future; organize a multi-​stakeholder dialogue

 

the un specialized agencies and other un bodies    775 An examination of the World Health Assembly, and the UNESCO and IAEA General Conferences shows how these entities vary and are both similar to and different than the UNGA.

World Health Assembly The World Health Assembly (WHA), which meets annually in contrast to most conferences and assemblies of other agencies, is composed of three delegates from each member state (194). Reflecting the pattern dating from the earliest days of the ITU and UPU, these representatives are technical experts (predominantly medical doctors and public health professionals) from health or other ministries, often with long associations with the WHO. WHA meetings, therefore, tend to have a professional atmosphere that differs greatly from that of the UNGA. The principle of one-​ state, one-​vote pertains and decisions are made either by simple majority or, in the case of important questions, by a two-​thirds majority. As the legislative body of the WHO, the WHA approves regulations concerning sanitary and quarantine requirements and standards for diagnostic procedures as well as for biological, pharmaceutical, and other products that are bought and sold across national borders; it controls the WHO’s budget, appoints the DirectorGeneral on the nomination of the Executive Board, and sets the terms of appointment.39 WHA’s primary responsibilities, therefore, are the periodic updating of the International Health Regulations (known as the International Sanitary Regulations prior to 1971) which provide security against the spread of communicable diseases and the Regulations on the Nomenclature and Classification of Diseases and Causes of Death. These regulations are binding on all WHO members unless a member notifies the WHO’s Director-General of its rejection or reservation within a given period of time. The WHA has also taken up various health-​related issues as part of establishing global priorities and long-​term work programs for the WHO. In 1978, for example, it mandated the development of a code of marketing practices as part of its Action Program on Essential Drugs to address the problem of lower-​ quality drugs being sold in developing countries. The 1981 Assembly approved the International Code of Marketing Breast-​Milk Substitutes. In 2003, the Assembly approved its first-​ever treaty—​the Framework Convention on Tobacco Control, which bans advertising of tobacco products, requires health warnings on packaging, and creates broader liability for tobacco manufacturers. In 2013, the Assembly

39  See Art. 21 of the WHO’s Constitution and also Harold K. Jacobson, “WHO:  Medicine, Regionalism, and Managed Politics,” in The Anatomy of Influence:  Decision Making in International Organization, ed. Robert W. Cox and Harold K. Jacobson (New Haven, CT:  Yale University Press, 1974), 175–​215.

 

776    general assemblies and assemblies of states parties approved an action plan for mental health reform, a global monitoring framework for noncommunicable diseases, and steps toward organizational reform. Like the UNGA and other assemblies, the WHA occasionally adopts more symbolic resolutions that urge member states to take certain types of actions. Examples include the resolutions initiating WHO campaigns to eradicate smallpox (1959) and polio (1988). And, because health is a field that relates to many others and the WHO, especially in its field activities, interacts with many other organizations, the Assembly approves agreements and resolutions on cooperation with other agencies such as the Pan American Health Organization, the FAO, the United Nations Children’s Fund, and the UNDP.

UNESCO and IAEA General Conferences In contrast to the WHO and many UN specialized agencies, UNESCO has often been charged with politicization largely because of the very broad nature of its mandate. Its General Conference as the plenary and primary policymaking body has played a major role in that process as have some of UNESCO’s Directors-General.40 The purpose of the organization is “to contribute to peace and security by promoting collaboration among the nations through education, science and culture,” including collaboration in advancing knowledge and understanding in all branches of intellectual activity and through all means of mass communication. It is also charged with maintaining, increasing, and diffusing knowledge by conserving books, works of art, and sites of special importance to humankind (the UNESCO World Heritage Sites). The General Conference meets every two years and determines the policies and main lines of work; it has powers to recommend actions and it elects the members of the Executive Board and the Director-General. UNESCO’s General Conference has been the forum for many debates over the appropriate role of national governments in educational and cultural policies; the freedom or control of the press and media; individual human rights; and the free flow of information. Like the UNGA, it has often been used by member states to legitimize or delegitimize particular states and activities and, hence, for symbolic politics. During the 1970s and 1980s, the conference promoted a New World Order of Information and Communication that provoked strong opposition from the United States and United Kingdom on the grounds that it would restrict freedom of the press and, along with UNESCO’s poor management, led to their withdrawal from the organization in the mid 1980s. (The United States returned in 1994 and the United Kingdom in 1997.) In 2011, the conference admitted Palestine as a member 40   On the subject of UNESCO Directors-General, see Lawrence S. Finkelstein, “Political Role of the Director-​General of UNESCO,” in Politics in the United Nations System, ed. Lawrence S. Finkelstein (Durham, NC: Duke University Press, 1988), 385–​423.

 

regional organizations: limited application   777 state, forcing the United States to cut funding to UNESCO under the terms of congressional legislation. A different pattern pertains in the IAEA which is a related but not specialized agency within the UN system. Its General Conference meets annually and, while it is the plenary organ, its role is limited. The IAEA Board of Governors plays the primary role in policymaking as well as in carrying out the functions of the agency. The conference’s functions include admitting and suspending members, approving reports to be submitted to the UN, and amending the Statute. The latter also provides that the General Conference may take decisions on “any matter specifically referred [to it] … by the Board” (Art. V, Section F.1). Still another pattern is found when looking at regional organizations. Although they share similar types of organizational structures, they differ significantly from the UN in that almost none have general assemblies composed of permanent representatives as opposed to heads of state and/​or ministers.

Regional Organizations:  Limited Application Regional organizations have proliferated over the last thirty years in almost all regions of the world with the exception of Northeast Asia which still lacks any formal or informal multilateral forums due to the persistence of hostilities between North Korea and its neighbors. The puzzle, however, is the absence of general assemblies even in Western Europe—​the region with the longest and strongest tradition of representative democracies. NATO, the Organization for Security and Co-​operation in Europe (OSCE), the Council of Europe, and the EU all lack such entities. NATO, the OSCE, and Council of Europe have parliamentary assemblies—​that is, bodies composed of appointed or elected parliamentarians from each member state.41 The EU has the European Parliament whose members are directly elected by voters in the now twenty-​eight EU member states. None of these bodies are general assemblies either in their makeup or their functions. Outside Europe, the Organization of African Unity, now the African Union, the Association of Southeast Asian Nations, the Arab League, the Shanghai Cooperation Organization, and the more recently formed Union of South American Nations have preferred to establish assemblies, councils, and summits of heads of state/​   The Council of Europe’s body is called the Consultative Assembly and its members also serve as the Assembly for the Western European Union. 41

 

778    general assemblies and assemblies of states parties government and/​or ministers rather than general assemblies composed of official representatives holding ambassadorial rank. One hypothesis for the lack of plenary assemblies in African, Middle Eastern, and Asian regional bodies is that many of the states in these regions are not democracies and have authoritarian governments. It is a puzzle. The sole exception among major regional organizations is the Organization of American States (OAS) which is the second-​oldest regional organization in the world (the first being the League of Arab States founded in 1945). The OAS’s General Assembly bears a strong resemblance to that of the UN. Although the OAS was established in 1948, its General Assembly dates only from the 1967 Protocol of Buenos Aires. It meets annually and, when requested, in special session, and is considered the OAS’s highest decision-​making body, having equal status with the Permanent Council, Economic and Social Council, and Council for Education, Science and Culture. In addition to deliberating on current issues, it approves programs and budgets, fixes the bases for assessments, and establishes measures to coordinate the activities of OAS organs and standards governing the Secretariat. From the mid 1980s to 2001, the OAS Assembly approved a set of legal norms and procedures for the defense of democracy after the Protocol of Cartagena de Indias (1985) revised the OAS Charter to give the organization the mission of promoting democracy as “an indispensable condition for the stability, peace, and development of the region.” Under the democracy mandate, the OAS has acted against coups or self-​coups (e.g., when a leader dissolves a legislature or extends his or her term in office by unconstitutional means) on more than a dozen occasions since the early 1990s. Almost all of these actions, however, have been taken by the Permanent Council, Secretary-​General, or foreign ministers rather than the General Assembly since they have the ability to convene and act far more quickly than the plenary body. (For further discussion of the OAS and its defense of democracy, see Chapter 24 of this volume on Democracy Promotion.)

Assemblies of States Parties to Treaties In addition to assemblies that are plenary organs within IGOs, there is a variant associated with a number of international conventions that have come into effect over the last forty to fifty years, including arms control and disarmament conventions, human rights conventions, and environmental conventions. These are known as assemblies or conferences of states parties. Examples include the General Assembly

 

assemblies of state parties to treaties    779 of States Parties to the World Heritage Convention; the OPCW Conference of States Parties; the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); and the Assembly of States Parties to the Statute of the ICC. The key question to be addressed is whether these bodies are truly general assembly-​like in the roles they play. The answer is: some are and some are not. The distinction arises from the nature of the convention’s subject matter and provisions as well as the existence or absence of a related IGO or some type of institutional arrangement(s), typically at least a secretariat to service the conference/​assembly. Where an assembly of states parties serves strictly to monitor implementation of a convention, it is clearly a different animal. Where the assembly or conference of states parties is linked not only to a convention but also to an IGO like the ICC, OPCW, and CITES, it plays a role in the functioning of the organization as well as in the treaty’s implementation, providing member state oversight of the organization, opportunity for member states to raise issues and voice concerns, and having various powers such as approval of the organizational budget and election of key officers such as a Director-General or the judges in the ICC. In such cases, the functions of the body clearly classify it as general assembly-​like. The Assembly of States Parties to the Statute of the ICC (ASP) and the Assembly of the International Oil Pollution Compensation Fund are illustrative of the latter. Under the ICC Statute, the ASP is authorized to adopt recommendations of the ICC Preparatory Commission, provide management oversight, set the Court’s budget, elect the ICC judges, prosecutor, and deputy prosecutors, and make recommendations for the position of registrar. In fact, the ASP played an important role as the negotiating partner for the initial ICC–​UN agreement and fleshed out the procedures for nominating and electing judges and selecting the prosecutor and deputy prosecutors as well as to adopt rules of procedure and evidence, and establish a fund for victims among other actions.42 The International Oil Pollution Compensation Fund was created by the 1971 International Convention on the Establishment of an International Fund for compensation of Oil Pollution Damage. Its Assembly is responsible for the Fund’s administration as well as the convention’s execution. This includes approving settlement of claims, decisions regarding the distribution of funds, and election of the Executive Committee.43 Table 35.2 compares the ASP and Fund Assembly with three other conferences and assemblies of states parties associated with international conventions that have roles in the functioning of convention-​related IGOs. Since conferences of states 42  Daryl A. Mundis, “The Assembly of States Parties and the Institutional Framework of the International Criminal Court,” The American Journal of International Law 97 (2003): 132. 43   Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions, 5th ed. (London: Sweet & Maxwell, 2001), 126.

 

Table 35.2  Assemblies of states parties to treaties and conventions Treaty or convention

Name of assembly or conference

Frequency of sessions

Competence

World Heritage Convention

General Assembly of States Parties

Biennial

Set contributions and determine the percentage of contributions to the World Heritage Fund; elect members to the World Heritage Committee

Organisation for the Prohibition of Conference of Chemical Weapons (OPCW) the States Parties

Annual

Oversee implementation of and compliance with the Convention; oversee and issue guidelines to the Executive Council and the Secretariat; decide budget and determine contributions by States Parties; elect Executive Council members; appoint the Director-General; foster cooperation for peaceful purposes in the field of chemical activities; review scientific and technical developments affecting the Convention

International Convention on the Establishment of an International Fund for Compensation of Oil Pollution Damage

Annual

Administer Fund; decide annual budget and contributions; approve financial statements; appoint the External Auditor; adopt internal and financial regulations

Convention on International Trade Conference of in Endangered Species of Wild the Parties Fauna and Flora (CITES)

Biennial

Review implementation of the Convention and progress made toward the restoration and conservation of designated protected species; adopt financial provisions; amend lists of protected species; make recommendations for improving the effectiveness of the Convention

Statute of the International Criminal Court (ICC)

Assembly of States Parties

Annual

Approve budget and financing of the Court; elect and discipline judges and prosecutors; oversee administration and management; establish subsidiary bodies, including an Independent Oversight Mechanism; amend the Rome Statute and the Court’s Rules of Evidence and Procedure; consider questions of ICC noncooperation

Convention Against Corruption

Conference of the States Parties

Biennial

Review Convention implementation; establish rules concerning observers and payment of expenses; facilitate the exchange of information on patterns and trends in corruption and on successful practices for preventing and combating it; make recommendations to improve Convention implementation

Assembly of All Contracting States

 

conclusion   781 parties are particularly common in conjunction with human rights and environmental conventions, see Chapters 12 and 20 of this volume for additional discussion of these entities.

Conclusion The question of how best to represent the peoples, nonstate groups, as well as states in conjunction with both IGOs and the multitude of multilateral agreements that have been concluded over the last thirty years remains a challenge. With its roots in the nineteenth century, however, the democratic idea that representation is an important practice and source of legitimacy persists as general assemblies or their functional equivalents continue to be established. What is changing is who is to be represented and by whom and in what way. Hence, the continuing debate about an assembly for global civil society within the UN system.

 

Chapter 36

PARLIAMENTS Bjørn Høyland

International organizations often have a parliamentary body among their governing institutions. However, these bodies often lack the powers associated with national-​level equivalents. One international organization, the European Union (EU), stands out as having empowered its parliamentary body with substantive powers. The European Parliament (EP) elects its members by general direct elections, has been empowered with substantive legislative and budgetary powers, and its support is required for the executive, the European Commission, to take office. Once in office, the members of the Commission are accountable to the EP. As the EU is unique in its empowerment of its parliamentary body, this chapter discusses to what extent its model should be adopted by other international organizations. The chapter has five sections. The first section of the chapter presents a list of international organizations with a parliamentary body along with the level of empowerment of this body. We distinguish between four features of empowerment: direct elections (as this may be seen as providing the body with a popular mandate); legislative powers; budgetary powers; and control over the executive. We will see that most international organizations with parliamentary bodies have not empowered them in any meaningful way. The second section discusses the role of direct elections and full-​time parliamentarians as a means to empower the parliamentary body. As the EP is the only supranational parliamentary body with meaningful powers, we focus on this institution in the remaining sections. Direct elections and full-​time parliamentarians have enabled the parliamentarians to invest sufficient time and resources in the

 

parliamentary bodies in international organizations    783 interinstitutional political bargains, thereby empowering the EP, perhaps beyond the intentions of the creators of the EU. The third section presents the development of the legislative powers of the EP. One key rationale used by leaders of the EU member states for the granting of legislative powers to the EP has been the need to balance the delegation of tasks from the national to the supranational level, with enhanced democracy at the supranational level. We discuss the development of formal powers and how the Parliament is organized in order to increase its formal powers. The fourth section presents the evolution of the budgetary powers of the EP. The first step of parliamentary empowerment in the EU was in relation to the annual budget. While this empowerment was limited, it paved the way for subsequent empowerments, most notably the reform of the budgetary procedure in the Lisbon Treaty. This section discusses the power of the EP under the different procedures, noting the difference between the multiannual budgetary framework, where the power of the EP has always been rather limited, and its substantive powers under the annual budgetary negotiations. Finally, the fifth section presents the EP’s power to control the executive. Here, we can distinguish between the ex ante control of the composition of the new Commission, and the ex post control of how the Commission has conducted its affairs. We note that the powers of the Parliament in these regards fall short of the powers of parliaments in parliamentary systems, but remain similar to those of legislatures in presidential systems. This last observation invites a discussion of whether the EP would be more accurately described as the European assembly, which was its original name.

Parliamentary Bodies in International Organizations As is clear from the other chapters in this handbook, there is great variety among international organizations in scope, authority, form, membership, and more. The observation of interest in this chapter is that some international organizations have a parliamentary body among their institutions, while others do not. Table 36.1 provides an overview of international organizations with a parliamentary body, along with an overview of the powers of those parliamentary bodies. Column one provides the name of the parliamentary body. Column two shows when the first plenary session was held, while column three indicates the number of representatives and number of member states. Column four indicates how members are selected.

 

Table 36.1  Overview of supranational parliaments Parliament

Start date

MPs/​ member states

Selection

Recommendations Legislative powers

Budgetary powers

Control of executive

International organization

Parliamentary Assembly of the Council of Europe (PACE)

1949

318 /​ 47

Appointment determined by member state

Yes

No

No

No

Council of Europe

European Parliament

1952

766 /​28

Direct elections

Yes

Yes

Yes

Yes

European Union

Assembly of the Western European Union

1955–​2011

Nearly 400/​39

National parliamentary delegations

Yes

No

No

Questions

Western European Union was succeeded by the EU

NATO Parliamentary Assembly

1955

257 /​28

National parliamentary delegations

Yes

No

No

No

NATO

Andean Parliament

1979

25 (20) /​5 (4)

Yes

No

No

No

Venezuela left (2006)

National parliamentary delegations, plans for direct elections

Andean Integrated System

120 /​6

Direct elections

Yes

No

Yes

No

SICA

Central American Parliament

1991

 

Parliamentary Assembly of the Organization for the Security and Cooperation in Europe

1992

56 /​323

National parliamentary delegations

Yes

No

No

No

OSCE

Inter-​Parliamentary Assembly of the Commonwealth of Independent States

1992

9 /​unknown

National delegations

Yes

No

No

No

CIS

Arab Parliament

2005

88 /​22

National parliamentary delegations

Unclear

No

No

No

Arab League

Pan African Parliament

2004

235 /​54

National parliamentary delegations

Yes

Yes

No

Yes

African Union

Mercosur Parliament

2007

81 /​4(5) (Venezuela, applicant: 9 members)

Undergoes a process from appointed delegations to directed elected delegates

Yes

No

No

No

Mercosur

Parliament of the Economic Community of West African States

1975

115 /​15

No

Yes

No

No

No

ECOWAS

 

786   parliaments Columns five, six, seven, and eight provide overview of the legislative powers, budgetary powers, and the parliamentary control of the executive of the international organization. Finally, column nine provides the name of the international organization. A quick glance at Table 36.1 reveals that there are very few international organizations with parliamentary bodies that have substantive powers. Only the EU has a parliamentary body that is empowered in each of the four dimensions.

Direct Elections and Full-​Time Parliamentarians In most democracies today, national-​level parliamentarians are full-​time representatives elected through direct elections. Historically, this has not always been the case, although the time spent in session and hence the need to treat the role as parliamentarian as a full-​time occupation can be used as an indicator of the power of the parliament.1 In both sub-​national and supranational parliamentary institutions full-​time parliamentarians are more often the exception than the rule. In international organizations, it is not uncommon that parliamentary bodies be composed of delegates from member states’ national parliamentary assemblies. This was also the case for the EP until the first direct elections held in 1979. The elections came as a result of the reforms in the 1970s that formalized the role of the EP in the annual budgetary procedure for compulsory expenditure—​that is, in principle expenditures that followed directly from the treaty, mainly agriculture expenditure. The idea was that the delegation of decision-​making in these areas away from national parliaments should be compensated by a stronger role for the supranational parliament. Direct elections can be understood as a way to make this empowerment more democratically legitimate. There were initially high expectations that direct elections would, more or less automatically, lead to a fully competitive democratic system with a strong parliament capable of imposing its views upon the other EU institutions. However, the lack of a genuine electoral contest with genuine European issues, in combination with low turnout, led Reif and Schmitt to dismiss them as second-​ order elections, more akin to a large-​scale opinion poll on the popularity of the sitting government in each of the, then, nine member states, than a contest over

  Michael A. R. Graves, The Parliaments of Early Modern Europe (London: Longman, 2001).

1

 

direct elections and full-time parliamentarians    787 the future direction of European cooperation.2 This state of affairs is to a large extent still in place after eight rounds of elections to the EP.3 The electoral fate of parties has less to do with their performance in the EP or their visions for the future for Europe than with governing status at the national level, the national electoral cycle, and the performance of the national economy.4 The public has never embraced the EP elections. The average level of turnout has fallen at each consecutive election. It is however possible to explain away the fall in turnout by pointing out that there has been a general trend toward lower turnout in elections at both national and local levels in the member states since 1979; that there is a first-​time turnout effect for elections; and that some of the member states that joined later had lower levels of turnout in their national elections than the older member states. Nevertheless, the low turnout certainly dampens the sense that the majority in the European Parliament has some kind of public mandate. The public is certainly not entirely to blame for not turning out, given that national parties fail to present competing visions for Europe and propose visible candidates for the top posts in the EU (at least prior to the 2014 elections). Moreover the proportional nature of the electoral systems makes it hard to substantively shift the position of the pivotal members of the parliament.5 In fact, Hobolt and Høyland show that those parties that put well-​known politicians on the ballots in EP elections then do better than those parties that fail to present such candidates to the public.6 Despite the lack of popular mandate, elected Members of the European Parliament (MEPs), in particular in the early years, saw it as their duty to strengthen the institutional powers of the Parliament.7 This has often taken the form of, at the time, radical suggestions for reforms, and watered-​down versions of some of the main ideas have, after some time, been incorporated into the treaties. This relates to legislative and budgetary powers, as well as the EP’s role in the appointment and control of the EU’s main executive body, the European Commission. For example, led by Altiero Spinelli, the EP proposed a Draft Treaty Establishing the European Union in 1984. This was a highly ambitious plan for European integration, which made many 2   Karlheinz Reif and Hermann Schmitt, “Nine Second-​Order National Elections: A Conceptual Framework for the Analysis of European Election Results,” European Journal of Political Research 8 (1980): 3–​44. 3   Herman Schmitt, “The European Parliament Elections of June 2004: Still Second Order?,” West European Politics 28/​3 (2004): 650–​79. 4   Simon Hix and Michael Marsh, “Punishment or Protest? Understanding European Parliament Elections,” The Journal of Politics 69/​2 (2007): 495–​510; and “Second-​Order Effects Plus Pan-​European Political Swings: An Analysis of European Parliament Elections Across Time,” Electoral Studies 30/​1 (2011): 4–​15. 5   Andreas Føllesdal and Simon Hix, “Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik,” Journal of Common Market Studies 44/​3 (2006); Simon Hix, What Is Wrong with the European Union? And How to Fix It (Cambridge: Polity Press, 2008). 6  Sara B. Hobolt and Bjørn Høyland, “Selection and Sanctioning in European Parliamentary Elections,” British Journal of Political Science 41/​3 (2011): 477–​98. 7   Richard Corbett, The European Parliament’s Role in Close EU Integration (Basingstoke: Palgrave, 1998).

 

788   parliaments suggestions that have inspired subsequent reforms. However, the actual role of the Parliament relative to the powerful member states in the intergovernmental treaty negotiations during the recent decades is disputed.8 The ability of the EP to secure its formal power through the European Court of Justice, as well as creatively interpret its existing powers, would perhaps have been more difficult had it not been for the fact the members serve in a full-​time capacity. A key implication of direct elections and full-​time membership is that observers hold high, and sometimes conflicting, expectations of what the institution should be and what election to it should mean. It has been argued that the EP has failed to deliver, according to a substantively higher set of expectations than those by which parliamentary bodies of other international organizations have been measured. As we will see in the next three sections, the EP, while failing to meet these higher standards, has been able to empower itself in legislative and budgetary affairs as well as in its ability to approve and control the executive of the organization in a manner unmatched by any other international parliamentary body.

Legislative Empowerment This section discusses the evolution of the legislative powers of the EP. The first subsection presents the formal empowerment of the institution through gradual change of the legislative procedures. The second subsection discusses the role of parties in organizing coalition formation, highlighting the trade-​off between the need to present a united front against the other EU institutions in interinstitutional bargains against the need to compete over the ideological coloring of the policy content of the proposals emerging from the institution. The third subsection discusses the role of the committees, primarily as an informational device that allows for specialization and development of expertise, but also as an alternative basis of power vis-​à-​vis the political groups.

Formal Institutional Legislative Powers The formal role of the Parliament in the legislative process has evolved substantively over the years. Starting as a purely consultative institution, its formal power 8  Andrew Moravcsik, “Negotiating the Single European Act: National Interests and Conventional Statecraft in the European Community,” International Organization 45/​1 (1991): 19–​56; and The Choice for Europe: Social Purpose and State Power from Messina to Maastricht (Ithaca: Cornell University Press, 1998).

 

legislative empowerment   789 to delay Council legislation was only recognized almost thirty years after the establishment of the institution. In 1980, the EP took the Council to the European Court of Justice for having adopted a regulation concerning the market for isoglucose, a sweetener, without obtaining the opinion of the Parliament first, as it was required to do under the consultation procedure. This isoglucose-​ruling established the Parliament’s power of delay in the legislative process, but until the ratification of the Single European Act in 1987, it was more powerful in budgetary areas than in legislative politics. However, the Single European Act expanded the number of policy areas that the European Community was active in. The Commission was given the power to draw up proposals in a range of new policy areas, in particular regulatory politics, under a new procedure called Cooperation. Under this procedure the Parliament could propose amendments to the Council. Tsebelis argues that the Parliament was given conditional agenda-​setting power as it became harder for the Council to reject than to adopt amendments proposed by the Parliament conditional on their being supported by the Commission.9 Crombez questions this result, as there is no reason for the Commission not to propose such amendments as a part of the original proposal if it plans to support them anyway.10 Moser reaches similar conclusions.11 With the Maastricht Treaty, which took effect in 1993, the member states in the Council could no longer adopt legislation without the Parliament’s approval. This procedure allowed the Council to re-​propose an amended version of its original position should the negotiation with the Parliament fail. If the Parliament also rejected this proposal, the legislation would fall. The co-​decision procedure hence provided the Parliament with unconditional veto power for all policy areas covered by this procedure. There is no scholarly consensus on whether this enhances or limits the formal power of the EP relative to its power in the cooperation procedure. While Tsebelis finds that the EP lost its conditional agenda-​setting power with the introduction of the co-​decision procedure,12 Crombez finds that the EP was substantively strengthened by this reform as it gained veto power.13 Hix discusses how the EP leadership, in response to this new procedure, changed its rules of procedure to prevent the Council from attempting to re-​propose the original proposal in case of a failure to agree in the conciliation committee.14 The first time the Council re-​proposed its 9   Georg Tsebelis, “The Power of the European Parliament as a Conditional Agenda Setter,” American Political Science Review 88/​1 (1994): 128–​42. 10   Christophe Crombez, “Legislative Procedures in the European Community,” British Journal of Political Science 26/​2 (1996): 199–​218. 11   Peter Moser, “The European Parliament as a Conditional Agenda Setter: What Are the Conditions? A Critique of Tsebelis (1994),” American Political Science Review 90/​4 (1996): 834–​8. 12   Georg Tsebelis, “Maastricht and the Democratic Deficit,” Aussenwirtshaft 52/​I–​II (1997): 29–​56. 13   Christophe Crombez, “The Co-​Decision Procedure in the European Union,” Legislative Studies Quarterly 22/​1 (1997): 97–​119. 14   Simon Hix, “Parliamentary Behavior with Two Principals: Preferences, Parties, and Voting in the European Parliament,” American Journal of Political Science 46/​3 (2002): 688–​9.

 

790   parliaments original position, the Parliament vetoed it, and the Council never attempted again. This provision was subsequently dropped in the Amsterdam Treaty. As a step to speed up the decision-​making process, the co-​decision procedure was also amended to allow for adoption of legislation in the first reading, if the Council and the Parliament adopted identical texts. While this change did not attract much attention at the time, the effect it has had on the transparency of EU decision-​making has led scholars to criticize, although to a varying degree, how it operates (in particular concerning the lack of transparency in the “trialoge” negotiations between privileged actors for the Commission, the Council, and the Parliament).15 Following this reform, there was a drastic increase in the proportion of first-​reading agreements, while second-​and third-​reading agreements almost disappeared.16 This development has been criticized for its lack of transparency as the public debate in the Parliament may amount to little more than an announcement of the existence of an interinstitutional agreement.17

Political Groups Although MEPs are elected as representatives of national parties, on national lists, highlighting national priorities in the electoral campaign, once they arrive in Brussels and Strasbourg, the national party delegation joins an existing political group (or forms a new one). From the very first meeting, the EP has taken a different route than parliamentary bodies of other international organizations by sitting according to ideological affiliation rather than by geography. This facilitates alliances along ideological rather than geographical lines, as it is simpler to discuss an issue with the person in the neighboring seat than with somebody across the plenary. The political groups are the main actors inside the EP, and their rights, relative to individual members have been substantively strengthened over time, for example with regard to agenda rights and financial assistance.18 In fact, the proportionality 15  Henry Farrell and Adrienne Heritier, “Interorganizational Negotiation and Intraorganizational Power in Shared Decision Making: Early Agreements under Codecision and their Impact on the European Parliament and Council,” Comparative Political Studies 37/​10 (2004): 1184–​212; Anne Rasmussen, “Early Conclusion in Bicameral Bargaining: Evidence from the Co-​Decision Legislative Procedure of the European Union,” European Union Politics 12/​1 (2011): 41–​64; Anne Rasmussen and Dimiter Toshkov, “The Inter-​Institutional Division of Power and Time Allocation in the European Parliament,” West European Politics 34/​1 (2011): 71–​96; Michael Shackleton and Tapio Raunio, “Codecision since Amsterdam: A Laboratory for Institutional Innovation and Change,” Journal of European Public Policy 10/​2 (2003): 171–​87. 16   Simon Hix and Bjørn Høyland, “Empowerment of the European Parliament,” Annual Review of Political Science 16 (2013): 171–​89. 17   Nick Clegg and Michiel van Hulten, Reforming the European Parliament (London: Foreign Policy Center, 2003). 18   Amie Kreppel, The European Parliament and Supranational Party System: A Study of Institutional Development (Cambridge: Cambridge University Press, 2002).

 

legislative empowerment   791 system, engrained in the EP, as well as the EU as a whole, works through the political groups. The allocation of committee chairs, while formally adopted by majority rule in the plenary, is done according to the d’Hondt formula, a highest average method for allocating seats in party-​based proportional systems. When allocating positions in the EP, the d’Hondt’s formula takes the number of seats of each group divided by one plus the number of positions obtained already. The group with the highest value is then allocated the position. The formula is also used to allocate positions among national delegations within the group. This system of allocating seats favors larger groups and larger national delegations within these groups. As a result, member states that concentrate most of their national delegation in two or three parties, like the United Kingdom and Germany, are more likely to obtain office than those member states that send heterogeneous delegations to the EP, like France and Italy. The decision of which political group to join is both ideological and strategic. In terms of office, while larger groups receive more office spoils, the largest national delegation within a group gets the first pick among positions within the EP available to their group. Some party delegations may hence be able to secure an office by switching to a smaller group, or forming a new group, where their relative size is larger. Nevertheless, there are clear limits to the possibility of switching groups, as existing members can veto national party delegations from the same country from joining. This is the case, for example, for Fianna Fáil, a member of the liberal group, the third-​biggest group, as Fine Gail had already joined the main Christian-​ Democratic group, the European Peoples Party (EPP). Nevertheless, most national party delegations sit with the political group whose delegations most resembles their own ideological location along a series of policy dimensions.19 The political groups are also fairly cohesive when voting is recorded (roll-​call votes). In the most comprehensive study yet, Hix, Noury, and Roland collected all recorded votes during the first five terms after the first direct elections (1979–​2004).20 They found that voting is primarily, and increasingly, along ideological lines rather than along national lines. Parties also compete more on amendments than on final votes. Groups are more united on their own proposals than on proposals from other groups.21 The two main groups, the EPP and the Party of European Socialists (PES) are more likely to collude than compete on legislative votes that require an absolute 19  Gail McElroy and Kenneth Benoit, “Party Policy and Group Affiliation in the European Parliament,” British Journal of Political Science 40/​2 (2010):  377–​98; and “Policy Positioning in the European Parliament,” European Union Politics 13/​1 (2012): 150–​7. 20  Simon Hix, Abdul Noury, Gerard Roland, Democratic Politics in the European Parliament (Cambridge: Cambridge University Press, 2007). 21  See also Simon Hix, Abdul Noury, Gerard Roland, “Power to the Parties: Cohesion and Competition in the European Parliament, 1979–2001,” British Journal of Political Science 35/​2 (2005): 209–​34; “Dimensions of Politics in the European Parliament,” American Journal of Political Science 50/​ 2 (2006): 494–​511.

 

792   parliaments majority and on interinstitutional issues, but there is little evidence that the main groups collude in order to prevent the minor groups from having a say.22 Along these lines, Kreppel argues that the need to meet the absolute majority requirement is the main reason for the main political groups finding common ground on legislative issues.23 Thus, the legislative proposals coming out of the EP are likely to be rather centrist, regardless of the relative electoral performance of the center-​left vs. the center-​right. This pattern has been relatively robust to the substantive increase in the number of member states that occurred between 2004 and 2007, following the Eastern and Southern enlargements of the EU.24 While electoral fortunes play a minor role in shaping the content of the final proposals originating from the EP, electoral considerations play a major role in shaping the behavior of MEPs. Although the political groups formally control the allocation of spoils inside the EP,25 national party leaders control the electoral fortune of MEPs. As a result, when the national party and the supranational political group hold different positions on a recorded vote, MEPs tend to go with the national party over the political group.26 Furthermore, the likelihood of defection is determined by whether the electoral system is candidate-​or party-​based and by the centralization of candidate selection procedures. Candidates are least likely to defect from the political group when elected under candidate-​based systems with decentralized candidate selection rules, and most likely to follow the national party line in party-​centered systems with centralized candidate selection.27 Also, the timing of the vote relative to the national electoral cycle matters; the likelihood of defection from the supranational group increases in the run-​up to the national elections and falls afterwards.28 There is also a learning aspect in the pattern of defections from the supranational political group line, as parties from new member states take some time to find the

22   Simon Hix, Amie Kreppel, and Abdul Noury, “The Party System in the European Parliament: Collusive or Competitive?,” Journal of Common Market Studies 41/​2 (2003): 309–​31. 23   Amie Kreppel, “Rules, Ideology and Coalition Formation in the European Parliament,” European Union Politics 1/​3 (2000): 340–​62. 24   Simon Hix and Abdul Noury, “After Enlargement: Voting Patterns in the Sixth European Parliament,” Legislative Studies Quarterly 34/​2 (2009): 159–​74; Simon Hix, Abdul Noury, and Gerard Roland, “Voting Patterns and Alliance Formation in the European Parliament,” Philosophical Transactions of the Royal Society B 364 (2009): 821–​31. 25   But see Kreppel, The European Parliament and Supranational Party System. 26   Thorsten Faas, “To Defect or Not to Defect? National, Institutional and Party Group Pressures on MEPs and their Consequences for Party Group Cohesion in the European Parliament,” European Journal of Political Research 42 (2003): 841–​66; Simon Hix, “Constitutional Agenda-​Setting through Discretion in Rule Interpretation: Why the European Parliament Won at Amsterdam,” British Journal of Political Science 32/​2 (2002): 259–​80. 27   Simon Hix, “Electoral Institutions and Legislative Behavior: Explaining Voting-​Defection in the European Parliament,” World Politics 56/​1 (2004): 194–​223. 28  Rene Lindstädt, Jonathan B. Slapin, and Ryan J.  Vander Wielen, “Balancing Competing Demands:  Position Taking and Election Proximity in the European Parliament,” Legislative Studies Quarterly XXXVI/​1 (2011): 37–​70.

 

legislative empowerment   793 balance between defection in favor of the national party and loyalty to the group.29 There is also a career aspect here, as members with national career ambitions are more likely to be sensitive to demands from national party leaders than others.30 One should note, however, that all of these findings are based on revealed patterns of defections. One possible extension of this line of research would be to compare voting instructions with actual voting behavior or to compare the positions taken by national party delegations in political group meetings with their voting behavior in the plenary sessions. The findings reviewed in the previous two paragraphs are based on roll-​call votes. As noted by these scholars, the majority of votes in the EP are not taken by roll call. Roll-​call votes are not a random sample from all votes taken in the plenary.31 The decision to record a roll-​call vote is taken by a political group or a collection of individual MEPs. There may be several reasons for requesting a roll call: the leadership of a political group may request a roll call in order to ensure that its members follow the party line or that members of a coalescing group deliver on their promises; a roll call may also be called to signal to actors outside of the EP. The effect of requesting a roll call on political groups may differ depending on the proposal and the disciplining tools available to the group leadership. It may either cause the group to be more or less cohesive.32 It is also unclear how, if at all, roll-​call requests influence the pattern of coalition formation. Hence, it is important to account for the characteristics of the votes. Although most roll-​call votes are taken on nonbinding resolutions, the EP has most influence over EU policy when voting on amendments to EU legislation passed under the ordinary legislative procedure (previous co-​decision). Høyland demonstrates that MEPs’ voting patterns differ across legislative procedures.33

Committees The second kind of organizational arrangement that contributes to the strength of the EP vis-​à-​vis the other EU institutions is the committee system. The committees 29   Rene Lindstädt, Jonathan B. Slapin, and Ryan J.  Vander Wielen, “Adaptive Behaviour in the European Parliament:  Learning to Balance Competing Demands,” European Union Politics 13/​4 (2012): 465–​86. 30  Stephen A. Maeserve, Daniel Pemstien, and William T. Berhard, “Political Ambition and Legislative Behavior in the European Parliament,” Journal of Politics 71/​3 (2009): 1015–​32. 31   Clifford Carrubba et al., “Off the Record: Unrecorded Legislative Votes, Selection Bias and Roll-​ Call Analysis,” British Journal of Political Science 36/​4 (2006): 691–​704. 32  Clifford Carrubba, Matthew Gabel, and Simon Hug, “Legislative Voting Behavior, Seen and Unseen: A Theory of Roll-​Call Vote Selection,” Legislative Studies Quarterly 33/​4 (2008): 543–​72. 33   Bjørn Høyland, “Procedural and Party Effects in European Parliament Roll Call Votes,” European Union Politics 11/​4 (2010): 597–​613.

 

794   parliaments are permanent and organized by policy area. MEPs are assigned to one or more committees at the beginning of each term and then reassigned halfway into the five-​ year term. Legislation originating from the European Commission is assigned to one committee where one MEP, the rapporteur, is responsible for preparing a report on the legislation to be discussed and adopted in the committee and presented in the plenary. Oftentimes, the opinions of other relevant committees are taken into account by assigning a similar type of role to individual MEPs from the relevant committees, and incorporating their opinions into the report. Although the committees in the EP do not have as many resources as committees in the US Congress, Mamadouh and Raunio find that the EP committees are more powerful than most national parliamentary committees.34 Needless to say, the committee system of the EP is far more evolved than the committee system of any other supranational parliamentary body. The literature on the EP committees has focused mainly on committee assignment and report allocation.35 There are three key theoretical explanations for the pattern of committee membership allocation:36 distributional—​where members are allocated according to the interest of their constituency;37 partisan—​where members are given privileges in one policy domain in return for loyalty to the party in all others;38 and informational—​where members are incentivized to specialize in a policy area in order for the chamber to have a more informed understanding of the effects of the policy proposal. Bowler and Farrell were the first to investigate the EP committee system systematically.39 In contrast to many studies of the US Congress, their study found no seniority effect in the EP, but found that political groups controlled the allocation of committee assignments, within the norm of proportionality, which is suggestive of a partisan logic. McElroy finds that partisan logic explains the pattern of committee assignments.40 She furthermore argues against the plausibility of a distributive logic in the EP, as the major policy areas in the EU are regulative rather than distributive, there is simply not much to distribute. However, Yordanova   Virginie Mamadouh and Tapio Raunio, “The Committee System:  Powers, Appointments and Report Allocation,” Journal of Common Market Studies 41/​2 (2003): 333–​51. 35   Nikoleta Yordanova, “The European Parliament:  In Need of theory,” European Union Politics 12/​4 (2011): 597–​617. 36   Kenneth A. Shepsle and Berry R. Weingast, Positive Theories of Congressional Institutions (Ann Arbor: University of Michigan Press, 1995). 37   Kenneth A. Shepsle, The Giant Jigsaw Puzzle: Democratic Committee Assignments in the Modern House (Chicago: University of Chicago Press, 1978); Kenneth A. Shepsle and Barry R. Weingast, “The Institutional Foundations of Committee Power,” American Political Science Review 81 (1987): 85–​104. 38   Gary W. Cox and Mathew D. McCubbins, Legislative Leviathan: Party Government in the House (Berkeley: University of California Press, 1993); and Setting the Agenda: Responsible Party Government in the U.S. House of Representatives (Cambridge: Cambridge University Press, 2005). 39   Shaun Bowler and David M. Farrell, “The Organization of the European Parliament: Committees, Specialization and Co-​ordination,” British Journal of Political Science 25/​2 (1995): 219–​43. 40   Gail McElroy, “Committee Representation in the European Parliament,” European Union Politics 7/​1 (2006): 5–​29. 34

 

legislative empowerment   795 compares the explanatory powers of these three perspectives for the committee allocation on a sample of MEPs in the 2004–​9 Parliament, relying on background information about the MEPs.41 She finds support for the informational and distributive rationale, but less so for the partisan theory. Whitaker, on the basis of interview evidence, finds that the pattern of committee allocation is rather heterogeneous and somewhat random, in particular for new members.42 In sum, while the literature finds that experience in relevant sectors of industry and connections with committee-​relevant interest groups are good indicators of which committees MEPs are assigned to, how to interpret this pattern has yet to be fully resolved theoretically, as the empirical pattern seems to be equally suggestive of all three perspectives. This may perhaps be a warning of the danger of simply importing perspectives developed in a different institutional setting, without taking the differences into account when specifying the empirical predictions. Bowler and Farrell identified reports as a potentially important institutional feature to study in order to understand the workings of the EP.43 Rapporteurs are seen as skillful “legislative entrepreneurs” that take both political as well as institutional interests into account when preparing the report to the plenary and in their dealings with representatives from the Commission and the Council.44 As the proportionality norm is strong in the EP compared to national parliaments, but perhaps not when compared with parliamentary bodies in other international organizations, the starting point for much research on report allocation has investigated deviations from the proportionality norm. Focusing on the period from 1989–​99, Mamadouh and Raunio found that representatives from some member states were more frequently assigned reports than others.45 They speculated that these differences might be due to language and cultural differences. In contrast, Høyland presents an informational rationale for differences in the number of reports written by different national parties.46 He argues that MEPs from national governing parties, which are also represented in the Council, may have lower informational costs, via their partisan links with the Council. They are hence more willing than MEPs from national opposition parties to take on the task of writing committee reports. However, Costello and Thomson47 find that these government party rapporteurs 41   Nikoleta Yordanova, “The Rationale behind Committee Assignment in the European Parliament: Distributive, Informational and Partisan Perspectives,” European Union Politics 10/​2 (2009): 226–​52. 42   Richard Whitaker, “Party Control in a Committee-​Based Legislature? The Case of the European Parliament,” Journal of Legislative Studies 7/​4 (2001): 63–​88. 43   Bowler and Farrell, “The Organization of the European Parliament.” 44   Giacomo Benedetto, “Rapporteurs as Legislative Entrepreneurs: The Dynamics of the Codecision Procedure in Europe’s Parliament,” Journal of European Public Policy 12/​1 (2005): 67–​88. 45   Mamadouh and Raunio, “The Committee System.” 46   Bjørn Høyland, “Allocation of Codecision Reports in the Fifth European Parliament,” European Union Politics 7/​1 (2006): 30–​50. 47   Rory Costello and Robert Thomson, “The Policy Impact of Leadership in Committees: Rapporteurs’ Influence on the European Parliament’s Opinions,” European Union Politics 11/​2 (2010): 219–​40.

 

796   parliaments are not more likely than other MEPs to shift the policy toward the position of the Parliament or their own government than other MEPs. Rather, they find that it is national links rather than national party political links that matter, as the rapporteur seems to be associated with policy outcomes that are closer to the position of its government. This seems to suggest that nationality still plays a role when the EP interacts with the other EU institutions. There is also a body of research that tests the predictions from the three standard theories of legislative organization.48 Kaeding finds support for both the informational and distributive perspectives in his study of report allocation in the Environment Committee, and ends up arguing in favor of an explanation that combines the two frameworks.49 Hausemer focuses on individual level differences, demonstrating that those MEPs that are not loyal to the political group or their national party are unlikely to be selected as rapporteurs.50 In the most comprehensive study to date, Yoshinaka, McElroy, and Bowler confirm this finding, but also show that participation in plenary voting is a prerequisite for writing reports.51 This suggests some self-​selection into the role of rapporteur. In total, in the realms of legislative politics in the EP, we see a strong role for the political groups and the major national party delegations. There is less evidence in favor of the notion that pure nationality matters. While it seems clear that the political groups may not be as coordinated as national parties in some of the member states, it is impossible to discuss legislative politics in the EP without paying attention to the supranational political groups. As such, the EP may work as a model for how to develop the legislative role of other supranational parliamentary bodies. However, real legislative power implies spending. The role of the EP in controlling the EU purse is discussed in the next section.

Budgetary Empowerment Budgetary power lies at the heart of national parliamentary power but is largely absent from the hands of supranational parliaments. Again, the only exception is the

  Shepsle and Weingast, Positive Theories of Congressional Institutions.  Michael Kaeding, “Rapporteurship Allocation in the European Parliament:  Information or Distribution?,” European Union Politics 5/​3 (2004): 353–​78. 50   Pierre Hausemer, “Participation and Political Competition in Committee Report Allocation: Under What Conditions Do MEPs Represent their Constituents?,” European Union Politics 7/​4 (2006): 505–​30. 51   Antoine Yoshinaka, Gail McElroy, and Shaun Bowler, “The Appointment of Rapporteurs in the European Parliament,” Legislative Studies Quarterly 35/​4 (2010): 457–​86. 48 49

 

budgetary empowerment   797 EP.  It became involved in the EU’s annual budgetary process as a result of the budgetary treaties of 1970 and 1975, but played no role in the multiannual budgetary framework, which was, until the Lisbon Treaty an intergovernmental affair, in which the role of the EU executive, the Commission, was to come up with an initial proposal. The Parliament played no role prior to the reforms of the procedure of the 1970s. In the annual budget, a distinction was made between compulsory and non-​ compulsory spending. The main component of the former was agriculture, and the main component of non-​compulsory spending was structural/​social funds and the costs of running the institutions. The Parliament was generally perceived to be more powerful in the latter spending category than the former. This is particularly the case under the assumption the EP wanted more spending in non-​compulsory areas than the Council did. While the procedure did not change between 1975 and 2009, the EP came to play a substantively more important role as the share of non-​ compulsory expenditures in annual budgetary negotiations increased from 8 percent to well above 50 percent of the budget during this period. With the Lisbon Treaty, which entered into force in 2009, the distinction between compulsory and non-​compulsory spending was scrapped and a new budgetary procedure introduced. The new procedure had, with some minor changes, been negotiated as a part of the failed Convention to establish the Constitution for Europe. A central aim of the reform was to simplify the budget. Unlike in the intergovernmental conferences (IGCs) that produced the various EU treaties, the EP was a formal actor in the process that led to the Convention. As a result, the EP was better capable of securing its interests in the convention negotiations than in the IGC. While the new version of the budgetary procedure is complex, with many different scenarios in case of a breakdown in the conciliation committee, the net effect is to make it very similar to the co-​decision (ordinary legislative) procedure. It is commonly assumed that the EP was empowered as a result of the change in the annual budgetary procedure. However, Benedetto and Høyland analyze the effect of the new annual budgetary procedure and the role played by the Parliament in these negotiations.52 They question the idea that the EP was significantly empowered by the reform. They find that it had, under the old procedure, significant powers to reduce compulsory expenditures, subject to support from a blocking minority in the Council. Such amendments have become harder to pass after the reform. It has also become harder for the EP to pass amendments to budget items formally under noncompulsory spending, such as regional development funds. The main effect of the budgetary reform seems to have been a simplification of the procedure, as well as a rebalancing of the de facto powers from the supranational Parliament to the intergovernmental Council. 52   Giacomo Benedetto and Bjørn Høyland, “The EU Annual Budgetary Procedure:  the Existing Rules and Proposed Reforms of the Convention and Intergovernmental Conference, 2002–​2004,” Journal of Common Market Studies 45/​3 (2007): 565–​87.

 

798   parliaments

Selection and Control of  the Executive The selection of the head of an international organization tends to be a result of a negotiations between the dominant member states, where the top positions of several related organizations may be decided simultaneously. In most cases, there is a formal vote among the member states of the organization. As we saw in Table 36.1, only in the EU is the parliamentary body involved in selecting and controlling the executive. In this section, we will see that while the EP is involved in selection and control of the executive to a larger extent than any other supranational parliamentary body, its role is nevertheless minor compared to the role of parliaments in national parliamentary systems. The power of the EP to scrutinize the candidates for EU executive office and their ability to control the executive while in office is perhaps more comparable to the role of Congress in congressional systems like the United States, than the controlling function of national parliaments in parliamentary systems. The EP distinguishes itself from other supranational parliaments, in that observers find it natural to compare it (often negatively) to domestic parliaments, rather than making the comparison with parliamentary bodies in other international organizations. Following the Nice Treaty in 2003, the Parliament has the right to invite the nominee for Commission President to present his or her team of Commissioners, and to let individual Commissioners give evidence of their competency to the relevant committees. The Parliament formally has the right to approve or disapprove of the composition of the Commission as a whole.53 Nevertheless, the relevant EP committee takes a vote on the suitability of the proposed candidate for the Commission post within their area separately. If a proposed candidate fails to convince the EP committee of his or her suitability for the job, the proposed Commission President is invited to submit a different candidate. In 2004, following critique from the EP, Italy withdrew the nomination of Rocco Buttiglione and Latvia withdrew the nomination of Ingrida Udre.54 Note however that the right to propose candidates, both for the post as Commission President and as individual members lies with the Council of the member states. These proposals used to be by unanimity, but following the Nice Treaty, the Council can approve the composition of the Commission by a qualified majority. While the Parliament is more involved in the selection of the EU executive than any other parliamentary body of an international organization is in the selection of its head, the involvement of the EP nevertheless falls short of the involvement of the member states’ parliaments in the selection of their governments. In presidential   Simon Hix and Christopher Lord, “The Making of a President: The EP and the Confirmation of Jacques Santer as the President of the Commission,” Government and Opposition 31/​1 (1996): 62–​76. 54   Christophe Crombez and Simon Hix, “Treaty Reform and the Commission’s Appointment and Policy-​Making Role in the European Union,” European Union Politics 12/​3 (2011): 291–​314. 53

 

conclusion   799 systems, where the involvement of the congress may be similar to that of the EP, the key difference is that the public elects the president. The involvement of the EP falls short of such standards, although following the Lisbon Treaty, the Council shall take the outcome of the EP elections into account when proposing a new president of the Commission for the EP to approve (Lisbon Treaty § 17.7). The EP also plays a role in scrutinizing the work of the Commission. This takes several forms. The Commission presents its annual work program to the Parliament. Individual Commissioners give evidence to parliamentary committees. The EP has a highly developed system for presenting oral and written questions, both to the Commission and the Council.55 Some committees have also introduced parliamentary “question-​time” with the Commissioner responsible for the policy area. The willingness to ask questions seems to have a “national politics” logic, as MEPs from national opposition parties are the most active.56 Unlike for national government ministers, there are no formal rules regulating individual level responsibility in the Commission. Nevertheless, in 1999 the EU held votes of no-​confidence on two Commissioners, Edith Cresson and Manuel Marin, who were in charge of administrative divisions where fraud and nepotism had been alleged. The EP does have the right to censure the Commission as a whole. However, the required threshold, a majority of all members and two-​thirds of all voting members, is high. While motions to censure the Commission have been proposed several times, none has been carried out. The double-​majority requirement means that a very broad coalition is needed in order to censure the Commission. Nevertheless, in March 1999 the EP successfully threatened the censure of the Commission. Public dissatisfaction with the Commission’s handling of a food safety crisis in combination with allegations of fraud, corruption, and nepotism generated a sufficiently large majority in the EP in favor of censure, forcing the Santer Commission to resign en masse ahead of the vote. Even though the vote was never actually taken, one can reasonably claim the EP successfully censured the Commission.57

Conclusion This chapter has provided an overview of the empowerment of supranational parliamentary bodies. It started by providing an overview that demonstrated that the   Tapio Raunio, “Parliamentary Questions in the European Parliament: Representation, Information and Control,” Journal of Legislative Studies 2/​4 (1996): 356–​82. 56   Sven O. Proksch and Jonathan B. Slapin, “Parliamentary Questions and Oversight in the European Union,” European Journal of Political Research 50/​1 (2011): 53–​79. 57   Simon Hix and Bjørn Høyland, The Political System of the European Union (Basingstoke: Palgrave, 2011), ch. 2. 55

 

800   parliaments EP, the parliamentary body of the EU, is the only supranational parliamentary organization with substantive powers. The remainder of the chapter hence focused on the EP. We first considered the role of direct elections and full-​time membership in a parliamentary body. Direct election can provide legitimacy and a sense of a public mandate. The sense of legitimacy may however be weakened if the campaign is more about issues at the national level and seen as not much more than a giant public opinion poll on the current government. Supranational parliamentary bodies need to be aware that direct elections may not be sufficient for institutional empowerment. There are two other potential aspects of direct elections that indirectly may matter: full-​time membership and a new standard to be compared to. First, if the directly elected members also become full-​time members, this may allow time for engaging in activities to either use the formal power the body already has or to extend its power. A key explanatory factor for the empowerment of the EP is that direct election created a group of politicians seeking a meaningful role, prompting them to look into how the existing rules could be used to maximize their influence and how rules could be amended in view of further empowerment in the future. Second, in terms of legislative powers, the EP has made two novel organizational arrangements not yet copied by other supranational parliamentary bodies. The plenary sits along ideological rather than national lines. Political groups, not national delegations are the key actors. The main groups have also been able to develop a high level of voting unity, thereby allowing them to present themselves as cohesive units. Further, the EP has developed a strong committee system that plays an informational role in preparing legislation, arguably enabling the EU to take better-​ informed decisions. For national parliaments, budgetary powers are essential. In contrast, most supranational parliamentary bodies do not have any budgetary powers. The EP is somewhere in between. At a fairly early stage in its existence, it was entrusted with substantive budgetary powers in some, at the time marginal, policy areas. However, over time these areas came to make up more than half of the EU budget. Although the member states changed the procedure, thereby taking back some of the powers that the Parliament had gradually acquired, the Parliament is still considered more important in the overall budgetary process today than ever before. Finally, while almost all supranational bodies have the power to adopt resolutions and make recommendations to the other bodies of the international organization, some also have the right to ask questions. However, only the EP plays an important role in the screening of candidates for executive office, and has the power to censure the executive in case of grave mismanagement. While these powers fall short of the

 

conclusion   801 power of parliaments in parliamentary systems, they are comparable to those of assemblies in congressional systems. Perhaps the best indicator that the EP has evolved to something closer to a national parliament than a supranational parliamentary body is that in the debate over the democratic deficit of the EU, its powers are compared to those of national domestic parliament, not those of international organizations.58

58   Føllesdal and Hix, “Why There is a Democratic Deficit in the EU”; Hix, What Is Wrong with the European Union?; Giandomenico Majone, “The Credibility Crisis of Community Regulation,” Journal of Common Market Studies 38/​2 (2000):  273–​302; Andrew Moravcsik, “In Defence of the ‘Democratic Deficit’:  Reassessing the Legitimacy of the European Union,” Journal of Common Market Studies 40/​4: 603–​34.

 

Chapter 37

EXECUTIVE BOARDS AND COUNCILS Ramses A. Wessel

In the variety of organs making up international organizations the so-​called ‘Boards’ or ‘Councils’ perhaps best represent the distinctive position of the organization vis-​ à-​vis its member states. Alongside a central congress in the form of an ‘Assembly’ and a secretariat, the Board completes the ‘elementary triad’1 forming the basis of the institutional structure of most international organizations. Whereas the plenary general congress is usually the reflection of the ‘agora’ function2 of an international organization and the secretariat has mainly administrative functions, Boards were created to allow organizations to act more effectively through a non-​plenary organ 1  Henry G. Schermers and Niels M. Blokker, International Institutional Law (Boston/​Leiden: Martinus Nijhoff Publishers, 2011), 293. Many examples in this chapter have been taken from that book, which continues to form an excellent source for, e.g., factual characteristics of international organizations. In addition examples were drawn from Philippe Sands and Pierre Klein, Bowett’s Law of International Institutions (London:  Sweet & Maxwell, 2001); Chittharanjan F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd ed. (Cambridge:  Cambridge University Press, 2005); Jan Klabbers, An Introduction to International Institutional Law, 2nd ed. (Cambridge: Cambridge University Press, 2009); as well as from the websites of the various international organizations. 2   Jan Klabbers, “Two Concepts of International Organization,” International Organizations Law Review (2005), 277–​ 93; as well as his “Contending Approaches to International Organizations: Between Functionalism and Constitutionalism,” in Research Handbook on the Law of International Organizations, ed. Jan Klabbers and Åsa Wallendahl (Cheltenham/​ Northampton: Edward Elgar Publishing, 2011), 3–​30.

 

executive boards and councils    803 that would meet more frequently than the general congress or which would even be in session on a ‘permanent’ basis. The fact that not all members of the organization are represented in the Board and that members may be selected on the basis of the knowledge of the field turns this organ into the part of the institutional structure of the organization that perhaps represents the latter’s distinctive position best. While there are good reasons also to view general congresses as ‘true’ organs of the organization (in which the participating states obtain a new identity as ‘member state’,3 following the rules and procedures of the organization and taking decisions that can be accredited to the organization), the fact that Boards are non-​plenary organs strengthens the autonomy international organizations may enjoy from their member states.4 Most Boards are endowed with executive functions and some even with independent governing functions. It is not unusual for Boards to exercise legislative functions. In fact, due to the increasing activity of international organizations and the need for technical expertise rather than just political input, Boards have obtained a pivotal position and may govern the organization on a daily basis, although in many cases executive tasks have been delegated to the management and staff of the organization. This is not to say that Boards have the same functions in each and every international organization. On the contrary: as with other elements of international organizations, it remains difficult to find common denominators. The non-​plenary organs we term ‘Boards’ in this chapter, appear under different names, such as ‘Executive Board’ (World Health Organization—​WHO), ‘Council’ (Food and Agriculture Organization—​FAO; Organisation for Economic Co-​operation and Development—​OECD), ‘Governing Body’ (International Labour Organization—​ILO), ‘Executive Council’ (World Meteorological Organization—​ WMO; Organisation for the Prohibition of Chemical Weapons—​ OPCW), or ‘Council of Administration’ (Universal Postal Union—​UPU). To complicate things even more, some organizations use the term ‘Council’ to refer to their plenary central congress (e.g. the European Union—​EU; North Atlantic Treaty Organization—​ NATO) or even call their plenary organ ‘Board’ (e.g. the ‘Board of Governors’ of the World Bank or the International Monetary Fund—​IMF). These organizations use different terms for the Board (e.g. the ‘European Commission’ of the EU or the ‘Executive Directors’ in the case of the World Bank or the IMF). Furthermore, as we will see, the composition differs, both in numbers and in representation. In general, however, the coming of age of many international organizations and the proliferation of their tasks over the past decades has brought new questions   See more extensively Ramses A. Wessel and Ige F. Dekker, “Identities of States in International Organizations,” International Organizations Law Review 12/​2 (2015): 293–​318. 4  See in general also Richard Collins and Nigel D. White (eds.), International Organizations and the Idea of Autonomy:  Institutional Independence in the International Legal Order (London/​ New York: Routledge, 2011). 3

 

804    executive boards and councils related to the executive and governing roles of Boards and in particular to the ways in which Boards still allow international organizations to act in a democratic and accountable manner.

Nature and Types of Boards Governance Models It is not uncommon for the plenary general congress or assembly to be viewed as representing the more ‘intergovernmental’ dimension of an international organization, with the non-​ plenary board reflecting a ‘supranational’ element. Political scientists in particular, would perhaps emphasize the ‘conference’ idea of a plenary organ, in which negotiations take place under the constant shadow of power play. Lawyers would generally have a tendency to point to the rules of the game that have to be followed and underline the fact that even plenary bodies are organs of an international organization in which states function as ‘member states’ once they occupy a ‘seat’. Indeed, the existence of elements such as ‘organ’, ‘membership’, or ‘decision’ all imply a distinction between the participating states and the international entity. In fact, there is a strong interlinkage between these elements. Organs act on behalf of the international entity, and are not to be equated with the (collectivity of) states, in which case the term ‘conference’ would be more appropriate. The notion of ‘membership’ underlines a similar distinctiveness of the international entity (one can only be a member of something else). This seems to allow for the conclusion that for an international entity to be regarded as existing separately from its member states, the entity must have a decision-​making organ that is able to produce a ‘corporate’ will, as opposed to a mere ‘aggregate’ of the wills of the member states. The outcomes of collective decision-​making processes must allow for their ascription to an international organ rather than to the collectivity of the participants.5 Yet,   See also Jan Klabbers, “Presumptive Personality: The European Union in International Law,” in International Law Aspects of the European Union, ed. Martti Koskenniemi (The Hague: Kluwer Law International, 1998), 231–​53, 243; Esa Paasivirta, “The European Union: From an Aggregate of States to a Legal Person?,” Hofstra Law & Policy Symposium 2 (1997): 37–​59; and Manuel Rama-​Montaldo, “International Legal Personality and Implied Powers of International Organizations,” British Yearbook of International Law (1997): 111–​55, 145: “It is the existence of organs which makes it possible to distinguish international organizations from other looser associations of States like, for example the British Commonwealth.” See on the distinction between states and member states and the importance of “legal personality” in that respect also: Ramses A. Wessel, “Revisiting the International Legal Status of the EU,” European Foreign Affairs Review 5 (2000): 507–​37. 5

 

nature and types of boards    805 it remains difficult to neglect the Janus-​faced nature of international organizations and it has been duly noted in doctrine that ‘[a]‌lthough the separate personality of an IO “establishes the will of the organization as a whole”, this does not mean that the various “member State wills” that led to it lose their relevance’.6 In the case of non-​plenary bodies it may be easier to see the distinction between the organization and the (collectivity) of its member states. After all, especially because of their non-​plenary nature, these Boards rely less on difficult compromises among a large number of member states and are more fit to focus on the institutional objectives rather than on individual national political preferences. At the same time, as we will see later in this chapter, larger member states will always claim a seat in a Board and national interest may continue to play a (crucial) role even in non-​plenary organs (the UN Security Council forming a prime example). Furthermore, it has been noted that even with regard to non-​plenary bodies deciding on behalf of the whole membership the issue is present. As held by some observers, on the Boards of international financial institutions for instance, the dichotomy inherent in the role of the Executive Directors—​the members of these Boards—​is clearly noticeable. In a report prepared by the Independent Evaluation Office of the IMF (2008) analysing governance issues in that institution, the self-​perception of Board members was described as follows: [m]‌ore than half of Board members reported that they occasionally face a conflict between their role as representatives of their authorities and their role in upholding the Fund’s institutional interests … while in practice all Directors clearly understand their representational role, their status as officers of the Fund is less clear.7

In a similar vein, the famous independence of the members of the EU’s Commission must be seen in relative terms. It has been argued that, ‘Chosen because of distinguished and well-​connected prior careers, they have a list of professional and political contacts, with over two-​thirds chosen from a party in government at the time of appointment.’8

6   Cedric Ryngaert and Ana Sofia Freitas de Barros, “The Position of Member States in (Autonomous) Institutional Decision-​Making: Implications for the Establishment of Responsibility,” International Organizations Law Review 1 (2014): 53–​82. Cf. also Jan Klabbers, “Autonomy, Constitutionalism and Virtue in International Institutional Law,” in International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order, ed. Richard Collins and Nigel D. White (London/​New York: Routledge, 2011), 121: “there is always an element of artificiality in making a distinction between organizations and their members.” See also Niels M. Blokker, “International Organizations and their Members,” International Organizations Law Review 1 (2004): 139–​61. 7   Ryngaert and Freitas de Barros, “The Position of Member States in (Autonomous) Institutional Decision-​Making.” See Independent Evaluation Office of the IMF Report “Governance of the IMF: An Evaluation,” (2008), 16, http://​www.ieo-​imf.org/​ieo/​pages/​CompletedEvaluation110.aspx. 8   Arndt Wonka, “Technocratic and Independent? The Appointment of European Commissioners and its Policy Implications,” Journal of European Public Policy 14 (2007): 169, 178.

 

806    executive boards and councils Schermers and Blokker list three reasons why international organizations delegate powers to non-​plenary bodies:9 1. Decision-​making in a large plenary organ is a slow and cumbersome process. Meetings of more that twelve people rarely work efficiently. Assembling a large number of qualified representatives for a conference is a costly affair, not only financially, but also in irreplaceable manpower. Many states are unable to afford long absences of their top experts. A general congress may save much time by delegating minor decisions and preparatory work for important decisions to other organs. It may then delegate work to the secretariat of the organization, but some tasks may be too technical or too controversial for a rather small and non-​political body. 2. Some states may be greatly interested in particular decisions that are of lesser or no importance to others. In that case, it might be advisable to grant the interested members a larger share in their preparation. 3. For certain tasks an organ of government representatives is insufficiently objective. A  compromise solution, which is usually the result of bargaining between government representatives, is not always the best. Arbitration and the gathering of expert opinions are traditional examples of functions best performed by organs composed of independent persons. These reasons for delegation would result in different roles of Boards: as political counterweight (to the technical decisions made by the organization’s management and staff), as performance police (as monitor and overseer of whether and how management and staff are carrying out the organization’s tasks), as strategic thinker (anticipating how the organization’s goals and instruments will be affected by changes in the external environment), and as democratic forum (giving voice to the individual members).10 Admittedly, Boards will not always be able to cater for all of these functions and sometimes the different roles are difficult to combine. ‘Trade-​offs are inevitable, and therefore organizations trying to balance the effectiveness, efficiency, accountability, and representation must make choices that inevitably strengthen some board roles but weaken others.’11 As we will see, in most cases Boards are composed of government representatives and other commissions or committees can be installed to include the expertise of non-​governmental stakeholders. Yet, because of their ‘daily’ presence in the organization’s institutional machinery, Boards may be in a position to accommodate these needs more easily than a general congress. Nonetheless, not all international organizations need a Board. The key example is formed by one of the most important almost-​universal   Schermers and Blokker, International Institutional Law, 307–​8.  Leonardo Martinez-​Diaz, “Executive Boards in International Organizations:  Lessons for the Strengthening IMF Governance,” IEO Background Paper, BP/​01/​01 (2008). 11   Ibid., 12. 9

10

 

nature and types of boards    807 international organizations, the World Trade Organization (WTO). The WTO found a way to be effective by having decisions taken by plenary organs only: the Ministerial Conference (meeting every two years) and the General Council (meeting regularly in the composition of permanent representatives of all member states). Even the three separate Councils (for goods, services, and trade-​related aspects of intellectual property rights—​TRIPs) and the committees are composed of all (currently 160) members and decisions are taken by consensus.12 Other examples include the Council of Europe, the OECD, or NATO. The various roles of Boards may be classified in different ways. Taking the relative weight of some of their characteristics as a starting point, it has been argued that three main models of governance can be distinguished:13 1. The delegate-​and-​control model, the central feature of which is that power and representation are delegated to a relatively small executive board that exercises control over the activities of the organization (examples include the World Bank, the IMF, and major regional development banks). Irrespective of the close contacts with their capitals, these Boards usually work efficiently, they clearly feel to be part of the institution, meet very frequently, and use majority voting. 2. The direct-​representation model, that can be used to describe Boards in which all members are directly represented, which only meets a few times per year, and where the ‘one-​nation-​one-​vote’ rule is prominent (perhaps combined with some from of double majority voting) (examples include the OECD and the European Investment Bank). 3. The constituency-​based oversight model, where Boards are large in absolute terms (but small relative to the size of the organization); they meet only a few times per year, Board members represent constituencies based on rotating schemes, one-​ nation-​one-​vote or double majority voting, and separate CEOs and Board chairs (examples include the larger UN special agencies such as the UN Environment Programme or the WHO, but also the Global Environment Facility). While this classification may be helpful in general terms, as we have seen (and will see) Boards often combine different governance models. Irrespective of their differences, as key organs, Boards form part of the institutional set-​up of an international organization. This implies that their actions are in principle attributable to the organization.14 External legal relations are established on the basis of the legal personality of the organization. Yet, in exceptional cases Boards 12   See more extensively Peter Van den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials (Cambridge: Cambridge University Press, 2005). 13   Martinez-​Diaz, “Executive Boards in International Organizations,” 23–​31. 14  See Arts. 3 and 4 of the Articles on the Responsibility of International Organizations, with Commentaries, in Report of the International Law Commission, 63rd Session, UN Doc. A/​66/​10 (2011), 52.

 

808    executive boards and councils may enjoy a separate legal personality. In most cases this personality is functionally limited to practical matters of private law, such as the employment of personnel or the purchase of computers. Doctrine is less clear about the possibility of organs to possess an international legal personality as well, for instance allowing them to enter into international agreements. The International Law Commission (ILC) argued on this matter that ‘a treaty concluded on behalf of a subsidiary organ should bind the entire organization’.15 The ILC thus did not rule out the possibility. Examples of organs enjoying a separate legal personality are rare, but include some organs of the EU (the European Investment Bank and the European Central Bank—​the latter even being an ‘Institution’ of the Union, a principle organ). Also UN subsidiary organs—​ including the United Nations Children’s Fund, the UN Institute for Training and Research, the UN Relief and Works Agency, the World Food Programme, the UN Development Programme, the UN Transitional Administration in East Timor, and the UN Interim Administration Mission in Kosovo—​have frequently entered into international agreements with states. Examples of executive boards enjoying a separate international legal personality are hard to find.

Types and Composition of Boards In this chapter we use the term ‘Boards’ to refer to policymaking organs composed of a limited number of member states.16 Usually Boards have been endowed with executive functions and act under the authority of the general congress. In these cases, they often function as ‘daily boards’ and supervise the secretariat and the budget. As we have seen, the functions of Boards largely differ from one organization to the other and organizations may even have more than one Board. Thus, in the UN functions have been given to the Security Council, the Economic and Social Council (ECOSOC), and the Trusteeship Council. In addition to executive tasks, Boards are sometimes granted governing powers that exist independent of the general congress. In these cases Boards may exercise clear regulatory, or even legislative functions. Thus, the UN Security Council has been entrusted with the primary responsibility for the maintenance of international peace and security. The Council of the International Civil Aviation Organization (ICAO) regulates air navigation and the assignment and utilization of radio frequencies lies in the hands of the Radio Regulations Board of the International Telecommunication Union (ITU). Usually the number of Board members ranges between 20–​30 per cent of the membership of the organization and it may be adapted once new members accede   ILC Rep. 1982, UN Doc. A/​37/​10, 40.   See also Schermers and Blokker, International Institutional Law, 308.

15

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nature and types of boards    809 to the organization. But here again there is hardly any uniformity. The Security Council consists of 15 of the 193 members of the UN (with the well-​known special position of the five permanent members: China, France, the Russian Federation, the United Kingdom, and the United States). ECOSOC has fifty-​four members. This latter number comes close to what we would find in many other universal organizations. Thus the Council of the FAO (194 members) has forty-​nine members, that of the UN Educational, Scientific and Cultural Organization (UNESCO—​ 195 members) fifty-​eight, ICAO (191 members) thirty-​six, the WHO (194 members) thirty-​four, and the OPCW (189 members) forty-​one. Despite their non-​plenary composition, Boards do try and represent the entire membership and reflect the relative importance of certain states or groups of states. Usually the membership of a Board changes through periodic elections that are organized in a ‘staggered’ way so as to ensure some continuity. A special situation occurs in the EU, where the European Commission (hence not the Council, which is the general congress), consists of all twenty-​eight EU members, including the President and Vice-​Presidents. The Commissioners, one from each EU country, provide the Commission’s political leadership during their five-​year term. Each Commissioner is assigned responsibility for specific policy areas by the President. In this case, the Board is a plenary rather than a non-​plenary organ. A similar ‘plenary’ composition can be found in the Executive Council of the African Union (AU), albeit that a distinction was made in the level of representation: the Assembly is composed of the heads of state and government, the Executive Council is formed by the ministers. Whereas the European Commission is ‘permanently’ in session, the AU Executive Council meets only twice a year. Despite the fact that all member states are represented in the European Commission, the individual Commissioners do not represent their member state, but are in charge of one of the EU-​wide portfolios: The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt. In carrying out its responsibilities, the Commission shall be completely independent … the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.17

The idea of composing a Board of persons that do not primarily represent their state’s interests can occasionally also be found in other international organizations. Thus, the members of the Executive Board of UNESCO are thought to take the interest of the organization into account and not just the interest of the particular member states they represent. The UNESCO constitution provides that the Board members are elected by the General Conference and that in doing so, the Conference ‘shall   Art. 17(3) of the Treaty on European Union (TEU).

17

 

810    executive boards and councils endeavor to include persons competent in the arts, the humanities, the sciences, education and the diffusion of ideas, and qualified by their experience and capacity to fulfill the administrative and executive duties of the Board’.18 In the same vein, the WHO Executive Board is composed of thirty-​four individuals technically qualified in the field of health, each one designated by a member state elected to do so by the World Health Assembly.19 And, the Executive Council of the OPCW is constituted not only with due regard to the principle of equitable geographical distribution, but also taking account of the chemical industry and political and security interests of the OPCW member states.20 Indeed, Boards may meet at different frequencies, ranging from twice or three times a year (such as in the case of the AU, the WMO, or the ILO) to permanently (the EU, the World Bank, the IMF, or the ICAO). Obviously even in the case of ‘permanent’ boards, the frequency of their sessions may differ; it is usually the staff that run the organization on a daily basis, whereas the organs members would meet on, for instance, a weekly basis. It may even be necessary to differentiate between the organ ‘at large’ and the actual gatherings of the members. Thus, the term ‘European Commission’ is often used to refer to the organ with its over thirty Directorates-​ General and Services with a total of almost 40,000 staff, whereas the group of twenty-​eight Commissioners is referred to as the ‘college’. The UN Security Council meets whenever the international situation calls for it. While Boards are typically composed of governmental representatives (in relation to governing tasks, any other composition would be unacceptable for most member states), there are exceptions to this rule. The most well-​known exception concerns the ILO, whose Governing Body is composed of fifty-​six titular members (twenty-​ eight governments, fourteen employers, and fourteen workers) and sixty-​six deputy members (twenty-​eight governments, nineteen employers, and nineteen workers). Obviously, there should be a close relation between the composition of the general congress and the (executive) Board. After all, in many cases initiatives by the Board will need final approval by the plenary, or its decisions require a mandate from the general congress. This close relation should also be reflected in the geographical composition of Boards. In particular, when Boards have been granted independent governing powers, the question of the legitimacy of their decisions becomes prominent. In the case of the UN Security Council attempts to adjust its composition to the changed membership of the UN has met with opposition of the permanent members. Even after a careful study had listed the different options, the UN Summit in 2005 was unable to reach an agreement.21 Despite the need for efficient executive Boards that are less dependent on the political preferences of individual 19   Art. V(2) of the UNESCO Constitution.   Art. 24 of the WHO Constitution.   Art. 23 of the Chemical Weapons Convention. 21   See Bardo Fassbender, “On the Boulevard of Broken Dreams,” International Organizations Law Review 2/​2 (2005): 391–​402. 18

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nature and types of boards    811 members, it generally remains difficult to reach compromises, in particular when Boards have obtained a (or the) pivotal position in an international organization. With the increasing membership of the EU, this organization finally reached a compromise to limit the number of Commissioners to two-​thirds of the organization’s membership. Yet, even this compromise (which already received treaty status) was changed by the European Council in order to not jeopardize the entire treaty, the approval of which was subject to referenda in certain member states. As we have seen, in the composition of Boards account may be given to special criteria, related to the importance of certain member states or the height of their contribution. Thus the Council of the ICAO, for instance, is a permanent body of the Organization responsible to the Assembly. It is composed of thirty-​six member states elected by the Assembly for a three-​year term. In the election, adequate representation is given to states of chief importance in air transport, states not otherwise included but which make the largest contribution to the provision of facilities for international civil air navigation, and states not otherwise included whose designation will ensure that all major geographic areas of the world are represented on the Council.22 Of the twenty-​eight government representatives in the ILO Governing Body, ten are appointed by the members ‘of chief industrial importance’.23 The IMO’s Council is composed as follows: of the forty members (a) Ten shall be States with the largest interest in providing international shipping services; (b) Ten shall be other States with the largest interest in international seaborne trade; (c) Twenty shall be States not elected under (a) or (b) above, which have special interests in maritime transport or navigation and whose election to the Council will ensure the representation of all major geographic areas of the world.24

The geographical representation may also be organized through so-​called regional commissions or groups. ECOSOC, for instance, supervises regional commissions for Europe, Latin America and the Caribbean, Africa, Asia and the Pacific, and Western Asia. The regional commissions are used to coordinate positions between like-​minded states. In most cases regional commissions operate quite independently from the parent organization and in some cases tasks can even be delegated to a regional commission, in particular when they are not of a universal nature. Where regional commissions are usually located in the region itself, regional groups are informal cooperation frameworks operating within the organization to coordinate and facilitate the decision-​making process. While experts or non-​governmental stakeholders may have a seat in a Board (compare the independent members forming the Radio Regulations Board of the ITU or the Directors of Meteorological Services that are members of the WMO’s Executive Council), these representatives are usually brought together in special   Art. 50(b) of the Chicago Convention.      Art. 17 of the IMO Convention.

22

24

  Art. 7(2) of the ILO Convention.

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812    executive boards and councils committees or commissions. In many cases these committees have advisory functions and they may function on an ad hoc or even on a permanent basis. Examples of the latter are the Economic and Social Committee (composed of representatives of employers and workers organizations) and the Committee of the Regions (composed of representatives of regional and local bodies) of the EU that on some occasions have a right to be consulted during a decision-​making procedure. Finally, Boards may be chaired in different ways. In the case of, for instance, the financial organizations, the Board (the ‘Executive Directors’) is chaired by an independent person, the ‘Managing Director’, who as the chief executive officer is comparable to the Secretary-​General of the UN. In other cases Boards elect their own president. Thus, the ICAO Convention states that ‘The Council shall elect its President for a term of three years. He may be re-​elected. He shall have no vote. The Council shall elect from among its members one or more Vice Presidents who shall retain their right to vote when serving as acting President.’25 The WHO Executive Board ‘shall elect its Chairman from among its members’.26 The President of the European Commission is nominated by the European Council (the top plenary organ) and elected by the European Parliament. Subsequently, the Council (the lower plenary organ) appoints the other Commissioners in agreement with the nominated President. The appointment of all Commissioners, including the President, is subject to the approval of the European Parliament. In office, they remain accountable to Parliament, which has sole power to dismiss the Commission.27 Article 30 of the UN Charter states that the Security Council is empowered to establish rules of procedure, ‘including the method of selecting its President’. The Security Council has established the following method of selecting the President:  the presidency rotates monthly among the state members of the Security Council. The rotation takes place in alphabetical order of the member states’ official UN names in English. All members of the Council, including the President, must present credentials issued by either the head of state, the head of government, or the minister of foreign affairs of their respective states to the Secretary-​ General, except if the representative is also the head of government or minister of foreign affairs. The Permanent Representative (ambassador) of the state that holds the presidency is usually the President of the Council, but if an official from the state who is higher in authority than the Permanent Representative (such as a foreign minister, prime minister, or head of state) is present in the Council, the higher official is the President.

Subsidiary Organs and International Agencies Usually a distinction is made between primary organs (based on the constitution of the organization) and subsidiary organs (based on a decision taken by the   Art. 51 of the Chicago Convention.      Art. 17(7) TEU.

25

27

  Art. 27 of the WHO Constitution.

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nature and types of boards    813 organization).28 It seems generally accepted for organs to create subsidiary organs to which powers can be delegated, provided that such new organs do not increase the obligations of the organization or of its members.29 Yet, organizations may limit this possibility, as was for instance done by the UN.30 In this chapter we limit ourselves to a delegation of powers by Boards. Here also the general rules apply that delegation cannot go beyond the existing powers of the delegating Board and that the Board cannot delegate its own responsibility away. These restrictions were formulated and analysed quite extensively in a classic EU case (Meroni), which concerned a delegation of powers by the board of the European Coal and Steel Community, the so-​called ‘High Authority’.31 Another famous example (the Tadić case) concerns the setting-​up by the UN Security Council of the International Criminal Tribunal for the former Yugoslavia.32 Upon assessing the legality of the creation of a subsidiary organ with judicial powers the Security Council itself was lacking, the Tribunal’s Appeals Chamber argued that this was in fact possible: the Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace and security in the former Yugoslavia.

Here, the objectives of the Security Council played a crucial role and, in order to attain these, the Council was allowed to create a new organ and endow it with powers the Council lacked. A similar ‘loose’ interpretation of the ‘Meroni-​criteria’ can be found in relation to resolutions used by the Security Council to authorize the use of force by (coalitions of) member states. One may argue that in many of these cases the Council itself loses control over the operations and that the resolutions in fact do lead to a shift in responsibility.33 28   See Dan Sarooshi, “The Legal Framework Governing United Nations Subsidiary Organs,” The British Yearbook of International Law 67 (1996): 413; Santiago Torres Bernardez, “Subsidiary Organs,” in Manuel sur les Organisations Internationals: A Handbook on International Organizations, ed. R. J. Dupuy (Dordrecht: Martinus Nijhoff Publishers, 1998), 109. 29   Schermers and Blokker, International Institutional Law, 172. 30   See also the 1991 legal opinion of the UN Office of Legal Affairs: “[t]he power to establish United Nations subsidiary organs, which under the Charter of the United Nations is conferred upon three of the principle organs of the United Nations, is clearly not conferred upon UNDP, which is itself a subsidiary organ of the United Nations. However, UNDP may be empowered in a specific case, and under an appropriate legislative authority of the General Assembly, or of its Governing Council, to establish its own subsidiary organs”: United Nations Juridical Yearbook (1991): 296–​300, 299. 31   Case 9/​56, Meroni, ECR 1957–​58, at 151–​2. 32   Res. 808 and 827, 1993. See also Gaetano Arangio-​Ruiz, “The Establishment of the International Criminal Tribunal for the former Yugoslavia and the Doctrine of Implied Powers of the United Nations,” in Dai Tribunali Penali Internazionali Ad Hoc a Una Corta Permanente, ed. F. Lattanzi and E. Sciso (Napoli:  Ed Scientifica, 1996), 31–​45; as well as Ige F. Dekker and Ramses A. Wessel, “Prosecutor v. Duško Tadić,” in Judicial Decisions on the Law of International Organizations, ed. Cedric Ryngaert et al. (Oxford: Oxford University Press, 2016), 127–​37. 33   See also Niels M. Blokker, “Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and Willing’,” European Journal of International Law 11 (2000): 541–​68.

 

814    executive boards and councils On some occasions subsidiary bodies may be referred to as ‘international agencies’34—​that is, international bodies that are neither based on a treaty nor on a bottom-​up cooperation between national regulators, but on a decision by an international organization. According to some observers, these international agencies even outnumber conventional organizations and may obtain a certain degree of autonomy, both vis-​à-​vis the body that created them and in relation to the member states.35 This international development mirrors the ‘agencification’ within the EU.36 Over thirty agencies have been established in areas ranging from the environment and medicine to gender equality and fundamental rights. The younger agencies have been endowed with sometimes far-​reaching regulatory tasks. In fact, they take over some of the executive tasks of the European Commission (the EU’s executive board)37 and usually enjoy a separate international legal personality.38

Decision-​Making by Executive Boards The Source of the Competences On the basis of the principle of the attribution of powers, international organizations can only exercise those powers that are (expressly or implied) laid down in the constituting treaty.39 Board competences may be derived directly from   See more extensively Edoardo Chiti and Ramses A. Wessel, “The Emergence of International Agencies in the Global Administrative Space: Autonomous Actors or State Servants?,” in International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order, ed. Richard Collins and Nigel D. White (London/​New York: Routledge, 2011), 142–​59. See also Ayelet Berman and Ramses A. Wessel, “The International Legal Status of Informal International Law-​Making Bodies: Consequences for Accountability,” in Informal International Lawmaking, ed. J. Pauwelyn, R. A. Wessel, and J. Wouters (Oxford: Oxford University Press, 2012), 35–​62. 35  See Cheryl Shanks, Harold K. Jacobson, and Jeffrey H. Kaplan, “Inertia and Change in the Constellation of International Governmental Organizations, 1981–​1992,” International Organization 50 (1996): 593. 36   Deirdre Curtin, Executive Power of the European Union: Law, Practices, and the Living Constitution (Oxford: Oxford University Press, 2009), 57. See also Edoardo Chiti, “The Emergence of a Community Administration: The Case of European Agencies,” Common Market Law Review 37/​2 (2000): 309–​43; and also his “An Important Part of the EU’s Institutional Machinery:  Features, Problems and Perspectives of European Agencies,” Common Market Law Review 46/​5 (2009): 1395–​442. 37   Compare Stefan Griller and Adreas Orator, “Everything under Control? The ‘Way Forward’ for European Agencies in the Footsteps of the Meroni Doctrine,” European Law Review 35 (2010): 3–​35. 38  Gregor Schusterschitz, “European Agencies as Subjects of International Law,” International Organizations Law Review 1 (2004): 163–​88. 39   See also Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers (Oxford: Oxford University Press, 2005). See for examples (although not explicitly related to decisions of 34

 

decision-making by executive boards    815 the organization’s constitution or from a decision taken by the general congress. ECOSOC and the Security Council are examples of Boards that find their basis in the organization’s constitution. Other Boards are established for very specific reasons and are based on a decision of one of the primary organs of the organization. Thus, the International Narcotics Control Board, for example, was established on the basis of an ECOSOC decision.40 Decisions of Boards thus need a legal basis. Apart from the organization’s competence to act in certain areas, the Board itself should also be competent. A prime example of a clear division of powers is formed by the EU, where a delicate ‘institutional balance’ is to ensure the interests of the member states (through the Council), the citizens (through the European Parliament), and the Union itself (through the European Commission). In the UN, the division of powers between the General Assembly and the Security Council is regulated by the UN Charter and allows the General Assembly to make recommendations of all questions with the exception of those attributed to the Security Council.41 Yet, soon after the establishment of the UN a resolution by the General Assembly already met with opposition from a number of member states. In the so-​called Uniting for Peace Resolution,42 the General Assembly claimed a power to issue recommendations to member states on the use of force, irrespective of the fact that the Charter confers the primary responsibility for the maintenance of peace and security to the Security Council. Obviously, the composition of a Board and the possible special voting rules (vetoes) may form reasons for member states to strictly hold on to the division of tasks between organs in relation to politically sensitive topics. The possible ultra vires activities of Boards, or organs in general, have been said to trigger complex legal-​political questions. As Klabbers argued: many possibly illegal acts have been warmly welcomed by the membership of the organization concerned, ranging from usurpation of powers to debatable use of credentials procedures. In turn, this creates the following situation: if a healthy majority agrees with the activity, then it can hardly be deemed illegal, for, if it were illegal, how could a healthy majority possibly accept it?43

Obviously, for ‘institutionalists’ this line of reasoning would be contrary to the distinction they like to make between the organization and its members. Even if a healthy majority of the members would like to deviate from the constitution, the proper way would be to modify the constitution rather than to ignore it. The Boards):  Klabbers, An Introduction to International Institutional Law, 213–​20. See for a theoretical approach to decisions taken by international organizations:  Ige F. Dekker and Ramses A. Wessel, “Governance by International Organisations:  Rethinking the Source and Normative Force of International Decisions,” in Governance and International Legal Theory, ed. Ige F. Dekker and Wouter Werner (Leiden/​Boston: Martinus Nijhoff Publishers, 2004), 215–​36.   ECOSOC Res. 1196 (May 16, 1967).    41  See Arts. 10–​12 of the UN Charter.   Res. 377 (V), 1950.    43 Klabbers, An Introduction to International Institutional Law, 218.

40 42

 

816    executive boards and councils constitutive instruments of most international organizations contain some ‘checks and balances’ and allowing members to reinterpret the relevant provisions along the way could jeopardize the careful attribution of powers to the organization as well as the interest of the organization itself and of the members that were outvoted.

The Decision-​Making Process Usually the constituent instrument of an international organization allows for the organs to adopt acts and it would not make much sense to establish Boards without any powers. Decision-​making by Boards is usually done ‘under the authority of the General Conference’.44 The voting procedure may be fixed by the constituent instrument or by the rules of procedure of the Board. In the ILO Governing Body, decisions are generally taken by consensus, votes being very rare. The UNESCO Constitution, on the other hand, does not refer to the voting procedure of the Executive Board, but in turn the Rules of Procedure are quite elaborate on this point. Rule 48 provides that ‘Each Member of the Board shall have one vote’; and Rule 50 states that: Decisions of the Board shall be taken by a simple majority of the Members present and voting, except where otherwise specified in these Rules. For the purposes of determining the majority, only Members casting an affirmative or negative vote shall be counted as ‘present and voting’; Members who abstain from voting shall be considered as not voting.

Rule 51, finally, lists a number of situations in which a two-​thirds majority is required. Sometimes voting is governed by the same procedure as in the general congress. Thus, the WHO Constitution provides that ‘(c) Voting on analogous matters in the Board and in committees of the Organization shall be made in accordance with paragraphs (a) and (b) of this Article’, where those paragraphs indicate that decisions of the Health Assembly on important questions shall be made by a two-​thirds majority of the Members present and voting; and that decisions on other questions, shall be made by a majority of the Members present and voting.45 A similar regime can be found in the WTO, where the General Council, just like the Ministerial Conference, decides on the basis of consensus (although majority voting is possible in specific cases or failing a consensus).46 The IMF Executive Board discusses all aspects of the Fund’s work, from the IMF staff ’s annual health checks of member countries’ economies to policy issues relevant to the global economy. The board normally makes decisions based on consensus, but sometimes formal votes are taken. At the end of most formal discussions, the Board issues what is known as a Summing Up, which summarizes its views. Informal discussions may be held to discuss complex policy issues at a preliminary stage.   Example taken from the UNESCO Constitution, Art. V(2).   Art. 60 of the WHO Constitution.    46  Art. IX(1) of the WTO Agreement.

44 45

 

decision-making by executive boards    817 Perhaps most famous (or notorious) is the decision-​making system of the UN Security Council. The decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine of its fifteen members. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that a party to a dispute shall abstain from voting.47 The need for an affirmative vote of the permanent members (the ‘P5’) results in the well-​known veto possibility for those states. At the regional level the example of the European Commission shows that even ‘collegiate’ decision-​making does not need to be based on consensus. Although the Commission is collectively responsible for all decisions taken, they are taken by a simple majority vote of the College.

Legal Acts by Boards The output of the decision-​making process differs substantially from one Board to another and may range from advisory or preparatory work for the general congress to fully fledged legally binding norms that bind all member states directly. In general the acts by Boards will be subject to the rules of the organization on the internal hierarchy of norms, and their validity depends on following these rules. Most of the work of Boards concerns the ‘internal’ law of the organization, in the sense that the acts form part of decision-​making procedures that ultimately lead to acts adopted by the general congress. ECOSOC has no ‘legislative’ powers; it can only make ‘recommendations’ to states, to the General Assembly, and to the specialized agencies.48 The recommendations are often based on ‘studies’ made by the Council. In addition ECOSOC can prepare draft Conventions to be adopted by the General Assembly. In general, a somewhat ‘supporting’ role seems to be a characteristic of most organizations in the UN family. Similarly, decisions of the ILO Governing Body are taken on the basis of recommendations contained in the document already submitted to it on items placed on the agenda; recommendations made by its various committees; and individual motions or resolutions submitted under Article 5.6 of the Standing Orders of the Governing Body in connection with an item on the agenda. Yet, some Boards do take decisions that arguably go beyond recommendations, irrespective of their ‘delegated’ powers. The Council of the ICAO ‘carries out the directions of the Assembly’; it reports to the Assembly, administers finances, appoints the Secretary-​General, collects and publishes information, makes studies,   Art. 27 of the UN Charter.   

47

  Ibid., Arts. 58 and 62.

48

 

818    executive boards and councils and conducts research.49 It also supervises its own committees and reports to states any violations of the Convention. At the same time, however, the Council adopts international Standards and Recommended Practices (SARPs) and incorporates these as Annexes to the Chicago Convention. The Council may also amend existing Annexes as necessary. Yet, the SARPs have quite an impact on the airline industry (and its clients, who are usually notified of key ICAO rules when buying an aeroplane ticket). Another example of Board decisions which may have an independent impact is formed by the decisions by the WHO Executive Board, which is allowed: to take emergency measures within the functions and financial resources of the Organization to deal with events requiring immediate action. In particular it may authorize the Director-​ General to take the necessary steps to combat epidemics, to participate in the organization of health relief to victims of a calamity and to undertake studies and research the urgency of which has been drawn to the attention of the Board by any Member or by the Director-​General.50

Clearly independently legally binding acts can be enacted by a minority of the existing Boards. The decisions of the UN Security Council are binding on the members of the UN, which have agreed ‘to accept and carry out the decisions of the Security Council in accordance with the present Charter’.51 There is some consensus that the powers of the Security Council exceed mere ‘executive’ powers and can be qualified as ‘legislative powers’.52 Similarly, the European Commission is endowed with legislative powers, either on the basis of the Treaty (in relation to competition rules and conditions under which an EU national may reside in another member state after having worked there53) or on the basis of a delegated power by the Council, the Union’s general congress. While the Council cannot delegate the essential elements of a policy to the Commission, it can delegate any other legal powers to the Commission.54 Another striking feature of the European Commission is that it acts as a supervisory body and monitors the implementation of EU law by the member states. In that sense it has independent powers to, for instance, declare illegal state aid provided by member states to their companies, or fine firms that have violated 50   Art. 54 of the Chicago Convention.   Art. 28 of the WHO Constitution.   Art. 25 of the UN Charter. 52   See, e.g., Paul C. Szasz, “The Security Council Starts Legislating,” American Journal of International Law 96 (2002): 901–​5; Stefan Talmon, “The Security Council as World Legislature,” American Journal of International Law 99 (2005): 175–​93; Björn Elberling, “The Ultra Vires Character of Legislative Action by the Security Council,” International Organizations Law Review 2/​2 (2005): 337–​60; Erika de Wet, “The Security Council as a Law-​Maker: The Adoption of (Quasi)-​Legislative Decisions,” in Developments of International Law in Treaty-​Making, ed. Rüdiger Wolfrum and Volker Röben (Berlin: Springer, 2005), 183–​225; and Ian Johnstone, “Legislation and Adjudication in the UN Security Council: Bringing Down the Deliberative Deficit,” American Journal of International Law 102 (2008): 275–​308. 53   See, respectively, Arts. 106(3) and 45(3)(d) of the Treaty on the Functioning of the European Union (TFEU). 54   See more extensively Damien Chalmers, Gareth Davies, and Giorgio Monti, European Union Law, 2nd ed. (Cambridge: Cambridge University Press, 2010), 59–​60. 49 51

 

decision-making by executive boards    819 the competition rules. It may even bring member states to the European Court of Justice in the case of an alleged breach of EU law. In cases where Boards do have legislative powers, the question of judicial review may come up. Again the EU seems to be the odd one out as the legality of its legal acts can be reviewed by the Court of Justice of the EU. Proceedings can even be initiated by any ‘natural or legal person’.55 Given the far-​reaching powers of the UN Security Council, a similar discussion has taken place there. While the International Court of Justice (ICJ) has so far been reluctant to assess the legality of Security Council decisions,56 the debate gained new attention when the far-​reaching powers of the Council in relation to individuals became apparent in the international fight against terrorism.57 Indeed, especially in cases where international organizations assume state-​like powers and where their decisions directly affect domestic legal orders or individuals, calls for judicial review become stronger. At the same time judicial organs may be helpful to settle disputes between the member states, between member states and the organization, or between organs of an organization. While many international organizations do have judicial organs or at least procedures to deal with legal conflicts,58 it is more rare for the judgments to have a legally binding effect. Boards may sometimes request advisory opinions from a judicial organ (thus, ECOSOC may request advisory opinions of the ICJ) and occasionally Boards themselves act as interpretative organs (a role, for instance, taken up by the Executive Board of the IMF in an ad hoc manner).

Executive Power It is generally believed that the regulatory and legislative powers of international organizations are on the rise.59 The ‘exercise of public authority’ by international bodies is not only believed to affect states, but also individuals, private associations, or enterprises.60 In the general absence of international judicial forums that can be   Art. 263 of the TFEU.  See, e.g., Bernd Martenczuk, “The Security Council, the International Court and Judicial Review: What Lessons from Lockerbie?,” European Journal of International Law 10 (1999): 517–​47. 57   The cases have received abundant attention in academic literature. See, e.g., Grainne De Búrca, “The European Court of Justice and the International Legal Order After Kadi,” Harvard International Law Journal 1 (2010):  1–​49. See also the special “Forum” on the Kadi judgment, in International Organizations Law Review 5 (2008). 58   See Chapter 41 of this volume. 59   See most prominently José E. Alvarez, International Organizations as Law-​Makers (Oxford: Oxford University Press, 2005). On the contributions to law-​making by more informal international bodies see Joost Pauwelyn, Jan Wouters, and Ramses A. Wessel, Informal International Lawmaking (Oxford: Oxford University Press, 2012). 60  See Armin Von Bogdandy et  al. (eds.), The Exercise of Public Authority by International Institutions:  Advancing International Institutional Law (Heidelberg, etc.:  Springer, 2010). Compare 55

56

 

820    executive boards and councils addressed by individuals, a debate on the possible role of national courts emerged.61 While this debate largely goes beyond the scope of the present chapter, there is an awareness of the role Boards may play in the increasing executive and regulatory power of international organizations. Yet, despite the fact that Boards are usually perceived as the ‘executive’ organ of international organizations, it has become more difficult to locate executive power in the hands of Boards only. In many cases executive tasks are shared between different organs, or between the organizations and its member states. Furthermore, as we have seen, organs may delegate sometimes far-​reaching executive powers to committees or agencies that are less visible. This latter aspect (related to a need to maintain traditional domestic rules on legitimacy, accountability, and transparency at the level of international institutions) has led to an increased attention for the regulatory and executive roles of international bodies. Obviously, the issue is more prominent in discussions on organizations and organs with far-​reaching (state-​like) powers. Thus, with respect to the EU, Curtin argued the following: Executive power at the EU level as well as its interaction with national executive power has … remained largely ‘in shadow’, when compared to its legislative and judicial counterparts. This is not only because of its scattered and fragmentary nature but also because there is no single instance of EU executive power that can (yet) be characterised as the EU ‘government’ in a way that can be compared in a sustained fashion to a ‘government’ (as such) in national political systems. Executive power in terms of the institutions and actors of the EU consists of various bits and pieces that have been cobbled together across a spectrum of institutions, sub-​actors, and policy areas.62

While the EU remains special, research over the past decade in particular has revealed similar regulatory and executive activities in other international organizations. Thus, the OPCW Executive Board, for example, has been endowed with considerable executive powers in relation to the implementation of the Chemical Weapons Convention. Apart from its extensive capacity to conclude agreements with the OPCW member states in relation to the functioning of the Convention, it is the primary focal point in situations related to the resolution of ambiguities and concerns regarding compliance; it has a special role in relation to requests for assistance and protection against the use or threat of use of chemical weapons; and it is assigned special powers in the event of a dispute between states parties about the interpretation or application of the Convention.63 Indeed, more also Ramses A. Wessel, “Informal International Law-​Making as a New Form of World Legislation?,” International Organizations Law Review 8 (2011): 253–​65. 61   See, e.g., Eyal Benvenisti and Goerge W. Downs, “National Courts, Domestic Democracy, and the Role of International Law,” European Journal of International Law 20 (2009): 59–​72; as well as Jacob Katz Cogan, “National Courts, Domestic Democracy, and the Evolution of International Law: A Reply to Eyal Benvenisti and George Downs,” European Journal of International Law 20 (2009): 1013–​20. 62  Curtin, Executive Power of the European Union, 65–​6. 63   Arts. 34–​36 and X of the Chemical Weapons Convention.

 

conclusion   821 generally, the increasingly complex (and frequently technical) questions international organizations are confronted with end up on the plates of their Boards, who—​as we have seen—​have frequently created a sub-​structure of commissions or established agencies with extensive delegated powers.

Conclusion Non-​plenary organs in the form of Boards are present in most international organizations. At the same time this seems to be their only common characteristic. As this chapter has revealed, Boards differ in almost every aspect: their name, composition, meeting frequency, competences, decision-​making procedures, etc. While the general congress, mostly in the form of a plenary assembly, may be at a higher level in the organization’s hierarchy and competences of Boards often depend on a delegation by the general congress, Boards prove to act as the key organ. Although politics is never far away, Boards are usually better equipped to take the necessary (technical) expertise into account. At the same time, further delegation may result in a more autonomous role of Boards. Critical analyses of the increasing role of international organizations (occasionally assuming ‘state-​like’ powers) often relate to extensive regulatory and executive powers of Boards, or the sub-​organs and agencies created by them. While technological developments and the increasing complexity of many questions (on the environment, health, or finances) calls for a certain distance between the actual rule-​makers and politics, this development also caused an intensified debate on the (democratic) legitimacy and accountability of the normative bodies. In that sense, not so much the Boards themselves will be the subject of academic debates, but more the (often less visible) normative institutional machinery in the form of committees and agencies that act under their mandate, both formally or informally.

 

Chapter 38

EXECUTIVE HEADS Simon Chesterman

The executive head of an international organization—​whether designated president, secretary general, managing director, or some other title—​exists in a curious limbo. He or she is entrusted to lead an organization that may employ tens of thousands of people and administer a budget in the billions of dollars. At the same time, however, his or her ability to operate independently of member states may be severely limited by the powers entrusted to the office or tight constraints over finances. This tension is most obviously on display in the United Nations (UN), where the Secretary-​General heads the Secretariat and is nominal commander-​in-​chief of 100,000 peacekeepers but is formally appointed as the organization’s ‘Chief Administrative Officer’. The predictable difficulties to which this gives rise are sometimes framed as whether the incumbent should be more of a ‘secretary’ or a ‘general’.1 Such problems are not new. In 1961, UN Secretary-​General Dag Hammarskjöld gave a speech at Oxford in which he articulated the problematic position of the international civil servant. Earlier in the year, Soviet Chairman Nikita Khrushchev had been reported as dismissing the idea of such an individual: ‘While there are neutral countries, there are no neutral men.’ Walter Lippmann, who had interviewed Khrushchev on this subject in 1961, interpreted the Soviet position as being that the ‘political celibacy’ called for in the ideal British civil servant was, in international affairs, a fiction.2 Hammarskjöld, in articulating his vision of precisely such 1   See generally Simon Chesterman (ed.), Secretary or General? The UN Secretary-General in World Politics (Cambridge: Cambridge University Press, 2007). 2  Walter Lippmann, “Interview with Chairman Nikita Khrushchev,” New  York Herald Tribune, 17 April 1961.

 

appointment   823 an individual, archly suggested that it was possible to be politically celibate without being politically virgin.3 This chapter examines the appointment of executive heads and the formal functions ascribed to them. It then turns to the question of how the various officeholders have implemented those functions in practice, focusing on the ability to operate independently of member-​state interests.

Appointment The formal appointment of the executive head of an international organization is typically governed by the constitutive document of the body. Such formal procedures often reveal little of how decisions are actually made, however. In theory, formal rules may embrace principles of sovereign equality such as one vote per member state; in reality, power disparities manifest in informal practices and conventions that give greater weight to powerful members, or balance power and regional interests by ensuring a rotation of leadership positions.

Formal Appointment Appointments are normally made by member states as political decisions not subject to review or requiring that reasons be given.4 Most commonly, the formal appointment of the executive head is entrusted to the plenary body of the organization. The Secretary-​General of the UN, for example, is formally appointed by its General Assembly (GA) in which each member state has one vote.5 The Director-General of the World Trade Organization (WTO) is similarly appointed by the Ministerial Conference, at which each member has a single

  Dag Hammarskjöld, “The International Civil Servant in Law and in Fact (Lecture Delivered to Congregation at Oxford University, 30 May 1961),” in Servant of Peace: A Selection of the Speeches and Statements of Dag Hammarskjöld, Secretary-​General of the United Nations 1953–​1961, ed. Wilder Foote (New York: Harper and Row, 1962), 335. 4   Cf. John Ferejohn, “Accountability and Authority: Toward a Theory of Political Accountability,” in Democracy, Accountability, and Representation, ed. Adam Przeworski, S. C. Stokes, and B. Manin (Cambridge: Cambridge University Press, 1999). 5   Charter of the United Nations, signed at San Francisco, 26 June 1945, in force 24 October 1945, http://​www.un.org/​en/​documents/​charter, Art. 97. As discussed later, this follows a recommendation from the Security Council that has in practice determined the choice. 3

 

824   executive heads vote.6 Other executive heads appointed by plenary bodies at which every member has one vote include the Chairman of the African Union (AU) Commission7 and the Secretaries-​General of the Association of Southeast Asian Nations (ASEAN),8 the International Telecommunication Union (ITU),9 the Organization of American States (OAS),10 the Organisation for Economic Co-​operation and Development (OECD),11 the Arab League,12 and the Organisation of Islamic Cooperation (OIC, previously known as the Organization of the Islamic Conference).13 Some international organizations appoint the executive head through appointment by a subgroup of members. The Secretary-​General of the International Civil Aviation Organization (ICAO), for example, is appointed by the Council,14 which consists of thirty-​six contracting states elected by the Assembly of the whole.15 The Director-General of the International Labour Organization (ILO) is appointed by the Governing Body,16 which consists of twenty-​eight government representatives but also fourteen representing employers and fourteen representing workers.17 The Director of the International Atomic Energy Agency (IAEA) is appointed by the Board of Governors ‘with the approval of the General Conference’.18 The Secretary-​ General of Interpol is proposed by the Executive Committee and approved by the General Assembly.19   Agreement Establishing the World Trade Organization, signed at Marrakesh, 15 April 1994, http://​ www.wto.org/​english/​docs_​e/​legal_​e/​04-​wto.pdf, Art. VI(2). 7   Constitutive Act of the African Union, signed at Lomé, Togo, 11 July 2000, in force 26 May 2001, http://​au.int/​en/​sites/​default/​files/​ConstitutiveAct_​EN.pdf, Art. 9(1)(i). 8   Charter of the Association of Southeast Asian Nations (ASEAN Charter), signed at Singapore, 20 November 2007, in force 15 December 2008, http://​www.asean.org/​asean/​asean-​charter/​, Art. 11(1). 9   Constitution of the International Telecommunication Union, signed at Geneva, 22 December 1992, in force 1 July 1994, http://​www.itu.int/​en/​history/​Pages/​ConstitutionAndConvention.aspx, Art. 8(2)(g). 10  Charter of the Organization of American States, signed at Bogotá, 30 April 1948, in force 13 December 1951, http://​www.oas.org/​dil/​treaties_​A-​41_​Charter_​of_​the_​Organization_​of_​American_​ States.htm, Art. 108. 11   Convention on the Organisation for Economic Co-​operation and Development (OECD), signed at Paris, 14 December 1960, http://​www.oecd.org/​general/​conventionontheorganisationforeconomicco-​ operationanddevelopment.htm, Art. 10(1). 12   Pact of the League of Arab States (Charter of the Arab League), signed at Cairo, 22 March 1945, http://​avalon.law.yale.edu/​20th_​century/​arableag.asp, Art. 12. 13   Charter of the Organisation of Islamic Cooperation, signed at Dakar, 14 March 2008, http://​www. oic-​oci.org/​english/​charter/​OIC%20Charter-​new-​en.pdf, Art. 16. 14   Convention on International Civil Aviation (Chicago Convention), signed at Chicago, 7 December 1944, in force 4 April 1947, http://​www.icao.int, Art. 54(h). 15   Ibid., Art. 50(a). 16   Constitution of the International Labour Organization, signed at Paris, 1 April 1919, in force 28 June 1919, Art. 8(1). 17   Ibid., Art. 7. 18   Statute of the International Atomic Energy Agency, signed at New York, 23 October 1956, in force 29 July 1957, https://​www.iaea.org/​about/​statute, Art. VII(A). 19   Constitution of the International Criminal Police Organization (Interpol), signed at Vienna, 1956, http://​www.interpol.int/​About-​INTERPOL/​Legal-​materials/​The-​Constitution, Art. 28. 6

 

appointment   825 Two important exceptions to the principle that all members (or a subgroup) vote equally on such appointments are the heads of the two international financial institutions (IFIs)—​the World Bank20 and the International Monetary Fund (IMF)21—​ who are appointed by the executive boards but with voting shares allocated broadly in accordance with their financial commitments to the organization. Similar arrangements apply to the Asian Development Bank (ADB)22 and the European Bank for Reconstruction and Development (EBRD),23 in which the presidents are elected by a majority of the board of governors, which must also represent not less than half the voting power. Still other organizations have no formal procedure for appointing the executive head. The North Atlantic Treaty Organization (NATO), for example, appoints its Secretary-​ General ‘through informal diplomatic consultations among member countries’.24 The President of the European Commission, by contrast, is proposed by a qualified majority of the European Council, which is enjoined to take into account elections to the European Parliament and hold ‘appropriate consultations’; he or she is then formally elected by the European Parliament by majority vote of its component members.25

Influence Despite the prevalence of formal procedures notionally allowing each member state an equal say in the appointment of the executive head, however, certain member states are often given significantly more influence than such procedures disclose. In the UN, for example, the General Assembly acts only on the basis of a Security Council recommendation. Throughout the history of the UN, the Security Council has in each case only recommended one candidate and the General Assembly has always accepted that candidate. In practice, then, the permanent five members of the Council (P5) have a key role in determining the Secretary-​General26—​though   International Bank for Reconstruction and Development (World Bank) Articles of Agreement, signed at Bretton Woods, NH, 22 July 1944, in force 27 December 1945, http://​siteresources.worldbank. org/​EXTABOUTUS/​Resources/​IBRDArticlesOfAgreement_​links.pdf, Arts. V(3), V(5). 21   Articles of Agreement of the International Monetary Fund, signed at Bretton Woods, NH, 22 July 1944, in force 27 December 1945, http://​www.imf.org/​external/​pubs/​ft/​aa, Art. XII(4)–​(5). 22   Agreement Establishing the Asian Development Bank, signed at Manila, 4 December 1965, in force 22 August 1966, http://​www.adb.org/​documents/​agreement-​establishing-​asian-​development-​ bank-​adb-​charter, Art. 34(1). 23  Agreement Establishing the European Bank for Reconstruction and Development, signed at Paris, 29 May 1990, in force 28 March 1991, http://​www.ebrd.com/​downloads/​research/​guides/​basics. pdf, Art. 30(1). 24   The NATO Secretary-​General, http://​www.nato.int/​cps/​en/​natolive/​topics_​50094.htm. 25   Treaty on European Union, signed at Maastricht, 7 February 1992, in force 1 November 1993, http://​europa.eu/​eu-​law/​decision-​making/​treaties/​index_​en.htm, Art. 17(7). 26  Colin Keating, “Selecting the World’s Diplomat,” in Secretary or General? The UN SecretaryGeneral in World Politics, ed. Simon Chesterman (Cambridge: Cambridge University Press, 2007). 20

 

826   executive heads it is also an implicit understanding that none of them field their own nationals as a potential candidate. (This is broadly consistent with the League of Nations, in which the Secretary-​General was to be ‘appointed by the Council with the approval of the majority of the Assembly’.27) In the case of the World Bank, its President has in practice been nominated by the President of the United States and subject to endorsement by the Executive Board; similarly, the Managing Director of the IMF has in practice been chosen by its Western European members.28 Such machinations are not accidental. Indeed, for many organizations there is an explicit commitment not to select executive heads through an open contest. In the UN, for example, the limited role for the General Assembly was endorsed by the Assembly itself. Resolution 11(I) of 1946 declared that it would be ‘desirable for the Security Council to proffer one candidate only for the consideration of the General Assembly, and for debate on the nomination in the General Assembly to be avoided’.29 In the case of the WTO, a document on the procedures for appointing the Director-General encourages members to engage in rounds of consultations and regard voting as a ‘last resort’.30 This reflects a larger trend within international organizations to adopt informal agreements as a means of managing power imbalances that cannot be addressed openly.31 At the time of writing, the UN was experimenting with a new process intended to encourage greater transparency and inclusivity in the selection of its next Secretary-​General. This appeared to be tolerated by the P5 with varying degrees of enthusiasm, but on the basis that the ultimate decision-​making power continued to rest with the Security Council in which they enjoyed a veto power.32

Regional and National Criteria Another means of indirectly acknowledging the divergent interests of member states is through implicit regional or national criteria for executive heads. In many

  Covenant of the League of Nations, signed at Paris, 28 June 1919, in force 10 January 1920, Art. 6.  Ngaire Woods, “The United States and the International Financial Institutions:  Power and Influence Within the World Bank and the IMF,” in U.S. Hegemony and International Organizations: The United States and Multilateral Institutions, ed. Rosemary Foot, S. Neil MacFarlane, and Michael Mastanduno (Oxford: Oxford University Press, 2003), 109. 29   GA Res. 11(I) (1946), para. 4(d). 30  Procedures for the Appointment of Directors-​General (World Trade Organization, Geneva, 10 December 2002), para. 20. 31   Jacob Katz Cogan, “Representation and Power in International Organization:  The Operational Constitution and its Critics,” American Journal of International Law 103 (2009): 209–​63. 32  See further Simon Chesterman, “The Secretary-​ General We Deserve,” Global Governance 21 (2015): 505. 27

28

 

appointment   827 organizations, the willingness to accept leadership by the national of another member state is linked to the knowledge that one’s own national may eventually fill the same role. At one extreme, some organizations follow a strict protocol for leadership in which they essentially take turns. Such an arrangement is only practical in relatively small organizations. ASEAN, for example, prescribes that its Secretary-​General rotates in accordance with alphabetical order of its ten members33—​on 1 January 2013, Vietnam’s Le Luong Minh succeeded Thailand’s Surin Pitsuwan, presumably to be succeeded in 2018 by a national of Brunei. In larger organizations, a less structured approach may seek to balance national sensitivities through a commitment to regional diversity. Within the UN, beginning in the 1980s it was asserted by Latin American countries that a principle of regional rotation should apply. Towards the end of Peruvian Javier Pérez de Cuéllar’s second term, the African group successfully argued that an African should succeed him, and when Egyptian Boutros Boutros-​Ghali was denied a second term in 1996 it was generally accepted that another African should succeed him so that ‘Africa’ also had at least two terms. A General Assembly resolution adopted the following year noted that in the course of ‘identification and appointment of the best candidate for the post of Secretary-​General, due regard shall continue to be given to regional rotation and shall also be given to gender equality’.34 In 2006, during the appointment of Ban Ki-​moon, there was a strong sense that the Secretary-​General should be Asian—​though Eastern Europe also proposed a candidate, justified in part by the fact that there has been no Eastern European Secretary-​General. (On the point of gender equality, until the 2016 search to succeed Ban Ki-​moon only three women had ever been formal candidates and it is arguable that the inclusion of this provision—​and of the commitment to search for the ‘best’ candidate—​undermined the normativity of the claim for regional rotation as a strict requirement if all three are regarded as equally important. In practice, however, most member states appear to put far greater emphasis on the region that a candidate is seen to be representing. In 2016, this saw agreement between Ukraine and the Russian Federation on the importance of an Eastern European being considered for the position of UN Secretary-​General.35) At the other extreme, it is a de facto rule within some organizations that there shall be no rotation. The Secretary-​General of NATO, for example, has always been a European, due in part to the fact that the Supreme Allied Commander Europe has always been an American. Most prominently, it has long been the convention that the President of the World Bank is a US citizen and that the Managing Director of the IMF is a European—​the latter convention said to be ‘balanced’ by his or her   ASEAN Charter, Art. 11(1).   GA Res. 51/​241 (1997), para. 59. Similar language was repeated in GA Res. 60/​286 (2006), para. 18. 35   See Chesterman, “The Secretary-​General We Deserve.” 33

34

 

828   executive heads first deputy being an American.36 Regional financial institutions reveal similar tendencies to limit leadership positions to designated countries. The president of the Asian Development Bank, for example, has always been a Japanese national, while the presidency of the European Bank for Reconstruction and Development until recently alternated between French and German nationals.37 In the case of the IMF in particular, there are signs that the informal convention may be breaking down. During the most recent appointment of the Managing Director of the IMF the directors for Brazil, Russia, India, China, and South Africa (the ‘BRICS’) issued a statement criticizing the ‘obsolete unwritten convention’ and arguing that it undermined the legitimacy of the institution.38 A European was duly appointed, with an American first deputy, but the growing economic power of other regions suggests that a future challenge to the presumption may be successful.39 One example of an international organization that abandoned a nationality provision is the ITU. Originally founded as the International Telegraph Union in 1869, the first nine Directors were all Swiss. Reconstituted as the International Telecommunication Union in 1950, the next nine Secretaries-General included representatives of all UN regional groupings except Eastern Europe. A possible example of an organization returning to a nationality provision is the Arab League: the first three Secretaries-General were Egyptian before a Tunisian, Chedli Klibi, was appointed in 1979. His successor was Egyptian, however, as were the sixth and seventh Secretaries-General.

Qualifications Remarkable for its absence in most international organizations is any reference to the qualifications the executive head is expected to possess. The qualifications for the UN Secretary-​General, for example, have never been formally stated. The Charter is silent on the matter. General Assembly Resolution 11(I) of 1946 provided that the terms of appointment should be ‘such as to enable a man [sic] of eminence and high attainment to accept and maintain the position’.40 Resolution 60/​286 (2006) emphasized the need for candidates to possess and display ‘commitment to the purposes and principles of the Charter of the United Nations, extensive leadership, and administrative and diplomatic experience’.41   Woods, “The U.S. and the IFIs,” 109.   Cogan, “Representation and Power,” 227–​8. In 2012 a British national was appointed president. 38   Robin Harding, Jamil Anderlini, and Funja Guler, “Brics Say European IMF Claim ‘Obsolete’,” Financial Times, 25 May 2011. 39 40   Cogan, “Representation and Power,” 210.   GA Res. 11(I) (1946), para. 1. 41   GA Res. 60/​286 (2006), para. 22. 36 37

 

appointment   829 In many organizations, there is no reference whatsoever to the necessary or desirable qualifications. Where there is such reference, it is often mentioned in passing. As indicated earlier, ASEAN follows a principle of rotation among its members in the appointment of its Secretary-​General. The relevant provision of the Charter then adds that this should be ‘with due consideration to integrity, capability and professional experience, and gender equality’.42 More specialized agencies sometimes provide more detailed statements on the qualifications required. In the World Health Organization (WHO), for example, a resolution of the Executive Board requires that the Director-General have, among other qualifications, ‘a strong technical and public health background and extensive experience in international health’.43 Similarly, the Secretary-​General of Interpol ‘must be chosen from among persons highly competent in police matters’.44

Term Limits Where it is not prohibited, reappointment of an executive head is typically on the same basis as the initial appointment. In the event of disagreement, ad hoc arrangements may arise—​as when Trygve Lie’s term as UN Secretary-​General was extended by the General Assembly during a period in which the Security Council was deadlocked.45 On a later occasion, however, the failure of the Security Council to endorse Boutros-​Ghali’s second term—​because of a single veto by the United States—​was seen as a clear end to his candidacy. In part this was because, since 1962, the Security Council has specified the duration of a candidate’s term of office. The practice of serving a clearly defined term is adopted in most organizations now, with the duration typically ranging from four years (EBRD,46 IAEA,47 and NATO) to five years (ADB, ASEAN, Interpol, OAS, OECD, and UN). Some organizations continue the practice of the executive head serving at the pleasure of the appointing body. The IMF Managing Director and President of the World Bank thus cease to hold office when the Executive Board and Executive Directors, respectively, so decide.48 In practice, appointments have been stated as being for five years with the possibility of renewal, though no IMF Managing Director since 2000 has stayed in office that long. Many organizations also have de jure or de facto term limits. ASEAN clearly states that its Secretary-​General may hold office only for a single term.49 In the UN,   ASEAN Charter, Art. 11(1).   Director-General: Nomination for the Post, Note by the Legal Counsel, app. 2, Res. EB97.R10, para. 1(1), WHO Doc. EB119/​INF.DOC./​1 (6 September 2006). 44 45   Interpol Constitution, Art. 28.   GA Res. 492 (V) (1950). 46 47   EBRD Agreement, Art. 30(2).   IAEA Statute, Art. VII(A). 48   IMF Agreement, Art. XII(4)(a); World Bank Agreement, Art. V(5)(a). 49   ASEAN Charter, Art. 11(1). 42 43

 

830   executive heads it is now broadly accepted that a Secretary-​General may serve no more than two five-​year terms.50 A two-​term limit has been formally adopted in the ITU51 and the OAS.52 Interpol specifies that the Secretary-​General must retire after reaching the age of sixty-​five.53

Functions The role of the executive head of an international organization may be loosely divided into administrative and political functions. Given the nature of the office, however, such a line cannot always be drawn neatly. The task of implementing certain decisions by the governing structure of the organization may involve inherently political decisions. More generally, the executive head represents the organization and, when authorized, enters into agreements on its behalf. One may also draw a distinction between overtly ‘political’ organizations such as the UN, the OAS, the AU, and so on as opposed to more ‘technical’ organizations such as ICAO and the ITU in which executive heads play a lower-​profile role. In the ‘political’ organizations, the diplomatic role of the executive head may have a profound influence on his or her effectiveness. ‘Expert’ organizations such as the IAEA, the WHO, and the IFIs may constitute a separate category, in which the expertise and reputation of the executive head may be vital to his or her influence and credibility.

Administrative The most basic function of the executive head is typically the running of the secretariat of the organization. Here a useful distinction may be made between management of the organization and its governance, with the latter typically reserved to the member states. General administrative functions may include conducting meetings of the organization, managing communications, monitoring implementation, coordinating work across the organization, and managing the budget.

  There was an attempt to offer Kurt Waldheim a third term in 1981 but it failed due to repeated Chinese vetoes. 51   Convention of the International Telecommunication Union, signed at Geneva, 22 December 1992, in force 1 July 1994, http://​www.itu.int/​en/​history/​Pages/​ConstitutionAndConvention.aspx, Art. 2. 52 53   OAS Charter, Art. 108.   Interpol Constitution, Art. 28. 50

 

functions   831 A key power of the executive head may be oversight of human resources and the ability to make appointments, though in many cases these appointments are themselves the subject of considerable interest to member states. The UN Charter, for example, provides that the Secretary-​General appoints his or her staff in the Secretariat. The ‘paramount consideration’ is said to be ‘the necessity of securing the highest standards of efficiency, competence, and integrity’, while due regard is to be paid to ‘the importance of recruiting the staff on as wide a geographical basis as possible’.54 In practice, considerations of nationality often trump competence, with powerful countries identifying specific posts as ‘theirs’ while underrepresented smaller countries seek equity in the nationality of appointments across the UN system. Hence while the Secretary-​General may not be a national of the permanent members, for example, two key Under-​Secretaries-General for Peacekeeping and Political Affairs have been held by the P5 for most of the past two decades.55 The constitutive document of the organization may also assign specific tasks to the executive head. These may grow over time. The role of UN Secretary-​General, for example, expanded from modest beginnings to encompass oversight of more than 100,000 peacekeepers and administration of territories such as Kosovo and Timor-​Leste. In addition, the assignment of certain functions may bring with it implied powers56—​creating space for more overtly political functions discussed in the next section. Executive heads may be tasked with the preparation of reports on aspects of the organization’s mandate, necessarily involving a degree of fact-​finding and analysis. As part of his or her representative functions, the executive head may be the public face of the organization as well as its legal voice.57 He or she may negotiate and conclude agreements with states and other international organizations, for example, and be empowered to determine and waive the privileges and immunities of representatives of the organization. Thus the UN Secretary-​General has ‘the right and the duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations’.58 Such language has been mirrored in

  UN Charter, Art. 101.  The Department of Peacekeeping has been headed by a French national since 1997. The Department of Political Affairs has been led by nationals of Britain (1993–​2005), Nigeria (2005–​7), and the United States (2007–​). 56   See, e.g., Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174. 57   Ian Johnstone, “The Role of the UN Secretary-​General:  The Power of Persuasion Based on Law,” Global Governance 9 (2003): 441–​58. See the discussion of “norm entrepreneur” later in this chapter. 58   Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15, in force 17 September 1946, http://​www1.umn.edu/​humanrts/​instree/​p&i-​convention.htm, Art. V, s. 20. 54 55

 

832   executive heads other organizations such as ASEAN,59 the AU,60 and the OAS.61 (More problematically, it has also been mirrored in certain public–​private partnerships.62)

Political In addition to administrative functions, executive heads may be granted—​or over time may assert—​more overtly political functions. The most explicit such political role is that which empowers the Secretary-​General of the UN to bring to the attention of the Security Council any matter which in his or her opinion may threaten the maintenance of international peace and security.63 Similar powers of initiation have been given to the Secretary-​General of the OAS, who is also able to participate ‘with voice but without vote’ in all meetings of the organization.64 The OIC gives its Secretary-​General still broader powers to bring to the attention of the competent organs of the Organization ‘matters which, in his opinion, may serve or impair the objectives of the Organisation’.65 Such formal powers may be used exceedingly rarely. In the UN, for example, Article 99 has only been invoked twice explicitly—​in respect of the situation in the Congo in 1960 and the Tehran Hostages case in 1979.66 The ability to put something on the agenda is, however, less important than the implied powers carried with it. In the UN, for example, the Secretary-​General’s Article 99 powers have been used to justify fact-​finding missions, appointment of special representatives, and the extension of the Secretary-​General’s good offices to parties to a conflict.67 In some situations, the executive head may be given a ‘trigger’ function linked to inherently political decisions. In the UN, the Security Council has in rare cases delegated the power to commence the implementation of sanctions to the Secretary-​ General. Following the overthrow of democratically elected Haitian President 59   Agreement on the Privileges and Immunities of the Association of Southeast Asian Nations, signed at Cha-​am Hua Hin, Thailand, 25 October 2009, http://​cil.nus.edu.sg/​rp/​pdf/​2009%20Agreement%20 on%20the%20Privileges%20and%20Immunities%20of%20ASEAN-​pdf.pdf, Art. 4(6). 60   General Convention on the Privileges and Immunities of the Organization of African Unity, signed at Accra, 25 October 1965, http://​www.au.int/​en/​sites/​default/​files/​GENERAL_​CONVENTION_​ PRIVILEGES_​IMMUNITIES_​ORGANIZATION_​AFRICAN%20UNITY_​0.pdf, Art. VI(4). 61   Headquarters Agreement Between the Organization of American States and the Government of the United States of America, signed at Washington, DC, 14 May 1992, http://​www.oas.org/​legal/​english/​docs/​BilateralAgree/​us/​sedeusa.htm, Art. XVI(1). 62   See Davinia Aziz, “Global Public-​Private Partnerships in International Law,” Asian Journal of International Law 2/​2 (2012): 372. 63 64 65   UN Charter, Art. 99.   OAS Charter, Art. 110.   OIC Charter, Art. 17(a). 66   See further Simon Chesterman, “Article 99,” in The Charter of the United Nations: A Commentary, ed. Bruno Simma et al., 3rd ed. (Oxford: Oxford University Press, 2012). 67   See Teresa Whitfield, “Good Offices and ‘Groups of Friends’,” in Secretary or General? The UN Secretary-General in World Politics, ed. Simon Chesterman (Cambridge: Cambridge University Press, 2007).

 

functions   833 Jean-​Bertrand Aristide in October 1991, it decided that a suite of economic sanctions would come into force at a designated time ‘unless the Secretary-​General … has reported to the Council that … the imposition of such measures is not warranted’.68 The same resolution provided that if, at a later date, the Secretary-​General reported to the Council that the coup leaders had failed to comply in good faith with their undertakings then sanctions would come into force immediately.69 More commonly, executive heads may be asked to report on such matters without giving them a deciding role on the consequences that would follow. A  prominent example of this would be the IAEA’s inspections of Iraq during the lead up to the 2003 war.70 In many other cases, no explicitly political functions will be assigned to the executive head. The Charter of the Arab League, for example, merely states that the Secretary-​General shall prepare the budget and convoke meetings.71 This does not appear to have prevented the various incumbents playing politically significant roles in regional and international affairs.72

Norm Entrepreneur An extension of the political functions of the executive head of an international organization is his or her role as a ‘norm entrepreneur’.73 The most prominent example of an executive head using the office to construct a new norm was UN Secretary-​ General Dag Hammarskjöld’s mischievous argument that peacekeeping—​a term that does not appear in the UN Charter—​could be found in ‘Chapter VI ½’.74 (It is now generally accepted as an implied power in the Charter.75) On some occasions, UN Secretaries-General have spoken out clearly in support of the legality of particular actions, as when Boutros Boutros-​Ghali declared that a 1993 strike against Iraq ‘conforms to the resolutions of the Security Council and conforms to the Charter of the United Nations’.76 More rarely—​and controversially—​they 69   SC Res. 841 (1993), para. 3.   SC Res. 841 (1993), para. 4.   See Simon Chesterman, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford: Oxford University Press, 2011), 174–​83. 71   Arab League Charter, Arts. 13 and 15. 72   See, e.g., Bruce Maddy-​Weitzman, “The Arab League Comes Alive,” Middle East Quarterly 19/​3 (2012): 71–​8. 73   Harold Hongju Koh, “Why Do Nations Obey International Law?,” Yale Law Journal 106 (1997): 2648. 74   Ian Johnstone, “The Secretary-​General as Norm Entrepreneur,” in Secretary or General? The UN Secretary-General in World Politics, ed. Simon Chesterman (Cambridge: Cambridge University Press, 2007). 75  See Certain Expenses of the United Nations, Advisory Opinion, ICJ Reports 1962, 151. 76   Quoted in Iraq:  Legal Basis for the Use of Force (British Foreign and Commonwealth Office, London, 17 March 2003), http://​www.publications.parliament.uk/​pa/​cm200203/​cmselect/​cmfaff/​405/​ 3030407.htm, para. 7. 68 70

 

834   executive heads have spoken out against the legality of a particular act, as when Kofi Annan declared the 2003 invasion of Iraq ‘illegal’.77 Perhaps of more lasting significance was Annan’s championing of the doctrine of ‘responsibility to protect (R2P)’. Following a speech to the General Assembly after the Kosovo intervention,78 Annan had been excoriated for his apparent tolerance of so-​called humanitarian intervention. By framing the debate not as a licence for humanitarian intervention but as an effort to prevent situations spiralling out of control, ‘R2P’ offered a more palatable version that focused on preventing future Rwandas rather than authorizing future Kosovos.79 Annan’s successor, Ban Ki-​moon, also embraced the language of responsibility to protect, appointing a Special Advisor with a focus on the Responsibility to Protect in February 200880 and issuing a report in January 2009 on implementing the doctrine.81 Though early warning was routinely highlighted as a key aspect of effective implementation, Article 99 was not directly mentioned in either the report or in the General Assembly resolutions on the topic.82 A rare exception was in a meeting convened by the Security Council’s Ad Hoc Working Group on Conflict Prevention and Resolution in Africa. At this meeting, the Secretary-​General’s Special Adviser, Edward C. Luck, suggested that Article 99 might encompass the responsibility to protect, with the Secretary-​General bringing relevant matters to the attention of the Security Council under its auspices.83 The Millennium Development Goals, now succeeded by the Sustainable Development Goals, are another example of how a Secretary-​General can change the terms of debate, by encouraging member states to commit themselves to binding targets in development assistance—​though they are also an example of the limits of the office’s power, with few of the actual goals seen as realistic targets for the nominal deadlines. Many executive heads will aspire to leave behind a legacy of their achievements, either in terms of what they did while in office or the impact that they had on the office itself. In addition to political influence, the knowledge and skills of the individual may also have an impact—​particularly in ‘expert’ organizations as described earlier.

77   “Iraq War Illegal, Says Annan” (BBC News World Edition, London, 16 September 2004), http://​ news.bbc.co.uk/​2/​hi/​3661134.stm. 78   Report of the Secretary-​General on the Work of the Organization, UN Doc. A/​54/​PV.4 (1999), 1. 79   See generally Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Washington, DC: Brookings Institution, 2008). 80   UNSG Press Release SG/​A/​1120 (UN, New York, 21 February 2008). 81   Implementing the Responsibility to Protect: Report of the Secretary-​General, UN Doc. A/​63/​677 (2009). 82   GA Res. 63/​308 (7 October 2009). 83   Letter dated 30 December 2008 from the Permanent Representative of South Africa to the United Nations addressed to the President of the Security Council, UN Doc. S/​2008/​836 (2008), 13.

 

independence   835

Independence As the executive head of an organization that typically exists as a separate legal entity at the international level, an official is commonly expected to serve the interests of the organization only and enjoys immunities intended to protect that independence. The constitutive documents of various organizations thus provide that the executive head (and the secretariat) should not seek or receive instructions from any government or any authority external to the organization; member states in turn may promise not to seek to influence those officials in the discharge of their responsibilities.84 The executive head and senior officials of the organization may also be granted varying degrees of privileges and immunities. These may be expressed as limited to what is necessary for the independent exercise of their functions.85 Often they are comparable to the privileges and immunities of diplomatic envoys,86 with the notable exception that they normally continue to enjoy such immunity in their state of nationality. In practice, of course, such independence may be hard to maintain. A preliminary matter is that independence can be defined either negatively or positively. Negatively, it is intended to guard against inappropriate interference by member states in the running of the organization. Though generally accepted, this may at times be difficult to reconcile with the political nature of the appointment and reappointment processes, which are often tied very closely to the interests of particular member states. For this reason, a single-​term appointment is sometimes recommended.87 Positively, independence may mean the ability to articulate a strategic vision for the organization that transcends member state interests. Again this may be desirable in theory, in order to address collective action problems such as climate change. But in practice the executive head depends on member states for resources and legitimacy. In so far as he or she goes beyond the mandate assigned to him or her, the ability to act independently may be limited. The UN Secretary-​General, for example, has tended to be most effective either when there is atypically unified international support for an action or international apathy. The former applied to the early years of the administration in Timor-​Leste or the supervision of Israel’s withdrawal from Lebanon in 2000 and Syria’s withdrawal from the same country in 2005—​rare occasions on which the UN played   See, e.g., UN Charter, Art. 100; OAS Charter, Arts. 108–​9.   UN Charter, Art. 105(2); OAS Charter, Art. 134. 86   Convention on the Privileges and Immunities of the UN, Art. V, s. 20. 87  See, e.g., James Crawford, “The Term of Office of the UN Secretary-​General,” University of Cambridge Faculty of Law Legal Studies Research Paper Series, 2/​2013 (2013). 84 85

 

836   executive heads a significant role in the highly politicized Middle East. Yet the Secretary-​General can also play an important role when international interest is noteworthy for its absence. In orphaned or marginal conflicts, the relative power or legitimacy of the Secretary-​General may be high, as demonstrated in the peacemaking role the office played between Nigeria and Cameroon, for example, or between Gabon and Equatorial Guinea. Failures occur and difficulties arise when the Secretary-​General and his or her agents are thrust into a highly politicized dispute, such as the Middle East peace process or Iraq, and the organization itself becomes a proxy battleground for the conflict. Two further structural constraints limit the ability of an executive head to exercise significant independence. The first is that the selection and appointment processes do not encourage independent candidates. As indicated earlier, such processes may be geared towards the political interests of particular member states or else a lowest common denominator that produces uncontroversial consensus candidates. The World Bank lies at one extreme, with its President essentially chosen by the President of the United States. The UN Secretary-​General perhaps lies at the other, with appointment subject to a veto by each of the permanent five members of the Security Council. This is not to say that Secretaries-General of the UN, for example, cannot be independent. But when they are it is not by design. The two individuals typically regarded as the best and most independent officeholders are Dag Hammarskjöld and Kofi Annan. Both came into office with low expectations: Hammarskjöld was a little known Swedish cabinet minister; Annan was seen as ‘America’s man’ to succeed the uncontrollable Boutros-​Ghali. Once in office, however, they significantly expanded the role and prestige of the office. There are also examples of executive heads incurring the wrath of powerful member states and their terms being cut short or not renewed. Trygve Lie offended the Soviet Union in 1950 and continued in office through a resolution of the General Assembly.88 Kurt Waldheim was denied a third term in 1981 following sixteen Chinese vetoes of proposals to do so. Boutros Boutros-​Ghali’s reappointment was vetoed by the United States in 1996.89 A second structural barrier to independence is the lack of resources. In political organizations such as the UN, the Secretary-​General is frequently given operational responsibilities without the means to carry them out successfully. The Security

88  Brian Urquhart, “The Evolution of the Secretary-​General,” in Secretary or General? The UN Secretary-General in World Politics, ed. Simon Chesterman (Cambridge: Cambridge University Press, 2007), 18. 89   Adekeye Adebajo, “Pope, Pharaoh, or Prophet? The Secretary-​General after the Cold War,” in Secretary or General? The UN Secretary-General in World Politics, ed. Simon Chesterman (Cambridge: Cambridge University Press, 2007), 144.

 

independence   837 Council and the General Assembly routinely grant the Secretary-​General political, fiscal, and military capacities entirely insufficient to accomplish objectives that may themselves be vaguely defined. Creative responses have been found in some situations, notably the mobilization of ‘groups of friends’ to provide political, economic, and other capacities to conflict resolution.90 But this is not always enough. After debacles in Somalia, Rwanda, and Bosnia and Herzegovina, the Brahimi Report on UN Peace Operations stopped just short of recommending that the Secretary-​General should simply refuse to take on tasks that are ill-​conceived, ill-​defined, or underresourced.91 The theoretical best practice of such operations is that a political strategy should be determined, a mandate designed to carry out that strategy, and resources devoted to achieving the mandate. The actual practice tends to be that states determine the level of resources they are prepared to devote to a problem, formulate a mandate around those resources, and hope that some acceptable political resolution will be forthcoming. The ability of a Secretary-​General to solicit resources from member states—​either directly or through indirect pressure using the global media—​is therefore an implicit requirement for the position. The fact that the Secretary-​General lacks a serious capacity to participate in such decisions is linked to a larger constraint in forming strategic assessments independent of the political organs of the UN. The Secretary-​General’s power under Article 99 of the Charter is to bring to the Security Council’s attention any matter which ‘in his opinion’ may threaten peace and security. Common sense would suggest that his or her opinion should be an informed one, and yet there has been long-​standing resistance to the Secretary-​General acquiring any significant analytical support comparable to that which advises the ministry of foreign affairs of a medium-​sized state. Resistance to providing a capacity for analysis derives in part from the general wariness member states have for early warning, a function that might see the UN prying into issues perceived as lying solely within the domestic jurisdiction of its member states, but it is also driven by the concern that an informed Secretary-​General may be in a position to challenge the foreign policy priorities of leading member states.92 Despite such constraints, executive heads may be able to exercise significant influence through shaping the agenda and using the convening power of the office. The reporting role, for example, may come to frame policy discussions in the way that the Millennium Development Goals set certain development priorities for more than a decade. Nor should the convening role be underestimated: indeed, in   Teresa Whitfield, Friends Indeed? The United Nations, Groups of Friends, and the Resolution of Conflict (Washington, DC: United States Institute of Peace Press, 2007). 91   Report of the Panel on United Nations Peace Operations (Brahimi Report), UN Doc. A/​55/​305-​S/​ 2000/​809 (2000), http://​www.un.org/​peace/​reports/​peace_​operations, paras. 58–​64. 92   See Chesterman, One Nation Under Surveillance, 157–​201. 90

 

838   executive heads some cases it is precisely the fact that an executive head does not represent a state that enables him or her to make an offer of good offices to a dispute or to lead a discussion on a collective problem. In some cases, regional organizations may play a particularly important role. The Secretary-​General of the OAS, for example, has been an increasingly important figure in conflict resolution in the region;93 it is possible that the Chairperson of the AU Commission could play a similar role in the future.94

Conclusion The tensions that influence the executive head of an international organization operate at many levels. There may be contradictions between qualities objectively regarded as important to the role and the highly political process by which candidates are selected. There may be a disjunction between the scope of the job and the resources allocated. More generally, the ability of the individual to lead an international organization in a direction independent of its member states may itself be uncertain. How the various executive heads of the organizations considered here have fared has depended in part on the organization and its political context, but also on the nature of the individual appointed. This is a situation in which it is clear that the character and personal qualities of the incumbent matter.95 Where executive heads have regarded their mandate as a floor rather than a ceiling, these leaders have distinguished themselves for their vision and their independence. Where they have gone too far and clashed with member states, their terms in office have been mired in difficulty or ended prematurely. The problems of the international civil servant remain no less complex than they were during the Cold War. In evaluating their successes and failures, however, it is worth bearing in mind another of Hammarskjöld’s aphorisms: that organizations such as the UN were not created to take humanity to heaven, but to save it from hell.

  Teresa Whitfield, “Political Missions, Mediation and Good Offices,” in Review of Political Missions 2010, ed. Richard Gowan (New York: Center on International Cooperation, 2010), 28–​9. 94   Alex Vines, “A Decade of African Peace and Security Architecture,” International Affairs 89/​1 (2013): 89–​109. 95  See, e.g., Robert W. Cox, “The Executive Head:  An Essay on Leadership in International Organization,” International Organization 23/​2 (1969):  205–​30; Kent J. Kille and Roger M. Scully, “Executive Heads and the Role of Intergovernmental Organizations: Expansionist Leadership in the United Nations and the European Union,” Political Psychology 24/​1 (2003): 175–​98. 93

 

Chapter 39

SECRETARIATS Touko Piiparinen

The administrative structure of most international organizations includes a secretariat that plays an important role in the functioning of the entire regime. Secretariats act as the backbone of the organizations and mainly perform administrative functions.1

The secretariats of international organizations (IOs) are traditionally conceived of as diligent servants of their masters and principals, namely the state parties of international agreements which constitute the IOs. Steinar Andresen and Jon Birger Skjaerseth, for example, define an intergovernmental treaty secretariat as ‘an international organization established by the relevant parties to assist them in fulfilling the goals of the treaty’.2 International secretariats are designed to support states in creating and implementing a wide range of functions and international regimes, for example those pertaining to environmental protection, international peace and security, economic and social affairs, and humanitarian assistance. However, recent studies of bureaucracy theory and international relations (IR) research, particularly sociological and social constructivist strands of IR, suggest that the metaphor of ‘servants’ frequently applied in relation to secretariats is partly 1   Pallavi Kishore, “A Comparative Analysis of Secretariats Created under Select Treaty Regimes,” International Lawyer 45/​4 (2009): 1051. 2   Quoted in Steffen Bauer, “Does Bureaucracy Really Matter? The Authority of Intergovernmental Treaty Secretariats in Global Environmental Politics,” Global Environmental Politics 6/​1 (2009): 28.

 

840   secretariats misguided and misleading in that secretariats actually exert considerable bureaucratic powers independently of their principals—​that is, member states. Those powers are derived from two main sources, namely the rational-​legal authority of secretariats and their savoir-​faire, as explained in Max Weber’s classic theory of bureaucratization. The purpose of the first part of this chapter is to explore and expose the traditional, ‘Weberian’ bureaucratic powers of international secretariats which are often ‘invisible’3 to the public. The latter part of the chapter will argue that globalization is opening up new, post-​Weberian power bases for secretariats and IOs at large which were not envisaged in Weber’s time. These new power bases include emerging global networks of cooperation between secretariats and other actors involved in global governance, which further reinforce the bureaucratic powers of secretariats by enabling them to exchange expertise and specialized information, best practices, and lessons learned in a flexible and swift manner. This chapter will also draw upon an in-​depth case study of the Organisation of Islamic Cooperation (OIC) Secretariat to illustrate the way in which secretariats exert the aforementioned Weberian and post-​Weberian powers in practice.

The Rise of International Secretariats In a historical perspective, international secretariats represent a novelty in world politics. They did not emerge until the early twentieth century, simply because nothing like them could have emerged in the structural conditions of state-​centric Westphalian world order. The classic pluralist theory of English School IR portrays the sovereign order established at the time of the Treaty of Westphalia in 1648 as an egg-​box cushioning the eggs—​that is, states.4 Westphalian institutions, including diplomacy, were primarily designed to separate states by compartmentalizing them into territorially delineated units, not to integrate them through international civil service, which today is embodied in international secretariats. In the positive dimension, Westphalian sovereignty attributed supreme authority and absolute political and military power to a state within its respective territorial confines. The corollary of that Westphalian principle in the negative dimension was the exclusion of other states and other authorities from the domestic jurisdiction 3   John Mathiason, Invisible Governance: International Secretariats in Global Politics (Bloomfield: Kumarian Press, 2007). 4   R. J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), 123–​4.

 

the rise of international secretariats    841 and authority structures of a sovereign state.5 The principle of territoriality placed sovereign states at the top of the hierarchy of international relations. Those actors which lacked sovereignty and territory of their own, including nascent forms of international public service,6 were simply sidelined or instrumentalized to serve the principals, namely sovereign states. In hindsight, it is the very nature of international secretariats as ‘public nonstate actors’7 which made them an anomaly and an unrealized possibility in the inherently state-​centric Westphalian world order and effectively inhibited their emergence. Consequently, there were only a few precedents for international public service before the early twentieth century. These included the forerunners of the Roman Curia, the European Commission on the Danube in the late nineteenth century, and the International Institute of Agriculture founded in Rome in 1905. The first IOs, namely the International Committee of the Red Cross, the International Telegraph Union, and the Universal Postal Union, were staffed by the Swiss government and did not therefore include international secretariats.8 The establishment of the League of Nations and the International Labour Office in 1919 marked the birth of the first international secretariats. The League of Nations Covenant constituted an institution which had not been seen in previous IOs, a permanent secretariat. Article 6 of the Covenant determined that such a secretariat would comprise a Secretary-​General along with the required secretariat and staff. The first Secretary-​General, Sir Eric Drummond, was a former member of the British diplomatic service. In general, the British and French foreign offices provided a model for organizing the administrative structure of the League. Although contemporaries criticized the founding fathers of the League for choosing an administrator rather than a statesman for the post of the Secretary-​General,9 in hindsight his appointment marked a milestone in the emergence of international civil service. As John Mathiason points out, ‘His appointment set the precedent of appointing a civil servant (or diplomat) as the executive head of an international secretariat.’10 With the League experiment, the idea of international civil service began to take shape. That idea envisaged independent civil servants performing their duties diligently and owing their allegiance to no other actor than the secretary-​general and the secretariat. That vision, however, was not fully materialized in the League Secretariat, which suffered from the lack of international loyalty. Staff members from the 5   Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, ΝJ: Princeton University Press, 1999), 20. 6   IOs and their secretariats do not possess territory of their own, but the premises of their headquarters are typically rented from the governments of countries in which they are located. 7   Bauer, “Does Bureaucracy Really Matter?,” 28 (emphasis added by author). 8  Mathiason, Invisible Governance, 26–​7. 9   Egon F. Ranshofen-​Wertheimer, The International Secretariat: A Great Experiment in International Administration (Washington: Carnegie Endowment for International Peace, 1945). 10  Mathiason, Invisible Governance, 27.

 

842   secretariats rising dictatorial regimes of Germany and Italy took orders from their governments rather than the Secretariat. This contravened and undermined the formal staff regulations of the Secretariat, which stipulated that, ‘The officials of the Secretariat of the League of Nations are exclusively international officials and their duties are not national, but international.’11 However, the idea of an independent civil service was subsequently adopted and further developed by the League’s successor, the United Nations (UN).12 It was refined particularly during the tenure of the second UN Secretary-​General Dag Hammarskjöld (1953–​1961), who based the ethos of the UN staff on the principles of integrity and political independence from the national interests of member states. Hammarskjöld laid out these principles in his famous 1963 Oxford speech, in which he stated that, ‘An international civil servant, also in executive tasks with political implications, must remain wholly uninfluenced by national or group interests and ideologies.’13 Hammarskjöldʼs statement echoes Article 100 of the UN Charter, which determines that the Secretary-​General and the Secretariat staff shall not seek or receive instructions from any government or from any other authority external to the Organization in the performance of their duties.

The Functions of Secretariats The particular functions undertaken by a secretariat are derived from its constitutive rules enshrined in an agreement, typically an international convention signed by state parties. During their lifespan, however, secretariats tend to take on additional functions beyond the remit of their initial mandates outlined in the constitutive agreements, either on the initiative of the state parties, or on the secretariat’s own initiative in an effort to expand its bureaucratic turf. The fourth section of this chapter will analyse the dynamics of such a mission expansion in more detail. Neo-​liberal institutionalist IR theories argue that international secretariats can facilitate states in solving global problems for example by affecting the calculations states make regarding common affairs such as collective security, by lowering their transaction costs, and by creating channels of communication and linkages between them, although states remain the principal actors in IOs and   Ibid., 29.   Louis B. Sohn, “Review of The International Secretariat:  A  Great Experiment in International Administration by Egon F. Ranshofen-​Wertheimer,” Harvard Law Review 59/​4 (1946): 636–​7. 13   Quoted in Tapio Kanninen, Crisis of Global Sustainability (New York: Routledge, 2013). 11

12

 

the functions of secretariats    843 in world politics at large.14 Mathiasonʼs account maintains that secretariats in general perform five key functions, namely regime creation, information mobilization, norm enforcement, direct services, and internal management. In terms of regime creation, secretariats facilitate agreements and regimes which ‘govern transnational conduct’.15 As for information mobilization, the information collected and analysed by secretariats provides a ‘common base for policy discourse’16 of member states. This function forms an important power base for secretariats in the global age, as global problems are increasingly complex and their resolution requires cumulative technical expertise, which secretariats can systematically build, develop, and utilize. Social constructivist IR theories discern a crucial element of power in the second function outlined above. They believe that the capacity of secretariats to mobilize information and to build technical expertise at large constitutes one of their main power bases. A secretariat can exert power in relation to its principals—​ that is, member states—​by classifying and organizing information, fixing meanings, and offering specialized technical knowledge and training that is not immediately available to state representatives or other actors.17 Secretariats can steer or manipulate the decision-​making of states through the management and categorization of information, which forms the basis for the decision-​making and discourse of member states. For example, the second Secretary-​General of the UN, Dag Hammarskjöld, invented ‘peacekeeping’ as a new category of international peace and security in 1956.18 ‘Peacekeeping’ is not mentioned in the UN Charter, nor was it created or envisaged by UN member states at the time of founding the UN.19 In a similar fashion, in 1992 the then Secretary-​General Boutros Boutros-​Ghali exerted the bureaucratic powers of classification by inventing the term ‘peace-​enforcement’ in his influential policy document An Agenda for Peace,20 which was later transformed into more subtle conceptualizations in UN parlance such as ‘Chapter VII operations’. Peace-​enforcement enabled UN peace operations to adopt coercive means to protect their mandates, personnel, or civilians.

14  Robert O. Keohane, “Institutional Theory and the Realist Challenge after the Cold War,” in Neorealism and Neoliberalism: The Contemporary Debate, ed. David A. Baldwin (New York: Columbia University Press, 1993), 271. 15 16  Mathiason, Invisible Governance, 18.  Ibid. 17  Michael Barnett and Martha Finnemore, Rules for the World:  International Organizations in Global Politics (New York: Cornell University Press, 2004), 29–​33. 18   Stephen Ryan, The United Nations and International Politics (London: Macmillan, 2000), 22. 19   Roger A. Coate, David P. Forsythe, and Thomas G. Weiss, The United Nations and Changing World Politics, 3rd ed. (Oxford: Westview, 2001), 54. 20   Boutros Boutros-​Ghali, An Agenda for Peace:  Preventive Diplomacy, Peacemaking and Peace-​ Keeping. Report of the Secretary-​General Pursuant to the Statement Adopted by the Summit Meeting of the Security Council on 31 January 1992 (New York: United Nations, 1992).

 

844   secretariats The operational functions of the League Secretariat were far more limited compared to those of the League’s successor, the UN. However, the League secretariat managed to develop a sophisticated functional distinction between general and specialized services. General services were further divided into the following sections:  central, political, legal, treasury, and library. Specialized services, in turn, included the sections for minority questions, financial affairs, economic affairs, mandates, communications and transit, health, opium traffic, social questions, disarmament, international bureaus, and intellectual cooperation. The League Secretariat also performed internal administrative services, which included registry, stenographic services, documents distribution, publications, and printing.21 Compared to its predecessor, the UN Secretariat performs a much broader spectrum of functions which is continuously expanding. Today, the UN Secretariat provides services in the fields of international peace and security, economic and social affairs, humanitarian affairs, and environmental affairs as well as internal administrative services.

The Powers and Competences of Secretariats Secretariats derive their bureaucratic powers from the very functions they perform, notably from information mobilization and technical expertise, as already posited in the previous section. Social constructivist IR theories maintain that bureaucracies, including secretariats, constitute autonomous agents which can wield considerable powers independently of their principals—​namely states—​by creating and shaping the epistemic framework—​the vocabulary, concepts, classifications, categories, and meanings of world politics—​within which states operate. Michael Barnett and Martha Finnemore describe bureaucracies as ‘purposive agents’ and ‘actors in their own right with independent interests’.22 For example, the former UN Secretary-​General Hammarskjöld invented the concept of ‘peacekeeping’ and created the whole epistemic framework revolving around that concept, including the modalities of traditional peacekeeping and the principles of impartiality and neutrality applied in it. States continue to operate within that framework even today, although it has been supplemented by new epistemic frameworks invented by subsequent Secretaries-General, including the one regarding robust peacekeeping and Chapter VII operations.  Sohn, Review of Great Experiment, 637.   Michael Barnett and Martha Finnemore, “The Politics, Power, and Pathologies of International Organizations,” International Organization 53/​4 (1999): 705. 21

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the powers and competences of secretariats    845 Max Weber’s classic sociological theory suggests that secretariats and bureaucracies in general embody ‘rational-​legal authority’.23 The first part of the term, ‘rational’, implies that secretariats are viewed as particularly authoritative and legitimate in modern society, because the impersonal procedures they follow and the technical rationality they apply enable objective and unbiased governance and provision of services to modern subjects.24 The main strength of the UN Secretary-​General, for example, lies in his perceived impartiality and lack of vested interests.25 His bureaucratic status as an impartial arbiter in multilateral diplomacy explains why the Secretary-​General’s good offices are highly regarded and frequently applied in mediating international conflicts.26 The second part of the term ‘rational-​legal authority’ implies that international secretariat derive their bureaucratic powers also from those agreements and international treaties which establish the IOs. Secretariats can justify the decisions they take by claiming that they only follow the letter and spirit of the agreement which the principals had signed in the first place. For example, the backbone of bureaucratic powers wielded by the UN Secretariat is the UN Charter. The legal provisions which establish the competences and powers of the UN Secretariat and Secretary-​General are Articles 97 to 99 of the Charter. Article 97 defines the legal competences of the chief administrative officer of the organization, the Secretary-​General. Articles 98 and 99, in turn, ‘open up rather remarkable political competences—​for example, organizing a peacekeeping force, taking a stand on various international issues, negotiating for peace, and arguing for the allocation of budgetary resources’.27 For the Commonwealth Secretariat and its Secretary-​General, in turn, the respective legal and political competences are derived from paragraphs 9–​30 of the Agreed Memorandum on the Commonwealth Secretariat that came into force in 1965.28 The powers of secretariats are typically explained by reference to classic Weberian theory, as demonstrated above. Recent IR studies29 of IOs suggest that globalization also opens up new, post-​Weberian, power bases for bureaucracies, including global networks of cooperation, which will be explored in more detail in the final section of this chapter. Globalization simultaneously reinvigorates old Weberian sources of bureaucratic power, for example the capacity of bureaucracies to bring stability to   Max Weber, The Theory of Social and Economic Organization (New York: The Free Press, 1964).   Barnett and Finnemore, “Politics, Power, and Pathologies,” 708. 25   Coate, Forsythe, and Weiss, Changing World Politics, 105. 26   Thomas M. Franck, “The Good Offices Function of the UN Secretary-​General,” in United Nations, Divided World: The UN’s Roles in International Relations, ed. Adam Roberts and Benedict Kingsbury (Oxford: Clarendon Press, 1989), 79–​84; UN, “Preventive Diplomacy: Delivering Results: Report of the Secretary-​General,” S/​2011/​552, 26 August 2011, http://​www.un.org/​wcm/​webdav/​site/​undpa/​shared/​ undpa/​pdf/​SG%20Report%20on%20Preventive%20Diplomacy.pdf. 27   Manuel Fröhlich, “The Ironies of UN Secretariat Reform,” Global Governance 13/​2 (2007): 152. 28   Alison Duxbury, “The Commonwealth Secretariat and the Implementation of Human Rights,” The Round Table 95/​385 (2006): 427. 29   Tapio Kanninen and Touko Piiparinen, “Why Bureaucracies Matter in the Global Age: A Post-​ Weberian Explanation with the Case Study of Preparing and Implementing the United Nations’ ‘An Agenda for Peace’,” International Relations 28/​1 (2014): 46–​66. 23

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846   secretariats decision-​making. Pallavi Kishore points out that, ‘Secretariats are stable elements in a changing international system, providing an element of permanence.’30 The importance of that element has been accentuated in the global age, because the present mechanisms of multilevel global governance entail not only advantages, such as the involvement and engagement of multiple and diverse actors in decision-​making, but also drawbacks, including unpredictable and unstable decision-​making processes. In the global age, governments do not have the monopoly of decision-​making. A plurality of non-​state actors, including non​governmental organizations, civil society actors, and their global networks, also participate in decision-​making on global problems, but often in a sporadic and unpredictable manner, which complicates decision-​making. David Brooks captures these problems in the term ‘globosclerosis’: ‘In practice, this new pluralistic world has given rise to globosclerosis, an inability to solve problem after problem.’31 On the one hand, the increasing pluralism of non-​state actors on the world arena brings substantial benefits to democratization, as exemplified by the Facebook revolutions in the Arab world in spring 2011. On the other hand, such pluralism entailed in globalization produces chaotic ‘neo-​ Medievalism’32, which impedes orderly decision-​making on global problems. The drawbacks of globosclerosis described above partly explain why the widespread negative connotations associated with the term ‘bureaucracy’ in the 1980s have gradually subsided or decreased. On the neo-​ Medievalist, pluralistic, fluid, and unpredictable playing field of shifting power relations, bureaucracy offers a predictable form of administration and a platform for objective and stable decision-​making.

The Mission Expansion of Secretariat Functions: Three Explanatory Factors Our current rules and regulations were designed for an essentially static Secretariat, whose main function was to service conference and meetings of Member States, and whose staff worked mainly at Headquarters. That is not the United Nations of today. Kofi Annan33   Kishore, “Comparative Analysis.”   David Brooks, “Missing Dean Acheson,” The New York Times, 1 August 2008. 32   The term “neo-​medievalism” used here is derived from John Rapley, “The New Middle Ages,” Foreign Affairs 85/​3 (2006): 95–​103. 33   Quoted in Manuel Fröhlich, “The Ironies of UN Secretariat Reform,” Global Governance 13/​2 (2007): 151. 30 31

 

the mission expansion of secretariat functions    847 Researchers of IOs have observed an incessant tendency of secretariats to expand their functions, which applies both to international organizations and to regional organizations. The functions of the EU Council Secretariat, for example, have expanded from its initial role as a facilitator of the Council’s decision-​making towards additional tasks in the EU’s foreign policy. In the beginning, the Council Secretariat played a role only in the decision-​making phase of the Council’s policies. Today, it undertakes activities also in the agenda-​shaping and implementation of European foreign policy.34 The Commonwealth Secretariat has experienced a similar mission expansion. Since its establishment in 1965, the functions performed by the Commonwealth Secretariat have expanded from conference services, disseminating factual information, and assisting in technical projects to additional functions in a variety of other sectors, including the Commonwealth’s human rights policy.35 The mission expansion of international secretariats has partly emerged as a response to the need to manage and resolve a growing number of global problems. Specialized agencies carry out an increasing number of transnational functions which transcend national borders, including postal services, telecommunications, sea and air transport, meteorology, energy, labour, health, social policy, trade, money, and development.36 Specialized agencies could be described as ʻautonomous bodies that belong to the UN family or “system” but are not part of the UN itselfʼ37. There are currently fifteen such organizations in operation and their status as specialized agencies is based on special agreements with the UN under Article 63 of the UN Charter.38 Each specialized agency, such as the World Health Organization, the UN Educational, Scientific and Cultural Organization, the Food and Agriculture Organization, and the International Labour Organization, has been created to carry out a specific technical function. Most of the specialized agencies have a similar structure, which includes an Assembly, and elected Council, and a Secretariat.39 On the one side, the radical increase of bureaucratic powers exerted by some specialized agencies, particularly the so-​called Bretton Woods organizations, has not gone unnoticed. The area of the competence of the International Monetary Fund (IMF) has grown significantly since the 1970s. The impact of IMF interventions in reforming the economic and social systems of developing countries has been so deep that it has frequently been accused of spearheading ʻradical market 34   Hylke Dijkstra, “Explaining Variation in the Role of the EU Council Secretariat in First and Second Pillar Policy-​Making,” Journal of European Public Policy 17/​4 (2010). 35   Duxbury, “Commonwealth Secretariat,” 427. 36  See, e.g., Evan Luard, International Agencies:  The Emerging Framework of Interdependence (London: Macmillan, 1977), 18–​19. 37   Evan Luard, The United Nations: How It Works and What It Does (Houndmills: Macmillan, 1979), 68. 38   Sven Bernhard Gareis, The United Nations:  An Introduction, 2nd ed. (Houndmills:  Macmillan, 2012), 37. 39  Luard, International Agencies, 16.

 

848   secretariats turbo-​capitalismʼ40 in the global South. On the other side, the gradual increase of powers exerted by other specialized agencies has escaped the attention of the wider public, as aptly described by Evan Luard: [I]‌t is a pity that operations to find homes for millions of refugees, to bring rapid emergency relief after grave natural disasters in any part of the globe, to wipe out smallpox from the earth, to stamp out the drug trade all over the world … or abolish pollution in the oceans, to mention only a few, are not so well known to the general public as the angry speeches hurled across the horseshoe table of the Security Council chamber.41

Overall, it is possible to identify three factors for the mission expansion of international secretariats: member states (the ‘principals’), international secretariats (the ‘bureaucracy’), and the operational environment of IOs. The former factor is typically emphasized by the realist IR theorists who draw upon the rational choice model to explain and predict the behaviour of the member states of IOs. According to the rational choice model, member states may delegate new functions to an IO, as long as its consequent mission expansion is likely to serve their geopolitical interests and other strategic objectives. However, the empirical evidence shows that international secretariats themselves continuously strive to expand the remit of their functions and budgets. Some accounts explain that phenomenon by reference to the self-​interest and power-​seeking behaviour of secretariat staff and bureaucracy more broadly.42 On the other side, neo-​ functionalist and social constructivist IR theorists present an alternative explanation, according to which the mission expansion may result from the inherent logic of bureaucratic rationality itself. In this sense, the mission expansion emerges as a ‘logical outgrowth’ of bureaucratic rationalization, which prompts secretariats to expand their bureaucratic turf. Secretariats tend to justify to their principals and to their own staff that they need to take up additional functions and tasks in new sectors in order to perform those functions that they have already undertaken more effectively and successfully. As Michael Barnett and Martha Finnemore explain, bureaucrats increase their turf ‘because the logic of their task dictates that more must be done to accomplish it’.43 The IMF staff, for example, rationalized that in order to perform the core functions of monetary policy originally assigned to the IMF they needed to engage in more ambitious tasks pertaining to structural reforms and adjustments of their target states. As a result, the IMF today intervenes in a wide range of societal sectors of their target states, including their monetary, fiscal, income, labour, industrial, and environmental policies.44 A similar mission expansion can be discerned in UN policy. Since the 1950s, the UN engaged in limited tasks of traditional peacekeeping aimed at mitigating inter-​ state conflicts such as monitoring ceasefires and patrolling borders.  Gareis, The United Nations, 213.   41 Luard, The United Nations, 70–​1.   See, e.g., William A. Niskanen, Bureaucracy and Representative Government (Chicago: Aldine, 1971). 43   Barnett and Finnemore, Rules for the World, 72.   44  Ibid., 45. 40 42

 

the dynamics of mission expansion    849 Since the 1980s, however, the UN Secretariat rationalized that in order to fulfil a core task entrusted to the UN Organization by the UN Charter, namely the maintenance of international peace and security, it was necessary for it to intervene in the domestic affairs of target states, since the main threat to international peace and security was no longer inter-​state wars but internal and intra-​state conflicts in weak, fragile, and failed states. This rationalization contributed to the spillover of UN conflict management from traditional peacekeeping functions to peace-​building, as succinctly described by Barnett and Finnemore: When the UN Secretariat was asked at the end of the Cold War to become more involved in international peace and security … the organization needed to go deep into the heart of domestic politics, and it created a new category of practices called peace-​building to accomplish its mission.45

Since the end of the Cold War, the UN has engaged in ever more ambitious peace-​ building tasks within target states, including security and justice sector reform. The continuous increase in secretariat functions could also be explained by reference to a third factor, namely the environment in which IOs operate. Functionalist theory, for example, explains that IOs continuously grow and expand their institutions, structural capacities, and operations (the ‘form’) in order to meet the demands (the ‘function’) emanating from their operational environment. David Mitrany’s functionalist theory captures that explanation in the formula ‘form follows function’.46 Functionalist theory has witnessed a revival in the global age because of new transnational threats posed by globalization, including refugee movements, the spread of infectious diseases, environmental hazards, global warming, and organized crime. Tackling all these emerging global problems (the ‘function’) requires new powers, competences, solutions, responses, and preventive measures by the secretariats of IOs and particularly those of UN specialized agencies.

The Dynamics of Mission Expansion: The Case of the OIC The purpose of this section is to provide one concrete illustration of mission expansion by drawing upon a case study, namely the spillover of functions performed by the OIC, formerly the Organization of the Islamic Conference, from a narrow sector   Ibid., 161.   David Mitrany, The Functional Theory of Politics (London: Martin Robertson, 1975).

45

46

 

850   secretariats of technical tasks to international peace and security and to human rights policy. It will be argued that the main source of the rapid intensification and increase of the OIC’s activities during the past decade has been the OIC General Secretariat (the ʻbureaucracyʼ) rather than the OIC member states (the ʻprincipalsʼ). The case study presented below thus validates the social constructivist hypothesis regarding the independent role of secretariats in generating the mission expansion of IOs, as outlined in the previous section. In the beginning, the OIC performed only a limited number of functions, focusing on creating and consolidating a united Islamic front against external incursions. The Organization was established in 1969 as a defensive reaction to the perceived external threat against the Islamic world, particularly against Palestine. Israel had occupied Jerusalem in 1967, which functioned as a catalyst for setting up the OIC.47 After that, the perceived external threat was personified in an Australian Christian fundamentalist Michael Rohan, who attempted to set fire to the al-​Aqsa mosque in July 1969, the third holiest shrine of Islam located in Jerusalem. The attempted arson attack sent shockwaves throughout the Muslim world, culminating in an Islamic summit conference held in Rabat in September the same year. The OIC was established upon a decision of that summit.48 In 1970 the OIC decided to establish a permanent secretariat, the General Secretariat, whose role is to serve as the executive organ of the OIC. Its primary function is to implement the decisions of the two main bodies of the OIC, namely the Islamic Summit and the Council of Foreign Ministers. The OIC is based in Jeddah, Saudi Arabia, and headed by the chief administrative officer, the Secretary-​General. Defending the Islamic world and its values, and the issue of the occupied Palestinian territories in particular, has remained the OIC’s primary mission. Today, the perceived external threat against Islam is globalized, as evidenced by the OIC’s increased activism at the UN. As a reaction to the so-​called ‘cartoon crises’, the OIC has campaigned for incorporating the concept of ‘defamation of religions’ in the terminology of international law, in the parlance of multilateral diplomacy, and in human rights discourse. Here, the perceived global threat takes the form of blasphemy against Islamic symbols. The Charter of the OIC reflects a defensive nature of the OIC’s functions and objectives. These include efforts to ‘safeguard and protect the interests of the Muslim world in the spirit of promoting international peace and harmony among various people of the world’ and ‘to protect the vital interests of the Muslims and to work for the settlement of conflicts and disputes involving Member States’, as 47  Sohail H. Hashimi, “Is There an Islamic Ethic of Humanitarian Intervention?,” Ethics & International Affairs 7/​1 (1993): 70. 48   See, e.g., Dilip Hiro, War without End: The Rise of Islamist Terrorism and Global Response (London: Routledge, 2002), 145.

 

the dynamics of mission expansion    851 well as ‘safeguarding the true values of Islam and the Muslims’.49 The OIC conceives the Islamic world as a community, a global ummah, which it attempts to unite by means of economic and technical cooperation between Islamic states and communities. Its focus on technical functions is also reflected in the internal structure of the General Secretariat, which includes the following departments: Science and Technology, Economic Affairs, Information Technology, Legal Affairs, Information Department, and Library. It also entails the Political Affairs Department, the Humanitarian Affairs Department, and the Muslim Minorities and Communities Department. During the past decade the OIC has taken up an increasing number of new functions beyond the technical and economic sectors of cooperation outlined above. These include the promotion of human rights, international peace and security, and political functions which the OIC had previously eschewed. The social constructivist hypothesis suggests that at least part of the mission expansion and interventionism of the OIC can be attributed to independent bureaucratic powers exerted by the General Secretariat, and the energetic and vigorous approach of the former Secretary-​General Ekmeleddin Ihsanoglu in particular. Empirical evidence validates that hypothesis by showing that the expansion of the institutional structure and operations of the OIC has taken place during Ihsanoglu’s tenure. In fact, many of the OIC’s reforms leading to its expansion have been undertaken on Ihsanoglu’s initiative. One of these reforms is the establishment of OIC human rights offices in the member states of the Organization, which formed part of Ihsanoglu’s wider aim to incorporate human rights in the OIC’s operations. Ihsanoglu himself has described ‘human dignity, including cultural diversity’ as one of the cornerstones of human rights.50 Another example is the Humanitarian Affairs Department, which was established during Secretary-​General Ihsanoglu’s tenure and under his supervision.51 The interviewed OIC officials also emphasized the crucial role played by the Secretary-​General in energizing the Organization. The Permanent Observer of the OIC to the UN, Ambassador Ufuk Gokcen, maintained that the contacts of the OIC have been expanded through a spillover from the personal level (the chief executive officer) to the institutional level: The Secretary-​General is very adamant and committed to raise the profile of the OIC at the international level. He established a very close cooperation relationship with the UN Secretariat, with Mr. Kofi Annan and now with Mr. Ban Ki-​moon. Of course these close 49   Organisation of Islamic Cooperation, “About OIC,” http://​w ww.oic-​oci.org/​oicv2/​page/​?p_​ id=52&p_​ref=26&lan=en. 50   This view was expressed at the first plenary session of the Second Forum of the Alliance of Civilizations organized in Istanbul on 6 April 2009 whose theme was cultural diversity. Notes taken by the author. 51   Personal communication with Permanent Observer of the OIC to the UN, Ambassador Ufuk Gokcen, 15 July 2013.

 

852   secretariats relations spread to the institutional level, and now we can say that between the OIC secretariat and the UN secretariat there are very close working relations.52

Ambassador Gokcen estimated that the proactive efforts of the Secretary-​General and the General Secretariat to forge new cooperation relations between the OIC and other IOs and Western governments have been even more influential in increasing the OIC’s international visibility during the recent years than the support provided by OIC member states. The general lack of support and leadership of OIC member states in managing the Organization’s affairs has left a leeway for the Secretary-​ General and the General Secretariat to exercise more bureaucratic powers. These observations are in line with the hypothesis presented by social constructivist IR theorists, according to which bureaucracies, including international secretariats, can and will exert substantial powers independently of member states. In the case in point here, the impact of bureaucratic powers wielded by the Secretary-​General has been even greater than the powers of member states, not only because of the Secretary-​General’s ingenuity but also because of the reluctance of member states to provide sufficient financial and intellectual support to the Organization. The structural reforms initiated by the OIC Secretary-​General and the General Secretariat within the OIC have simultaneously expanded their bureaucratic turf. This again confirms the social constructivist and neo-​functionalist hypothesis, which maintains that the mission expansion initiated by bureaucracies, including secretariats, is intrinsically related to the institutional expansion of their bureaucratic powers:  ‘They [bureaucracies] define problems and appropriate solutions in ways that favor more technocratic impartial action, which, of course, they are uniquely able to supply.’53 To paraphrase functionalist theory here, the ‘form’ (the institutional apparatus and bureaucratic powers of a secretariat) and ‘function’ (the operations undertaken by the secretariat to implement the purposes laid out by the IO) are mutually reinforcing in a way that the expansion of bureaucratic powers constitutes a self-​fulfilling prophecy. In the case of the OIC, one example of the mechanism through which that self-​ fulfilling prophecy operates is the new brainstorming session of the OIC ministers initiated by Secretary-​General Ihsanoglu. The brainstorming session is held in connection to annual ministerial conferences, enabling the OIC ministers to engage in a more open discussion on the OIC’s issues. It also, more crucially, enables Secretariat officials to raise new issues as potential agenda items of the ministerial conference.54 Thus, the structural reform of the OIC (the brainstorming session) resulting from the operations and exertion of bureaucratic powers by the secretariat (the initiative of the Secretary-​General) led to the further expansion of the bureaucratic powers 52   An interview with Permanent Observer of the OIC to the UN, Ambassador Ufuk Gokcen, in New York, 1 December 2011. 53   Barnett and Finnemore, Rules for the World, 9. 54   An interview with Ambassador Gokcen, 1 December 2011.

 

the dynamics of mission expansion    853 of the Secretariat (new opportunities for the General Secretariat and for the OIC Secretary-​General in particular to influence the agenda of the ministerial conference and the OIC’s policy at large). The self-​fulfilling prophecy of the expansion of bureaucratic powers has been even more evident in the link between the mission expansion of the OIC to international peace and security, on the one side, and the impending establishment of a new department in the General Secretariat to deal with that new function, on the other. Secretary-​General Ihsanoglu proposed at the OIC Council of Foreign Ministers organized in Damascus in May 2009 that the brainstorming session of the ministers be dedicated to discussing the role of the OIC in international peace and security and to exploring different ways to increase the OIC’s capacity in that field.55 Here, the impetus for the OIC’s mission expansion derived directly from the Secretary-​General. As Ambassador Gokcen describes the consequent discussions of the ministers, ‘It was understood that at the moment there is really no common position in the OIC to create capacities for peacekeeping.’56 Although the brainstorming session did not lead to a mission expansion of the OIC to peacekeeping, it generated other new ideas for structural reforms of the OIC: They [OIC member states] focused on how to build capacity for the OIC Secretariat—​within the Secretariat—​to make the OIC more proactive in international peace and security matters, in conflict resolution and mediation. One of the proposals was to establish a peace and security department [in the General Secretariat]. The other recommendations were related to increasing the role of the OIC Secretary-​General in goodwill missions or enabling the OIC Secretary-​General to appoint Special Envoys. After the Damascus meeting all these issues were discussed almost annually in intergovernmental expert meetings.57

The annual expert meetings organized since the Damascus ministerial conference have generated additional proposals for OIC engagement in international peace and security. These meetings have not, however, thus far reached a point to make concrete proposals to the ministerial council, and the whole issue of the OIC’s potential engagement in international peace and security has recurrently been referred back to the expert group. Ambassador Gokcen gave one explanation for the reluctance of the ministerial council to consider the issue: ‘I believe the member states find the establishment of a peace and security department as easiest, as the least costly solution, because it will not require the member states to come up with a new [institutional] founding, or they will not [have to] politically commit.’58 This interestingly demonstrates that international secretariats may increase their bureaucratic powers as a result of the reluctance of member states to take up politically sensitive issues, which states decide to ‘outsource’ to the secretariat instead of tackling these issues themselves.  Ibid.   56 Ibid.   57 Ibid.   58 Ibid.

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854   secretariats Finally, the new unit, PSMU (Peace, Security and Mediation Unit) was established at the General Secretariat on 20 March 2013 with the aim of strengthening the OIC’s role in conflict prevention and resolution. Its specific focus is on mediation and quiet diplomacy.59 At the time of writing this chapter, the PSMU was still in the early stage of its development. It was, in fact, recruiting staff, since its present employees were ‘on loan’ from other departments. Ambassador Gokcen pointed out that, ‘As we are starting from scratch institutionally and professionally in terms of mediation we will need to build capacity.’60 The term ‘Unit’ in the title of the PSMU implies that the status of mediation and international peace and security at large in the OIC bureaucracy is lower compared to other sectors, such as humanitarian affairs. Nevertheless, the PSMU was expected to be upgraded into a department at a later stage.61 Alongside human rights and international peace and security, the third new sector in which the OIC has recently engaged is humanitarian affairs. In that sector, the OIC has performed more effectively, which is understandable in light of the fact that humanitarian affairs constitute a politically less sensitive area of cooperation than the two other sectors. In August 2011, for example, OIC member states pledged US$350 million in relief aid to victims of famine in Somalia.62 According to Ambassador Gokcen, the recent establishment of the humanitarian affairs department in the General Secretariat has been significant for the whole organization on two accounts, namely in raising the international visibility of the OIC and in increasing the OIC’s links to civil society actors. Particularly the launch of the OIC’s humanitarian activities in Somalia has increased the visibility of the organization.63 The analysis of the OIC here has thus far demonstrated that the General Secretariat has been one step, or leap, ahead of member states in spearheading the OIC’s mission expansion to international peace and security and to human rights policy, which also entails problems. Ambassador Gokcen alluded to these problems when he described the OIC’s newly established unit and mechanism on mediation: At the moment how this mechanism will move forward is not very clear. The question mark is whether the secretariat should develop this vision. It has already a preliminary vision to translate the capacities of the OIC, the political culture, socio-​economic and religious assets of the OIC into the power of mediation by using cultural, religious affinity. But personally I believe that it would be healthier if this vision was laid out by member states. So we need

59   “OIC Launches Peace, Security and Mediation Unit at its Headquarters,” Khaleej Times, 21 March 2013, http://​www.khaleejtimes.com/​nation/​inside.asp?xfile=/​data/​nationgeneral/​2013/​March/​nationgeneral_​March404.xml§ion=nationgeneral. 60   An interview with Permanent Observer of the OIC to the UN, Ambassador Ufuk Gokcen, in New York, 22 July 2013. 61  Ibid. 62   Organisation of Islamic Cooperation, “OIC Member States pledge $350 million for Somalia,” 21 August 2011, http://​www.oic-​oci.org/​oicv2/​topic/​?t_​id=5585&ref=2362&lan=en. 63   An interview with Ambassador Gokcen, 1 December 2011.

 

inter-secretariat capacity-building   855 a kind of further exercise of member states: now that there is a unit established in the OIC, what should be the way forward?64

The case in point here shows that the institutional reforms of an IO invented by the secretariat may outpace the political will of member states to actually provide resources to undertake those reforms, which creates a ‘capability gap’. Such outpacing might also entail an ‘imagination gap’, if the visionary thinking on the IO’s future emanates only from the secretariat instead of member states. In that case, the secretariat’s visions may become disconnected with the realities of government policies. One succinct example of this imagination gap between the secretariat and membership of an IO is the mechanism of OIC Special Envoys envisioned by the General Secretariat. As Gokcen pointed out, ‘Until now I  don’t believe that the OIC has been able to utilize this mechanism as much as we wished mainly due to financial constraints, because appointing a high-​level, prominent person as a special envoy requires a lot of resources.’65 The appointment of a special envoy simultaneously necessitates the appointment of a supporting team for the envoy, and the resulting financial constraints are aggravated by administrative constraints. When Secretary-​General Ihsanoglu set forth the idea of establishing a system-​wide support mechanism on Special Envoys as part of his overall OIC reform package, OIC member states put a condition that the appointment of any Special Envoy by the OIC Secretary-​General should be conditional on the approval of the Ministerial Council.66

Inter-​Secretariat Capacity-​Building … or Secretariat-​Replication? The Embeddedness of International Secretariats in Global Networks of Cooperation Recent studies of bureaucracy theory and IR research suggest that one specific implication of globalization is its propensity to transform IOs, including their secretariats, from monolithic, rigid, and hierarchical (i.e. ‘Weberian’) institutions into more network-​oriented and de-​layered (post-​Weberian) entities. In the internal dimension of IOs, such a transformation is evidenced by the way in which secretariats are   An interview with Ambassador Gokcen, 22 July 2013.   

64

 Ibid.   66 Ibid.

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856   secretariats operating more and more through interdepartmental and inter-​agency teams.67 In external relations, that development is evidenced by the way in which secretariats and IOs more widely are creating increasingly dense networks of cooperation, through which they can flexibly exchange specialized expertise, lessons learned, best practices, and innovative models on the organizational structuring and operations of secretariats. Such networking between secretariats further increases their bureaucratic powers, rational-​legal authority, and technical expertise. For example, the new Mediation Support Unit (MSU) set up in the UN Secretariat in 2008 reflects distinct post-​Weberian contours of bureaucracy. These are ‘quite unusual in the UN’,68 which reflects traditional Weberian qualities of bureaucracy such as rigid compartmentalization between departments and units: The first unique characteristic of the MSU is its openness … The MSU not only provides mediation support to official UN organs and reacts upon the request of regional divisions of the Department of Political Affairs of the UN Secretariat, but also cooperates with a variety of non-​governmental and regional organizations … These are apposite examples of the way in which ideas, lessons learned, best practices and structural and operational models of mediation can transfer flexibly and rapidly between interacting units of global networks of mediation.69

Thickening global networks between international secretariats and other organizations also enable the transferring of capacity-​building support and assistance from one secretariat to another, which could be termed ‘secretariat-​building’. The MSU, for example, is actively providing advice and training on mediation to the secretariats of other international and regional organizations, including the EU and even the OIC, in an effort to help them to build their own mediation support units. Empirical evidence demonstrates that there is a fine line between ‘secretariat-​ building’ and ‘secretariat-​replication’, as many of the structural arrangements and operations of one secretariat are actually directly copied in another. The following analysis will illustrate the dynamics of secretariat-​building by drawing upon one case study, namely UN–​OIC cooperation. The recently initiated UN–​OIC cooperation scheme on mediation has included staff exchange programmes, including the deployment of an OIC official to the MSU in November 2011. The aim of these programmes has been to transfer institutional and operational models of mediation from the UN to the OIC. Additional forms of cooperation were initiated in spring 2012, including joint workshops and seminars on mediation and conflict resolution, and the appointment of focal points between the MSU and the OIC to establish direct channels of communication between the   Kanninen and Piiparinen, “Why Bureaucracies Matter in the Global Age.”   Touko Piiparinen, “UN Peace Mediation,” in Global Networks of Mediation: Prospects and Avenues for Finland as a Peacemaker, ed. Touko Piiparinen and Ville Brummer, FIIA Report 32 (Helsinki: The Finnish Institute of International Affairs, 2012), 36. 69   Piiparinen, “UN Peace Mediation,” 36. 67

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conclusions   857 two organizations on mediation initiatives. In the second part of 2012, further new initiatives were launched, including periodic fellowship for OIC staff at the MSU and the training provided by the UN Institute for Training and Research and the MSU to OIC staff,70 which continued in 2013.71 The OIC’s explicit objective in 2011 for launching the new initiatives outlined above was to draw lessons from the MSU and the Policy and Mediation Division of the DPA (of which the MSU forms part) with the aim of establishing four new institutions in the OIC, namely a mediation unit, a policy planning unit, a mediation roster, and a team of standby mediation experts.72 Some of these plans, particularly the establishment of a mediation unit, were materialized by 2013. What is particularly revealing in these envisaged new institutions for the OIC is that their names, functions, and division of labour correspond fully to those of the already existing parallel institutions of the UN. In this regard, the OIC–​UN cooperation goes beyond traditional (inter-​)organizational learning aimed at ‘secretariat-​building’ and could instead be described as ‘secretariat-​replication’: the OIC is in effect copying the already existing institutions of the UN, such as the mediation roster and the team of standby experts on mediation, in its own institutional structure.

Conclusions This chapter has presented three key prospects for future research on IOs and international secretariats. First, bureaucracy theory has thus far focused excessively on the domestic realm of IOs, as evidenced by the piling literature on the so-​called ‘principal–​agent problem’, which aims to map out power relationships and dynamics between the main constitutive parts of IOs, namely secretariats and member states. This chapter has proposed a shift in the level of analysis from the domestic realm of IOs to the external realm of inter-​secretariat cooperation, which is intensifying as a result of the unique structural conditions of globalization. Second, previous research has paid undue attention to inter-​secretariat rivalry in explaining the dynamics of IOs, for example the competition between the Council Secretariat and the Commission in EU policy.73 The novelty of such an approach, however, can be challenged on account of the fact that it reproduces the old realist   OIC–​UN Mediation Partnership, a draft of OIC-​MSU One Year Work Program, 2011.   OIC–​UN Mediation Partnership, a draft of OIC-​MSU One Year Work Program, 2013. 72   OIC–​UN Mediation Partnership, a draft of OIC-​MSU One Year Work Program, 2011. 73   Hylke Dijkstra, “Commission versus Council Secretariat: An Analysis of Bureaucratic Rivalry in European Foreign Policy,” European Foreign Affairs Review 14/​3 (2009): 431–​50. 70 71

 

858   secretariats and neoliberal institutionalist theories, only in a modified form. That approach could therefore be described as ‘realist institutionalism’ or a billiard-​ball model of clashing IOs. This chapter has argued for a greater analysis of inter-​secretariat cooperation in future research on IOs. The importance of such an analysis is accentuated in the global age, as emerging global networks between secretariats provide new opportunities to them to build their institutional capacities. Third, this chapter has demonstrated that secretariats play a key role in generating the mission expansion of IOs. With regard to traditional Weberian bureaucratic powers, secretariats wield considerable powers independently of states by creating and shaping the epistemic framework within which states operate. Moreover, globalization generates new, post-​Weberian, powers for secretariats. Thus, the conventional wisdom which predicts the downfall of bureaucracy in the global age is actually turned upside down by the very dynamics of globalization. Globalization revitalizes bureaucracies, including international secretariats, not only because of the element of stability they can offer to decision-​making, but also because of the emergence of new global problems. Managing these increasingly complex problems, including transnational organized crime, global environmental threats and new internationalized civil wars, often requires complex solutions, accurate situation analysis, systematic control, and regulation which only secretariats, particularly those of specialized agencies, can offer due to their expertise, superior information-​ gathering, information-​processing, and analytical capacities.

 

Chapter 40

HIGH-​L EVEL PANELS Ramesh Thakur

Several contemporary international relationships are distinctive to the world of international organizations, groups/​actors which have added greatly to the institutional congestion and complexity of international relations. In previous centuries war and peace were the mainstay of interstate relations as symbolized by the ambassador and the general. Today, alongside the horde of diplomats and soldiers, multinational merchants, international financiers, World Bank technocrats, World Health Organization (WHO) medical experts, United Nations (UN) peacekeepers, the International Atomic Energy Agency inspectors, ‘Eurocrats’ and officials of other regional organizations, humanitarian workers, and global sports administrators—​not to mention international terrorists, human and drug traffickers, gun runners, and money launderers—​jostle for space on the increasingly crowded international stage. This chapter proceeds in four parts. First, it situates international organizations in the context of the changing nature of international diplomacy, including in particular summits and conferences as modes of contemporary diplomacy. It then describes the proliferating number and types of high-​level panels as instances of commission diplomacy. Third, it describes the ideational, normative, institutional, and operational impacts of panels. Finally, it provides a menu of the ingredients for successful commission diplomacy, including the different types of norm actors.

 

860   high–level panels

The Changing Diplomatic Landscape International organizations are not merely sites of global governance but, in some limited yet important respects and the principal–​agent problem notwithstanding, actors in their own right as well.1 There has also been a spurt in the number of regional organizations and direct relations among them.2 There has been exponential growth in the number of civil society actors and the volume of transnational networks in which they are embedded.3 They bridge the ‘disconnect between the political geography of the state on the one side and the new geography of economic and social relations on the other’.4 UN Secretary-​General Kofi Annan noted that nongovernmental organizations (NGOs) are not merely ‘disseminators of information or providers of services but also … shapers of policy’ in security, development, and humanitarian affairs.5 The role, activities, and impact of international organizations reflect and in turn shape the conduct of modern diplomacy. The world of international relations has changed substantially since World War I. New diplomatic procedures consolidated and initiated by the League of Nations included multilateral diplomacy, public debates, international parliamentary procedures, and collective decision-​making. Today’s global environment is vastly more challenging, complex, and demanding than the worlds of 1919 and 1945 when the League of Nations and the UN were created. The subject matter of diplomacy has expanded commensurately, from the high politics of war and peace to health, environment, development, science and technology, education, law, and the arts. Mark Malloch-​Brown, the former UN Deputy Secretary-​General and then a Foreign Office minister in the UK, has written that ‘Diplomacy has been multilateralised’: Britain’s power to influence events depends ‘on our ability to orchestrate action in Washington, the UN, the European Union or corporate boards’.6 1  Ramesh Thakur, “Multilateral Diplomacy and the United Nations:  Global Governance Venue or Actor?,” in The New Dynamics of Multilateralism:  Diplomacy, International Organizations, and Global Governance, ed. James P. Muldoon et al. (Boulder: Westview, 2011), 249–​65; Ramesh Thakur and Thomas G. Weiss, “United Nations ‘Policy’: An Argument with Three Illustrations,” International Studies Perspectives 10/​1 (January–​April 2009): 18–​35. 2   Ramesh Thakur and Luk van Langenhove, “Enhancing Global Governance through Regional Integration,” Global Governance 12/​3 (2006): 233–​40. 3   See Mary Kaldor, Global Civil Society: An Answer to War (Cambridge: Polity Press, 2003); and John Keane, Global Civil Society? (Cambridge: Cambridge University Press, 2003). 4   Thorsten Benner, Wolfgang H. Reinecke, and Jan Martin Witte, Shaping Globalization: The Role of Global Public Policy Networks (2002), 4, http://​www.globalpublicpolicy.net/​. 5   Kofi A. Annan, Renewing the United Nations: A Programme for Reform, Report of the Secretary-​ General, UN Doc. A/​51/​950, 14 July 1997, para. 212. 6   Mark Malloch-​Brown, “How to Reform the British Foreign Office,” Financial Times, 14 January 2010.

 

the changing diplomatic landscape    861 Multilateral diplomacy has also brought in its wake new forms of diplomatic activity like public debates, extensive committee work, parliamentary procedures that back in the home country are the provenance of politicians, diplomatic caucusing akin to political caucusing in national parliaments, and forging coalitions and alliances. Many UN agencies, especially in the human rights, humanitarian, and development fields, prefer to work directly with NGOs than governments in service delivery. International organizations give form, content, and meaning to multilateral diplomacy, described by the distinguished Singaporean diplomat-​scholar Kishore Mahbubani as ‘a sunrise industry’.7 The UN system constitutes the core of the multilateral order, enjoying a unique legitimacy derived from universal membership. UN multilateral diplomacy differs from traditional interstate diplomacy in some important respects.8 Guided by Charter principles, it partially offsets the unfavourable position of the weaker party. It aims to establish a just peace as well as a stable balance of power. And it takes into account the interests of member states collectively as well as the disputants. Thus international organizations have tempered the dictum handed down to posterity by Thucydides that ‘the strong do what they can and the weak suffer what they must’.9 Multilateral diplomacy also expanded the tool-​kit of both peaceful and coercive instruments, spelt out in Chapters VI and VII of the UN Charter, to resolve conflicts and punish rule-​breaking or norm-​deviating states. Annan remarked that ‘diplomacy has expanded its remit, moving far beyond bilateral political relations between states into a multilateral, multi-​faceted enterprise encompassing almost every realm of human endeavour’.10 The international calendar is surprisingly crowded for the leaders of most countries who are expected to attend the regularly scheduled gatherings of the UN, regional and sub-​regional organizations, and informal groupings like the G8, G20, and BRICS (Brazil, Russia, India, China, and South Africa),11 giving rise to summit diplomacy as a distinctive feature of the current global order.12 International 7   Kishore Mahbubani, “Multilateral Diplomacy,” in The Oxford Handbook of Modern Diplomacy, ed. Andrew F. Cooper, Jorge Heine, and Ramesh Thakur (Oxford: Oxford University Press, 2013), 248. 8   Javier Pérez de Cuéllar, “The Role of the UN Secretary-​General,” in United Nations, Divided World: The UN’s Role in International Relations, ed. Adam Roberts and Benedict Kingsbury (Oxford: Clarendon, 1988), 67–​9. 9  Thucydides, The Peloponnesian War, quoted in Ivor Roberts (ed.), Satow’s Diplomatic Practice, 6th ed. (Oxford: Oxford University Press, 2009), 7. 10   “Address by Secretary-​General Kofi Annan to the American Academy of Diplomacy upon receiving the Academy’s ‘Excellence in Diplomacy’ Award in Washington, DC, on 28 November,” UN Press Release, 30 November 2001. 11   See Andrew F. Cooper and Ramesh Thakur, “The BRICS in the New Global Economic Geography,” in International Organization and Global Governance, ed. Thomas G. Weiss and Rorden Wilkinson (London: Routledge, 2014), 265–​78. 12  This paragraph draws in particular on Andrew F. Cooper and Rmesh Thakur, The Group of Twenty (G20) (London: Routledge, 2013); and Richard Feinberg, “Institutionalized Summitry,” in The Oxford Handbook of Modern Diplomacy, ed. Andrew F. Cooper, Jorge Heine, and Ramesh Thakur (Oxford: Oxford University Press, 2013), 303–​18.

 

862   high–level panels finance and trade, pandemics and terrorism, climate change and biodiversity, and nuclear security spill across national boundaries and defy local treatment. They are ‘problems without passports’13 in search of solutions without passports. Some summits offer little beyond symbolism, some can make genuine progress on shared global challenges and problems like nuclear security, but in any case summits with their alphabet soup of acronyms are an inescapable feature of the contemporary diplomatic topography. With broad, overarching responsibilities, leaders, and only leaders, can best weigh priorities and seek to balance interests across competing goals, sectors, national, and international objectives, and between the immediate, medium, and long terms.14 Summits should make the most difference in those problem areas where leadership commitment is the critical variable (‘the pay grade test’15), the primary obstacle to identifying policy overlap and convergence and to reaching consensus is the unavailability or inadequacy of an appropriate forum, and speedy resolution is essential. The UN too sometimes hosts and organizes special summits, for example the 2000 Summit which produced the Millennium Development Goals and the world summit in 2005 which unanimously endorsed the responsibility to protect (R2P) as a new normative principle.16 A more frequent UN activity is conference diplomacy on designated topics, for example environmental conferences in Stockholm and Rio de Janeiro in 1972 and 1992. Universal membership and international legitimacy give the UN unmatched convening and mobilizing power that has been used to organize a large number of global conferences on a diverse range of topics from women to human rights, population, social development, and environmental conservation. While the intergovernmental conferences are the sites for the growth of treaty law—​for example, the UN Conference on the Law of the Sea (1973–​82)—​the global conferences have been prime sites for the evolution of norms and ‘soft law’ which over time begins to exert a binding effect in the form of customary international law. UN conferences have been crucial agents of change, of norms if not behaviour, policy, and action. Their global and long-​term impact often lies in raising a new issue, reframing an existing issue, or even simply focusing more international

13   Kofi A. Annan, “Problems without Passports,” Foreign Policy (9 November 2009), http://​foreignpolicy.com/​2009/​11/​09/​problems-​without-​passports/​. 14   For elaboration of a balance of interests as an alternative analytical construct to the national interest, see Ramesh Thakur, “A Balance of Interests,” in The Oxford Handbook of Modern Diplomacy, ed. Andrew F. Cooper, Jorge Heine, and Ramesh Thakur (Oxford: Oxford University Press, 2013), 70–​87. 15   David Shorr, “Making the G-​20 a Reservoir of Global Leadership:  A  Maximalist Argument,” Policy Analysis Brief (Muscatine, IA: Stanley Foundation, April 2011), 5. 16   Gareth Evans, The Responsibility to Protect: Ending Mass Atrocities Once and For All (Washington, DC: Brookings Institution Press, 2008); Alex. J. Bellamy, Responsibility to Protect (Cambridge: Polity, 2009); Ramesh Thakur, The Responsibility to Protect: Norms, Laws and the Use of Force in International Politics (London: Routledge, 2011); and Thomas G. Weiss, Humanitarian Intervention: Ideas in Action, 2nd ed. (Cambridge: Polity, 2011).

 

commission diplomacy   863 attention on an issue, so that the existing consensus is shifted and the boundaries of possible national and international action are expanded.17

Commission Diplomacy International summits and global conferences are useful to greater and lesser degrees as occasions for mediating divergent interests and national policy perspectives in order to forge common collective policy priorities on particular global challenges. In addition, as the UN Intellectual History Project has so brilliantly documented in several volumes, the UN system has been remarkably productive and effective in channelling ideas into global policy. The impact of ideas on global governance is a largely neglected area of study, with scholars focusing more on international institutions—​the ‘body of global governance’—​than on the ideas—​the ‘mind of global governance’—​that drive them.18 High-​level panels and international commissions are a useful means of leveraging emerging ideas into new global norms and converting them into policy.19 Their composition, remits, and reports are wonderful representations of the ‘three UNs’: the world of UN member states who are the principals of the organization; of international civil servants who are its staff; and of personnel from government, academe, and civil society who interact actively and regularly with the UN system.20 Gareth Evans—​who in various capacities has set up, been a member of, and co-​ chaired half a dozen commissions—​has tabulated almost three dozen international commissions looking at global challenges in security, development, environmental, social policy, and governance.21 Their distinguishing features are that they address policy problems of global scope. They may be created or convened by international organizations, national governments, or private foundations, but their recommendations are always directed to the international community overall. Their members 17   Peter Willetts, “The Pattern of Conferences,” in Global Issues in the United Nations’ Framework, ed. Paul Taylor and A. J. R. Groom (New York: St Martin’s Press, 1989), 46. 18  Andrew F. Cooper and John English, “International Commissions and the Mind of Global Governance,” in International Commissions and the Power of Ideas, ed. Ramesh Thakur, Andrew F. Cooper, and John English (Tokyo: United Nations University Press, 2005), 1–​26. 19   See Ramesh Thakur, Andrew F. Cooper, and John English (eds.), International Commissions and the Power of Ideas (Tokyo: United Nations University Press, 2005). 20   Thomas G. Weiss, Tatiana Carayannis, and Richard Jolly, “The ‘Third’ United Nations,” Global Governance 15/​1 (2009): 123–​42. 21   Gareth Evans, “Commission Diplomacy,” in The Oxford Handbook of Modern Diplomacy, ed. Andrew F. Cooper, Jorge Heine, and Ramesh Thakur (Oxford: Oxford University Press, 2013), 278–​302.

 

864   high–level panels are expected to think and make decisions in their personal capacity and not advance any official agenda. And they are of finite duration (with open-​ended and ongoing panels better described as organizations). Examples of high-​level panels include the UN Panel on Peace Operations chaired by Lakhdar Brahimi (report published in 2000) and the High-​level Panel on Threats, Challenges and Change (2004), both of which were set up by UN Secretary-​General Kofi Annan. Some of the better-​known international commissions include the Pearson (1969), Brandt (1980), Palme (1982), Brundtland (1987), Global Governance (1995), Canberra (1996), and Kosovo (2000) Commissions, and the International Commission on Intervention and State Sovereignty (ICISS, 2001). Between them, they have shaped and influenced the global discourse on a wide range of international policy issues:22 development, the global economic order and North–​South inequalities; international security and the disutility of nuclear weapons; resource conservation, environmental protection, and economic development; and the legality and legitimacy of the use of military force to protect civilians trapped inside sovereign jurisdictions. One of the most recent such bodies, the High-​Level Panel on the Post-​2015 Development Agenda, acknowledging that the years since the millennium had seen the fastest poverty reduction in history, identified a two-​step goal: elimination, not mere reduction, of extreme poverty in all its forms and putting in place the building blocks of sustained prosperity for all.23 Other panels look to address regional issues and problems, for example the Zedillo–​Pickering Partnership for the Americas Commission (2008) and the Latin American Commission on Drugs and Democracy (2009). Some high-​level panels are convened to investigate specific past failures to prevent atrocities, or allegations of complicity in the perpetration of atrocities, by state and international actors. For example, a high-​level panel, chaired by Sir Quett Ketumile Joni Masire, the former President of Botswana, was convened by the Organization of African Unity (OAU) to investigate the multiple failures with respect to the 1994 Rwanda genocide, and submitted its report to the OAU summit in Lomé, Togo in 2000.24 The Carlsson Report,25 commissioned by the UN itself, had restricted its analysis of the Rwandan genocide largely to the role of the UN. The OAU panel looked much more closely and critically at the roles of several African and European states, the United States,

  Reflecting the author’s background and bias, this chapter focuses mostly, but not exclusively, on examples from international security. 23   A New Global Partnership:  Eradicate Poverty and Transform Economies through Sustainable Development, Report of the High-​Level Panel of Eminent Persons on the Post-​2015 Development Agenda (New York, 2013). 24   Rwanda: The Preventable Genocide, Report of the International Panel of Eminent Personalities, http://​www.peaceau.org/​uploads/​report-​rowanda-​genocide.pdf. 25   Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, UN Doc. S/​1999/​1257, 15 December 1999, http://​www.securitycouncilreport.org/​atf/​cf/​ %7B65BFCF9B-​6D27-​4E9C-​8CD3-​CF6E4FF96FF9%7D/​POC%20S19991257.pdf. 22

 

impacts   865 the OAU, and the UN. A second good example is the Goldstone Panel, chaired by the eminent international jurist Richard Goldstone, which marshalled evidence of wrongdoing by Hamas and Israel during the three-​week 2008–​9 Gaza war and, in its 2009 report, called on both to conduct good-​faith investigations in conformity with international standards.26 However, because these panels are specific to individual events and look to clarify facts and apportion blame, they are not the primary focus of this chapter which is more interested in panels that seek to improve global governance in the future.

Impacts High-​level panels are a means of collating state-​of-​the-​art knowledge on particular problems and converting it into policy recommendations for improving the collective management of world affairs; that is, for making the world a better and safer place for all its peoples. Owing to historical inertia, path dependence, and the often stable equilibrium of accumulated interests around the status quo, their reports rarely produce dramatic policy shifts. Sometimes their legacies can be more subtle and nuanced, but are nonetheless real. For example, the Brandt Commission’s report did not produce any major reform of the international economic order but it exercised an enduring influence on the development discourse.27 What then counts as success? Ideational impact is shown in the generation of new ideas that reshape the existing discourse on the topic. Normative success would come by promoting a new standard of behaviour. Operational success would be indicated by setting new action agendas and changing the prevailing patterns of behaviour. Institutional success would be shown by the creation of new institutions or the reconfiguration of existing ones. Must a panel demonstrate impact on all these measures, or will one alone suffice to consider it to have been successful? And how much time-​lag is permissible in attributing results to commission recommendations? It is worth emphasizing that independent bodies, precisely because they

  Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Human Rights Council, A/​HRC/​12/​48, 15 September 2009, http://​www2.ohchr.org/​english/​bodies/​hrcouncil/​docs/​12session/​A-​HRC-​12-​48.pdf. For a discussion on the report, see commentaries by Tom Farer, Dinah PoKempner, Ed Morgan, Richard Falk, and Nigel S. Rodley, in Global Governance 16/​2 (2010): 139–​207. 27   Jean-​Philippe Therien, “The Brandt Commission: The End of an Era in North–​South Politics,” in International Commissions and the Power of Ideas, ed. Ramesh Thakur, Andrew F. Cooper, and John English (Tokyo: United Nations University Press, 2005), 27–​45. 26

 

866   high–level panels are not official, are advisory only and lack executive decision-​making authority. In addition, unless their contributions are openly acknowledged, it may be difficult to trace their lineage in the creation of new norms, practices, and institutions. It is as rare for any panel to be a total failure as for it to be wholly successful in adding to the world’s body of knowledge, creating new norms, producing demonstrable and measurable shifts in policy, embedding the new norms and behaviour expectations in purpose-​built institutions, and generating effective compliance mechanisms; that is, going further on the journey of global governance by filling the five core knowledge, normative, policy, institutional, and compliance gaps.28 It is helpful to divide the impacts into ideational, normative, operational, and institutional.

Ideational One of the most notable contributions that high-​level panels can make is to generate potentially game-​changing ideas: new ways of addressing long-​standing and intractable problems that have defeated policy-​makers. Ideas matter and institutions matter as conduits for ideas.29 In the broad sweep of history, empires rise and fall, kings and queens come and go. They are remembered positively only if they leave behind ideas, embedded in institutions or practices, for improved governance or quality of life. Ideas are influential if they have strong theoretical foundations and clear policy application. The support of powerful rulers and countries helps. The Palme Commission turned the logic of Cold War nuclear deterrence on its head by highlighting the interdependence of everyone’s security; the Brundtland Commission broke major conceptual ground by bridging the previously irreconcilable pro-​growth and environmental protection camps. The three central insights of the Canberra Commission—​as long as any country has nuclear weapons, others will want them too; as long as they exist, they will be used again someday by design, accident, or miscalculation; and a nuclear war anywhere will be globally catastrophic—​has informed strategic discourse ever since. The Palme, Brandt, and Canberra Commissions proved to be ahead of their time, but their ideational legacy was kept alive by activists and intellectuals until such time as the context was more hospitable to their message. Panels can also contribute directly to the store of existing knowledge by commissioning cutting-​edge papers and publishing substantial volumes of authoritative data and analysis. For example, ICISS published a

28   Thomas G. Weiss and Ramesh Thakur, Global Governance and the UN: An Unfinished Journey (Bloomington, IN: Indiana University Press, 2010). 29   See Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (Princeton, NJ: Princeton University Press, 2001).

 

impacts   867 400-​page supplementary volume in addition to its main report and the Carnegie Commission generated no fewer than ten books and over thirty other publications.

Normative Ideas are value-​neutral. A norm is a socially validated and community sanctioned standard of appropriate or prescribed behaviour. The idea that climate change is real and caused by human activity has produced the norm that the resulting rise on global temperature must be kept to within 20 centigrade relative to pre-​industrial levels, but also produced controversy on the best suite of policies (mitigation, adaptation, climate engineering, financial and technology transfers) in order to comply with the norm. Three particularly useful commissions to illustrate normative impacts are the Pearson panel, the Brundtland Commission, and ICISS. With respect to the first, the globally endorsed norm of the developed countries denominating 0.7 per cent of their GDP as official development assistance (ODA) is rarely met yet cannot be formally abandoned because of the stigma that would attach to walking away from it. The Brundtland Commission introduced the concept of ‘sustainable development’—​meeting the development needs of the present without destroying the environment and thus compromising the ability of future generations to meet their own needs. Its report Our Common Future was memorable for its opening sentence: ‘The Earth is one but the world is not.’30 This singular UN achievement has framed the dominant approach to development ever since. For many in the development community, ‘sustainable development’ is the most consequential normative shift since 1945. The continuing frictions between the North and the South with respect to the responsibility for having caused and for ameliorating the effects of climate change suggest that efforts to combat climate change will have to be integrated into the broader context of sustainable social and economic development. Much as their counterparts in development view sustainable development, many in the security field consider R2P to be one of the most significant normative advances in decades, if not centuries.31 It is the normative instrument of choice for converting a shocked international conscience into decisive collective action—​for channelling selective moral indignation into collective policy remedies—​to prevent and stop atrocities. It strikes a balance between unilateral interference rooted in the arrogance of power and institutionalized indifference that dislocates the Other  Gro Harlem Brundtland et  al., Our Common Future, Report of the World Commission on Environment and Development (Oxford: Oxford University Press, 1987), 27. 31  See, e.g., Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press, 2011), 41; Martin Gilbert, “The Terrible 20th Century,” Globe and Mail (Toronto), 31 January 2007. 30

 

868   high–level panels from the Self. In the vacuum of responsibility for the safety of the marginalized, stigmatized, and dehumanized out-​groups subject to mass atrocities, R2P provides an entry point for the international community to step in and take up the moral and military slack. It does so by redefining sovereignty as a responsibility, locating that responsibility primarily in the state concerned and a fall-​back responsibility in the international community to protect people from the atrocity crimes of genocide, crimes against humanity, war crimes, and ethnic cleansing. R2P is closely related, conceptually as well as chronologically, to the norm of protection of civilians (POC).32 The Brahimi Panel did not introduce the POC norm as such, since the first Security Council resolution on POC was adopted in 1999, a year before the Brahimi Report. But the latter did help to consolidate the POC norm by questioning the long-​established assumptions of neutrality and impartiality as they applied to civilian victims of violence perpetrated by armed challengers to UN peace operations. ‘Peacekeeping’ is a word that famously cannot be found in the UN Charter; the concept did not exist in 1945. Yet it has been the most visible symbol of the UN role in international peace and security. The Brahimi Report on UN peace operations was unusual in the candour of its analysis and recommendations.33 It came to the overall sound conclusion that ‘when the United Nations does send its forces to uphold the peace, they must be prepared to confront the lingering forces of war and violence with the ability and determination to defeat them’. For in the final analysis, ‘no amount of good intentions can substitute for the fundamental ability to project credible force if complex peacekeeping, in particular, is to succeed’.34 The need for impartial peacekeeping should not translate automatically into moral equivalence among the conflict parties on the ground: in some cases local parties consist not of moral equals but obvious aggressors and victims.35 The analysis and recommendations have had an unmistakable impact in the consolidation and evolution of the twin R2P and POC norms. An institutional channel for the transmission of the recommendations of the Brahimi Panel and ICISS was the High-​Level Panel on Threats, Challenges, and Change set up by Annan which submitted its report in late 2004.36 Its four major conceptual-​cum-​normative advancements were the interconnectedness of today’s threats; legitimacy criteria for the use of military force; an agreed-​upon definition of terrorism; and the need to extend normative constraints to non-​state actors. It 32   See Hugh Breakey et al., Enhancing Protection Capacity: A Policy Guide to the Responsibility to Protect and the Protection of Civilians in Armed Conflicts (Brisbane: Institute for Ethics, Governance and Law, 2012), http://​www.griffith.edu.au/​criminology-​law/​institute-​ethics-​governance-​law/​research/​ responsibility-​to-​protect-​protection-​of-​civilians-​policy-​guide. 33   Report of the Panel on United Nations Peace Operations, UN Doc. A/​55/​305-​S/​2000/​809, 21 August 2000. 34 35   Ibid., viii.   Ibid., 9, para. 50. 36   High-​Level Panel on Threats, Challenges and Change (HLP), A More Secure World: Our Shared Responsibility, UN Doc. A/​59/​565, December 2004.

 

impacts   869 identified the major threats as war and violence among and within states; the use and proliferation of weapons of mass destruction; terrorism; transnational organized crime; and poverty, infectious disease, and environmental degradation. The threats can come from state and non-​state actors and endanger human as well as national security. Collective security is necessary because today’s threats cannot be contained within national boundaries, are interconnected and have to be addressed simultaneously at all levels.

Institutional Following the Brahimi Report, the staff complement of the Department of Peacekeeping Operations (DPKO) in New York was increased to provide better support to field missions, and the latter now has its own additional Under-​Secretary-​ General. The officers of the military and police advisers were bolstered. The old and not so well-​regarded lessons-​learned unit was restructured into a best-​practices unit. DPKO’s logistics base in Brindisi (Italy) received funding to acquire strategic deployment stocks. The reorganized UN Standby Arrangements System provides for forces to be made available within thirty to ninety days of a new operation. The Report also recommended the establishment of an Information and Strategic Analysis Secretariat.37 For reasons of political sensitivity towards any intelligence-​ gathering capacity by the UN, however, this proved still-​born. ICISS did not recommend it, but its report was most likely the trigger to the creation down the line of the UN Joint Office of Genocide Prevention and R2P. Similarly, the 2004 Cardoso Panel’s recommendations on structuring the UN’s relations with civil society have been quite influential. The 2004 High-​Level Panel published a raft of recommendations on institutional restructuring. It called for the formal disbanding of the Trusteeship Council and the abolition of the Military Staff Committee.38 But it shied away from recommending the abolition of the Economic and Social Council, even though the body ‘is perceived nearly universally as ineffective, poorly structured, and not up to the task of taking decisive action’.39 The 2005 summit agreed to wind up the obsolete Trusteeship Council, but with regard to the equally anachronistic Military Staff Committee, it merely asked the Security Council to consider the Committee’s composition, mandate, and working methods.40 The most critical section dealt with the   Report of the Panel on United Nations Peace Operations, paras. 65–​75.  HLP, A More Secure World, paras. 298–​300. 39   Capturing the 21st Century Security Agenda:  Prospects for Collective Responses (Muscatine, IO: Stanley Foundation, 2004), 50. This is the report of the discussions of a high-​level group of UN hands. 40   2005 World Summit Outcome, adopted by UN General Assembly Res. A/​RES/​60/​1, 24 October 2005, paras. 176–​8. 37

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870   high–level panels Security Council. The call for reforming it is justified by the need for greater credibility, legitimacy, representation, and effectiveness. The panel noted that a decision on Security Council enlargement ‘is now a necessity’.41 But, unable to agree between them, the panellists outlined two models, inviting the question: if sixteen distinguished world citizens acting as individuals cannot choose between the two models, can 191 separate governments do so? The answer from the 2005 summit was a resounding ‘No’. The world leaders merely committed to continue the efforts to achieve a decision.42 That is, after a decade of talks, they agreed to talk some more. The panel recommended the establishment of a new Peacebuilding Commission (PBC) under Security Council authority to identify countries sliding towards state collapse, institute measures to halt the slide, and plan for and assist in the transition from war and conflict to peace and post-​conflict peace-​building.43 The 2005 summit agreed to establish a PBC as an intergovernmental advisory body with a dedicated Peace-​Building Support Office in the UN Secretariat. But the PBC’s authority was weakened by not placing it under the Security Council and instead tasking it to report annually to the General Assembly.44 The most optimistic had hoped for ‘a San Francisco moment’ in New  York in September 2005, one no less decisive and momentous than the signing of the UN Charter sixty years earlier in the City by the Bay. The most critical concluded that instead the UN had an Albert Einstein moment, recalling his famous description of madness as doing something over and over again and expecting a different result each time. One could interpret the 2005 outcome document generously and, gathering rosebuds of consolation, note that it could have been worse. Some of the achievements were genuine enough. But Gareth Evans, one of the HLP members, expressed his disappointment at the outcome in characteristically colourful language. Speaking at a conference in Paris in October 2005, he said that the UN was ‘still the piranha pool of diplomats enjoying tearing flesh off each other, to the total exclusion of any enthusiasm for high principle or effectiveness of the organisation’.45

Operational The primary goal of policy-​focused high-​level panels is to change state practice. Often states may be prepared to commit to adopting a new principle or norm but be reluctant to operationalize it in their international policy. Thus the norm of allocating 0.7 per cent of GDP as ODA, as recommended by the Pearson panel, remains widely accepted. However, with the exception of Northern European countries, 42  HLP, A More Secure World, para. 250.   Outcome Document, para. 153. 44  HLP, A More Secure World, paras. 261–​9.   Outcome Document, paras. 97–​105. 45   Quoted in Emma Kate-​Symons, “UN Reform a Disaster: Evans,” The Australian, 19 October 2005. 41

43

 

impacts   871 few others have come close to approaching the target in practice. The Brundtland Commission can be traced as the ‘intellectual godfather’ of the Rio Earth Summit in 1992, the 1997 Kyoto Agreements on climate, the Biodiversity Convention and Agenda 21, as well as numerous other ongoing international, regional, national, and local initiatives. With ‘sustainable development’, in most cases the environmental movement has achieved modest successes in changing official policy and citizen practices in the developed countries, but most developing countries still prioritize rapid and sustained economic growth over resource conservation and environmental protection. The concept of ‘governance’ became common currency only after publication of the Commission on Global Governance’s report in 1995,46 and that was also the year in which the first issue of the journal Global Governance appeared.47 The Commission’s recommendations stimulated much debate, but one of its very few to have had an operational impact concerned the responsibility of business to promote good global governance. This found expression ultimately in the UN’s ‘Global Compact’.48 The recommendations of the Cardoso Panel on multi-​ constituency processes and partnerships were accepted by Annan and implemented remarkably quickly in response to the Indian Ocean tsunami the same year.49 The POC agenda has had a considerable operational impact on UN peacekeeping missions. R2P was applied in its preventive dimension by former Secretary-​ General Annan in Kenya and coercive military force was authorized in Security Council Resolution 1973 (17 March 2011)  in Libya. But this turned out to be contested and controversial. On the one hand, Libya in 2011 best showcased the mobilizing power of the R2P norm that led to China and Russia abstaining from instead of voting against and thereby vetoing Resolution 1973. The initial response to the crisis was a textbook example of R2P Pillar Three military intervention.50 But the NATO operation very quickly showed up several critical gaps in communications, expectations, and accountability between those who authorized and those who implemented Resolution 1973. In addition to the R2P controversy, the post-​Gaddafi

  Unto Vesa (ed.), Global Commissions Assessed (Helsinki: Ministry for Foreign Affairs, 2005), 90.   Disclosure: the author is editor-​in-​chief of Global Governance for the five years 2013–​17. 48   W. Andy Knight, “The Commission on Global Governance,” in International Commissions and the Power of Ideas, ed. Ramesh Thakur, Andrew F. Cooper, and John English (Tokyo: United Nations University Press, 2005), 113–​14; John Ruggie, Just Business:  Multinational Corporations and Human Rights (New York: W. W. Norton, 2013). 49   Weiss and Thakur, Global Governance and the UN, 43–​5. 50   In his first special report on R2P in 2009, UN Secretary-​General Ban Ki-​moon reframed R2P in the metaphor of three pillars: first, the responsibility of each sovereign state itself to protect (including prevention) its own populations from the atrocity crimes in question; second, the responsibility of other states to assist it to do so; and third, the responsibility of the wider international community to respond in a “timely and decisive” fashion and by all appropriate means, not excluding coercive military action. Ban Ki-​moon, Implementing the Responsibility to Protect, UN Doc. A/​63/​677, 12 January 2009. It has become obvious in successive annual General Assembly debates in and since 2009 that this three-​pillar frame of reference is now overwhelmingly accepted by the UN community. 46 47

 

872   high–level panels turmoil and volatility in Libya further complicated international responses to the ongoing humanitarian crisis in Syria. Other examples, such as the long-​running crisis in Darfur, disaster relief in Myanmar, the fate of civilians under foreign occupation in Fallujah and Palestine, and civilians caught in the middle of a brutal civil war in Sri Lanka, also highlight the persistence of major civilian protection gaps when it comes to implementing the normative advances of the Brahimi Panel and ICISS alike.51

Explaining Success Many high-​level panels and blue ribbon commissions end up forgotten, little remembered, and even less implemented. Some have made a difference. Factors that help to explain success include independence, inclusive composition, permissive or prohibitive context, widely consultative process, product quality, innovation, sharp product differentiation, luck-​dependent timing, and follow-​up.

The Three ‘I’s’: Independent, International, Inclusive The successful commissions tend to be genuinely independent, regardless of who established and funded them. It is not always easy for sponsoring governments and foundations to provide the organizational and financial support yet not get involved in the commissioners’ deliberation and decisions. But if they do, or are seen as controlling and manipulating the analysis and recommendations, the final product will lack credibility in the policy community and civil society. Japan’s political culture, for example, seems to militate against sponsoring a genuinely independent commission. This can also be a troublesome requirement for panels created by major powers that have too many interests entwined in international controversies and the military muscle and economic clout to get their own way. Conversely, it might be one likely explanation for why international commissions seem to be a fruitful area of niche diplomacy by so-​called middle powers. Unlike the major powers, they are compelled to rely on the power of persuasion and the force of creative ideas. The members of a high-​level global panel must be genuinely international, inclusive, and diverse with regard to professional backgrounds (former heads of state   See Ramesh Thakur, “Protection Gaps for Civilian Victims of Political Violence,” South African Journal of International Affairs 20/​3 (December 2013): 321–​38. 51

 

explaining success   873 and cabinet ministers, UN officials, generals, scholars, journalists), continents-​ cum-​civilizations, industrialized and developing country perspectives, and initial starting positions on the topic to hand. To the extent that the major global schism has metamorphosed from the East–​West rivalry of the Cold War to a North–​South divide since,52 a deliberate effort must be made to bring in Southern voices and give them a respectful hearing. There is not much point in assembling a group of like-​minded people who agree amicably among themselves but never actually engage others with different world-​views and priorities. One of the major flaws of the Canberra Commission, for example, was that its composition included members from every Nuclear Non-​Proliferation Treaty (NPT) nuclear weapons state (NWS:  the target audience for recommendations on nuclear disarmament), and nationals of many NPT non-​NWS, but not a single citizen of any of the non-​ NPT threshold NWS—​the target audience for recommendations on nuclear non-​ proliferation. India and Pakistan—​two threshold NWS—​tested nuclear weapons within two years of its report.

Chair(s) The requirement for a balanced composition begins with the chair. To report on policy issues which do divide along a North–​South polarity, it has become a popular formula to have co-​chairs from the North and the South. ICISS was fortunate in its co-​chairs, Mohamed Sahnoun and Gareth Evans, who represented diverse continents, backgrounds, experiences, yet were equally passionate, skilled, and committed humanitarian multilateralists. Their example shows the importance of chairs who are simultaneously active, patient, and diplomatic. A commission will falter if the chairs dominate and bully. Everyone who wants to articulate a point of view should be given voice and vote in the commission. At the same time, deliberations cannot go on interminably and the process must be kept moving forward to forestall loss of momentum with a judicious harmonization of differences of opinion. In addition to facilitating this by skilful chairing of panel meetings, chairs also have the primary responsibility for ensuring that the final report is crisp, the analysis sharp, and the writing elegant yet accessible. Part of this includes the ability and the willingness to find common ground and language without fudging the issue or retreating into lowest common denominator default positions. Chairs are also crucial to promoting the product after publication of the report to the relevant constituencies and audiences. A  household name in the form of a celebrity former president or prime minister might help garner initial attention but is no guarantee of a successful   Ramesh Thakur, Towards a Less Imperfect State of the World: The Gulf between North and South, Dialogue on Globalization Briefing Paper 4 (Berlin: Friedrich Ebert Stiftung, April 2008). 52

 

874   high–level panels post-​product marketing. Capability and competence will trump celebrity status every time.

Panel Members The selection of the commissioners is just as crucial. The willingness of commissioners to listen to one another and adapt and evolve their thinking, without necessarily giving up bottom lines, enabled ICISS to come up with a unanimous report that was more than a collection of clichés and platitudes. But not all commissioners contribute equally. Some are worth having for giving the enterprise credibility in diverse global and sectoral constituencies. Others willingly do the heavy lifting in internal debates, research, and even writing, as well as post-​ publication selling of the product and its message, which ‘can make up for a certain elegant lassitude at the top’.53 Homogeneity of backgrounds, experience, and political outlook can facilitate cohesion, but only at the cost of legitimacy and impact. It is important also to include representatives from the worlds of practices and of ideas. The last group is not always included. Yet as already noted, ideas are the key drivers of history and a panel that does not include them will have a short shelf life. This deficiency was notable in the 2004 panel on UN reforms. Its composition was initially ridiculed for its average age (around 70) when the task was to look to the future: ‘Alzheimer’s commission’,54 ‘relics trying to reform a relic’,55 and ‘a cross between déjà vu and amnesia’56 were among the choice descriptions.57 The calls for inclusiveness, representativeness, and diversity can collide with the demands for efficiency and timeliness of the final product. Panels become more and more unwieldy beyond a good working size of twelve to fifteen members. If it is accepted that a compact size makes for more efficient functioning, it makes it all the more urgent to avoid multiple names from the ‘old boys’ club’: Brahimi, Brundtland, Cardoso, Evans, Ogata, Zedillo, et al. To be sure, there is merit in continuity, institutional memory, and cross-​pollination, but the optics of lasting cynicism have to be assessed against those of instant credibility. Of course, many of them can still be brought into the process through membership of international advisory boards and other consultative mechanisms. 54   Evans, “Commission Diplomacy,” 291.   Personal conversation, 2004.  Unnamed UN ambassador quoted in “United Nations:  Fighting for Survival,” Economist, 20 November 2004, 23. 56   Barbara Crossette, quoting a former high-​ranking UN official, “Sixteen Wise People and the Future of the U.N.,” UN Wire, 1 December 2003. 57   No one questioned the eminence and distinction of any one of the members individually; it was the balance among the group that raised many eyebrows. 53

55

 

explaining success   875

Process and Timeline Panels do not fail or succeed simply on the strength of their ideas or the quality of their chairs and commissioners. Matters of organization, structure, resources (funding package and professional support personnel), process, and outreach can be just as crucial. The workload for the panel, research staff, and secretariat must be manageable and the deadlines have to balance being realistic and yet timely. Consultations with stakeholder constituencies provide an opportunity for listening to what the ‘market’ is saying and can bear, for ‘road-​testing’ ideas and recommendations as they emerge and develop, and for enhancing the legitimacy of the final product and encouraging broad buy-​in.58 The pattern of international composition, high-​profile leadership, contracted research, site visits to many countries for consultations with governments and civil society, and a dedicated professional secretariat, was well established by the Brandt, Palme, and Brundtland Commissions in the 1980s. ICISS meetings and roundtables were held in almost all continents and major capitals, involving continent-​wide representatives, over 200 in total, from all sectors and cross-​section of views.59 The Report reflected a genuine effort to incorporate many of the views that were expressed in Cairo, New Delhi, and Santiago as well as Beijing, London, Paris, and Washington. The views presented during the outreach exercise were sometimes used as tie-​breakers during deadlocked discussions in the Commission. In retrospect, as a final contextual comment, the one-​year time frame was probably a very useful discipline. This meant the momentum never flagged, ICISS worked to a tight deadline, and participants remembered where they had got to at the previous meeting and the progress that had already been made. Even for panels with more ambitious mandates like the High-​Level Panel on UN Reforms, a two-​year mandate should be adequate for the required research, consultations, production, and post-​publication marketing of a report.

Product To have traction and impact in the real world of policy, a panel’s report and recommendations must strive for several right balances: between a document that is 58   The ICISS effort “to engage a broad range of scholars and NGOs from a wide range of countries … was an attempt to establish legitimacy by means other than simply depending on the reputation of the core members of the commission”: Jon Pedersen, “Ideas, Think-​Tanks, Commissions, and Global Politics,” in International Commissions and the Power of Ideas, ed. Ramesh Thakur, Andrew F. Cooper, and John English (Tokyo: United Nations University Press, 2005), 274. 59   Commission meetings were held in Ottawa (November 2000), Maputo (March 2001), New Delhi (June 2001), Wakefield, Canada (August 2000), and Brussels (September 2001). Roundtables and consultative meetings were held, in chronological order, in Ottawa, Geneva, London, Maputo, Washington DC, Santiago, Cairo, Paris, New Delhi, Beijing, and St Petersburg.

 

876   high–level panels comprehensive, substantial, and intellectually weighty, and one that is readable in terms of brevity, succinctness, and accessible writing style; between pushing the envelope by testing the limits of politics with adventurous ideas and moving too far ahead of what is realistically possible within political and institutional constraints; and between staying focused on the specific mandate of the panel and not ignoring the wider context in which the particular proposals must be nested. In short, a balance between that which is ideally conceivable and desirable and that which is practically achievable and implementable. The Brandt Commission suffered because its social-​democratic vision of development was closely aligned to the ‘UN paradigm’ of social justice and development and too far removed from the neo-​liberal leanings of the Bretton Woods institutions that soon became dominant.60 The Commission on Global Governance had just too many recommendations, several of them too diffuse to attract the attention of the policy community or even the support of the intended beneficiaries in civil society. Similarly, Evans notes that the Blix Commission—​of which he was a member—​ of like-​minded members ended up with a wish-​list, whereas the International Commission on Nuclear Non-​Proliferation and Disarmament (ICNND)—​which he co-​chaired—​converted the same goals into more sharply prioritized action agendas for the immediate, medium, and long terms to a generally more favourable reception.61 The final product should be innovative and exciting. A  bumper-​sticker phrase that encapsulates the complex innovation and captures policy attention and popular imagination is enormously helpful. Among the two best examples are sustainable development and R2P. Phrases like ‘our global neighbourhood’ (Carlsson–​Ramphal) and ‘a culture of prevention’ (Carnegie) have lacked similar resonance, while ‘human security’ (Ogata–​Sen) had been popularized already by the UN Development Programme a decade earlier. Packaging is also important. The publication should be visually attractive, and contain a succinct executive summary and a good index.

Focus Panels that have something to say on everything are unlikely to be remembered for anything. ICISS stuck narrowly to its core mandate. It resisted the temptation to recast its report in light of the terrorist attacks of 11 September 2001, concluding that horrific and urgent as the latter was, self-​defence is conceptually and operationally distinct from the protection of at-​risk foreign populations. Nor did it urge amendments to the Security Council structure. If a panel’s mandated mission is too broad and fuzzy, the other details cannot compensate and the final result will be unhappy.   Therien, “Brandt Commission,” 28–​9.   

60

61

  Evans, “Commission Diplomacy,” 295–​6.

 

explaining success   877 Sponsoring governments and organizations should pay close attention therefore to the nature and importance of the problem to be addressed, whether a high-​level panel is the best instrument for addressing the problem, the clarity of the terms of reference for the panel in tackling the problem, the primary and secondary target audiences, and the chairs and panel members likely to have credibility in the target audiences.

Timing and Luck Sometimes panels may prove to have been ahead of their times and their ideational and normative impact may still exercise considerable influence years or decades later. The Palme Commission’s analysis and recommendations for advancing our common security was presented to a particularly inauspicious environment at the height of the Cold War in 1982 while, as already noted, the Brandt Commission’s attempt to redefine North–​South relations fell victim to the ascendancy of the neo-​ liberal consensus on the dominance of market principles. But their ideas regained circulation with the end of the Cold War, the heightened concern with international terrorism and nuclear security, and the growing consciousness of North–​South inequity—​exacerbated by the process of globalization—​and the links between poverty and security. Luck can prove critical with respect to the timing and outcome of elections and the movement of commission chairs and members into and out of government. The Canberra Commission delivered an excellent product but by then the Labor government had lost office and its successor had little interest in promoting its predecessor’s product. Without active government backing and advocacy, the report languished in the policy world, although it continued to attract considerable attention in civil society. The Brundtland Commission was fortunate in that its chair returned to Norway’s prime ministership and was able to harness the added profile and prestige of the office to the cause of selling the message. ICISS fell between these two extremes. The foreign and prime ministers changed but the Liberal Party stayed in power through the 2005 UN world summit. Prime Minister Paul Martin’s engaged advocacy was crucial to the inclusion of R2P in the summit’s outcome document. The change of government to the Conservatives in 2006 marked a retreat of Canada from visible ownership and active sponsorship of the norm. Timing was important to ICISS in two other respects as well. First, the series of humanitarian atrocities committed in Africa (Rwanda), Europe (the Balkans), and Asia (East Timor) in the 1990s, and the contrasting outcomes of a lack of intervention in Rwanda, unilateral intervention in Kosovo, and UN-​authorized but fitful intervention in East Timor, meant that ICISS was grappling with very much a major current controversy. Then, well into its process and just three months before its

 

878   high–level panels report was published the international agenda took a dramatic right-​turn to deal with the consequences of the terrorist attacks of 11 September 2001. It took the highly controversial and widely opposed US-​led invasion of Iraq in 2003 to rekindle passionate interest in a new global consensus on the circumstances in which the use of force to deal with humanitarian atrocities and serial atrocity perpetrators is both lawful and legitimate.62

Follow Through, Follow Up, and Norm Entrepreneurs, Brokers, Champions, Carriers, Spoilers A panel commissions and gathers research, deliberates, decides, writes, and then publishes its report. Sustained engagement and advocacy by key actors remains critical to success in the post-​report phase. The messages have to be communicated to multiple audiences around the world in policy and civil society settings. In addition to good communication skills, this also requires resources, organization, and champions. The report is neither the start nor the end of the process but the mid-​point. For it to have impact, it must be followed with a range of activities in key capitals, international forums, and other target audiences so that the story can be told of why the report matters, how its recommendations will address and solve the problem to hand, and what is the best way forward in implementing the recommendations. If the core problem was a gap in the normative architecture, as with the protection of atrocity victims, then the actors involved from start to finish might be divided into norm entrepreneurs, brokers, champions, carriers, and spoilers. An entrepreneur is someone who spots or identifies a gap or need in the market and organizes an enterprise to produce the missing good and sell it to potential buyers. In the case of R2P, the norm entrepreneurs, in this author’s judgement, were Kofi Annan who first most visibly and powerfully identified the normative gap that needed filling in his famous challenge of humanitarian intervention; Lloyd Axworthy who as foreign minister of Canada spotted the market opportunity to ‘organize the production’ of the missing norm; and co-​chairs Evans and Sahnoun. In addition, Francis Deng had earlier done yeoman’s work in reconceptualizing sovereignty as responsibility with respect to internally displaced persons.63 A broker is someone who bridges the needs and brings together the selling and purchasing price of the two parties involved in a transactional exchange, sometimes as an agent of one of the two parties. In an important sense this is the role that the 62   See Ramesh Thakur and Waheguru Pal Singh Sidhu (eds.), The Iraq Crisis and World Order: Structural, Institutional and Normative Challenges (Tokyo: United Nations University Press, 2006). 63   Francis Deng et  al., Sovereignty as Responsibility:  Conflict Management in Africa (Washington, DC: Brookings Institution Press, 1996).

 

explaining success   879 Brundtland Commission and ICISS played in bridging development and conservation, and sovereignty and intervention, through their formulations of ‘sustainable development’ and the ‘responsibility to protect’ respectively. ICISS brought together a number of disparate trends over several decades—​the change from inter-​state warfare by uniformed armies using tanks and battleships to international and transnational armed conflict fought with small arms; the deliberate targeting of civilians; the rise of an internationalized human conscience; the expansion of international humanitarian and human rights laws; the advances in technology that brought the horrors of atrocities into living rooms in real time—​in an innovative and coherent conceptual framework. ICISS put words to decades of deeds signifying inter­ national executive authority by the UN.64 A champion is someone who supports a cause and is prepared to defend it and fight for it. The role of a state champion is especially important. Had Labor not lost power in 1996, Evans would have ensured that Australia remained a state champion of the report of the Canberra Commission and its implementation fate might well have been different. Having Canada as a champion meant that the R2P principle had the necessary resources, organization, platform, and powerful voices advocating on behalf of it and seeing it through to unanimous endorsement in 2005. With individuals, in the Canberra Commission, this role was assumed by a previous sceptic on the cause of nuclear abolition, General Lee Butler, the former commander of the US Strategic Air Command.65 Once ICISS had published its report, the role of champion was taken on by Annan, Evans, Sahnoun, and Martin in the 2005 world summit process. Since 2007 Annan’s successor Ban Ki-​moon has been an equally committed champion of R2P, helping to crystallize, consolidate, and build broader consensus behind the norm. A carrier is someone who conveys a product from one place, person, or entity to another without claiming ownership of it at any time in the process. Civil society organizations—​in particular, the Global Centre for R2P and the International Coalition for R2P in New York, and the Asia–​Pacific Centre for R2P in Brisbane, working with their own global and regional networks—​have helped to disseminate, transmit, and clarify the norm to a broad global audience. The national focal points for R2P can also be described as norm carriers as can also, if in a more qualified sense, the various research centres and dedicated journals and book series devoted to R2P. Similarly, the Centre for Nuclear Non-​Proliferation and Disarmament based at the Australian National University is a carrier of the report of ICNND which had recommended the establishment of such a centre in order to

 Orford, International Authority and the Responsibility to Protect.   Marianne Hanson, “Regulating the Possession and Use of Nuclear Weapons,” in International Commissions and the Power of Ideas, ed. Ramesh Thakur, Andrew F. Cooper, and John English (Tokyo: United Nations University Press, 2005), 138; Evans, “Commission Diplomacy,” 297. 64 65

 

880   high–level panels monitor the implementation of authoritative outcomes and recommendations by the relevant states.66 A spoiler is someone opposed to the activity, agenda, or norm being introduced and organizes, either overtly or behind the scenes, to frustrate its implementation, and who must be co-​opted or neutralized. The overt state-​level spoilers who have consistently opposed R2P are just a handful:  Cuba, Nicaragua, Sudan, and Venezuela. In more recent times, since the NATO operation in Libya in wake of Security Council Resolution 1973, and particularly with respect to Syria in the 2011–​ 13 period, China and Russia also fall into the category of norm spoilers, at least in so far as R2P’s implementation is concerned.

Conclusion Attributes and factors that condition and determine the success and failure of high-​ level panels include their structural and operational features; the quality of leadership provided by their chairs; the breadth, depth, and diversity of expertise of their members; the organization of adequate financial and personnel resources to enable the necessary research and consultations to be undertaken; mission clarity and focus; and the full range of follow-​up dissemination, advocacy, and championing of the recommendations. While their operational impact can be diffuse, uncertain, and spread thinly over considerable periods of time, they can be important agents of change in global governance for projecting the power of ideas and processing them into new and improved policy, normative, institutional, and operational outcomes. For that reason, high-​level international panels and commissions will continue to be set up as instruments for improving deficient governance norms, arrangements, and practices to tackle important and urgent problems. At the same time, history suggests that fewer rather than more will succeed, and even the successful will depend on fortune smiling on them with respect to some matters that are beyond control. That said, they can improve their prospects of success by learning, no less than those in charge of national diplomacy, to operate as networks rather than clubs.67

66   See Ramesh Thakur and Gareth Evans (eds.), Nuclear Weapons: The State of Play (Canberra: CNND, 2013). 67   Jorge Heine, “From Club to Network Diplomacy,” in The Oxford Handbook of Modern Diplomacy, ed. Andrew F. Cooper, Jorge Heine, and Ramesh Thakur (Oxford: Oxford University Press, 2013), 54–​69.

 

Chapter 41

INTERNATIONAL ADJUDICATIVE BODIES Chiara Giorgetti

The past fifty years have seen a tremendous rise in international litigation. There are more parties who are more prone to use international law mechanisms to resolve their disputes, and more international actors have more forums available to them to which they can bring their disputes. Indeed, the multifaceted growth of international dispute resolution is one of international law’s most important and interesting recent developments. At the heart of this development are international adjudicative bodies, a diverse group of international bodies that have a common dispute settlement function, the outcome of which is binding on the parties. This chapter examines how, when, and over whom these bodies can exercise their function, as well as the nature and enforceability of their decisions.1

1   For an introduction to the issue, see Chiara Giorgetti (ed.), The Rules, Practice, and Jurisprudence of International Courts and Tribunals (Leiden:  Martinus Nijhoff, 2012); Ruth Mackenzie et  al., The Manual on International Courts and Tribunals (Oxford: Oxford University Press, 2010); and Cesare Romano, “The Proliferation of International Courts and Tribunals: the Pieces of the Puzzle,” New York University Journal of International Law and Policy 31 (1999): 709.

 

882   international adjudicative bodies

International Adjudicative Bodies: The Basics International adjudicative bodies include a variety of international courts and tribunals, claims and compensation commissions, arbitral tribunals, and ad hoc bodies.2 At their core and as a minimum, these bodies can issue decisions that are binding for the parties to which the decision is directed. The constitution of each body, applicable rules of procedure, the number and nomination procedure of decision-​ makers, and the way in which binding decisions are reached and become enforceable, however, differ greatly among these bodies. Indeed, the types of adjudicative bodies also vary greatly in terms of their subject matter jurisdiction, which can be general or specific; personal jurisdiction, which can encompass individuals, states, international organizations, and corporations; and geographical and temporal jurisdictions. The binding nature of their decisions differentiates adjudicative bodies from other international organization bodies that may exercise similar review and monitoring functions and possess some nonadjudicative means, but whose decisions are ultimately not legally binding. These bodies include international review, accountability, oversight, and audit mechanisms; human rights treaties and United Nations (UN) Charter bodies; and the compliance mechanisms of several multilateral environmental treaties.3 Because they are parts of international organizations, international adjudicative bodies also share some of the essential characteristics of international organizations: they are international actors, which means that they are generally created by international law and they are bound by it, and are generally detached from domestic law. Being international actors, their staff is constituted by international civil servants whose conditions of service are regulated by international instruments. Within their respective international organizations, adjudicative bodies resolve disputes between actors, and their decisions can result in an enforceable and mandatory act. However, the relevance of their dispute resolution function can vary 2  As the functions and structures of adjudicative bodies vary, there is no agreed taxonomy or agreed definition of this group. See Cesare P. R. Romano, “A Taxonomy of International Rule of Law Institutions,” Journal of International Dispute Settlement 2 (2011): 241; and Cesare P.R. Romano, Karen J. Alter, and Yuval Shany, Oxford Handbook of International Adjudication (New York: Oxford University Press, 2014). See also the 2004 synoptic table developed by the Project on International Courts and Tribunals. The table is now out of date, but still useful and available at http://​www.pict-​pcti.org/​publications/​synoptic_​chart/​synop_​c4.pdf. 3   Romano explains that “All bodies in the class of Non-​Adjudicative Means share the trait of producing outcome that are not binding. They are called ‘reports’ or ‘recommendations’ and do not create a legal obligation on their recipients who remain free to adopt them or ignore them”: Romano, “A Taxonomy of International Rule of Law Institutions,” 1.

 

international adjudicative bodies: the basics    883 substantially, from playing a core role within the organization to being in a peripheral, supportive position.

Diversity of Adjudicative Bodies International adjudicative bodies share several common characteristics. At their core, they are all neutral and independent bodies that resolve disputes through binding adjudicative means. These bodies are “made up of independent judges who are entrusted with adjudicating international disputes on the basis of international law according to a pre-​determined set of rules of procedures and rendering decisions which are binding on the parties.”4 The adjudicative process may vary substantially and include judicial and arbitral proceedings and decisions on international claims and compensations. Eventually, the outcome of the process is always legally binding for the parties. Adjudicative bodies typically hear cases where at least one of the parties is a state or an international organization. The parties to the dispute are also ensured a certain degree of participation in the process by some form of oral and written submissions. Because of the diverse nature, structure, jurisdiction, and competence of existing adjudicative bodies, a shared systematization is difficult. Still, it is possible to group them according to several common characteristics.

International Courts and Tribunals v. Arbitral and Other ad hoc Bodies First, it is possible to distinguish between judicial bodies, such as international courts and tribunals, and other arbitral and ad hoc bodies. Note that this difference is essentially descriptive, and not outcome-​determinative, as all these bodies ultimately issue binding decisions.

Judicial Bodies The paradigmatic example of an international judicial body is the International Court of Justice (ICJ), which Article 92 of the UN Charter defines as the “principle judicial organ” of the UN.5 Judicial bodies include international courts and tribunals which are permanent institutions made up of an existing and permanent judiciary. These kinds of bodies are generally created before the dispute between the parties arose.6 4   Christian Tomuschat, “International Courts and Tribunals,” Max Planck Encyclopedia of Public International Law (online edition, available at opil.ouplaw.com/​home/​EPIL), para. 1. 5  In general, see Sean Murphy, “The International Court of Justice,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 6   See Cesare P. R. Romano, Karen J. Alter, and Yuval Shany, “Mapping International Adjudicative Bodies, the Issues and the Players,” in Oxford Handbook of International Adjudication, ed. Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (New York: Oxford University Press, 2014), 5.

 

884   international adjudicative bodies Judicial bodies include diverse kinds of international courts and tribunals such as the International Criminal Court (ICC), the European Court of Human Rights (ECtHR), International Tribunal for the Law of Sea (ITLOS), and the Administrative Tribunal of the International Monetary Fund.

Arbitral Bodies and Other ad hoc Bodies Separate from pure judicial bodies are other kinds of dispute resolution bodies that can issue legally binding decisions, but do not enjoy the characteristics of judicial bodies as described above. Typically, these bodies are not permanent, but temporary, and are often created after the dispute has arisen, with the aim of deciding one particular issue or dispute. These bodies include international arbitration tribunals, international claims and compensation bodies and other ad hoc bodies whose final decision, regardless of whether it is issued as an award, decision or report, is ultimately binding on the parties.7 International arbitration tribunals are temporary tribunals in which the parties enjoy a high degree of freedom and control. Parties can choose the arbitrators who decide the dispute—​who, once appointed, must decide independently.8 Parties are also generally free to decide both the substantial and procedural applicable law. Arbitral tribunals cease to exist once the reason for their creation is exhausted and the award issued. International organizations include several structures that facilitate the formation and work of international arbitration, including the International Centre for Settlement of Investment Disputes (ICSID), an autonomous international institution which is part of the World Bank Group established under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention).9 Similarly, the Permanent Court of Arbitration (PCA), established in 1899 to facilitate arbitration and other forms of dispute resolution between states, offers a permanent framework to constitute international arbitral tribunals to resolve many different kinds of disputes involving states, state entities, intergovernmental organizations, and private parties. Other ad hoc bodies are created by agreement of the parties after a dispute has arisen between them. Because of their unique genesis, their jurisdiction and rules of procedure vary. Important examples of ad hoc quasi-​judicial bodies include several international claims and compensation bodies. For example, the Iran–​US Claims Tribunal was created in 1981 to adjudicate thousands of complex commercial and   See, in general, José E. Alvarez, “Dispute Settlement by ‘Quasi-​judicial’ and ‘Judicial’ Bodies,” in International Organizations as Law-​Makers, ed. José E. Alvarez (Oxford: Oxford University Press, 2006). 8   On the ramifications of this situation, see C. Giorgetti, “Who Decides in International Investment Arbitration?,” University Of Pennsylvania Journal of International Law 35 (2014): 431. 9  See the very comprehensive website of the ICSID Secretariat, at https://​icsid.worldbank.org/​ ICSID/​Index.jsp. See also Carolyn Lamm, Chiara Giorgetti, and Mairée Uran-​Bidegain, “International Centre for Settlement of Investment Disputes,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 7

 

international adjudicative bodies: the basics    885 international law claims between Iran and the United States and their nationals arising out of the 1979 Revolution in Iran.10 Another important ad hoc judicial body, the UN Compensation Commission (UNCC), was created by a UN Security Council (UNSC) resolution to compensate individuals, international organizations, corporations, and UN member states for losses resulting from Iraq’s unlawful invasion and occupation of Kuwait in 1991.11 Also, several important ad hoc bodies were created under the aegis of the PCA, including the Eritrea–​Ethiopia Boundary Commission and the Eritrea–​Ethiopia Claims Commission—​both created to resolve dispute arising from the Ethiopia–​Eritrea 1998–​2000 war.

Subject Matter Jurisdiction Second, international adjudicative bodies can also be usefully distinguished by focusing on their subject matter jurisdiction. Most of these bodies have very specific jurisdiction, while the competence of others is more general.

General Jurisdiction The ICJ, the “principle judicial organ” of the UN, is the main example of court of general jurisdiction. In contentious proceedings, the court is open to states parties to its Statute.12 Article 36 of the Statute specifies that the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the UN Charter or in treaties and conventions in force.13 States parties can also accept at any time compulsory jurisdiction of the Court for specific legal disputes concerning the interpretation of treaties or other questions of international law.14 The ICJ has decided cases related to territorial and maritime boundaries, rules on state responsibility, the immunities of states and state officials, the use of force, diplomatic and consular law, and the law of the sea and environmental law.  Jeremy K. Sharpe, “The Iran United States Claims Tribunals,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 11   Timothy J. Feighery, “The United Nations Compensation Commission,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden:  Martinus Nijhoff, 2012). 12   Note that the ICJ is also entrusted with advisory jurisdiction, see “Advisory Opinions” later in this chapter. 13   Art. 36, ICJ Statute, available on the website of the ICJ: http://​www.icj-​cij.org/​documents/​index. php?p1=4&p2=2&p3=0. 14   Ibid. This states at paras. 1 and 2 that: “1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d.  the nature or extent of the reparation to be made for the breach of an international obligation.” 10

 

886   international adjudicative bodies Adjudicative bodies with general jurisdiction can also be established under the aegis of the PCA.15 The PCA provides maximum flexibility to the parties and is an “administrative organization with the object of having permanent and readily available means to serve as the registry for the purpose of international arbitration.”16 The PCA provides administrative support and secretarial and registry services for many international investment tribunals, state–​state arbitration, and several ad hoc bodies.

Specific Subject Matter Jurisdiction The great majority of adjudicative bodies have a much more specialized subject-​ matter jurisdiction, including international criminal law, human rights, international trade law, and law of the sea. International criminal law Three international judicial bodies have specific jurisdiction on certain international criminal law violations. The ICC is located in The Hague, in The Netherlands, and presently has jurisdiction to prosecute certain individuals for three specific international crimes: genocide, crimes against humanity, and war crimes.17 Similarly, two other specialized international tribunals have jurisdiction over certain international crimes. The International Criminal Tribunal for the former Yugoslavia (ICTY) was created by the UN Security Council in 1993 to prosecute and try individuals on four categories of crimes: grave breaches of the 1949 Geneva Conventions, violations of the laws and customs of war, genocide, and crimes against humanity committed in the territory of the former Yugoslavia.18

15   On the PCA, see Brooks W. Daly, “Permanent Court of Arbitration,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 16   Shabtai Rosenne, The Hague Peace Conference of 1899 and 1907 and International Arbitration: Reports and Documents (The Hague: TMC Asser Press, 2001), xxi. 17   In general for the ICC, see David Stewart, “The International Criminal Court,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). Note that the jurisdiction of the ICC is limited to individuals who are nationals of a state party to the ICC Statute, or to crimes that took place in the territory of a state party. Under limited circumstances the UN Security Council can refer situations to the ICC. The complementary principle further reduces the scope of the jurisdiction of the ICC. Starting in 2017, the jurisdiction of the ICC will also include limited forms of aggression. See also the website of the ICC, which contains all main and relevant legal documents as well as information on all of its cases: http://​www.icc-​cpi.int/​Pages/​ default.aspx. For an overview of the jurisdiction of the ICC on the crime of aggression, see M. Politi, “The ICC and the Crime of Aggression: A Dream that Came through and the Reality Ahead,” Journal of International Criminal Justice 10 (2012): 267, as well as the website of the ICC. 18  See, generally, Santiago Villalpando, “The International Criminal Tribunals for the former Yugoslavia,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). The website of the ICTY is a great resource for all primary legal documents: http://​www.icty.org/​sid/​319.

 

international adjudicative bodies: the basics    887 Finally, the International Criminal Tribunal for Rwanda (ICTR) was created in 1994 to prosecute all alleged perpetrators of genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and of Rwandan citizens responsible for the same acts also in the territory of neighboring states between January 1, 1994 and December 31, 1994.19 Human rights A number of regional courts also have specialized subject matter jurisdiction over allegations of human rights violations brought by individuals against a state. The ECtHR, for example, can hear cases brought by individuals related to alleged violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by one of the member states.20 All forty-​seven members of the Council of Europe have ratified the ECHR, extending its protections to about 800 million people who live in Europe. The jurisdiction of the ECtHR includes violations of the right to life; the right to a fair hearing; the right to respect for private life and family; freedoms of expression, thought, conscience, and religion; and the protection of property.21 Similarly, the Inter-​American Court of Human Rights has specialized jurisdiction over the interpretation and application of the American Convention on Human Rights, which grants individuals certain basic human rights.22 The Court has heard cases concerning forced disappearances, the death penalty, armed conflict, judicial independence, amnesty laws, and freedom of expression. International administrative tribunals A group of increasingly relevant tribunals are competent to hear cases brought by the employees of international organizations against their employers on issues related to their employment with the organization.23 Such tribunals are important because international organizations generally enjoy immunity from suit or legal process, and employees would not therefore be able to sue their employer in domestic courts. Moreover, the creation of specialized administrative tribunals also  On the ICTR, see Robert D. Sloane, “The International Criminal Tribunal for Rwanda,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 20  See Christiane Bourloyannis-​Vrailas, “The European Court of Human Rights,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 21   See website of the ECtHR: http://​www.echr.coe.int/​Pages/​home.aspx?p=home. 22   See Christina M. Cerna, “The Inter-​American Commission on Human Rights and the Inter-​ American Court of Human Rights,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 23   See Olufemi Elias and Melissa Thomas, “Administrative Tribunals of International Organizations,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 19

 

888   international adjudicative bodies allows a certain degree of uniformity in the application of employment contracts common to staff members from many different domestic jurisdictions. Because of the specialized nature of these tribunals, the peculiarity of their procedure, the increasingly relevant case law, and the lack of alternative forums, international administrative tribunals constitute an important group of judicial bodies. Most international organizations include such tribunals. Main examples include: the UN Dispute Tribunal, the UN Appeals Tribunal, the Administrative Tribunals of the International Monetary Fund, the World Bank, the Inter-​American Development Bank, the African Development Bank, and the International Labour Organization Administrative Tribunal, which also acts as a tribunal for fifty-​eight other international organizations.24 Other judicial bodies of specialized jurisdiction Other bodies enjoying specialized subject matter jurisdiction include ITLOS, which has jurisdiction on law of the sea issues arising out of the UN Convention on the Law of the Sea (UNCLOS), and the Appellate Body of the World Trade Organization (WTO) which is competent to hear appeals from decisions of panels concerning violations of the WTO agreements.25

Territorial Scope: Global v. Regional Bodies Another useful way to group adjudicative bodies is to distinguish between global and regional bodies. The ICJ, WTO Dispute Settlement Body (DSB), and ITLOS are all examples of global bodies. Their jurisdiction is not regionally based or regionally restricted. Conversely, regional bodies cover disputes in specific and limited geographic areas. Human rights judicial bodies are typically regionally based. The jurisdiction of the ECtHR is limited to matters “concerning the interpretation and application” of the European Convention on Human Rights and its protocols, which is only open to ratification by members of the Council of Europe and to accession by the European Union.26 The jurisdiction of the Inter-​American Commission on Human Rights is likewise limited to member states of the Organization of American States.

24  Including the World Health Organization, the International Telecommunication Union, the World Trade Organization, and the Food and Agriculture Organization, see Elias and Thomas, “Administrative Tribunals.” 25   See Gregory J. Spak and Gisele Kapterian, “The World Trade Organization,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 26  Art. 32(1) Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 UNTS 222.

 

international adjudicative bodies: the basics    889 Similarly, several specialized judicial bodies hear disputes pertaining to regional economic and political integration agreements. For example, the European Court of Justice is competent to hear cases related to the implementation of European Union treaties, whose members are European states. Other judicial bodies of regional economic integration agreements include the Court of Justice of the Andean Community, which is the dispute resolution body of the Andean Community; the Permanent Review Tribunal of the Southern Common Market, established by the governments of Argentina, Brazil, Paraguay and Uruguay; and the Court of Justice of the Common Market for Eastern and Southern Africa, which includes nineteen African countries.27 The restriction of territorial scope can also result from the specialized jurisdiction of particular judicial or quasi-​judicial bodies. For example, the territorial jurisdiction of the ICTY is limited to the territory of the former Yugoslavia. The ICTR can only prosecute individuals responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda in 1994, and Rwandan citizens responsible for the same crimes committed in the territory of neighboring states in the same period.

Temporal Scope: Prospective v. Retrospective Bodies International adjudicative bodies can be also usefully categorized by the temporal scope of their jurisdiction. Certain adjudicative bodies enjoy general prospective jurisdiction, so that they only hear disputes that arose after they were created. These include the ICJ, ITLOS, ICC, ECtHR, and administrative tribunals of international organizations. Conversely, the jurisdiction of other bodies is limited and retrospective, so that it applies to events that took place prior to the creation of the body. Retrospective jurisdiction is common to the ICTR, ICTY, the UNCC, and the Iran–​US Claims Tribunal.28 The instrument creating the specific adjudicative body generally provides for the temporal scope. Of note, the 1993 Security Council resolution creating the ICTY provided that it had jurisdiction for crimes committed “since 1991” leaving the end date for the tribunal to determine.29

27  Jennifer Thornton, “Court and Tribunals of Regional Economic Integration Agreements,” in The Rules, Practice, and Jurisprudence of International Courts and Tribunals, ed. Chiara Giorgetti (Leiden: Martinus Nijhoff, 2012). 28   See David Caron, “Towards a Political Theory of International Courts and Tribunals,” Berkeley Journal of International Law 24 (2006): 401. 29   UNSC Res. 808 of February 22, 1993. See also Updated Statute of the International Criminal Tribunal for the former Yugoslavia, Arts. 1 (Competence of the International Tribunal) and 8 (Territorial and temporal jurisdiction): http://​www.icty.org.

 

890   international adjudicative bodies

Creation and Structural Arrangements The diversity of international adjudicative bodies is also reflected in their varied designs and structural arrangements. This is exemplified by the different ways in which these bodies are created and by the place they occupy within the international legal system.

How Are Judicial and Quasi-​Judicial Bodies Created? Adjudicative bodies can be created in a variety of different ways: by a specific international treaty, through the instrument that created their parent international organization, by resolution of the UN Security Council, or by the parties to the dispute themselves. Only a few international adjudicative bodies have been purposely created by a specific treaty, after extensive negotiations between the parties. For example, the Rome Statute of the International Criminal Court is a treaty that created the ICC. The Statute is the result of years of intense negotiations, and was adopted at a diplomatic conference held in Rome in 1998 and entered into force in July 2002.30 More often, the establishment of such bodies is provided for in the instrument that created the international organization within which the body exercises its functions. So, for example, as mentioned above, the ICJ was established by the UN Charter, the instrument that created the UN.31 Similarly, the creation of ITLOS is included in UNCLOS.32 Other international treaties that create international organizations and that establish one or more adjudicative bodies include the WTO, which created a dispute settlement system and the WTO Appellate Body, and the ECHR, which established the ECtHR. Treaties that created the European Union also established a system of courts to monitor the implementation of their obligations. Often the parties themselves create ad hoc adjudicative bodies, following applicable international obligations and rules of procedure. This is the case of international arbitral tribunals constituted under the ICSID Convention, for example, and arbitral tribunals constituted under the North American Free Trade Agreement (NAFTA). Rarely, high-​profile adjudicative bodies can be created by UN Security Council resolutions. For example, both the ICTY and ICTR were created by resolutions of the Security Council acting under Chapter VII of the UN Charter. Some adjudicative bodies are created by unique means. Among the most peculiar are the Iran–​US Claims Tribunal and the Eritrea–​Ethiopia Claims and Boundaries Commissions. The establishment of the Iran–​US Claims Tribunal was incorporated

30  Rome Statute of the International Criminal Court, UN, 2187 UNTS 3:  http://​treaties.un.org/​ Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=XVIII-​10&chapter=18&lang=en. 31   The text of the UN Charter is available at the website of the UN: http://​www.un.org/​en/​. 32   See ITLOS website: http://​www.itlos.org/​index.php?id=2&L=0.

 

international adjudicative bodies: the basics    891 in a 1981 Declaration of the Democratic and Popular Republic of Algeria Concerning the Settlement of Disputes, to which Iran and the US formally adhered. Algeria acted as a broker and mediator between the United States and Iran, who were at the time unwilling to negotiate directly.33 The Eritrea–​Ethiopia Boundary and Claims Commissions were created and operated as independent bodies pursuant to Articles 4 and 5 of the Agreement between the Governments of the State of Eritrea and the Federal Democratic Republic of Ethiopia, signed in Algiers on December 12, 2000 and which also included several other commitments related to the cessation of hostilities between the two countries.34

The Place of Adjudicative Bodies in the International Community International adjudicative bodies occupy diverse places within the international community and other international legal actors. Essentially, they can either stand alone, as a distinct international actor, or can be embedded in an international organization with broader functions.

Stand-​Alone Bodies Some judicial or quasi-​judicial bodies stand alone. Though they may engage in relationships with other members of the international community, they do not depend on or report to them, and are not functionally or financially attached to any other international organization. This is the case of the ICC, which is an independent organization. The Assembly of State Parties, composed of the states that have ratified or acceded to the Rome Statute, is the Court’s management, oversight, and legislative body. Uniquely, the UN Security Council can refer specific situations of concern to the Prosecutor for possible actions. This special relation is provided in the ICC Statute and does not derive from a dependent relation with the UN.35 Another important example of a stand-​alone judicial body is the Iran–​US Claims Tribunal, which was created by the parties with a specific mandate to hear cases between them. Ad hoc arbitration tribunals are also often independent bodies that act separately from other international organizations, though they may be assisted by them. The Eritrea–​Ethiopia Boundary and Claims Commissions are examples of these   “Declaration of the Democratic and Popular Republic of Algeria Concerning the Settlement of Disputes of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, January 19, 1981,” 20 ILM 223 (1981). 34  “Agreement between the Governments of the State of Eritrea and the Federal Democratic Republic of Ethiopia, signed in Algiers on December 12, 2000”:  http://​www.pca-​cpa.org/​showpage. asp?pag_​id=1151. 35   See ICC, “About the Court,” http://​www.icc-​cpi.int. The ICC Statute specifies that the Court “shall have international legal personality” (Art. 4). Article 2 provides that “The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of the States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.” 33

 

892   international adjudicative bodies arrangements, as they were created as independent bodies, though the PCA provided secretarial and other administrative support.

Part of an International Organization More often, adjudicative bodies are part of an international organization and function within it. In these instances, the dispute resolution function can be directed to either external or internal matters. Certain bodies are organs of the international organization. The ICJ, as provided in Article 7 of the UN Charter, is a principal organ of the UN, while both the ICTY and ICTR are subsidiary organs of the Security Council.36 Importantly, these bodies maintain significant links to the organization to which they are parties, including on issues of funding and personnel. The dispute resolution system of the WTO is peculiar as it contains elements of both categories. It comprises two bodies. At first, disputes between WTO member states are submitted to a DSB panel, whose expert members are selected in consultation with the parties to the dispute. The Appellate Body, conversely, is a standing organ composed of seven members who sit in three-​person panels, and that can hear appeals on legal issues covered in the report of the ad hoc panel.37 Another group of adjudicative bodies provides internal justice. Administrative tribunals of international organizations are standing organs, composed of permanent judges who can only hear cases related to personnel issues. They provide justice on matters that are internal and proper to the specific international organization.

What Do International Adjudicative Bodies Do? The primary function of international adjudicative bodies is to provide a final and legally binding outcome to specific international disputes brought to them by eligible parties. Naturally, the scope of the disputes depends on the jurisdiction of the specific body, and thus differs substantially from body to body.

 Art. 7, UN Charter—​stating “1. There are established as the principal organs of the United Nations:  a General Assembly, a Security Council, and Economic and Social Counsel, a Trusteeship Council, and International Court of Justice, and a Secretariat. 2.  Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.” 37   See Romano, “A Taxonomy of International Rule of Law Institutions,” 18. 36

 

what do international adjudicative bodies do?    893 Overall, international law disputes often concern alleged violations of international obligations and the interpretation of general or specific treaties applicable to the parties. These can include human rights conventions, international criminal law treaties, general instruments like the UN Charter, or international customary law and general principles of law. It may also include the interpretation of other international instruments in force between the parties, including contract terms in case of investment arbitration, or labor law for administrative tribunals. As provided by Article 38 of the ICJ Statute, in taking its decisions, the ICJ applies: international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; and … judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.38

Other judicial and quasi-​judicial bodies often refer to this provision and take it into consideration in their decisions, together with other applicable sources of law. Procedures and competence are specific to each judicial and quasi-​judicial body and require a focused analysis.39 Several common issues, however, can be usefully considered.

Proceedings By and large, proceedings include a written and oral phase. Written pleadings can either be simultaneously exchanged or can be sequential. There is always an opportunity to reply. At the ICJ, for example, the written phase includes a Memorial submitted by the applicant, a Counter-​Memorial submitted by respondent, generally followed by a Reply by the applicant and a Rejoinder by the respondent.40 Parties submit substantial evidence to support their cases, including primary and contemporary documents, historical records, and expert and legal opinions. The initial written phase can take quite a long time, often a couple of years, especially if the respondent challenges the tribunal’s jurisdiction and the proceedings are bifurcated   Art. 38 of the ICJ Statute.   For a focused and comprehensive analysis of several of these bodies, see Ruth Mackenzie et al., Manual on International Courts and Tribunals, 2nd ed. (Oxford:  Oxford University Press, 2010); Giorgetti (ed.), The Rules, Practice, and Jurisprudence of International Courts and Tribunals; and “The Project on International Courts and Tribunals,” http://​www.pict-​pcti.org. 40   Art. 45 of the Rules of the Court provides that “the pleadings in a case begun by means of an application shall consist, in the following order, of: a Memorial by the applicant; a Counter-​Memorial by the respondent.” And that “the Court may authorize or direct that there shall be a Reply by the applicant and a Rejoinder by the respondent if the parties are so agreed, or if the Court decides, proprio motu or at the request of one of the parties, that these pleadings are necessary”: Rules of The Court (1978), http://​www.icj-​cij.org/​documents/​index.php?p1=4&p2=3&p3=0. 38 39

 

894   international adjudicative bodies between the jurisdictional and merits phases. Oral proceedings follow the written exchanges and provide an opportunity for parties to plead their case directly in front of the decision-​makers and answer any questions they may have. Depending on the tribunal, during the hearings experts and witnesses may be heard and examined. Hearings are rarely confrontational, though. They are often condensed to a few full days or weeks and require intense preparation by all involved.

Issuing Judgments and Orders International adjudicative bodies can issue a variety of decisions. Orders are interlocutory decisions taken to administer proceedings, including procedural calendars or the collection of evidence. Orders can also be issued in response to a request for preliminary (or interim) measures of protection to preserve the respective rights of the parties.41 In the LaGrand case, the ICJ confirmed that preliminary measures have a binding effect on the parties to the case and must be applied.42 If the proceedings are bifurcated, the court or tribunal first decides on whether it has jurisdiction to decide the case, and decides then on the merits of the case. Final judgment must include the reasons for the decision. Deliberations are secret and decisions are taken by a majority of judges, with a casting vote of the President when necessary. Dissenting and separate opinions are often appended to the final decisions.43

Limited Appeals International judicial proceedings do not normally include the possibility of appeal. However, there are some exceptions. Decisions by the trial chambers of international criminal bodies, for example, can be appealed by both the defendant and the prosecutor to the Appeal Chamber. The Grand Chamber of the ECtHR can hear cases referred to it by one of the parties within three months of the decision of a   e.g., see Art. 41 of the ICJ Statute.   LaGrand (Germany v United States of America) Provisional Measures, Orders of March 3, 1999, ICJ Reports 1999, 9. 43   See Art. 55 of the ICJ Statute. On dissenting opinions in international investment arbitration, see Alan Redfern, “Dissenting Opinions in International Commercial Arbitration: The Good, the Bad and the Ugly,” Arbitration International 20 (2004): 223; and A. J. van den Berg, “Dissenting Opinions by Party-​Appointed Arbitrators in Investment Arbitration,” in Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, ed. Mahnoush H. Arsanjani et al. (Leiden, Boston: Martinus Nijhoff, 2011). 41

42

 

what do international adjudicative bodies do?    895 chamber, if it decides that the case raises a “serious question” of general importance or of interpretation or application of the ECHR.44 The Appellate Body of the WTO can hear appeals on legal issues covered in the report of the experts’ panel.45 Proceedings may also include other forms of post-​judgment remedies. At the ICJ, for example, parties may apply for interpretation or revision of the judgment if decisive new facts are discovered.46 The ICSID Convention provides for limited review of a decision in special annulment proceedings based on limited grounds enumerated in the ICSID Convention itself.47

Remedies and Reparations When an international adjudicative body finds that there has been a violation of international law, it can issue a judgment, award, or decision ordering different types of reparation. Article 34 of the International Law Commission’s Draft Articles on State Responsibility provides that reparation for the injury caused by an internationally wrongful act can take the form of “restitution, compensation and satisfaction.”48 Full restitution (restitutio ad integrum) is the preferred method in international proceedings, but often re-​establishing the situation which existed before the wrongful act was committed is either materially impossible or excessively burdensome on the parties. In such cases, monetary compensation for the damage caused is often used as a form of reparation in proceedings between states, arbitration tribunals, and many judicial and quasi-​judicial bodies. In addition to compensation for damages and restitution, human rights tribunals can also request that states which have violated the convention prevent similar violations in the future. This will require the state to adopt the necessary individual or general measures, including amendment of domestic legislation. In the Barrios Altos case, for example, in addition to requiring the payment of compensation, the Inter-​American Court of Human Rights required Peru to grant families of the victims free health care and educational support; repeal two amnesty laws; establish the crime of extrajudicial killing domestically; ratify a relevant international convention; publish the judgment in the national media; publicly apologize and undertake to prevent similar events in the future; and erect a memorial monument to the victims.49   Art. 43 of the ECHR.   See Romano, “A Taxonomy of International Rule of Law Institutions,” 18. 46 47   Arts. 61 and 62 of the ICJ Statute.   Art. 52 of the ICSID Convention. 48  Art. 34, Responsibility of States for Internationally Wrongful Acts, General Assembly (GA) Res. 56/​83 of December 12, 2001, UN Doc. A/​56/​49. 49   Barrios Altos Case, Judgment of November 30, 2001, Inter-​Am Ct HR (Ser. C) No. 87 (2001), http://​www1.umn.edu/​humanrts/​iachr/​C/​87-​ing.html. 44 45

 

896   international adjudicative bodies International criminal tribunals are of course very different in this respect. Individuals who are found guilty of violations of international criminal law are given prison terms that can go up to life imprisonment. Because international criminal tribunals lack a prison system, prison sentences are carried out in facilities situated in member states.

Enforcement and Implementation Mechanisms Compliance with international decisions relies substantially on general respect for international law, peer pressure, and possible political or financial repercussions for non-​compliance. Despite skepticism, the great majority of decisions are implemented and enforced voluntarily by the parties, who have generally agreed to be bound by the adjudicative body’s decision. When compliance does not come voluntarily, however, it may be difficult to compel. Indeed, the lack of effective enforcement procedures is probably one of the weakest points of the adjudicative system. For example, under Article 94 of the UN Charter, member states undertake to comply with the decisions of the ICJ in cases in which they are party. If a party fails to perform its obligations “the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”50 The Security Council was only going to be asked once, by Nicaragua, to make a recommendation in this respect, but the decision was vetoed by the United States, a permanent member, against which the ICJ judgment had been given in absentia.51 Some bodies have established stricter and more efficient enforcement proceedings. For example, judgments of the ECtHR finding violations are transmitted to the Committee of Ministers of the Council of Europe for execution. The judgment then remains on the agenda of the Committee until it is satisfied that it has been properly enforced. In several ad hoc proceedings, including those of the Iran–​US Claims Tribunal and the UNCC, the parties provided for special mechanisms to enforce payment of compensation. Awards issued under the ICSID Convention are enforceable in the territory of all contracting states as if they were final judgment of a court in that state.52

  Art. 94 of the UN Charter.   See UNSC Doc. S-​18428 on October 28, 1986: http://​www.un.org/​depts/​dhl/​resguide/​scact_​veto_​ en.shtml. 52   Art. 54 of the ICSID Convention. 50 51

 

how do judicial and quasi-judicial bodies work?    897

Advisory Opinions In addition to their adjudicative function, some judicial bodies can also give advisory opinions on certain legal questions. For example, the ICJ can issue advisory opinions on legal questions at the request of the organs of the UN or specialized agencies authorized to make such a request. ITLOS, ECtHR, and the Inter-​American Court of Human Rights can also render nonbinding advisory opinions, when requested by authorized actors.53

How Do Judicial and Quasi-​Judicial Bodies Work? Structure of Judicial and Quasi-​Judicial Bodies The essential constitutive components of international adjudicative bodies are similar and include a number of decisions-​makers; a secretariat, who acts as a support structure that enables the body to function; and, often an assembly body comprising member states.

Who Are the Decision-​Makers? At the center of all adjudicative bodies are the decision-​makers, who can be given a variety of titles, including judges, arbitrators, members, and commissioners. They are responsible for the final decision and resolution of a dispute. Decisions-​makers in international adjudicative bodies are often called to decide complex and sensitive issues and are highly regarded and respected individuals, often at the pinnacle of their legal careers. Importantly, they all sit in their personal capacity and independently from any government, appointing authority, or domestic court. The Statute of ITLOS, for example, requires all judges to be “independent members” of the Tribunal.54 Similarly, the ICSID Convention requires that all arbitrators “may be relied upon to exercise independent judgment.”55 53   See Art. 138 of the ITLOS Rules, Art. 47 of the ECHR, and Art. 64 of the American Human Rights Convention. 54   Art. 2 of the Statute of ITLOS, http://​www.itlos.org. 55   Art. 14 of the ICSID Convention, https://​icsid.worldbank.org/​ICSID/​Index.jsp.

 

898   international adjudicative bodies The composition of these collective bodies varies. The ICJ, for example, has fifteen members,56 while ITLOS has twenty-​one members.57 Uniquely, the ECtHR is composed of the same numbers of judges as there are state parties to the ECHR, presently forty-​seven.58 Membership is often restricted by nationality and geographical distribution, so that, in the case of the ICJ for example, “no two [members] may be nationals of the same State.”59 Additionally, a fair representation of “the main forms of civilizations and of the principle legal systems of the world” is often required in international bodies.60 There are three overall mechanisms to select international judges, arbitrators, or commissioners: by election, by a neutral authority, or by the parties to the dispute. First, judges in international courts are nominated, often by a national nominating committee, and then elected by a decision-​making body of an international organization, for example the General Assembly and the Security Council of the UN. Judges of the ECtHR are elected by majority of the Parliamentary Assembly of the Council of Europe from lists of three candidates proposed by each state party. Because of the prestige and status of international decisions-​makers, especially within the UN system, elections are complex and important, and states can spend significant resources to get their candidates elected.61 The election of judges takes place in all international courts and tribunals, including ITLOS, ICC, ICTY, ICTR, ECtHR. Judges are elected for a specific amount of time. For example, judges at the ICJ and ITLOS are elected for nine years and can be re-​elected. Judges at the ECtHR serve for one non-​renewable term of nine years. Elections are typically staggered, so that a small number of judges are elected every three years or so, so as to allow both renewal and consistency. Second, arbitrators can be selected by a neutral third party under certain circumstances, including inaction by one of the disputing parties, the selection of the president of the tribunal, and the selection of members of ad hoc committees. A  neutral appointing authority can also be tasked with the selection of specific arbitrators. Third, and finally, in most international arbitrations, the parties themselves can select their own arbitrators, as it happens in ICSID and NAFTA proceedings. Parties can also select ad hoc judges at the ICJ in certain circumstances.62

57   Art. 2 of the ICJ Statute.   Art. 2 of the Statute of ITLOS, http://​www.itlos.org.   Art. 21 of the ECHR, http://​www.echr.coe.int/​Documents/​Convention_​ENG.pdf. 59   Art. 3 of the ICJ Statute. 60   See Art. 9 of the ICJ Statute and Art. 2 of the ITLOS Statute. 61   Ruth Mackenzie et al., Selecting International Judges: Principles, Process and Politics (Oxford: Oxford University Press, 2010). 62   Claudia T. Salomon, “Selecting an International Arbitrator:  Five Factors to Consider,” Maeleys International Arbitration Report 17 (October 2002):  10; Constantine Partasides, “The Selection, Appointment and Challenge of Arbitrators,” Vindobona Journal 5 (2001): 217. 56 58

 

how do judicial and quasi-judicial bodies work?    899 In some cases two methods are used to select the final members of the arbitral tribunal. International investment tribunals, for example, are generally composed of three members. Commonly, two of the three arbitrators are unilaterally selected by the parties, with each party appointing one arbitrator. The third arbitrator and presiding arbitrator is selected by agreement of the party, or, more often, by an appointing authority.63 In addition to providing a framework that specifies how to select judges and arbitrators, applicable rules of procedure also require judges and arbitrators to possess certain legal qualifications and competences, which are often quite general. Judges of the ICJ, for example are “elected regardless of their nationality, from among persons of high moral character, which possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competences in international law.”64 Judges of the ECtHR must be “of high moral character” and “either possess the qualifications required for appointment to high judicial office or be jurisconsultants of recognized competence.”65 Under the ICSID Convention, arbitrators must be persons of “recognized competence” in the fields of law in particular, and commerce industry or finance.66 More recently, newly constituted courts and tribunals have added more detailed requirements. For example, the ICC Statute requires judges to have expertise in criminal law and procedure or, alternatively, to have expertise in international humanitarian law and human rights law.67 ITLOS’s judges are elected from among persons “enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.”68 The elections and nominations of international judges and arbitrators have at times been criticized for lack of diversity, and especially for the paucity of women judges and arbitrators. Uniquely, the ICC Statute has tried to address this issue by requiring a fair representation of female and male judges in its Court.69

Secretariats and Registries Secretariats and registries provide essential, albeit often underestimated, support to the work of international adjudicative bodies. In addition to administrative support, they also register, service, and keep track of all cases, deal with requests from the parties, and manage financial issues. For example, the tasks of

64   Art. 37 of the ICSID Convention.   Art. 2 of the ICJ Statute.   Art. 21 of the ECHR Statute. 66   Art. 14(1) of the ICSID Convention. In general, see Karel Daele, Challenges and Disqualification of Arbitrators in International Arbitration (Leiden: Kluwer Law International, 2011), 84. 67   Art. 36 of the ICC Statute, A/​CONF.183/​9, adopted on July 17, 1998 and entered into force July 1, 2002 (requiring geographical distribution and representation of the principle legal systems of the world, as well as a fair representation of female and male judges). 68 69   Art. 2 of the Statute of ITLOS, http://​www.itlos.org.   Art. 36 of the ICC Statute. 63

65

 

900   international adjudicative bodies the Registrar of the ICJ “are not only those of a service helping in the administration of justice—​with sovereign States as litigants—​but also those of a secretariat of an international commission. Its activities are both judicial and diplomatic, as well as administrative.”70 In certain instances, mainly in arbitration, the services of the secretariats can be flexible. The Secretariat of the PCA, the International Bureau, provides full registry services and legal and administrative support to tribunals and commissions. The extent of its services can be agreed upon by the parties.71 Similarly, the ICSID Secretariat provides services to ICSID tribunals that are essential for their success and functioning.72

Assembly Body In conjunction with decision-​makers and support bodies, the structures of the adjudicative bodies often include an assembly body comprising all member states. The assembly body provides general management guidance, decides on budgetary issues, reviews periodic reports, can often approve rules of procedures, and is involved in the selection of decision-​makers. For example, the Assembly of State Parties of the ICC is composed of representatives of the states that have ratified or acceded to the Rome Statute, and decides on items such as “the adoption of normative texts and of the budget, the election of the judges and of the Prosecutor and the Deputy Prosecutor.”73 For the ICJ, and other UN judicial bodies, that function is provided by the UN General Assembly. The Administrative Council of the PCA, whose membership includes representatives of all 115 member states, oversees its policies and budgets.74 The Administrative Council, composed of one representative of each of the ICSID Contracting States, is the governing body of ICSID.75

Who Can Bring a Claim? Traditionally, the personal jurisdiction of international courts and tribunals was limited to states. States are the main subjects of international law and they have typically been granted access to the majority of international courts and tribunals. For example, the ICJ can only hear cases between states. Other judicial bodies whose personal jurisdiction is limited to states include the WTO and ITLOS.

  ICJ, “The Registry,” http://​www.icj-​cij.org/​registry/​index.php?p1=2.   PCA, “About Us,” http://​www.pca-​cpa.org/​showpage.asp?pag_​id=1027. 72   ICSID, “Organizational Structure of ICSID,” https://​icsid.worldbank.org. 73   ICC, “Assembly of State Parties,” http://​www.icc-​cpi.int. 74   PCA, “Structure,” http://​www.pca-​cpa.org/​showpage.asp?pag_​id=1039. 75   ICSID, “Organizational Structure of ICSID,” https://​icsid.worldbank.org. 70 71

 

conclusion   901 One of the most interesting recent developments in international law is the increasing direct access given to individuals and other nonstate actors to numerous international adjudicative bodies. In fact, individuals now have direct access to multiple bodies and can directly bring claims related to human rights, international investments, and international labor law. Thus, individuals can bring direct claims to the ECtHR and natural and juridical persons could also bring claims directly at the UNCC, at the Iran–​US Claims Tribunal, and in international investment arbitrations.76 The jurisdiction on international criminal tribunal and courts, like the ICC, ICTY, and ICTR is based on individual responsibility for conduct defined as criminal under international law. These courts mirror domestic criminal courts, and provide for a specially elected prosecutor to bring cases against individuals on behalf of the international community. In international administrative tribunals, claims are brought by staff members against the international organization that employs them. International adjudicative bodies afford only limited participation to third parties. Amicus briefs are not allowed in most courts, with the exception of some international investment arbitration bodies.

Conclusion The exponential growth of international adjudicative bodies is recent, and has not been organic or systematic. Indeed, they are not organized hierarchically and there is no structured international judicial system.77 The unsystematic proliferation of these bodies has generated much discussion among international lawyers. These discussions have focused on possible consequences of the proliferation of adjudicative bodies for the development of international law; the need for formal or informal coordination between judicial actors; and whether proliferation as a legal phenomenon is positive or whether it would result in excessive fragmentation of the international judicial system.78 Indeed, the proliferation of judicial bodies has led to concerns about   See Art. 25 of the ICSID Convention, https://​icsid.worldbank.org/​ICSID/​ICSID/​DocumentsMain.jsp.  See Jonathan I. Charney, “The Impact on the International Legal System of the Growth of International Courts and Tribunals,” New York University Journal of International Law and Policy 31 (1999): 697. 78   See Benedict Kingsbury, “Foreword: Is the Proliferation of International Courts and Tribunals a Systemic Problem?,” New York University Journal of International Law and Policy 31 (1999): 679. See also 76

77

 

902   international adjudicative bodies the risk of atomization of international law into separate areas, and about the possible weakening of international law by competing decisions of different tribunals deciding on the same or similar legal issues.79 In reality, time has shown that concerns are mostly unjustified: the jurisdiction of these bodies is sufficiently specific to avoid real conflict. Moreover, more complex disputes have required a more sophisticated use of the system, whereby different aspects of a case are presented in front of different adjudicative bodies. Assessing the effectiveness of international adjudicative bodies is also an important and complex exercise. On one side, some critics have focused on the fact that, contrary to conventional wisdom, the most successful international tribunals are those where judges are appointed by parties for the purpose of resolving a particular dispute.80 On the other side, experts have argued that assessing the effectiveness of international adjudicative bodies requires a more complex analysis, which must include not only judicial independence, but also the tribunal’s composition, the caseload and functional capacity, the quality of legal reasoning and independent fact-​finding capabilities, and the nature of the violations.81 Assessing the effectiveness of international adjudicative bodies necessarily includes many different variables and is perforce dependent on these variables. Issues to consider include compliance with the decision by the parties, usage rates, impact on state conduct, impact on the parties and other stakeholders, the complexity of the issues decided, existing case law and the decision’s relationship with it, available remedies, and the sophistication of the legal reasoning. Moreover, states have many different reasons to create adjudicative bodies, from addressing pressing legal violations (ICTR and ICTY), to concluding long negotiations (ICC), to the aftermath of unique political processes, like the end of the Cold War—​which in many ways changed the international legal landscape.82 All these issues must be taken into consideration when assessing the effectiveness and usefulness of international adjudicative bodies. Thomas Buergenthal, “Proliferation of International Courts and Tribunals: Is It Good of Bad?,” Leiden Journal of International Law 14 (2001): 267.   Indeed, the UN International Law Commission (one of the main codification bodies on international law) addressed the issue at length and created a special Working Group to study the challenges ensuing from the diversification and expansion of international law. See the final 2006 report, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,” GA Res. 61/​34 of December 4, 2006, http://​legal.un.org/​ilc/​guide/​1_​9.htm. 80   Eric A. Posner and John C. Yoo, “Judicial Independence in International Tribunals,” California Law Review 93 (2005): 3. 81  Laurence Helfer and Anne-​ Marie Slaughter, “Why States Create International Tribunals: A Response to Professors Posner and Yoo,” California Law Review 93 (2005): 899 (see 906–​7 for a complete list of factors). See also Yuval Shany, “Assessing the Effectiveness of International Courts: A Goal-​ Based Approach,” American Journal of International Law 106 (2012): 225. 82   See, e.g., Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton, NJ: Princeton University Press, 2014). 79

 

Chapter 42

FINANCING AND BUDGETS Jacob Katz Cogan

International organizations require money to operate, a basic and anodyne fact that has manifold and fundamental consequences. The means by which organizations are financed and the methods by which budgets are decided shape the character of the organization, its relations with and between its member states, and its policy outcomes. Consequently, formal and informal decisions and practices concerning the design of financing mechanisms and the allocation of budgets necessarily entail constitutive choices about an organization’s operation and its forms of governance. This chapter describes the means by which organizations acquire resources and the methods they use to decide on expenditures. In so doing, it also considers the implications for organizations of those chosen means and methods.1 1   The literature on the financing of international organizations is not extensive. Important overviews include: Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity, 5th ed. (Leiden: Martinus Nijhoff, 2011), ch. 7; J. David Singer, Financing International Organizations: The United Nations Budget Process (The Hague: Martinus Nijhoff, 1961); John G. Stoessinger, Financing the United Nations System (Washington: Brookings Institution, 1964); Jose E. Alavarez, “Financial Responsibility,” in United Nations Legal Order, ed. Oscar Schachter and Christopher C. Joyner (Cambridge: Cambridge University Press, 1995), 1091–​119; C. F. Amerasinghe, “Financing,” in Manuel sur les organisations internationals, ed. René-​Jean Dupuy, 2nd ed. (Dordrecht: Martinus Nijhoff, 1998), 313–​37; Thordis Ingadóttir, “Financing International Institutions,” in Research Handbook on the Law of International Organizations, ed. Jan Klabbers and Åsa Wallendahl (Cheltenham: Edward Elgar, 2011), 108–​31.

 

904   financing and budgets

Financing International Organizations The amount of money spent by international organizations varies widely. The United Nations’ (UN) regular budget for the 2014–​15 biennium totaled $5,530,349,800 and its peacekeeping budget for the 2015–​16 fiscal year came to $8,275,565,500, whereas the authorized expenditures for the 2014–​15 annum for the International Coffee Organization amounted to a comparably paltry £2,914,000.2 Despite the disparity in the numbers, organizations pay for their expenditures in three common ways: assessed contributions, self-​funding, and voluntary contributions. The financing methods available vary among organizations and they change over time, such that for any organization some are of great or little importance and others are more or less significant today than in the past. The decision to finance an institution in a particular way not only ensures adequate funding (if successful), it is also a way of defining the organization itself.

Assessed Contributions Most organizations generate a significant portion of their revenue by requiring their member states or organizations to contribute a fixed amount in dues.3 Typically, such assessed contributions are not equally divided among an organization’s members (though some institutions take this approach).4 Rather contributions are usually based on a member’s “capacity to pay”5 or its connection with or  UN General Assembly (UNGA) Res. 68/​248 A–​C (December 27, 2013); Approved Resources for Peacekeeping Operations for the Period from 1 July 2015 to 30 June 2016: Note by the Secretary-​ General, UN Doc. A/​C.5/​69/​24 (June 26, 2015); International Coffee Organization Doc. ICC 115-​12 (October 7, 2015). The UN has a diverse set of budgets, including the regular and peacekeeping budgets. The budgets of the specialized agencies are separate. 3   The general obligation to pay typically appears in the organization’s constitution, but the details of the obligation are left to the organization’s plenary body, which adopts, as necessary, resolutions specifying the scale of assessment. Since resolutions are easier to adopt and amend than treaties, this decision-​making structure provides organizations with considerable flexibility. 4   Organizations that allocate expenses equally include the Association of Southeast Asian Nations, the Central Commission for the Navigation of the Rhine, and the Organization of the Petroleum Exporting Countries (OPEC). See Charter of the Association of Southeast Asian Nations, Art. 30(2); Revised Convention for Rhine Navigation, Art. 47; OPEC Statute, Art. 37(c). A small number of organizations allow members to choose the amount of their contribution by selecting from the contribution classes established by the organization. See ITU Constitution, Art. 28(3); UPU Constitution, Art. 21(3). 5   For the early articulation of this principle at the UN, see UNGA Res. 14(I)A (February 13, 1946); Rules of Procedure of the General Assembly, Rule 160, A/​520/​Rev.17. The specific application of the principle has varied over the years, both at the UN and other organizations. See, e.g., Organisation for 2

 

financing international organizations   905 participation in the organization’s work,6 and they are allocated accordingly by a super-​majority decision of the organization’s plenary body, where each member has a single vote. The UN is a good example. The UN Charter states that “The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.”7 And the Assembly has, since its first session, adopted the scale of assessments for the UN regular budget based on the “capacity to pay” principle, with maximum and minimum contribution rates that act as upper and lower limits.8 As may be expected, the definition and calculation of “capacity to pay” and the establishment and demarcation of contribution ceilings and floors have been highly contested, particularly by states that are assessed the highest rates.9 Since the organization’s first scale of assessments, the rates paid by member states have covered a wide span. The 2015 scale of assessments for the UN regular budget ranged from .001 percent ($29,763) to 22 percent ($654,778,938), with all assessments totaling $2,976,267,900.10 The consequences of the General Assembly’s decision on assessments go beyond the organization, as other international institutions (UN-​related and not) link their contribution scales to the one adopted by the UN.11 Still other organizations base their assessed contributions on a combination of principles. For instance, the International Maritime Organization currently fixes its assessments in part on the equality of states, in part on the UN scale for its regular Economic Co-​Operation and Development, Financial Regulations of the Organisation, C(2008)92/​ REV1, Annex 1. 6   For example, in the World Trade Organization (WTO), assessed contributions are based on a country’s “international trade—​imports plus exports—​in relation to the total international trade of all.” WTO Doc. WT/​GC/​M/​8 (1995), as amended. 7   UN Charter, Art. 17(2). 8   Currently, the General Assembly revises the scale of assessments every three years, though its Committee on Contributions meets annually. The scale of assessments for the regular budget for the period 2016 to 2018 was adopted in Res. 70/​245 (December 23, 2015). 9   For the current “elements and criteria” on which “capacity to pay” is based, see UNGA Res. 70/​245, para. 6 (December 23, 2015). Debates also arise upon the dissolution and unification of member states. See UN Juridical Yearbook (1992): 435–​8; Jan Klabbers and Martti Koskenniemi, “Succession in Respect of State Property, Archives and Debts, and Nationality,” in State Practice Regarding State Succession and Issues of Recognition, ed. Jan Klabbers et al. (The Hague: Kluwer Law International, 1999), 118–​45. 10   Assessment of Member States’ Contributions to the United Nations Regular Budget for the Year 2015, UN Doc. ST/​ADM/​SER.B/​910. 11   See, e.g., Scale of Assessments for the Financial Period 2004–​2005, World Health Assembly Res. WHA56.33 (May 28, 2003)  (setting out the principle of reliance on the UN scale); Methodology for Calculating the Scale of Quota Assessments to Finance the Regular Fund of the Organization, OAS Doc. AG/​RES. 1 (XXXIV-​E/​07) (November 13, 2007) (same); Scale of Assessments and Currency of Member States’ Contributions, UNESCO General Conference Res. 37/​78 (November 19, 2013) (same); Scale of Assessments for the Fiscal Period 2016–​2017: Note by the Secretariat, UNIDO Doc. IDB.43/​7-​PBC.31/​7 (2015) (same, applying the Constitution of the United Nations Industrial Development Organization, Art. 15(2)).

 

906   financing and budgets budget, and in part on a member’s gross registered tonnage.12 The International Civil Aviation Organization (ICAO) apportions its expenses based on the “capacity of Contracting States to pay, as measured by national income, taking into consideration national income per head of population” and “a Contracting State’s interest and importance in civil aviation.”13 The contributions of members of the International Coffee Organization are set in proportion to the number of votes each member holds, which amount is based on the “average volume of [a member’s] respective imports [or exports] of coffee in the preceding four calendar years.”14 The African Union gauges its assessments “on the principles of solidarity, equitable payment and capacity to pay and in a way that ensures no single country bears a disproportionate share of the budget.”15 The Organization of American States fixes its quota contribution “taking into account the ability to pay of the respective countries and their determination to contribute in an equitable manner.”16 And the UN itself establishes a separate scale for its peacekeeping budget that requires the permanent members of the Security Council to pay a larger share than they would under the regular budget due to their “special responsibilities … for the maintenance of peace and security.”17 Assessed contributions are mandatory, and the failure to pay them typically results in the sanctioning of the delinquent member state. The usual sanction is the loss of the member’s voting rights in the organization. Thus, Article 19 of the UN Charter provides that: A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years.18

This has been understood to mean that the loss of voting rights is automatic once the criteria of Article 19 are met.19 But that default penalty can be overridden by the General Assembly, which may “permit … a Member to vote if it [the Assembly] is satisfied that the failure to pay is due to conditions beyond the control of the   International Maritime Organization Res. A.726(17) (1991).   Apportionment of the Expenses of ICAO among Contracting States (Principles to be Applied in the Determination of Scales of Assessment), ICAO Assembly Res. A36-​31 (2007). 14   International Coffee Agreement 2007, Arts. 12, 20. 15   Decision on the Scale of Assessment and Alternative Sources of Financing the African Union, para. 2, Doc. Assembly/​AU/​5(XXV) (2015). 16   Charter of the Organization of American States, Art. 55. 17   UNGA Res. 55/​235, para. 1(d) (2000). The scale of assessments for the peacekeeping budget for the period 2016 to 2018 was adopted in Res. 70/​246 (December 23, 2015). 18   UN Charter, Art. 19. As of January 18, 2016, fifteen UN member states were sufficiently in arrears to satisfy the elements of this provision. See UN Doc. A/​70/​722 (January 18, 2016). 19   UN Juridical Yearbook (1968): 186–​8; UN Juridical Yearbook (1974): 156–​7. See also UN Juridical Yearbook (2003): 526–​8. Voting rights are not lost in the other principal organs, and it has been suggested that they are also not lost in the subsidiary bodies of the Assembly. See Christian Tomuschat, “Article 19,” in The Charter of the United Nations:  A  Commentary, ed. Bruno Simma et  al., 3rd ed. (Oxford: Oxford University Press, 2013), vol. 1, 650. 12 13

 

financing international organizations   907 Member.”20 This clause has been applied on occasion, usually to states experiencing conflict or some other emergency.21 Numerous other organizations also suspend a state’s voting rights for being in arrears.22 Others, such as the African Union, are given some flexibility in the choice of the sanction.23 Still other organizations have discretion as to whether to sanction delinquent members at all.24 While some states are genuinely unable to pay their assessment or are under financial constraints to do so, other states have affirmatively withheld their payments to protest an act taken by the organization that it claims was ultra vires or force the organization to take some action that it deems desirable. In the early 1960s, the Soviet Union and France (and some other countries) refused to pay their allocated dues pertaining to the UN Emergency Force and the UN Operation in the Congo.25 Since the late 1970s, the United States has threatened to withhold—​and has withheld—​payments to the UN to protest certain expenditures that it considered ultra vires (such as support for Palestinian rights or the Law of the Sea Preparatory Commission), to rein in spending and corruption, and to gain weighted voting on budgetary decisions.26 Because of the size of the US contribution, the UN for many years in the 1980s and 1990s was nearly insolvent due to US withholding. Careful   UN Charter, Art. 19.   See, e.g., UNGA Res. 70/​2 (October 12, 2015) (permitting the Comoros, Guinea-​Bissau, Sao Tome and Principe, Somalia, and Yemen to vote until the end of the pending session of the General Assembly despite their being in arrears). 22   See, e.g., Constitution of the International Labour Organization, Art. 13(4); Convention on the International Maritime Organization, Art. 56; Constitution of the UN Educational, Scientific and Cultural Organization, Art. 4(8)(b); Constitution of the Food and Agriculture Organization of the UN, Art. 3(4). 23   Constitutive Act of the African Union, Art. 23(1) (“The Assembly shall determine the appropriate sanctions to be imposed on any Member State that defaults in the payment of its contributions to the budget of the Union in the following manner: denial of the right to speak at meetings, to vote, to present candidates for any position or post within the Union or to benefit from any activity or commitments, therefrom”). The Assembly’s Rules of Procedure provide greater clarity, categorizing the sanctions according to the amount of the arrears. See Rules of Procedure of the Assembly of the Union, Rule 35(2). See generally Ulf Engel, The African Union Finances: How Does It Work?, Working Paper Series of the Centre for Area Studies, Universität Leipzig, No. 6 (2015). 24  Constitution of the World Health Organization, Art. 7; Convention on International Civil Aviation, Art. 62; IMF, Art. 26(2). 25   The specific claims, subsequently rejected by the International Court of Justice, were that the General Assembly could only impose an obligation to pay for “administrative” expenses (which did not include peacekeeping), that peacekeeping expenses could only stem from agreements entered into between the Security Council and members of the organizations, and that Assembly resolutions did not establish legal obligations (including the obligation to pay dues). See Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Reports 1962, 151, 158 (July 20); Certain Expenses, (1962) ICJ Pleadings 133–​4, 273. France and the Soviet Union refused to pay the allocated expenses even after the Court’s opinion, but a diplomatic resolution was eventually reached. See Marjorie M. Whiteman, Digest of International Law (Washington: Department of State, 1968), vol. 13, 320–​34. 26   The US strategy was applied to other international organizations as well. On US withholding of assessed contributions in the 1980s, see Paul Taylor, “The United Nations System under Stress: Financial Pressures and Their Consequences,” Review of International Studies 17 (1991): 365–​82. 20 21

 

908   financing and budgets never to be sufficiently delinquent to lose its voting rights, US withholding had some considerable success, as it led to a lower ceiling on assessed contributions for both the regular and peacekeeping budgets (thereby reducing US dues), controlled spending, and (for a time) consensus budgetary decision-​making.27 In so doing, however, the United States undermined its own interests by undercutting its position in an organization on which it depends.28 As a formal matter, under the mechanism of assessed contributions, the member states of the organization collectively control the budget through the plenary body—​both revenue generation and, as will be seen, revenue distribution. Consequently, states have an interest in the organization’s success, as they are funding it, and they maintain a means to control the institution, as they can restrict future appropriations on the basis of past performance, decisions taken by the organization, or changed policy preferences. Not all states are equal in this regard, however. Since assessed contributions toll some states more heavily than others, sometimes considerably, high-​contributing states often feel particularly empowered to make demands that reflect their view of the organization’s role and benefit their own national interests. The United States is assessed the highest amount in both the UN’s regular and peacekeeping budgets. It is no surprise, then, that the United States takes a great deal of interest in the organization’s administration and seeks to use its influence not only to sway policy outcomes but also to control spending and reform internal operations so that the money it contributes will be used as efficiently as possible. The belief of highly assessed states that their views are entitled to a weight that is commensurate with their contributions occasionally leads to conflicts between member states and the organization, as well as among member states. Nonetheless, assessed contributions provide some member states leverage over the organization that less wealthy states lack, although the latter group, by constituting a super-​majority of the plenary organ that makes financing and budgetary decisions, retains considerable authority as well, to the chagrin of high-​contributing states. As a result, what may appear at first to be a system of collective control that is consistent with multilateral governance is in fact more complicated, providing a subset of states with greater power within the organization.29 27   For a critical evaluation of the legal justifications for withholding assessed contributions, see Jose E. Alvarez, “Legal Remedies and the United Nations à la Carte Problem,” Michigan Journal of International Law 12 (1991):  229–​311. For a limited defense of the practice, see Francesco Francioni, “Multilateralism à la Carte: The Limits to Unilateral Withholdings of Assessed Contributions to the UN Budget,” European Journal of International Law 11 (2000): 43–​59. In 2013, the United States lost its voting rights in an international organization for the first time when it failed to pay its assessed contributions to UNESCO due to the organization’s admission of Palestine as a member. See Alissa J. Rubin, “U.S. Loses Voting Rights at Unesco,” New York Times, November 9, 2013, A4. 28   See Emilio J. Cárdenas, “UN Financing: Some Reflections,” European Journal of International Law 11 (2000): 67–​75. 29   Collective control is also diminished by the ability of some states to buy (or otherwise influence) the votes of other states.

 

financing international organizations   909

Self-​Funding Some organizations generate revenue by charging states, other international organizations, and private persons and entities fees for their goods and services. Thus, the World Intellectual Property Organization (WIPO) received 94 percent of its 2014–​15 budget from payments made for services provided to users of its international registration systems.30 International financial institutions receive income from the loans they make and from investing their holdings, allowing those organizations to cover their administrative expenses without assessed contributions and even return money to states on their quotas.31 The International Atomic Energy Agency charges “for materials, services, equipment, and facilities furnished to members by the Agency,” with excess revenue going to its general fund.32 The UN Children’s Fund (UNICEF) received $2 million a year from FC Barcelona for the right to put the organization’s logo on the team’s jerseys.33 The International Seabed Authority is intended to be funded from states and private entities “in connection with activities in the Area.”34 And the UN receives some income from renting meeting and office space to other international organizations and private organizations. Institutions also receive income from the sale of goods, such as greeting cards, postage stamps, souvenirs, and publications.35 Organizations that are primarily self-​funded can predict the amount and timing of their incoming revenue with some certainty (on the basis of past receipts) and, do not need to depend on the transmittal of funds by their member states. Consequently, self-​ funding can give these organizations some autonomy in their actions and prevent their capture by wealthy states,36 30   Convention Establishing the World Intellectual Property Organization, Art. 11. Indeed, WIPO currently runs a budgetary surplus. 31   International financial institutions raise money for the loans they make primarily through the financial markets and quotas and borrowing from their member countries. 32   Statute of the International Atomic Energy Agency, Art. 14E. 33   Jack Bell, “Barcelona’s New Uniforms Have a Logo and a Message,” New York Times, September 13, 2006, D6. But the UN itself does not allow its name to be used. See UN Juridical Yearbook (1987): 170–​1. 34   UN Convention on the Law of the Sea, Art. 171; Agreement Relating to the Implementation of Part XI of the UN Convention on the Law of the Sea of 10 December 1982, Annex, section 1, para. 14. 35   It is often written that the European Union (EU) is self-​funded through the collection of its “own resources.” Under the current system, the EU receives revenue principally through: (1) customs duties on imports from outside the EU and sugar levies (75 percent of the amount collected goes to the EU and 25 percent is kept by states as collection costs); (2) 0.3 percent of the harmonized VAT base of each member state; and (3) a percentage of each member state’s gross national income (GNI). Council Decision of 7 June 2007 on the System of the European Communities’ Own Resources, 2007/​436/​EC, Euratom, OJ L 163, 23.6.2007, 17–​21. Though imagined as “own resources” because the Council’s decision has direct effect domestically, the EU is still dependent on member states for the collection and transfer of the revenue. What’s more, the GNI revenue, which now comprises the largest source, cannot be distinguished from compulsory contributions. In actuality, then, the EU is not truly a self-​funded organization. 36   Christopher May, The World Intellectual Property Organization: Resurgence and the Development Agenda (London: Routledge, 2007), 25.

 

910   financing and budgets provided that the voting rules of the organization do not afford members an alternative means of control.37 It also reduces the capacity of states to hold organizations accountable by withholding their contributions. It is unsurprising, therefore, that states have established very few organizations that are self-​sustaining.38

Voluntary Contributions Organizations also cover their expenses through voluntary contributions.39 Such funding comes from states (including nonmember states), other international organizations, and the private sector.40 The importance of this income stream for some organizations is so great that they have established offices that are dedicated to private and public funders, such as the UN Office for Partnerships and the International Organization for Migration’s Donor Relations Division.41 Some organizations (or programs within international organizations) depend on voluntary contributions, particularly those institutions involved in humanitarian aid, development, and technical assistance. Indeed, Gavi, the Global Fund to Fight AIDS, Tuberculosis, and Malaria, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, the World Health Organization (WHO), and all UN programs and funds, such as UNICEF, the UN Development Programme (UNDP), the UN Environment Programme, the UN Relief and Works Agency for Palestine Refugees, and the World Food Programme (WFP), are funded entirely or almost entirely from voluntary contributions.42 As the term implies, voluntary contributions are entirely discretionary; they create no obligations on donors, either currently 37   Thus, though the World Bank is self-​funded, its voting rules give the United States significant control over the organization. 38   The willingness of developed countries to countenance WIPO independence presumably stems from that organization’s promotion of policies endorsed by those countries. See May, World Intellectual Property Organization, 37. 39   The constitutions of some organizations anticipate this. See, e.g., Statute of the International Atomic Energy Agency, Art. 14(F); Constitution of the World Health Organization, Art. 57. On voluntary contributions, see generally James E. Archibald, “Pledges of Voluntary Contributions to the United Nations by Member States: Establishing and Enforcing Legal Obligations,” George Washington International Law Review 36 (2004): 317–​76. 40   See, e.g., David Rohde, “Ted Turner Plans a $1 Billion Gift for U.N. Agencies,” New York Times, September 19, 1997, 1. 41   On partnerships, see Amir A. Dossal, “United Nations Partnerships:  Working Together for a Better World,” in Swords into Plowshares: Building Peace through the United Nations, ed. Roy S. Lee (Leiden:  Martinus Nijhoff, 2006), 139–​57. Rarely are international organizations prohibited from receiving voluntary contributions. See UN Juridical Yearbook (1974): 174–​5. 42   Ruben P. Mendez, “Financing the United Nations and the International Public Sector: Problems and Reform,” Global Governance 3 (1997): 283, 288–​9; Marieke Wierda and Anthony Triolo, “Resources,” in International Prosecutors, ed. Luc Reydams, Jan Wouters, and Cedric Ryngaert (Oxford:  Oxford University Press, 2012), 113, 123, 133.

 

financing international organizations   911 (with regard to pledges made) or in the future (with regard to the renewal of funding).43 Funding through voluntary contributions therefore decreases the predictability, reliability, and stability of resources while at the same time increasing an organization’s dependency on donors. It can also generate competition among organizations, which can have both negative and positive consequences. It can lead to unhealthy turf battles and a preoccupation with “flying the flag” of the organization. It can also generate institutional entrepreneurship and force organizations to demonstrate their effectiveness. There are two broad types of voluntary contributions: unrestricted contributions (unconditioned voluntary funding for programs established by the organization’s collective principal, its plenary body) and restricted contributions (earmarked voluntary funding for programs specified by the donor). Earmarked voluntary contributions now constitute the largest percentage of funds for international development organizations, a striking trend of the past twenty years.44 Eighty-​five percent of the WFP’s 2012 budget, eighty percent of the UNDP’s 2010 budget, and sixty percent of all multilateral aid stemmed from such “multi-​bi” aid.45 In 2013, the World Bank had over 900 active trust funds.46 The interest among donors in earmarked contributions is easy to understand: they allow states to pursue their development agendas while reducing their administrative costs and gaining the expertise and legitimacy of international organizations. Current research suggests, though, that earmarked contributions supplement, not preempt, non-​earmarked contributions and that “the overall geographic and sectoral priorities are not always as different between the different types of aid as one might expect.”47 When an organization depends on voluntary contributions, either for its general budget or for the support of specific programs, the organization becomes particularly dependent on its donors. And with their contributions, donors expect to exert influence on the operation of the organization. Organizations themselves—​and their member states—​understand this and provide donors with an outsized influence on the organization’s operation.48 Sometimes, in the case of restricted contributions, this is recognized explicitly by the contracts entered into by organizations and their donors that establish reporting and monitoring frameworks. Sometimes it is done implicitly by giving donors special privileges within the organization. It is no mistake, for example, that the head of UNICEF is always a US national. After all, the United States has been that organization’s largest donor.   Although conceivably a reliance-​based argument could be made once the voluntarily given funds have been appropriated or spent. 44   Bernhard Reinsberg, Katharina Michaelowa, and Vera Z. Eichenauer, “The Rise of Multi-​Bi Aid and the Proliferation of Trust Funds,” in Handbook on the Economics of Foreign Aid, ed. B. Mak Arvin and Byron Lew (Cheltenham: Edward Elgar, 2015), 527. 45 46 47   Ibid., 528.  Ibid.   Ibid., 548–​9. 48   Indeed, secretariats have an incentive, as they fundraise, to establish internal rules that cater to prospective donors. 43

 

912   financing and budgets Organizations that primarily rely on voluntary contributions no longer act as true multilateral institutions with collective principals but rather in significant respects as the delegated agents of multiple principals. In this form of funding, the “IO agent is guided by and held accountable through its bilateral relationships with individual donors, rather than through a single relationship with the intergovernmental body.”49 Though the assessed contribution regime is not perfectly multilateral because of the greater sway of high-​contributing states, in comparison the funding of international organizations through voluntary contributions significantly decreases the role of collective decision-​making on the critical issues that pertain to budgetary matters, including the size of the budget, burden sharing among member states, the organization’s priorities, and its accountability.50 Depending on the type of voluntary contribution (restricted or unrestricted), some or all of those issues will be determined not by the organization’s collective principal but by the aggregation of decentralized choices made by individual donors, including nonstate actors. Organizations have recognized the effect of restricted voluntary contributions on their operations in recent years and some have sought to regain control of their agendas. Distinguishing between “core” and “noncore” resources, the UN Secretary-​G eneral defined the former as those resources that “are directly linked to the strategic mandates, guidelines, priorities and goals established by the respective intergovernmental governing bodies” and the latter as resources that “are generally restricted with regard to their use and application as determined by the contributor … [with the consequence that they are at best indirectly] subject to and aligned with the mandates, guidelines, priorities and goals established by intergovernmental governing bodies.”51 The shift to noncore resources, according to the Secretary-​G eneral, “is often seen as distorting programme priorities by limiting the degree to which governing bodies and programme countries themselves are involved in priority-​s etting through selection, design and implementation of projects and programmes.”52 Some organizations have encouraged donors to contribute unrestricted funds in place of those that are earmarked. Others have taken stronger measures. In 2013, the WHO established a “financing dialogue” to “[i]‌mprove the transparency, alignment, and predictability of WHO’s financing.”53 Until then, the World

  Erin R. Graham, “Money and Multilateralism: How Funding Rules Constitute IO Governance,” International Theory 7 (2015): 162, 163. 50   Ibid., 164. 51   Analysis of the Funding of Operational Activities for Development of the United Nations System for 2009: Report of the Secretary-​General, UN Doc. A/​66/​79–​E/​2011/​107 (May 6, 2011), paras. 9, 10. Similarly, see Organisation for Economic Co-​operation and Development, Multilateral Aid 2015: Better Partnerships for a Post-​2015 World (2015), 44. 52   Analysis of the Funding of Operational Activities for Development of the United Nations System for 2009, para. 11. 53   WHO Doc. A66/​48 (May 13, 2013), para. 1. 49

 

financing international organizations   913 Health Assembly, the organization’s plenary body, exercised oversight over only the 25 percent of the organization’s budget that was financed through assessed contributions, with the remainder of the budget controlled by contributors, particularly nonstate actors.54 The dialogue instituted a process through which the World Health Assembly approves the organization’s entire program budget, comprising all resources including those for programs funded by voluntary contributions, and then enters into consultations between member states and nonstate contributors “in a joint and transparent financing dialogue to align resources to the programme budget and ensure greater predictability at the beginning of budget implementation.”55

Varieties of Funding, Varieties of Governance Many organizations receive money from a combination of these methods with some more important than others, and their relative significance changing over time. Until 1960, the UN system was primarily funded through assessed contributions. At that point, though, unrestricted voluntary contributions overtook assessed contributions. By the early 1990s, voluntary contributions were six times that of assessed contributions. Since then, the character of voluntary contributions has shifted significantly. While unrestricted voluntary funding has held steady, restricted voluntary contributions have grown more than 200 percent, such that the latter has significantly overtaken the former. Today, restricted voluntary contributions make up the bulk of UN system funding.56 Organizations respond to and are shaped by methods of revenue generation. Though not the only determinants of an organization’s character, varieties of budgetary funding lead to varieties of governance. The structures of most international organizations suggest that budgetary decisions are to be made multilaterally by a collective principal (the organization’s plenary body). Indeed, organizations are typically designed with that purpose in mind. But the shift from assessed contributions to voluntary contributions belies the formal mechanisms established by the constitutions of international organizations. Certainly, the systems of collective decision-​making still matter considerably, but the rise of voluntary contributions, particularly restricted voluntary contributions, means that those systems clearly matter less than they once did. A shadow, unilateralist system has replaced the multilateral one in many organizations.

  Ibid., para. 3.    55  Ibid., para. 24.   This paragraph is based on Graham, “Money and Multilateralism,” 176–​87.

54 56

 

914   financing and budgets

Budgets of International Organizations The revenue generated by these financing methods goes to the ­organization’s expenses, of which there are two types: administrative and operational. Administrative expenses are costs that cover the payment of the organization’s staff (salaries, pensions, benefits), the running of its headquarters and other offices (building upkeep and renovation, utilities), and other matters that allow the organization to fulfill its basic functions (staff travel, office equipment, printing).57 Operational expenses are those that defray the cost of tasks and programs that an organization undertakes electively (peacekeeping missions, election monitoring, international tribunals). Like any budget, some costs are inherent and fixed, while other expenses reflect policy choices. For organizations that receive revenue through assessed contributions, such choices have a significant impact on member states (particularly wealthy states), as the greater the size of the organization’s budget, the greater the size of their required payments. As a result, budgetary decisions have consequences (positive and negative) both for the organization and its member states. The budget defines the organization’s role and the flexibility of its operations, but at the same time it establishes a dependent relationship between the institution and its major funders and a mechanism to control the organization’s activities. The budget also allows member states to pursue through an organization goals that they might not otherwise be able to accomplish extra-​institutionally as effectively or possibly at all, but it affects as well a state’s own finances (and hence its domestic politics) as a result of mandatory dues payments.

Approving Budgets An organization’s decision processes for the allocation of revenue therefore matter greatly. These processes are mostly uniform across organizations. Preparation of a draft budget is generally made by the organization’s secretariat and submitted to the plenary body where it is scrutinized by a committee or committees composed of representatives of and/​or experts elected by member states.58 Thus, the budget 57   See Bernd-​Roland Killmann, “Procurement Activities of International Organizations: An Attempt at a First Insight in Evolving Legal Principles,” Austrian Review of International and European Law 8 (2003): 277–​300. 58   In some instances, the organization’s executive council submits the budget. See Convention on International Civil Aviation, Art. 61. In others, the secretariat submits the budget through the council. See Constitution of the World Health Organization, Art. 55; Convention on the International Maritime Organization, Art. 40.

 

budgets of international organizations    915 proposed by the UN Secretary-​General is reviewed by the Advisory Committee on Administrative and Budgetary Questions (ACABQ), an expert body appointed by the General Assembly, and the Committee for Programme and Coordination, a subsidiary organ of the Assembly and the Economic and Social Council composed of member states, and subsequently by the Assembly’s Fifth (Administrative and Budgetary) Committee.59 Once fully vetted and revised in committee, budgets are approved by the plenary body, in which each state has a single vote, typically by a super-​majority.60 In the UN, the General Assembly, by a two-​thirds vote, “consider[s]‌and approve[s] the budget of the organization”;61 in the WTO, the General Council “approves” the “annual budget estimate” by a two-​thirds vote;62 and in the International Criminal Court, the Assembly of States Parties “decide[s]” the budget for the Assembly and the Court by a two-​thirds vote (in the absence of consensus).63 Because the allocation of votes for deciding budgetary matters is usually based on the principle of equality of states, whereas the assessment of dues is not, budgets can be approved over the objections of the states that predominantly pay for them. This has raised concerns for high-​contributing states. Under pressure from the United States, from 1986 to 2006 the General Assembly adopted budgets by consensus, thereby giving major contributors a greater influence on decision-​making than they previously had under the one-country-one-vote system.64 High-​contributing states have also received special, albeit indirect, influence on budgetary and spending matters by the appointment of their nationals to positions of influence. For many years, for example, the United States insisted that one of its nationals serve as the UN Under-​Secretary-​General for Management. That position is now held by a Japanese national, Japan being the second-​largest contributor to the UN budget. For the same reason, the organization’s top contributors have typically been elected to the Committee for Programme and Coordination and their nationals have typically been appointed to the ACABQ. Limitations on the type of expenditures permitted (as opposed to the procedures for setting budgets or caps on spending) are rare. When in the early 1960s the International Court of Justice was confronted with the question of what “expenses” the General Assembly could apportion among the organization’s member states 59   The budget preparation process is of course quite complex and is based on a budget outline prepared the year before. See Regulations and Rules Governing Programme Planning, the Programme Aspects of the Budget, the Monitoring of Implementation and the Methods of Evaluation, UN Doc. ST/​SGB/​2000/​8; UNGA Res. 58/​269 (December 23, 2003). 60   Exceptionally, international financial institutions decide budgetary matters through weighted voting. Attempts to introduce weighted voting at the UN have failed. 61   UN Charter, Arts. 17(1) and 18(2). 62   Agreement Establishing the World Trade Organization, Art. 7(1), (3). 63   Rome Statute of the International Criminal Court, Art. 112(2)(d), (7)(a). 64   See UNGA Res. 41/​213 (December 19, 1986). For a discussion of the break in consensus decision-​ making, see Peter Woeste and Thomas Thomma, “Article 17,” in The Charter of the United Nations: A Commentary, ed. Bruno Simma et al., 3rd ed. (Oxford: Oxford University Press, 2013), vol. 1, 589–​90.

 

916   financing and budgets (pursuant to Art. 17 of the Charter), it provided a functional answer. To the Court, the “ ‘expenses’ of any organization are the amounts paid out to defray the costs of carrying out its purposes.”65 That flexible standard was not difficult to meet, particularly as the Court went on to hold that when the relevant organ (in this case the Assembly) averred that the expenses were for actions that were in “fulfilment of one of the stated purposes of the United Nations,” there was a “presumption … that such action is not ultra vires the Organization.”66 As a result, the approval of budgets is a collective decision-​making process in which the organization’s plenary organ has considerable discretion to authorize expenditures, restricted primarily by the interests of member states (especially wealthy ones) in minimizing their assessed contributions, particularly in times of domestic budgetary constraints. Because budgets are made prospectively, policy decisions must take into consideration their financial implications, and expenditures cannot be incurred without appropriations being first made by the plenary body or the applicability of an exception to this requirement. Thus, the Financial Regulations of the UN stipulate that: Where, in the opinion of the Secretary-​General, a proposed expenditure cannot be made from existing appropriation, it shall not be incurred until the General Assembly has made the necessary appropriation unless the Secretary-​General certifies that the expenditure can be made under the provisions of the Assembly resolution relating to unforeseen and extraordinary expenses.67

The International Criminal Court’s Financial Regulations and Rules similarly require appropriations to be budgeted in advance or, if unforeseen, to be submitted as a supplementary budget proposal.68 If expenses are incurred by the organization without prior authorization or otherwise not in accordance with an organization’s regulations, there is no requirement that they be subsequently approved.69 That is not to suggest, however, that the organ responsible for approving the budget may override the decision of another co-​equal organ that has budgetary consequences when that decision is taken within the latter’s competence.70 Consequently, the UN 65   Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Reports 1962, 151, 158 (July 20). 66   Ibid., 168. 67   Reg. 2.11, Financial Regulations and Rules of the United Nations, UN Doc. ST/​SGB/​2013/​4. As the regulation indicates, some “unforeseen and extraordinary expenses” may be incurred without the Assembly’s prior approval, so long as such expenditures satisfy the requirements stipulated by the Assembly. See, e.g., A/​RES/​68/​249 (December 27, 2013). 68   The Court’s regulations also envisage an appropriation line and a Contingency Fund “to meet unforeseen or unavoidable expenses.” International Criminal Court, Financial Regulations and Rules, Regs. 4.2–​4.3, 6.6–​6.7. 69   In 1966, the International Court of Justice requested a supplementary appropriation for expenses incurred during the previous year without authorization. That request was rejected by the Fifth Committee. See Amerasinghe, “Financing,” 337. 70   See, e.g., Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, ICJ Reports 1954, 47 (July 13).

 

budgets of international organizations    917 General Assembly cannot effectively veto the approval of a peacekeeping operation established by the Security Council by deciding not to authorize funding for it. The Council has its own authority, which cannot be countermanded by the Assembly. For the same reason, the Council cannot specify the precise means by which the Assembly must appropriate funds for one of the Council’s projects. Thus, the Assembly established a separate account to finance the International Criminal Tribunal for the former Yugoslavia even though the Council had presumed in the Tribunal’s statute that its expenses would be part of the organization’s regular budget.71

Implementation of Budgets Once a budget has been approved, the secretariat is tasked with its implementation. Concerned with corruption and waste, which has both actual and reputational costs, and pressed by member states, especially those that make substantial contributions, international organizations have increasingly developed rules and regulations stipulating the proper control of funds received and expended and have established and extended the purview of independent auditors to review and monitor financial transactions. The UN has both internal and external auditors: the Office of Internal Oversight Services (headed by an Under-​Secretary-​ General), the Joint Inspection Unit (made up of eleven inspectors), and the Board of Auditors (composed of three members, each of whom must be the auditor-​ general or the equivalent of a member state). A part of the Secretariat, OIOS is required to “review, evaluate and report on the use of financial resources and on the effectiveness, adequacy and application of internal financial control systems, procedures and other relevant internal controls.”72 The Joint Inspection Unit has a system-​wide mandate to conduct evaluations, inspections, and investigations, and therefore can examine cross-​cutting issues. The Board of Auditors is tasked with auditing the accounts of the organization, its programs, and funds. This duality of auditors, internal and external, is followed by many organizations. Organizations have also sought to demonstrate increased efficiency and reduced waste through performance measurements and enhanced responsiveness to inquiries from member states. In an era of fiscal austerity, organizations

71   Cf. Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 32, and A/​RES/​ 47/​235 (September 14, 1993). Similarly, the Council’s attempt to preclude the organization from funding the investigations or prosecutions of the International Criminal Court that stem from Council referrals “would appear problematic” under both the Charter and the Rome Statute. See W. Michael Reisman, “On Paying the Piper:  Financial Responsibility for Security Council Referrals to the International Criminal Court,” American Journal of International Law 99 (2005): 615, 616. 72   Financial Regulations and Rules of the United Nations, Reg. 5.15.

 

918   financing and budgets have recognized that it is necessary to establish greater trust with their member states regarding expenditures.73

Financing, Budgets, and Governance Different forms of revenue generation and budgeting create different forms of governance. Funding is often used by states as a means of sanctioning and rewarding organizations and their staffs, establishing accountability, and directing substantive policies.74 When organizations generate their own revenue, they can gain a level of independence from states, as contributions cannot be used as a means of control.75 The balance of independence and control shifts in organizations that generate revenue primarily through assessed contributions, as appropriations depend on decisions taken by the institution’s collective principal (assuming state compliance with the obligation to pay). And control reaches its zenith when the organization’s revenue stems from voluntary and restricted contributions, as both appropriations and the receipt of funding are dependent on the decision of the (typically individual) principal, the donor. Along this same spectrum one can also detect a shift from multilateralism to unilateralism and even privatization. Funding is a way of establishing operational priorities (the choice of programs and the level at which to fund them) and burden sharing among members. Though organizations are typically considered inherently multilateralist, their operation may in practice be unilateralist if their funding (either of the organization as a whole or specific programs) stems from a single donor or group of donors.76 Instead of responding to their collective principal (typically, the plenary body), organizations funded through voluntary contributions necessarily respond to the desires of individual funders (or groups of funders) as they are aware

73   For one example, see WHO Reform: High-​Level Implementation Plan and Report—​Report by the Director-​General, WHO Doc. A66/​4 (May 10, 2013). 74   Ruth Grant and Robert Keohane, “Accountability and Abuses of Power in World Politics,” American Political Science Review 99 (2005): 29, 36; Darren G. Hawkins et al., “Delegation under Anarchy: States, International Organizations, and Principal–​Agent Theory,” in Delegation and Agency in International Organizations, ed. Darren G. Hawkins et al. (New York: Cambridge University Press, 2006), 3, 30. 75   State control still exists through budgetary and other decisions taken by the organization’s collective principal. 76   Certainly, the collective principal can be influenced by single states and small groups of states through a variety of techniques, such as threats to withhold funds, coercing individual members, and vote buying. Consequently, institutions in which funding decisions are made by a collective principal are not perfectly multilateralist.

 

financing, budgets, and governance    919 that their donors may decide not to renew their contributions. When there are multiple institutions that can perform the same service, a donor’s control is heightened by the potential (or actual) competition among organizations for funding.77 Indeed, the trajectory of financing over recent years has increased this “Trojan multilateralism,” especially in certain sectors, such as development.78 Thus, multilateral funding of global health—​including organizations such as the WHO and the World Bank—​ has increased substantially, but that growth has been in the form of voluntary contributions designated for extra-​budgetary programs specified by donors, especially private ones. The “increased funding to multilateral organizations is covertly introducing bilateral goals and interests into multilateral institutions.”79 More and more of the work of international organizations, including the UN, fits within this bilateral (and privatized), not multilateral, framework.80

77   On competition in the global health regime, see David P. Fidler, The Challenges of Global Health Governance, Council on Foreign Relations Working Paper (May 2010), 9. 78   Devi Sridhar and Ngaire Woods, “Trojan Multilateralism: Global Cooperation in Health,” Global Policy 4 (2013): 325. See also Timo Mahn, The Financing of Development Cooperation at the United Nations: Why More Means Less, Deutsches Institut für Entwicklungspolitik Briefing Paper (August 2012). 79   Sridhar and Woods, “Trojan Multilateralism,” 329. 80   See Graham, “Money and Multilateralism.”

 

Chapter 43

ORGANIZATIONAL CULTURE Stephen C. Nelson Catherine Weaver

International organizations (IOs) play central roles in the organization of world politics. We cannot fully understand patterns and outcomes in essentially every international issue area of concern to states and private actors—​national security, economic relations, and environmental degradation, among many others—​without including IOs in our analysis. Yet international relations (IR) theory has treated IOs as epiphenomenal features of world politics or as mere instruments for the interests of powerful states. It has only been relatively recently that IR scholars have started to acknowledge IOs as actors in their own right, opening inquiry to the study of IOs as complex bureaucracies whose structures and internal features, in addition to elements of their external environments, shape what IOs say and do in the world. And, in opening this proverbial black box,1 IO scholars have been empowered to explore a potentially rich but comparatively underdeveloped aspect of the study of IOs’ roles in world politics: their organizational cultures. Indeed, a handful of scholars who set out to explain why IOs behave in the ways they do have arrived at answers that hinge on the role of organizational culture. This emerging research program reflects the recognition that IOs are, after all, organizations and thus the “rediscovery” of culture in organizational sociology and 1  Gayl D. Ness and Steven R. Brechin, “Bridging the Gap:  International Organizations as Organizations,” International Organization 42/​2 (1988): 245–​73.

 

organizational culture   921 management studies cannot be ignored.2 Organizational culture helps explain puzzling outcomes that would otherwise be difficult to understand, such as persistent performance failures,3 mission creep,4 stunted reforms,5 and perceived hypocrisy.6 Why, for example, did the United Nations (UN) fail to enact a robust peacekeeping mandate and force that could have prevented the devastating 1994 genocide in Rwanda?7 Why did the International Monetary Fund (IMF) promote capital account liberalization throughout the 1990s despite mounting evidence that openness to capital flows produced damaging financial market crises?8 Neglecting organizational culture can also lead to inaccurate predictions of how IOs respond to new norms and demands in their resource and task environments, how they will frame and diffuse norms and policy agendas, or how IOs will adapt, learn, or change. How, for example, has the organizational culture of humanitarian IOs like the UN High Commission for Refugees affected learning and innovation, or produced paradoxes for humanitarian intervention?9 Why have so many ambitious reform programs in the World Bank yielded such unanticipated and undesired results?10   William G. Ouchi and Alan L. Wilkins, “Organizational Culture,” Annual Review of Sociology 11 (1985):  457–​83; Edgar Schein, “Coming to a New Awareness of Organizational Culture,” Sloan Management Review 25/​2 (1984): 3–​16; and “Culture: The Missing Concept in Organization Studies,” Administrative Science Quarterly 41/​2 (June 1996):  229–​40; Harrison M. Trice and Janice M. Beyer, “Studying Organizational Cultures through Rites and Ceremonials,” The Academy of Management Review 9/​4 (1984): 653–​69. 3  Tamar Gutner and Alexander Thompson, “The Politics of IO Performance:  A  Framework,” Review of International Organizations 5 (2010):  227–​48; Michael Barnett and Martha Finnemore, “The Politics, Power, and Pathologies of International Organizations,” International Organization 53/​4 (1999): 699–​732. 4   Moises Naim, “The World Bank: Its Role, Governance, and Organizational Culture,” in Bretton Woods: Looking to the Future, ed. James M. Boughton and K. Sarwar Lateef (Washington, DC: IMF and World Bank Group, 1994), 85–​90; Jessica Einhorn, “The World Bank’s Mission Creep,” Foreign Affairs 80/​5 (2001): 22–​35; Ngaire Woods, The Globalizers: The IMF, the World Bank and their Borrowers (Ithaca, NY: Cornell University Press, 2006). 5  David A. Phillips, Reforming the World Bank:  Twenty Years of Trial—​and Error (New  York:  Cambridge University Press, 2009). 6   Nils Brunsson, The Organization of Hypocrisy: Talk, Decisions, and Actions in Organizations (New York: John Wiley & Sons, 1989); Christine Oliver, “Strategic Responses to Institutional Pressures,” Academy of Management Review 16/​1 (1999): 145–​79; Michael Lipson, “Peacekeeping: Organized Hypocrisy?,” European Journal of International Relations 13/​1 (2007): 5–​34; Catherine Weaver, Hypocrisy Trap: The World Bank and the Poverty of Reform (Princeton, NJ: Princeton University Press, 2008). 7   Michael Barnett, Eyewitness to a Genocide: The United Nations and Rwanda (Ithaca, NY: Cornell University Press, 2002). 8  Rawi Abdelal, Capital Rules:  The Construction of Global Finance (Cambridge, MA:  Harvard University Press, 2007); Paul Blustein, The Chastening: Inside the Crisis that Rocked the Global Financial System and Humbled the IMF (New York: Public Affairs, 2001); Jeffrey M. Chwieroth, Capital Ideas: The IMF and the Rise of Financial Liberalization (Princeton, NJ: Princeton University Press, 2010). 9   Mark Walkup, “Policy Dysfunction in Humanitarian Organizations: The Role of Coping Strategies, Institutions, and Organizational Culture,” Journal of Refugee Studies 10/​1 (1997): 37–​60; Fiona Terry, Condemned to Repeat (Ithaca, NY: Cornell University Press, 2002). 10  Phillips, Reforming the World Bank; Diane Stone and Christopher Wright (eds.), The World Bank and Governance:  A  Decade of Reform and Reaction (London:  Routledge, 2006); Catherine Weaver 2

 

922   organizational culture Of course, organizational culture cannot explain everything we may wish to know about IOs. Rather, we argue that attention to organizational culture, in addition to other explanatory factors, can greatly enrich how we understand and explain the complex forms, functions, and dynamics of IOs in the world today. Efforts to theorize the mechanisms through which IOs’ cultures exert effects and to observe those effects confront difficult challenges. While we do not claim to provide a tour de force here, we choose to address in this chapter three key issues concerning research on IO culture and its significance for our broader inquiry into international organizations in world politics. The first task is clearly conceptualizing organizational culture in a way that is amenable to observation and analysis. As sociologist Diane Vaughan notes, scholars too often invoke organizational culture “without precision in conceptual definition, its empirical referent, or its connections to the actions of organizations and their members.”11 Conceptual confusion, in short, hinders explanatory analysis. Second, in order to convince scholars to pay attention to organizational culture in the study of IOs, we must demonstrate how and when culture matters and, more importantly, how much culture matters, especially in relation to factors such as political power and material interests. Organizational culture is often invoked only after material-​rationalist theories are shown to be insufficient explanations for IO behavior. The research we survey suggests that it is a mistake to treat organizational culture as merely a residual explanatory variable. IO culture can be a powerful explanatory factor. That said, we do not necessarily view cultural explanations as rivals for materialist theories; one of the contributions of the cultural approach is to enrich, deepen, and extend our understanding of IOs. Further, our survey suggests that cultural explanations come in different varieties. Two dimensions along which culture-​based theorizing varies—​whether culture is treated as a constraint or as a strategic resource, and whether the locus of culture lies within the IO or in the IO’s external environment—​suggest a tentative typology of culture-​based theories, none of which are prima facie incompatible with material and rationalist approaches to understanding IO behavior. Finally, we discuss problems of measurement and inference in the study of IO cultures. While no standard method of measuring culture has emerged, the literature we survey provides several approaches, each with its own strengths and weaknesses. Cultural explanations can also be susceptible to tautological reasoning: we define IO culture by the behavior we observe and then we try to draw causal inferences about how cultural beliefs produced observed outcome(s).12 Simply put, we and Ralf J. Leiteritz, “Our Poverty Is a World Full of Dreams:  Reforming the World Bank,” Global Governance 11/​3 (2005): 369–​88; Weaver, Hypocrisy Trap. 11   Diane Vaughan, “The Dark Side of Organizations: Mistake, Misconduct, and Disaster,” Annual Review of Sociology 25 (1999): 271–​305, 289. 12   Jeffrey W. Legro, “Which Norms Matter? Revisiting the ‘Failure’ of Internationalism,” International Organization 51/​1 (1997): 31–​63, 42.

 

conceptualizing organizational culture   923 conclude that it is not only important to make the case for why we must pay attention to organizational culture in the study of IOs, but we must also make a clear and persuasive case for how we study organizational culture.

Conceptualizing Organizational Culture The concept of organizational culture draws extensively from the broader fields of cultural anthropology and sociology, and for decades has been firmly embedded in organizational theory and business management studies.13 In the sociological tradition, organizational culture is usually conceptualized as the shared “rules, rituals, and beliefs”14 that shape the members of the organization’s decision-​making processes by specifying the basic assumptions, or “the correct way to perceive, think, and feel”15 about the world they inhabit. Organizational culture derives from the basic human need for stability, consistency, and meaning. Uncertainty and complexity drive decision-​makers to develop routines that provide predictable means of responding to daily tasks as well as unforeseen issues or demands that arise in the organization’s authorizing and task environments.16 Over time, actors within the organization (the “group” in cultural terminology) come to recognize and internalize not only the formal rules of the organization, but also the unstated norms, standard operating procedures, and shared understandings about “how things are done.” As actors are socialized into the organization’s dominant culture their behavior may begin to follow the logic of appropriateness as much as (or more than) rational and strategic calculation of expected consequences.17 In Michael Barnett’s study of the UN Secretariat’s behavior during the 1994 Rwandan genocide, for example, bureaucratic culture provided the lenses through which the organization’s analysts and 13   See, e.g., T. E. Deal and A. A. Kennedy, Corporate Cultures (Reading, MA: Addison-​Wesley, 1982); Gary Alan Fine, “Negotiated Orders and Organizational Cultures,” Annual Review of Sociology 10 (1984): 239–​62; Edgar Schein, “Organizational Culture,” American Psychologist (February 1990): 109–​19; and Organizational Culture and Leadership (San Francisco:  Jossey-​ Bass, 1992); Mary Jo Hatch, Organization Theory: Modern, Symbolic, and Postmodern Perspectives (New York: Oxford University Press, 1997). 14   Barnett and Finnemore, “The Politics, Power, and Pathologies of International Organiza­ tions,” 710. 15   Schein, “Organizational Culture,” 111. 16   James G. March and Herbert A. Simon, Organizations (New York: John Wiley & Sons, 1958). 17  James G. March and Johan P. Olsen, “The Institutional Dynamics of International Political Orders,” International Organization 52/​4 (1998): 943–​69.

 

924   organizational culture decision-​makers viewed the world: “UN staff came to know Rwanda as members of bureaucracies; the bureaucratic culture situated and defined their knowledge, informed their goals and desires, shaped what constituted appropriate and inappropriate behavior, distinguished acceptable from unacceptable consequences, and helped to determine right from wrong.”18 In the sociological tradition, organizational culture is seen to shape actors’ behavior by constructing symbolic systems and meanings that inform how staff members view the core identity, purposes, and goals of the institution. In short, organizational culture embodies the ideologies, norms, language, and routines that together constitute the “theories in use”19 or “the basic assumptions that affect how organizational actors interpret their environment, select and process information, and make decisions so as to maintain a consistent view of the world and the organization’s role in it.”20 Anthropological approaches to organizational culture differ, in so far as “attention does not focus primarily on ideas, belief systems, or dogmas, but on other properties of culture … the vocabulary of meanings, the expressive symbols, and the emotional repertoire.”21 Anthropologists observe culture through semiotic processes in the codes, stories, ceremonies, and other cultural artifacts through which members express meaning.22 In the sociological approach, organizational culture is widely shared among the members of the culture, temporally stable, and potentially measurable.23 Anthropologists, by contrast, “offer a more interpretive understanding of culture as a political process of constructing and negotiating meanings, which are continuously contested.”24 Culture is not so much a set of assumptions or scripts that agents internalize and then apply to their environments; rather, culture

 Barnett, Eyewitness to a Genocide, 7.   This contrasts with the “espoused theories” of organization, observed in the officially stated missions, ideologies, norms and policies of an organization, which are intended more for signaling compliance with external expectations (including legitimacy) than for shaping informal behavior within the organization. See Chris Argyris and Donald A. Schön, Theory in Practice: Increasing Professional Effectiveness (San Franciso:  Jossey-​Bass, 1974); John W. Meyer and Brian Rowan, “Institutionalized Organization:  Formal Structure as Myth and Ceremony,” American Journal of Sociology 83/​2 (1977): 340–​63; Brunsson, The Organization of Hypocrisy; Weaver, Hypocrisy Trap. 20  Weaver, Hypocrisy Trap, 36–​7. 21   Ann Swidler, “Cultural Power and Social Movements,” in Social Movements and Culture, ed. Hank Johnston and Bert Klandermans (Minneapolis: University of Minnesota Press, 1995), 25–​40, 27. 22   Trice and Beyer, “Studying Organizational Cultures through Rites and Ceremonials”; Lisa Wedeen, “Conceptualizing Culture: Possibilities for Political Science,” American Political Science Review 96/​4 (2002): 713–​28; Ann Swidler, “Culture in Action: Symbols in Strategies,” American Sociological Review, 51/​2 (1986): 273–​86. 23   Scholars working in this tradition tend to view organizational culture as consistent, integrated, relatively stable, and subject to change only in a path-​dependent, incremental manner. See Schein, Organizational Culture and Leadership; Oliver, “Strategic Responses to Institutional Pressures.” 24   Galit Sarfaty, Values in Transition: Human Rights and the Culture of the World Bank (Stanford, CA: Stanford University Press, 2012), 75. 18

19

 

conceptualizing organizational culture   925 lies in the meaning-​laden symbols, myths, stories, and rituals that constitute the “social process through which people reproduce together the conditions of intelligibility that enable them to make sense of their worlds.”25 Foucauldian work in this tradition takes the view that “cultural practices, categories, and rules are enactments of power.”26 Galit Sarfaty’s study of how human rights was “mainstreamed” at the World Bank is an exemplar of the anthropological approach.27 Sarfaty demonstrates that the movement of human rights norms within the IO was marked by contests between a subordinate group of lawyers and sociologists, who viewed human rights as an end goal that the organization’s procedures should be oriented toward, and a dominant group of neoclassically trained economists, who viewed human rights as a potentially useful instrument for achieving economic growth. Sarfaty is attuned to “the power dynamics and contestation within the organization,” an approach which she contrasts with work that “treats ‘culture’ as an object that is static and uniform, and can be defined and measured.”28 Two other issues complicate the conceptualization of organizational culture. First, like most organizations, international organizations are open systems.29 Scott defines open systems as “congeries of interdependent flows and activities linking shifting coalitions of participants embedded in wider material, resource and institutional environments.”30 In the context of organizational culture, this means culture does not start or stop at the front doors of 1818 H Street in Washington, DC (the World Bank headquarters), nor are members of one organizational culture confined only to that culture. Wider professional ecologies,31 blended with individuals’ other cultural identities and affiliations (be they ethnic, national, etc.), contribute a natural fluidity and complexity to organizational culture that complicates efforts to define organizational culture as a distinct, measurable indicator that holds constant across all members of an identified group and, more problematically, sufficiently stable and entrenched over time to fit neatly into any deductive analysis that attempts to define and hold constant “organizational culture” as an independent variable. Relatedly, organizations are not internally homogeneous. Subcultures and countercultures exist, particularly within large organizations with broad or multiple mandates, where there are likely to be several different staff specializations or professions, as well as high staff turnover.32 As such, large international organizations

  Wedeen, “Conceptualizing Culture: Possibilities for Political Science,” 717. 27   Swidler, “Cultural Power and Social Movements,” 30.  Sarfaty, Values in Transition. 28 29   Ibid., 75.   Lipson, “Peacekeeping: Organized Hypocrisy?” 30   W. R. Scott, Organizations:  Rational, Natural, and Open Systems, 5th ed. (Upper Saddle River, NJ: Prentice Hall, 2003), 29. 31  Leonard Seabrooke and Eleni Tsingou, “Revolving Doors and Professional Ecologies in International Financial Governance,” paper presented at PIPES Workshop (Professions in International Political Economies), Frederiksberg, Denmark (2012). 32  Joanne Martin and Caren Siehl, “Organizational Culture and Counterculture:  An Uneasy Symbiosis,” Organizational Dynamics (Autumn 1983): 52–​64. 25

26

 

926   organizational culture like the UN will inevitably possess groups within the organizations that bring to the table different ideologies, values, and beliefs. While dominant and subordinate relationships between these units emerge, the existence of subcultures will confound efforts to identify a single set of shared assumptions that are uniformly recognized or internalized across the IOs. Furthermore, accounting for the contestation between dominant and sub-​or countercultures is critical to understanding the dynamics of organizational culture, behavior, and change (or lack thereof). As we shall discuss below, this moves the study of IO culture to IO cultures. This simultaneously challenges the notion that organizational culture inevitably leads to institutional inertia33 and necessitates empirical research which delves deep enough into the bureaucratic life of any organization to discern where such subcultures exist and how they interact to affect observable patterns of behavior and change.34 In sum, the interdisciplinary roots, the grab-​bag of features attributed to “culture,” the seemingly infinite possibilities for dissecting organizational culture into subcultures, and organizational cultures’ inherently open and fluid nature means that the study of IO culture is first and foremost challenged by a lack of conceptual clarity that enables us to determine exactly what is organizational culture and what is not. However, as we discuss in the next section, this dilemma should not put a full stop to using organizational culture in our analyses of IOs. Rather, it serves to remind us that the onus is on the individual researcher to make clear how he or she is defining and identifying the culture(s) of international organizations in the context of the analytical objectives of the study.

Why and How Organizational Culture Matters In order to understand the value added by cultural approaches to the study of IOs, we must compare them to the main theoretical alternatives to understanding 33   Michael T. Hannan and John Freeman, “Structural Inertia and Organizational Change,” American Sociological Review 49/​2 (1984): 149–​64; J. W. Lorsch, “Strategic Myopia: Culture as an Invisible Barrier to Change,” in Gaining Control of the Corporate Culture, ed. Ralph H. Kilmann, Mary J. Saxton, and Roy Serpa (San Franciso: Jossey-​Bass, 1985), 84–​102; Juan D. Carrillo and Denis Gromb, “Cultural Inertia and Uniformity in Organizations,” The Journal of Law, Economics & Organization 23/​3 (2006): 743–​7 1. 34   See, e.g., Anthony J. Bebbington et al. (eds.), The Search for Empowerment: Social Capital as Idea and Practice at the World Bank (Bloomfield, CT: Kumarian Press, 2006); Susan Park and Antje Vetterlein, Owning Development: Creating Policy Norms in the IMF and the World Bank (New York: Cambridge University Press, 2010).

 

why and how organizational culture matters    927 IO design, (dys)function, and behavior. The alternative approaches tend to share some core assumptions regarding how IOs operate:  actors within and outside of IOs are rational optimizers; “authoritative rule structures” are the key factors shaping agents’ strategies;35 and the rule structures within which IO actors operate are strongly influenced by the distribution of material power among the members of the international system. Organizational culture plays a peripheral role in what we, following Barnett and Finnemore, refer to as “economistic” approaches.36 In economistic approaches IOs are conceptualized as contractual arrangements among rational, materially oriented actors, varying in their capabilities, seeking to maximize their interests subject to the enduring environmental constraints and opportunities that inhere in their domains of operation. Even if we accept that organizations emerge out of processes of institutional tinkering in which “competing entrepreneurs are testing different organizational forms” to see which type performs best,37 this does not imply that organizations always perform well. Any hierarchically organized institution—​be it a firm or an IO—​involves a potential misalignment of incentives facing principals (those delegating a task to be carried out) and agents (those to whom the task has been delegated). The formal and informal contractual relationships between principals and agents are inherently incomplete or ambiguous; agents have some discretion in interpreting and carrying out their directives (“agency slack”), and principals may disagree with each other and struggle to monitor and sanction agents that deviate from the task. Agents might exploit the unclear nature of the contractual arrangement to advance their own narrow interests (capturing resources to wage and win bureaucratic turf battles, for example).38 In this vein, principal–​agent (PA) models recognize that IOs are (relatively) autonomous actors that can engage in behavior that deviates from the wishes of their political masters.39 But PA models largely conform to economistic analysis by assuming IOs to be self-​interested, rational actors who have predefined (and unchanging) preferences centered on the expansion of their staff, mandates, and resources. Missing is a persuasive theory of IO identity and interests that goes beyond this blanket assumption to understand the constitution of IO preferences. This is a significant gap in the PA model, in so far as it cannot explain why, when 35  Daniel L. Nielson and Michael J. Tierney, “Delegation to International Organizations:  Agency Theory and World Bank Environmental Reform,” International Organization 57/​2 (2003): 241–​76, 251. 36   Barnett and Finnemore, “The Politics, Power, and Pathologies of International Organizations.” 37   David Lake, “Hobbesian Hierarchy:  The Political Economy of Political Organization,” Annual Review of Political Science 12 (2009): 263–​83, 268. 38   Gutner and Thompson, “The Politics of IO Performance: A Framework,” 238. 39   e.g., Darren Hawkins et  al., Delegation and Agency in International Organizations (New  York: Cambridge University Press, 2006).

 

928   organizational culture opportunities for agency slippage, resource maximization, and mission expansion exist, IOs choose not to deviate from principal demands.40 In sum, economistic analyses of IOs do not deny the existence of organizational cultures per se. But they do not treat culture as a concept worthy of inclusion in the analysis, either. The spare, contractual view of IOs ignores the reasons why organizations might develop particular cultures and how cultures explain patterns of IO behavior. As Barnett and Finnemore explain in the preface to Rules for the World, the turn toward organizational sociology was of necessity more than choice: contractual, economistic explanations were much better at explaining why IOs existed than explaining what they were actually doing.41 And what they were doing sometimes served neither the organizations’ principals nor the targets of their ostensibly desirable interventions. Barnett and Finnemore suggest that once IOs are delegated authority by member states to solve the problems with which they have been tasked, they face environments rife with complexity, risks, and uncertainties. IO mandates are often excessively broad, ambiguous, and contested; IO staff members must figure out how to translate their mandates into “workable doctrines, procedures, and ways of acting in the world … Once in place, the staff of IOs take their missions seriously and often develop their own views and organizational cultures to promote what they see as ‘good policy’ or to protect it from states that have competing interests.”42 By failing to appreciate the ambiguity of IO mandates, economistic approaches are unable to understand what IOs actually want.43 Their research suggests that much of what IOs do involves figuring out what they should do. Bureaucratic culture becomes the key factor in determining the legitimate ends to which IO staff members are working. Organizational culture does not need to be dysfunctional—​there is much work on how “winning” corporate cultures can be enduring advantages for firms in competitive environments44—​but the routinized decision making and compartmentalization that are constitutive features of rational-​legal bureaucratic cultures predispose IOs to develop certain pathologies.45

 Weaver, Hypocrisy Trap; see also Michael Barnett and Liv Coleman, “Designing Police: Interpol and the Study of Change in International Organizations,” International Studies Quarterly 49 (2005): 593–​619. 41   Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in World Politics (Ithaca, NY: Cornell University Press, 2004), viii–​ix. 42   Ibid., 5. 43  Jacqueline Best, “Ambiguity and Uncertainty in International Organizations:  A  History of Debating IMF Conditionality,” International Studies Quarterly 56/​4 (2012): 674–​88. 44   Jay B. Barney, “Organizational Culture: Can It Be a Source of Sustained Competitive Advantage?,” Academy of Management Review 11/​3 (July 1986): 656–​65. 45   Barnett and Finnemore, “The Politics, Power, and Pathologies of International Organizations,” 719–​ 24. “Pathology” for Barnett and Finnemore is an observed behavior, shaped by internal organizational cultures, that violates “the self-​understood core goals of the organization”: Rules for the World, 38. 40

 

theorizing cultures of international organizations    929

Theorizing the Cultures of International Organizations In this section we describe some of the mechanisms identified by scholars involved in the recent “cultural turn” in the study of IOs. The mechanisms illustrate how organizational cultures produce observable effects on IOs’ goals, their performance in pursuing those goals, and their responsiveness to pressures for change. In turn, our brief survey reveals two dimensions along which culture-​based theorizing varies. We use the two dimensions—​whether culture is treated as a constraint or as a strategic resource, and whether the locus of culture lies within the IO or in the IO’s external environment—​to suggest a typological mapping of cultural approaches to the study of IOs. One key behavioral outcome linked to organizational culture is organizational pathology, defined by Barnett and Finnemore as “dysfunctions … that lead the IO to act in a manner that subverts its self-​professed goals.”46 Barnett and Finnemore specifically identify the “irrationality of rationalization” as one of the mechanisms by which IOs’ bureaucratic cultures produce pathological behavior.47 The rational-​legal bureaucratic form encourages officials within the IO to rely on rules and procedures that, in part, constitute the organization’s operational culture in the process of arriving at decisions. Sometimes the rules are poorly suited to the realities on the ground and prevent the IO from effectively carrying out its mission. Slavish adherence to the rules and procedures may lead IO officials to confuse the ends (pursuing the mission) and the means (following the established rules). Barnett’s work on the failure of the UN to effectively intervene in the 1994 mass killings of Tutsis by Rwandan Hutus provides a striking illustration of this pathology at work.48 The UN Secretariat’s insistence on classifying Rwanda in early 1994 as a failed state rather than a country perched on the precipice of genocide shaped the mission of the small, ill-​equipped force of peacekeepers. IO decision-​makers in New York “were using the categories available from the organizational culture in which they were embedded.”49 Once the violence was underway in April 1994, the UN classified the Rwandan situation as an ethnically based civil war rather than a crime against humanity. The UN’s rules of peacekeeping then kicked in, and led to the withdrawal of the peacekeepers on the ground in Kigali.50 One hundred days later over 800,000 Tutsis and moderate Hutus were dead.   Barnett and Finnemore, Rules for the World, 8.   Barnett and Finnemore, “The Politics, Power, and Pathologies of International Organizations,” 720–​1; Rules for the World, 39. 48 49  Barnett, Eyewitness to a Genocide.   Ibid., 60. 50   Ibid., 158. Notably, Barnett does not dismiss interest-​based arguments in this account, namely the interests of major power states such as the United States to avoid getting dragged into a perceived “civil war” in Africa, particularly so soon after the killing of American troops in Mogadishu. 46 47

 

930   organizational culture A more recent example comes from Autesserre’s work on peacekeeping in the Democratic Republic of Congo (DRC).51 Continuous and extensive local violence in the DRC during the country’s rocky transition from civil war (2003–​6) was ignored due to the lens through which the UN and other peacekeeping organizations viewed the country: the DRC was classified as a “post-​conflict” situation, and as such the IOs involved in the transition followed “a specific set of policies and procedures (such as elections organization)” that were organizationally legitimate but ultimately ill-​suited to the problem.52 Once the “post-​conflict” master frame was imposed on the DRC, the UN agencies set free and fair elections as the key operational goal, elevating elections over local peacebuilding because the electoral route “was associated with an existing set of tools, procedures, expertise, and strategy.”53 Organizational cultures affect how IOs define their purposes in the world and interpret and respond to feedback produced by their environments. The IMF, for example, is often described as having a “technocratic” and “neoliberal” culture defined by macroeconomists drawn from top American economics departments.54 Shared professionalizing experiences—​in the Fund’s case, graduate training in mainstream economics coupled with additional training within the organization and quasi-​apprenticeships in the first years of new staff members’ careers—​promote reliance on a simple, shared template for understanding the sources of the payments problems that bring borrowers to the Fund. Starting in the 1950s a group of IMF economists developed a “flows-​of-​funds” framework that explained precisely how domestic macroeconomic policies interact to generate payments imbalances; more importantly, the framework enabled IMF staff to forecast the size of the borrower’s financing needs in the near future, contingent on the extent of policy changes.55 “Financial programming” is used to derive “the effects of fiscal policies and credit creation on the balance of payments.”56 The model simplifies the task facing IMF officials. A list of policy areas that could be at the root of the borrower’s economic

 Severine Autesserre, “Hobbes and the Congo:  Frames, Local Violence, and International Intervention,” International Organization 63 (Spring) (2009): 249–​80. 52 53   Ibid., 254–​5.   Ibid., 271. 54  Blustein, The Chastening; Barnett and Finnemore, Rules for the World, 45–​72; Chwieroth, Capital Ideas; Bessma Momani, “Limits of Streamlining Fund Conditionality: IMF’s Organizational Culture,” Journal of International Relations and Development 8/​2 (2005): 39–​57; Stephen C. Nelson, “Playing Favorites: How Shared Beliefs Shape the IMF’s Lending Decisions,” International Organization 68/​ 2 (Spring 2014): 297–​328; Antje Vetterlein, “Lacking Ownership: The IMF and its Engagement with Social Development as a Policy Norm,” in Owning Development: Creating Policy Norms in the IMF and the World Bank, ed. Susan Park and Antje Vetterlein (New York: Cambridge University Press, 2010), 93–​112; Woods, The Globalizers. 55   Michael Mussa and Miguel Savastano, “The IMF Approach to Economic Stabilization,” in NBER Macroeconomics Annual 1999, ed. Ben S. Bernanke and Julio J. Rotemberg (Cambridge: MIT Press, 2000), 108–​15. 56   James Boughton, Tearing Down Walls: The International Monetary Fund, 1990–​99 (Washington, DC: International Monetary Fund, 2012), lvi; see also Barnett and Finnemore, Rules for the World, 51–​6. 51

 

theorizing cultures of international organizations    931 troubles would be very lengthy. The basic model directs staff members’ attention to those that are the most important targets. One consequence of the Fund’s ideational culture is that a number of issues, some of which mattered a great deal to external stakeholders (including powerful member governments), were sidelined or watered-​down in the implementation stage because they lay outside the perceived core competencies of the staff.57 It is not that the IMF’s economists do not care about issues such as the ecological and social impacts of economic adjustment policies; rather, “they do not know how to pursue them within their intellectual framework.”58 Several studies demonstrate the effects of IO culture on responsiveness to environmental cues and pressures for change. The World Bank, for example, has proved to be a fertile testing ground for the role of organizational culture in shaping organizational change. Weaver invokes elements of the Bank’s culture to explain decoupling between the organization’s talk and its actions:  while the IO publicly embraced a more encompassing notion of “sustainable development,” including improving the environmental impact of its programs, tackling corruption, and promoting “good governance,” it did little “institutionally to promote, monitor, and otherwise make mainstreaming happen” because of conflicts with preexisting organizational ideas and operational norms.59 Moreover, the Bank’s intellectual and bureaucratic cultures have distinct effects on organizational reform programs: close process tracing of the Bank’s attempts at wholesale reform reveals that the success of reforms is linked to how closely they match the organization’s pre-​existing cultural traits.60 The congruence of the proposed reform and the prevailing organizational culture is also an important factor in Barnett and Coleman’s study of the International Criminal Police Organization (Interpol).61 They demonstrate through case study analysis that when the content of the proposed reforms and the IO’s culture are at loggerheads, the IO will pursue strategies (categorized by the authors as avoidance, defiance, manipulation, and strategic social construction) to manage environmental pressures while at the same time preserving the core elements of the organization’s culture. When Interpol faced pressures in the 1950s and 1960s to become more like a “modern IO,” the changes it implemented were largely cosmetic. It resisted reforms that threatened its organizational culture, reflecting a strong “desire to preserve the autonomy and professional norms of the organization.”62 Other studies in this vein emphasize the strategic use of cultural resources by actors engaged in intraorganizational contests to define the IO’s agenda. Sarfaty’s   Barnett and Finnemore, Rules for the World, 64–​5; Vetterlein, “Lacking Ownership.” 59   Barnett and Finnemore, Rules for the World, 65.  Weaver, Hypocrisy Trap, 26. 60   Ibid.; Weaver and Leiteritz, “Our Poverty Is a World Full of Dreams”; Daniel Nielson, Michael J. Tierney, and Catherine Weaver, “Bridging the Rationalist-​Constructivist Divide:  Reengineering the Culture of the World Bank,” Journal of International Relations and Development 9 (2006): 107–​39. 61 62   Barnett and Coleman, “Designing Police.”   Ibid., 614. 57

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932   organizational culture ethnographic study of the battle over the role of human rights in the World Bank’s approach to development illustrates the power of one subculture—​that of the economists, “whose language is the dominant mode of communication and rationality”—​over the members of the Bank’s legal subculture, who were forced to translate the moral and legalistic framing for human rights into the rational, instrumental terms that the economists could understand.63 The power of the economistic culture of the Bank emerges in Weaver’s discussion of the emergence of the gender and development norm within the organization.64 Norm advocates strategically framed the issue in ways that resonated “within the institution’s dominant culture, choosing methods, concepts and theories,” focusing on “questions of how to increase women’s property rights, access to credit, productivity increases, and the potential effect of these forms of economic empowerment on national economic growth.”65 Chwieroth’s study of the evolution of the norm of capital account openness in the IMF suggests that even in an organization with a relatively coherent “neoliberal” intellectual culture, norm entrepreneurs access and use cultural resources to wage battles over the organization’s direction.66 In the 1980s and 1990s economists in one department within the IMF (Monetary and Exchange Affairs) were the most ardent voices in favor of amending the Articles of Agreement to prohibit member states from using capital controls.67 They were ultimately unsuccessful, but the cultural “capital” of the pro-​liberalization forces within the IMF explains in good part the ability of the group and its figurehead, the University of Chicago-​trained Manuel Guitián, to get the proposal on the table when many of the organization’s staff members were lukewarm on the issue. Guitián and likeminded officials were skilled operators within the IMF’s prevailing organizational culture. While organizational culture is making more frequent appearance in IO studies, there is little consensus on how culture fits into more rationalist frameworks. Here, we do not view cultural and rationalist accounts as incommensurable. Rather, we see that cultural accounts’ emphasis on ideational factors versus rationalists’ deference to material incentives provides differing ways for examining decision-​making within IOs. As Miles Kahler argues, in culturally driven decision-​making:  “the feasible [choice] set is sharply constrained by culture, collective beliefs largely guide interpretation of the choice situation, and in the most culturally driven account, choice can hardly be said to occur.”68 Yet this does not imply, as some critics have argued, that IO staff members become cultural “dupes,” internalizing and then thoughtlessly  Sarfaty, Values in Transition, 96.  Catherine Weaver, “The Strategic Social Construction of the World Bank’s Gender and Development Policy Norm,” in Owning Development: Creating Policy Norms in the IMF and the World Bank, ed. Susan Park and Antje Vetterlein (New York: Cambridge University Press, 2010), 70–​89. 65 66 67   Ibid., 86–​7.  Chwieroth, Capital Ideas.   Ibid., 170–​1. 68   Miles Kahler, “Rationality in International Relations,” International Organization 52/​4 (1998): 919–​41, 934. 63

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theorizing cultures of international organizations    933 enacting social scripts without reflecting on their decisions. As the work reviewed here demonstrates, this caricature is often inaccurate. This observation reveals another strong tension between the various approaches to organizational culture. Culture is sometimes conceptualized as a relatively unified “web of meaning” that “pushes action in a consistent direction,” whereas at other times culture is viewed as a “tool kit … from which actors select differing pieces for constructing lines of action.”69 We see both kinds of conceptualizations in the nascent literature on IO cultures. The sociological approach in which organization culture creates “ritualized behavior” and constructs “a very parochial normative environment within the organization” is evident in Barnett and Finnemore’s seminal work and the research on bureaucratic cultures of IOs that followed.70 Sarfaty and Weaver, by contrast, highlight the use of cultural resources by actors within the World Bank to strategically reshape the organization’s mission. The review of recent work on IO cultures suggests a second dimension of variation: whether the locus of culture lies inside the organization or in the international environment. As we note above, IOs are “open systems,” so the assumption that they are hermetically sealed from external pressure, competition, and political and cultural elements swirling in the international environment is implausible. Nonetheless, scholars differ in where they locate the source of IO culture. Some choose to focus on the distinctive cultures that emerge from dynamics that are products of self-​contained organizational dynamics. For example, none of the work that describes the IMF’s culture as “hierarchical” identifies the source of that cultural element as the international environment. Rather, it is an enduring aspect of culture that is particular to that organization and its professional staff. Autesserre, on the other hand, locates the frame that shaped UN peacekeeping culture “at the level of the world polity.”71 The post-​conflict frame was an element of global culture, and was translated into operational rules and procedures at the organizational level. Kim and Sharman argue that the post-​Cold War emergence of initiatives to hold state leaders culpable for serious corruption crimes, exemplified by the UN/​World Bank joint Stolen Assets Recovery effort, reflect the IOs’ strategic adoption of norms that closely “fit with world culture … because they present culturally approved solutions to culturally defined problems.”72 Others draw links between transnational professional cultures (such as the field of economics) and the cultures and behavior of numerous international economic institutions and epistemic communities.73  Swidler, “Culture in Action,” 277; see also Klaus Weber and M. Tina Dacin, “The Cultural Construction of Organizational Life,” Organization Studies 22/​2 (2011): 286–​98. 70   Barnett and Finnemore, “The Politics, Power, and Pathologies of International Organizations,” 718. 71   Autesserre, “Hobbes and the Congo,” 253. 72   Hun Joon Kim and J. C. Sharman, “Accounts and Accountability: Corruption, Human Rights, and Individual Accountability Norms,” International Organization 68/​2 (Spring 2014): 20. 73  André Broome and Leonard Seabrooke, “The Socialization and Translation of Professional Knowledge in International Organizations,” paper presented at the 53rd Annual ISA Convention, San 69

 

934   organizational culture Table 43.1  Approaches to IO cultures Locus of cultural form

Cultural Culture as constraint form Culture as resource (“toolkit”)

Internal

External

Bureaucratic cultures

World polity, occupational and professional fields

Norm shifts and cultural contests

Cultural match/​clash

Combining the two dimensions—​the nature of organizational cultures (constraint or strategic toolkit) and the sites of cultural forms (internal to the organization or in the external environment)—​provides an opportunity for typological mapping. In each cell of Table 43.1 we identify approaches to the study of IO cultures. The bureaucratic culture approach pioneered by Barnett and Finnemore, for example, fits in the top-​left cell. In this theoretical framework organizational culture imposes a strong constraint on IO officials’ capacity for and interest in rational calculation, and the locus of cultural elements lies within the organization itself. Theories that lie in the top-​right cell take a similar view of culture but tend to see IOs as highly permeable and sensitive to cultural elements that exist outside the organization, perhaps at the level of an overarching world culture.74 The bottom cells in Table 43.1 conceptualize culture as a repertoire or toolkit upon which actors can draw. Approaches in the bottom-​left cell tend to focus on the strategic use of cultural resources in intraorganizational contests over norms and goals. There is, to our knowledge, no research on IOs that clearly fits in the bottom-​right cell, but one can speculate on what theorizing along these dimensions would look like: analysis would center on how IOs strategically adopt or reject elements of the external cultural environment to suit their purposes. We stress that the dimensions are analytical devices for identifying varieties of theories of IO cultures. They do not tell us much about the content of theories linking organizational culture to IO behavior. Middle-​range theorizing of the kind surveyed in this chapter is governed by the questions that interest the researcher. Good theories produce observable implications, which can be tested against plausible Diego, CA (2012); Leonard Seabrooke and Ole Jacob Sending, “Professional Practices in International Organizations,” paper presented at the 2nd GR:EEN Annual Conference, Warwick, United Kingdom (2012); Seabrooke and Tsingou, “Revolving Doors and Professional Ecologies in International Financial Governance.”   See, e.g., Kim and Sharman, “Accounts and Accountability,” on the elements of the global culture of modernity. 74

 

studying io cultures   935 alternatives. How can cultural theories of IOs be tested? This is the issue to which we turn in the next section.

Studying IO Cultures There is no standard methodology for studying organizational culture. The reasons why are instinctive: the art of studying organizational culture is akin to the task of making the invisible—​“shared assumptions, values and beliefs”—​visible.75 Conceptual clarity opens the door to measurement and empirical analysis. Before we can assess the explanatory power of organizational culture we have to know what we should be looking for. Since scholars conceptualize organizational culture differently, it naturally follows that scholars employ different methods for observing it. Business management theorists and practitioners tend to view organizational culture as a variable that can be objectively observed and measured through instruments such as surveys. Ultimately, culture can also be strategically managed to shift organizational goals, reorient staff around new agendas, or to address performance issues.76 Sociological approaches, on the other hand, adopt a more subjective view. Culture is conceptualized as the values, norms, and beliefs possessed by agents, which can be revealed through interviews, communiqués, and other forms of correspondence, as well indirectly observed through socializing experiences, such as educational backgrounds, that confer certain beliefs. Finally, anthropological approaches take an intersubjective view, seeing organizational culture as “sense-​ making,” observed in the codes, stories, rituals, and ceremonies through which members express meaning. The intersubjective view of organizational culture suggests immersion in the daily life of the organization. The bulk of recent studies of IO cultures have adopted a measurement strategy in line with the subjective conceptualization of organizational culture. This work typically involves careful process-​tracing, interviews, and text analysis. For example, in Momani’s discussion of the IMF’s organizational culture, she uses extensive interviews with Fund staff and reading of internal documents to examine how the IMF’s technocratic ethos and economistic ideology led the staff to resist proposed changes to guidelines on loan conditionality.77 We learn from her study a tremendous amount 75   Ronald L. Jepperson and Ann Swidler, “What Properties of Culture Should We Measure?,” Poetics 22 (1994): 359–​7 1. 76   Ouchi and Wilkins, “Organizational Culture.” 77   Momani, “Limits of Streamlining Fund Conditionality.”

 

936   organizational culture about how the IMF staff think about the core mission of the IMF and how they should conduct their every day jobs. The reward of rich case study analyses is a high degree of internal validity. The potential pitfalls, however, are significant. As Legro puts it, “this is a holistic exercise that depends on the qualitative interpretation of the specific content of each culture.”78 Researchers that seek to glean evidence of organizational culture from interviews must be attuned to the potential biases of current members of IOs (who can be quite socialized into their immediate environments), past members (who might view the organization through rose-​tinted glasses or from disgruntled experience), or outside observers such as nongovernmental organizations (who view the IO within the frame of their own agendas). IO scholars working in this vein need to think seriously about the sources from which they derive our understanding of the culture and be wary of overreliance on any particular source.79 IO scholars working in the anthropological tradition tend to use ethnographic methods. Ethnographic research entails lengthy fieldwork, usually within a single organization. Organizational ethnographies include evidence from in-​depth interviews and analysis of organizational texts from archives, official publications, and unofficial or internal documents, memos, and emails. Critically, ethnographers also draw on participant or non-​participant observation of organizational life, either by working directly in the organization or attending meetings, training workshops, or field operations. Galit Sarfaty, in her recent ethnography of the World Bank, spent several years inside the Bank both as a staff member as well as an outside researcher, enabling her to build trust and gain access to internal correspondence critical to discerning how the Bank’s economistic and technocratic culture impeded the Bank’s embrace of human rights agendas.80 Michael Barnett, likewise, drew extensively from his time working with the US Mission to the UN on the Rwanda desk in 1993–​4 to understand how the culture of peacekeeping in the UN strongly shaped the UN’s reluctance to intervene during the Rwandan genocide.81 Stephen Hopgood spent over a year doing ethnographic research inside Amnesty International’s International Secretariat, using interviews, archival research, and observation of internal meetings to provide an insider’s account of the day-​to-​day operations within the organization and the recurrent debate between traditionalists who sought to uphold Amnesty’s moral authority and reformers who hope to modernize the organization.82 David Phillips drew upon seventeen years of work   Legro, “Which Norms Matter?,” 42.   Furthermore, it is imperative to go beyond “what’s in print.” Integrating culture into analysis almost always necessitates rigorous fieldwork, acquiring access to privileged information, such as internal memos and emails, internal publications, and internal web access. A handful of documents and a few interviews are simply not going to cut it. Patience and tenacity are not just virtues—​they are necessities. 80  Sarfaty, Values in Transition; see also Weaver, Hypocrisy Trap. 81  Barnett, Eyewitness to a Genocide. 82   Stephen Hopgood, Keepers of the Flame: Understanding Amnesty International (Ithaca, NY: Cornell University Press, 2006). 78

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studying io cultures   937 experience in the World Bank for his study of the organization’s checkered history of internal reform.83 Ethnographies seek to discover formal and informal norms, routines, and decision-​making processes that may be so deeply internalized among staff as consensus values that they are not immediately recognized in collective consciousness. Such research requires patient collection of data from primary texts and open-​ended interviews to reveal unspoken assumptions and values, beliefs and ideologies so deeply internalized that actors may see them as facts. Deep ethnographies can also uncover subcultures and struggles within the organization over meanings and routines. A notable feature of ethnographic work is greater attention to heterogeneity and dynamism of organizational cultures, potentially revealing the opportunities and constraints facing new organizational norms, policies, and practices. Ethnographic studies depend on interpretive data gathered from semi-​structured interviews and participant or nonparticipant observation. One potential pitfall in this method is that a scholar’s deep “self-​embedding” in the organization can lead her to start to internalize the culture and sympathize with the subjects of the study. Observer bias also affects research subjects. Entrenched perceptions about organizational culture are common, hard to dislodge, and the researcher’s interventions in the organization can inadvertently harden staff members’ perceptions about their organization’s prevailing cultures. By contrast, scholars that adopt the objective view of organizational culture make use of survey evidence and coding efforts such as those used in Total Quality Management studies.84 Surveys are quite common in business management studies, which use Likert-​scale and related indices to generate data that allows for the comparative studies of corporate cultures and, subsequently, the strategic “reengineering” of organizational cultures. Such studies offer the promise of portability; they may allow the analyst to compare organizational cultures along one or many dimensions. To date, however, survey-​based studies are (as far as we know) nonexistent in the field of IO studies. The main critique is that such studies are deductive in nature, and thus tend to be based on a priori assumptions or predetermined “givens” about culture, with reliance on leading questions. Organizational cultural properties do not easily translate into objects that can be measured, particularly through structured questionnaires: “the culture measured by conventional survey instruments is almost always the kind about which people disagree and can articulate. Utterly taken-​for-​granted but articulated knowledge, or unarticulated knowledge, is difficult to ask about directly.”85  Phillips, Reforming the World Bank.   Geert Hofstede et al., “Measuring Organizational Cultures: A Qualitative and Quantitative Study across Twenty Cases,” Administrative Science Quarterly 35 (1990): 286–​316. 85   Jepperson and Swidler, “What Properties of Culture Should We Measure?,” 368. Edgar Schein similarly notes: “survey work on organizational culture assumes knowledge of the relevant dimensions to be studied” (“Organizational Culture,” 110). 83

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938   organizational culture A final cautionary note on the empirical study of IOs concerns the temporal dimensions of organizational cultures. As hinted earlier, a frequently launched critique of studies of organizational culture is the tendency to treat culture as a stable variable that allows scholars to identify a consistent effect. After all, culture is something that provides stability to humans grappling with uncertainty and complexity, and thus it is easy to see culture as an immutable factor in organizational life. But in doing so, IO culture scholars tend to assume (or their readers infer that they assert) that culture is more or less inert or sticky—​which may or may not be the case. Further, the fact that organizational culture and behavior evolve together poses a simultaneity problem that many studies fail to consider. Handling this problem requires extra care in conceptualization and measurement. Organizational culture should be conceptually distinct from the effects that it is purported to exert.86 IO scholars interested in making causal claims about IO cultures should also seek to design research projects in a way that ensures that the putative cause (organizational culture) is not too “proximate” to the outcome.87 When the correlation between organizational culture and the outcome appears to be perfect (perhaps because the cultural element and the outcome of interest are observed simultaneously), critics can (and do) dismiss the work as akin to one of Kipling’s (non-​falsifiable) “just-​so” stories:  culture is invoked as an after-​the-​fact justification for an observed decision or behavior. Careful attention to timing and the causal process through which organizational culture exerts its effects is necessary.

Conclusion: A Research Agenda for the Study of IO Cultures In summary, while there are numerous challenges to studying IO culture, there is also tremendous promise. IO culture matters, and should be included alongside other key factors that influence the structure, purposes, behavior, and dynamics of change of important international organizations in world politics. However, as a field of research, the study of IO cultures is new and relatively underdeveloped. We thus take the remaining space here to outline what we think are some interesting questions that would benefit from attention to IO culture.   Legro, “Which Norms Matter?,” 57.   John Gerring, “Causation: A Unified Framework for the Social Sciences,” Journal of Theoretical Politics 17/​2 (2005): 163–​98. 86 87

 

conclusion   939 First, we believe there is an opportunity to explore variation in IO structure, type, and issue-​area and how they interrelate with organizational culture. For example, how does IO type (forum versus service, with seconded or permanent staff) affect the character, strength, and permeability of organizational culture? How does an IO’s design or organizational structure, such as degree of centralization, shape culture, or how does culture shape structural adaptation over time? How does organizational culture also affect (or reflect) organizational governance and representation? Second, the proliferation of types of organizational cultures suggests the need for a classification scheme. The cultures of the international financial institutions (the IMF, World Bank, and regional development banks) have been described in the following ways: “elitist,” “neoliberal,” “hierarchical,” “technocratic,” “bureaucratic,” “approval,” “disbursement,” and “control.”88 Others describe the UN Secretariat’s culture of “powerlessness.”89 Rather than referring to “the organizational culture” in the aggregate it may be more profitable to distinguish between types of IO cultures. Distinguishing between operational and professional cultures is one potential avenue for future work. Exploring how types of culture shape IO behavior—​and how they interact with each other and with the formal structure and issue area—​may push us beyond treating all IOs as sharing the same “bureaucratic” culture. These are merely two possible lines of inquiry. Certainly, studying the cultures of international organizations involves daunting conceptual and methodological issues discussed in this chapter. A comprehensive approach may also entail difficult reconciliation of, or at least due attention to, the diverse disciplinary perspectives and requisite ontologies and epistemologies on IO cultures. Challenges notwithstanding, we believe that attention to the cultures of IOs promises to deepen our backward-​looking, explanatory knowledge about why IOs behave in the ways that they do. And in an era of constant reform of existing IOs and the creation of new IOs, the study of organizational cultures can help to advance prescriptive, forward-​ looking knowledge about how IOs can and should act in the world.90

88  Chwieroth, Capital Ideas; Momani, “Limits of Streamlining Fund Conditionality”; Nelson, “Playing Favorites”; Phillips, Reforming the World Bank; Weaver, Hypocrisy Trap; Ngaire Woods, “Good Governance in International Organizations,” Global Governance 5/​1 (1999): 39–​61. 89   Autesserre, “Hobbes and the Congo”; and The Trouble with the Congo:  Local Violence and the Failure of International Peacekeeping (New York: Cambridge University Press, 2010); Barnett, Eyewitness to a Genocide. 90  On “backward-​looking” and “forward-​looking” forms of knowledge, see Alexander Wendt, “Driving with the Rearview Mirror:  On the Rational Science of Institutional Design,” International Organization 55/​4 (2001): 1019–​49.

 

 

Part VI I I

INTERNATIONAL INSTITUTIONAL LAW

 

 

Chapter 44

CONSTITUENT INSTRUMENTS Niels Blokker

International organizations are normally created by treaty. Such treaties are usually referred to as the ‘constitution’ or the ‘constituent instrument’ of the organization. This chapter is devoted to these treaties. The first part will give an overview of the different names given to constituent instruments of international organizations. Subsequently, the chapter will briefly discuss the content of constitutions and will demonstrate that this varies widely. Apart from states, international organizations may also become parties to constituent instruments of (other) international organizations. Following these introductory matters, the chapter will discuss the legal characteristics of constituent instruments and their interpretation. Then it will focus in particular on the creation of a new legal person in constitutions and constitutional development through ‘practice of the organization’. Some brief observations will conclude this chapter.

What’s in a Name … In practice, many different names are given to constituent instruments of international organizations and to newly created international organizations. Does this

 

944   constituent instruments matter? On the one hand, from a legal point of view, it does not. ‘What’s in a name? That which we call a rose by any other name would smell as sweet.’1 If it ‘smells sweet’, if the organization concerned and its founding instrument fulfil the necessary legal requirements,2 it is an international organization with a constitution, irrespective of the names of the organization and its constitution. Organizations may sometimes carry names such as ‘Network’, ‘Conference’, ‘Forum’, or ‘Mechanism’ that some would not immediately associate with fully fledged international organizations,3 and the same is true for their founding instrument (e.g. ‘resolution’).4 But names may also suggest that an international organization is created while this is not the case.5 On the other hand, sometimes nomen est omen. From a wider perspective, the name may reflect the Zeitgeist or the intentions of the founders of the organization. When the European Union (EU) was created, its founding treaty was named ‘Treaty on European Union’ (TEU, Maastricht Treaty).6 In 2004 the ‘Treaty establishing a constitution for Europe’ was signed, to establish a ‘constitution for Europe’, somewhat similar to national constitutions, acknowledging the EU’s need of its own underpinning in democracy and the rule of law. However, it did not enter into force after France and the Netherlands were unable to ratify following rejections of this treaty in referenda in these two countries. Subsequently the European Council decided to ‘abandon the constitutional concept’.7 As a result, most of the substance of the 2004 Treaty was kept, but a number of elements were taken away to remove the impression that it would resemble national constitutions. Amongst these elements were not only symbols such as a flag, an emblem, and a hymn,8 but also the very name ‘constitution’.9 The ‘deconstitutionalized’ treaty containing the changes   William Shakespeare, Romeo and Juliet (II, ii, 1–​2) (1597).   See Chapter 6 of this volume. 3   See e.g., the International Network on Bamboo and Rattan (http://​www.inbar.int), the Hague Conference on Private International Law (http://​www.hcch.net), the International Conference on the Great Lakes Region (https://​icglr.org/​), the Pacific Islands Forum (http://​www.forumsec.org/​), and the European Stability Mechanism (http://​www.esm.europa.eu/​). 4   See e.g., the Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty Organization was created in 1996 by resolution but is—​certainly nowadays—​generally considered to be an international organization. 5   See, e.g., the Charter of the Financial Stability Board (FSB) containing twenty-​four articles resembling constitutions of international organizations. However, according to Art. 23, “[t]‌his Charter is not intended to create any legal rights or obligations,” and the FSB is generally not seen as an international organization since it is not based on a treaty or other instrument governed by international law. The text of this Charter has been published in 51 ILM 828 (2012). 6   Official Journal 1992, C 191. 7   Decision by the European Council, Annex I to the Presidency Conclusions of the European Council meeting of 21–​2 June 2007. Following this decision, the mandate for the Intergovernmental Conference that negotiated the Lisbon Treaty stated: “The TEU and the Treaty on the Functioning of the Union will not have a constitutional character” (Council of the EU, Doc. 11218/​07, 26 June 2007, para. 3). 8   Art. I-​8 of the 2004 Treaty establishing a Constitution for Europe. 9   See S. Griller and J. Ziller (eds.), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Vienna/​New  York:  Springer Verlag, 2008). As G.  Amato wrote in his preface to this book, referring to the 2007 Lisbon Treaty: “Its name is not Constitution and the clauses on the constitutional 1

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content   945 did not carry the name ‘constitution’ any longer; instead the name ‘treaty’ continued to be used.10 In some cases the constituent instrument is named ‘treaty’. Apart from the TEU and the Treaty on the Functioning of the European Union (TFEU), examples are the Treaty on a European Economic Area; the Treaty establishing the European Stability Mechanism; the Treaty establishing a common market between Argentina, Brazil, Paraguay and Uruguay (‘Mercosur’); and the North Atlantic Treaty (establishing NATO). Other names of constitutions of international organizations are, for example:  Charter, Constitution, Covenant, Statute, Agreement, Articles of Agreement, Convention, Constitutive Act, Constitutive Treaty.11 The most common generic terms in doctrine and practice are ‘constitution’ and ‘constituent instrument’. The 1969 Vienna Convention on the Law of Treaties refers to ‘constituent instrument’.12 The same is true for the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations,13 the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character,14 and the Draft Articles on the Responsibility of International Organizations (adopted by the International Law Commission (ILC) in 2011).15 The International Court of Justice (ICJ) has used the terms ‘constituent instruments’ and ‘constituent treaties’.16

Content The content of constitutions of international organizations varies widely. Some only contain a few articles providing a minimum legal framework for the organization that is created; others have elaborate provisions in which details of the institutional and substantive law of the organization are specified. But in all cases, constitutions symbols have been deleted, but the bulk of the substantive changes enhancing the rate of constitutionalism remain” (at vi). See also J.-​C. Piris, The Lisbon Treaty:  A  Legal and Political Analysis (Cambridge: Cambridge University Press, 2010), in particular ch. 1; J.-​C. Piris, “Where Will the Lisbon Treaty Lead Us?,” in A Constitutional Order of States?, ed. A. Arnull et al. (Oxford: Hart Publishing, 2011), 59–​74.  Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (Official Journal 2007, C 306). 11  See also S. Rosenne, “Is the Constituent Instrument of an International Organization an International Treaty?,” in Developments in the Law of Treaties 1945–​1986 (Cambridge:  Cambridge University Press, 1989), 181–​258, in particular at 212. 12 13 14 15   Arts. 5, 20.3.   Arts. 2(j), 5, 20.3.   Art. 1.1, para. 34.   Art. 2(b). 16   Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66 (quotation at 75). 10

 

946   constituent instruments have both institutional provisions and substantive rules related to the field of activity of the organization. In all cases the constitution provides for the basic legal framework of the organization, which generates a new legal person and which should have both sufficient rigour to enable the organization to influence developments in practice—​after all, its raison d’être—​and sufficient flexibility to adjust the work of the organization to a future reality that is likely to be different from the one existing at the moment of conception. An example of a rather thin constitution is the North Atlantic Treaty, establishing the North Atlantic Treaty Organization (NATO).17 This Treaty has three preambular paragraphs and fourteen articles. These fourteen articles mostly contain obligations for the parties, such as the obligation to settle disputes peacefully (Art. 1) and the obligation to consider an armed attack against one or more of them as an armed attack against them all and assist each other if this occurs (Art. 5), as well as general provisions on issues such as accession (Art. 10), ratification and entry into force (Art. 11), and denunciation (Art. 13). There is only one provision dealing with the creation of a new institution: Article 9, establishing the Council and authorizing the Council to set up such subsidiary bodies as may be necessary; ‘in particular it shall establish immediately a defence committee’. The North Atlantic Treaty is silent on many institutional issues. It does not have any rules on decision-​making, financing, legal personality, privileges, and immunities. It does not contain any provision dealing with the Secretariat, the Secretary-​General, and the staff of NATO. This institutional vacuum was subsequently filled in by decisions of the North Atlantic Council and multilateral agreements, as it was clear that NATO would otherwise not be able to perform its functions. Compared to its very limited institutional provisions, the North Atlantic Treaty is relatively more detailed as far as the aim of the organization and the key substantive obligations of its members are concerned. NATO was created as a collective self-​defence organization, Article 5 (mentioned above) laying down the key obligation for the member states. However, these somewhat more detailed provisions did not stand in the way of giving a new role to NATO following the end of the Cold War, without any amendment of the North Atlantic Treaty. ‘Out of area operations’ such as those in the former Yugoslavia, Afghanistan, and Libya, previously clearly out of its scope of activity, now belong to the core business of the organization. There has been some legal debate on the question of whether the fundamental changes involved would require an amendment of the North Atlantic Treaty, but flexibility, not rigour, reigned when the time came for NATO to redefine its function in a post-​Cold War world. The constitutions of most other international organizations are more elaborate than the North Atlantic Treaty, in particular as far as their institutional provisions are concerned. These provisions usually lay down the institutional structure of the

  North Atlantic Treaty (“Washington Treaty”), concluded 4 April 1949, 34 UNTS, at 243 (no. 541).

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parties   947 organization (its various organs, their functions, powers, and composition), rules on decision-​making, types of decisions that may be taken, the financing of the organization, as well as some basic rules on the status, privileges, and immunities of the organization and its staff. More or less elaborate, constitutions contain the basic framework of institutional and substantive rules for the organization, leaving the more detailed rules for other legal instruments of the organization. While normally such basic frameworks are laid down in one single treaty, in exceptional cases two treaties are used for this purpose. An example is the EU; its basic framework of institutional and substantive rules is currently laid down in two treaties: the TEU and the TFEU. As indicated in Article 1 of the TEU, ‘[t]‌he Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value.’ Originally, ideas were discussed to make a distinction between a treaty that would contain the most fundamental provisions and another treaty (or other treaties).18 This could not only have symbolic value; these different treaties could have different amendment regimes, a rigid regime for the treaty containing the most fundamental provisions and more flexible amendment rules for the other treaty or treaties. However, most of these ideas did not materialize.19 Even though a distinction has now been introduced between an ‘ordinary revision procedure’ (the most rigid procedure) and a ‘simplified revision procedure’ (a slightly more flexible procedure), this amendment regime applies to both the TEU and the TFEU.20

Parties In most cases only states are parties to constituent instruments of international organizations, and only states may be admitted as members of the organization.21   See the 2001 Laeken Declaration adopted by the European Council, http://​www.google.nl/​url?sa= t&rct=j&q=&esrc=s&source=web&cd=2&ved=0ahUKEwjnyMHQ9L_ ​ M AhVJCsAKHbUrA_​ Q QF g g n M A E & u rl = http % 3 A % 2 F % 2 Fw w w. c ons i l iu m . e u rop a . e u % 2 Fe n % 2 Fe u rop e an -​ council%2Fconclusions%2Fpdf-​ 1 993-​ 2 003%2Feuropean-​ c ouncil-​ m eeting-​ i n-​ l aeken-​ -​ presidency- ​ c onclusions- ​ 1 4- ​ 15- ​ d ecember- ​ 2 001%2F&usg=AFQjCNGxPHfg3kJbzNuLW9QpUzq TtvCr8w. 19   For a brief overview of this discussion see B. de Witte, “Changing the Rules of Change: European Treaty Revisions after the Lisbon Treaty,” in De Regels en het Spel, ed. J.-​H. Reestman et al. (The Hague: TMC Asser Press, 2011), 443–​54. 20   See Art. 48 of the TEU. 21   There are a few examples of entities not being sovereign states that are or were nevertheless parties to constitutions of international organizations, see H. G. Schermers and N. M. Blokker, International Institutional Law, 5th ed. (Leiden/​Boston: Martinus Nijhoff Publishers, 2011), 66–​7 1. 18

 

948   constituent instruments In recent times however, international organizations have also become parties to constitutions, thereby becoming full members of (other) international organizations. The EU has become a party to constitutions of, for example, the Food and Agriculture Organization of the UN (FAO), the World Trade Organization (WTO), the Hague Conference on Private International Law (HCPIL), and the International Cocoa Organization. In most of these cases (e.g. FAO, HCPIL), the constitution of the organization concerned had to be amended before the EU could accede, since it only provided for accession by states. Apart from the EU, an increasing number of other organizations have become party to constituent instruments of international organizations. For example, the Common Fund for Commodities has ten international organizations as full members, in addition to more than 100 member states (e.g. the African Union, the Common Market for Eastern and Southern Africa, the Southern African Development Community, and the Andean Community). In 1994 the Joint Vienna Institute was created by five international organizations.22 Apart from states and international organizations, there are hardly any examples of other entities that have become full members of international organizations and parties to their constituent instruments. Nevertheless, the 2011 ILC definition of international organizations leaves this possibility open:  ‘ “international organization” means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities’.23

Special Characteristics of Constitutions In almost all cases, international organizations are created by a multilateral treaty. There are only a few examples of organizations created by a bilateral treaty or by

  Agreement concluded in 1994 between the Bank for International Settlements, the European Bank for Reconstruction and Development, International Monetary Fund (IMF), the Organisation for Economic Co-​operation and Development, and World Bank. The WTO joined in 1998. 23  Art. 2 of the 2011 ILC Draft Articles on the Responsibility of International Organizations. However, while the ILC in this definition refers to “other entities,” leaving open the possibility that entities other than international organizations may become members of international organizations, the subsequent articles always refer to states and international organizations as members of (other) international organizations, and not to states and other entities as members of international organizations. 22

 

special characteristics of constitutions    949 another instrument. Examples of the former are the Belgium-​Luxembourg Economic Union,24 the Nederlandse Taalunie (Dutch language union),25 the Czech-​Slovak Customs Union,26 and the Administrative Commission of the River Uruguay.27 An example of an organization established by another instrument is the Preparatory Commission for the Comprehensive Nuclear-​Test-​Ban Treaty Organization (established in 1996 by resolution adopted by the states signatories of the Comprehensive Nuclear-​Test-​Ban Treaty).28 Treaties creating international organizations have two characteristics. First, they are just like other treaties, containing rights and obligations for those who are parties. The general rules that apply to treaties apply as well to constitutions of international organizations.29 But in addition, second, such constitutions have certain special characteristics distinguishing them from other treaties. As the ICJ stated in its 1962 Certain Expenses advisory opinion, with respect to the UN Charter: ‘the Charter is a multilateral treaty, albeit a treaty having certain special characteristics’.30 In its 1996 WHO Nuclear Weapons advisory opinion the Court specified these ‘special characteristics’ as follows, not only in relation to the UN Charter or the WHO Constitution, but regarding constituent instruments of international organizations in general:31 the constituent instruments of international organizations are also treaties of a particular type; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals.

The special characteristics mentioned by the Court will now be analysed in some more detail.

24  For the text of the constitution (“Convention instituant l’Union économique belgo-​ luxembourgeoise”), see http://​www.ejustice.just.fgov.be/​mopdf/​2005/​01/​06_​1.pdf#page=17. 25   For the text of the constitution, see http://​taalunie.org/​verdrag-​inzake-​nederlandse-​taalunie. See N. Sybesma-​Knol and K. Wellens, Enige volkenrechtelijke vragen rond de Nederlandse Taalunie (The Hague: Stichting Bibliographica Neerlandica, 1987). 26  For the text of this constitution, see http://​wits.worldbank.org/​GPTAD/​PDF/​archive/​ CzechRepublic-​Slovakia.pdf. See M. Bogdan, “The Czech-​Slovak Customs Union,” in Current International Law Issues, Nordic Perspectives: Essays in Honour of Jerzy Sztucki, ed. O. Bring and S. Mahmoudi (Boston/​D ordrecht: Martinus Nijhoff Publishers, 1994), 11–​23. 27   Established under the Statute of the River Uruguay, a treaty concluded in 1975 between Argentina and Uruguay (UNTS Vol. 1295, No. I-​21425, at 340). 28   Resolution adopted 19 November 1996, Doc. CTBT/​MSS/​Res/​1. See para. 7 of the Annex to this resolution: “The Commission shall have standing as an international organization, authority to negotiate and enter into agreements, and such other legal capacity as necessary for the exercise of its functions and the fulfillment of its purposes.” See also UN Juridical Yearbook (2012): 507–23. 29   Vienna Convention on the Law of Treaties, Art. 5. 30   Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Reports 1962, 157. 31   Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66 (quotation at 75).

 

950   constituent instruments

‘Their Object Is to Create New Subjects of Law’ In almost all cases, constitutions indeed create new legal persons. As a result, the organization has the capacity to have rights and obligations of its own. There are only a few international organizations that lack legal personality. An example is the Organization for Security and Co-​operation in Europe (OSCE). Originally being a conference (the CSCE), a process of institutionalization took place transforming it into an organization. Several attempts have been made to give the OCSE legal personality, but so far these attempts have been unsuccessful.32 However, normally international organizations are subjects of law, legal persons.33 Sometimes legal personality is explicitly given to the organization, in particular since the 1990s, but often this is done implicitly.34 Treaties that are not constituent instruments of international organizations lack this special characteristic: no new legal person is created, and the interpretation of such treaties is entirely in the hands of the parties. It is obvious that these treaties, like constitutions of international organizations, express the common will of the parties. However, unlike constitutions of international organizations, this common will remains their own and is not endowed to a newly created legal person.35 It is in particular this characteristic that makes constituent instruments of international organizations a unique type of treaty. By creating a new legal person the founders of the organization bring into life a new international actor, with the help of which they pursue certain goals in the particular field in which the organization is competent. This new actor will have its own life that cannot be fully controlled by those who once founded it. In other words: it may become the proverbial genie that may escape from the bottle. It may take action that has not been foreseen by the founding mothers and fathers, that is criticized by some members for being ultra vires, that has the support of membership but does not seem to serve the purposes for which the organization was created, or other action that may not or only remotely be ‘covered’ by the constituent instrument of the organization. This is inevitable, especially for organizations created many years ago. While it may be possible to control to some extent the functioning and development of 32   See H. Tichy and U. Köhler, “Legal Personality or Not: The Recent Attempts to Improve the Status of the OSCE,” in International Law between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner, ed. I. Buffard et al. (Leiden/​Boston: Martinus Nijhoff Publishers, 2008), 455–​78. 33   See the definition of international organizations given in Art. 2 of the 2011 ILC Articles on the Responsibility of International Organizations:  “ ‘international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality” (emphasis added). 34   See further Chapter 46 of this volume. 35   Georges Renard compared the notion of institution with a contract; the latter “n’est que la rencontre de deux volontés qui suivent chacune leur idée,” cited by S. Bastid, “Place de la notion d’institution dans une théorie générale des organisations internationales,” in L’Évolution du droit public, études offertes à Achille Mestre (Paris: Sirey, 1956), 43–​51, 46.

 

special characteristics of constitutions    951 international organizations, this is much more difficult for the underlying developments in practice which these organizations may need to address. The possibility of ‘escaping from the bottle’ is therefore inherent in the creation of a new legal person. In this context, questions of interpretation may arise, to be discussed later in this chapter.

‘Endowed with a Certain Autonomy’ With respect to constituent instruments of international organizations, the ICJ did not just mention that ‘their object is to create new subjects of law’; the Court added that these new subjects of law are ‘endowed with a certain autonomy’. It is not immediately clear what this means. Does it mean that treaties may also create new legal persons without endowing these persons with a certain autonomy? This would be difficult to understand, as being a new legal person in itself implies that this legal person has powers, rights, and duties of its own, and therefore a certain autonomy. The concepts of ‘legal personality’ and ‘autonomy’ seem to overlap considerably, and it is therefore not surprising that they are discussed in literature as part of one and the same element in the definition of international organizations.36 In practice, constitutions of international organizations normally do not refer to the ‘autonomy’ of the organization. If they refer explicitly to the separate identity of the organization, the concept of legal personality is used. Therefore, ‘endowed with a certain autonomy’ should probably not be seen as an entirely separate requirement, but rather as something that is part and parcel of the legal personality. It emphasizes that international organizations have a will of their own, expressed through decisions of their organs. This ‘own will’ is to be distinguished from that of its members (therefore the applicable French expression ‘volonté distincte’ is particularly apt).37 This is why the ILC has included the requirement that international organizations must have their own international legal personality, in its definition of international organizations for the purpose of the articles on responsibility of international organizations. In its commentary to these articles, the ILC explains that this reflects the idea that the legal personality of an international organization is ‘distinct from that of its member states’.38 36   See e.g., Schermers and Blokker, International Institutional Law, paras. 44–​44A; N. D. White, The Law of International Organisations, 2nd ed. (Manchester: Manchester University Press, 2005), 1–​2. 37  On the autonomy of international organizations, see R. Collins and N. D. White (eds.), International Organizations and the Idea of Autonomy: Institutional Independence in the International Legal Order (London/​New York: Routledge, 2011); N. M. Blokker, “International Organizations as Independent Actors: Sweet Memory or Functionally Necessary?,” in Accountability for Human Rights Violations by International Organizations, ed. J. Wouters et al. (Mortsel: Intersentia, 2010), 37–​50. 38   ILC Articles on Responsibility of International Organizations, Commentary to Art. 2, para. (10), where the ILC indicates that the wording ‘distinct from its member states’ was used by G.G. Fitzmaurice in 1956 in the definition of international organizations that he proposed in the context of his work for the ILC on the law of treaties, and by the Institut de Droit International in its 1995 Lisbon resolution on

 

952   constituent instruments

‘To Which the Parties Entrust the Task of Realizing Common Goals’ It may be questioned whether this third ‘special characteristic’ mentioned by the ICJ is really a characteristic that is special to constituent instruments of international organizations. Treaties that do not create international organizations also lay down common goals of the parties. Whenever states conclude treaties such as bilateral investment treaties, tax treaties, or extradition treaties, they also aim to achieve certain common goals in these areas. What is however special about constituent instruments of international organizations is that the parties to such treaties give the task to achieve the aims laid down in these instruments not (or not only) to themselves, but (also) entrust this to a newly created institution endowed with a certain autonomy (the first and second special characteristics mentioned by the ICJ). The creators of an organization consider that they themselves cannot, or not fully, perform certain functions. They therefore decide to cooperate, in their common interest, and they decide to do so within a new institutional framework and not merely by concluding a treaty containing mutual rights and obligations. Needless to say, a great diversity of ‘common goals’ is given to international organizations. They are normally specified in the Preamble of the constitution or in its first few articles. For those who create a new international organization there are virtually no limits to what they may define as goals of the organization. Such limits would be similar to those applicable to treaties in general, as mentioned in the 1969 Vienna Convention on the Law of Treaties. For example, a constitution of an international organization would be void if it would conflict with a peremptory norm of general international law ( jus cogens).39 In practice it has never occurred that such limits were reached. Apart from these three special characteristics, mentioned by the ICJ in its 1996 WHO Nuclear Weapons advisory opinion, there is one other feature of constituent instruments of international organizations that distinguishes these instruments from other treaties: the rules governing reservations. According to Article 20, paragraph 3 of the Vienna Convention on the Law of Treaties, ‘[w]‌hen a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization’. Many constitutions are silent on reservations. In principle however, reservations are difficult to reconcile with the concept of an international organization, which usually involves the creation of a new legal person and requires a consensus about its aims, functions, and institutional structure.40 Constitutions of international organizations are more than treaties ‘The Legal Consequences for Member States of the Non-fulfilment by International Organizations of their Obligations toward Third Parties’.   Vienna Convention on the Law of Treaties, Art. 53.  See M. H. Mendelson, “Reservations to the Constitutions of International Organizations,” British Yearbook of International Law 45 (1971): 137–​7 1. At 170: “[c]‌onsiderations of principle justify the view that reservations to constitutions should be permitted, if at all, only in the most exceptional 39

40

 

constitutional development   953 containing mutual rights and obligations. It is difficult to see how, for example, a state could be a member of the UN under the reservation that it does not accept the veto power in the Security Council, or under the reservation that it does not accept the binding nature of a decision to adopt the organization’s budget. A number of constitutions therefore explicitly prohibit reservations,41 but there are also some exceptional cases of constitutions allowing for reservations.42 In practice, there are some examples of states that wanted to become members of an international organization under special conditions laid down in a reservation to the constituent instrument of the organization. In some of these cases, these conditions were accepted, in others they were not.43

Constitutional Development Most constituent instruments are concluded for an indefinite period of time. But times change. International organizations are created to influence developments taking place in the field of cooperation for which they are competent, but at the same time need to adapt to changing realities in order to remain relevant.44 One way in which they adapt to such changes is by the amendment of their constituent instruments. Most constituent instruments have been amended once or more. With respect to the UN and its specialized agencies, many of those amendments related to the growth of membership and the need to enlarge the size of non-​plenary organs

circumstances.” See also the ILC Commentary to (what later became) Art. 20.3: “in the case of instruments which form the constitutions of international organizations, the integrity of the instrument is a consideration which outweighs other considerations and that it must be for the members of the organization, acting through its competent organ, to determine how far any relaxation of the integrity of the instrument is acceptable” (Yearbook of the International Law Commission I (1966): 207 (para. 20)). 41   See e.g., the Agreement establishing the World Trade Organization, Art. XVI.5; Pact on Security, Stability and Development in the Great Lakes Region, Art. 31.2; Statute of the International Criminal Court, Art. 120; Statute of the International Renewable Energy Agency, Art. XIX.F. 42   See in this context the ILC Guide to Practice on Reservations to Treaties, Guideline No. 2.8.9: “Subject to the rules of the organization, competence to accept a reservation to a constituent instrument of an international organization belongs to the organ competent to: • decide on the admission of a member to the organization; or • amend the constituent instrument; or • interpret this instrument” (ILC Report 2011, UN Doc. A/​66/​10/​Add.1, at 303). As noted by the ILC, there is only limited practice related to this issue (at 302–​3). In these exceptional cases the general congress of the organization is likely to be the “competent organ” (see, e.g., the Agreement Establishing the International Organization of Vine and Wine (Art. 12)). See also Art. 24 of the Shanghai Cooperation Organization Charter: if “at least two thirds of the member states” have objections to certain reservations they are considered null and void. 43   See Schermers and Blokker, International Institutional Law, 730–​2. 44   See N. M. Blokker and R. A. Wessel, “Editorial: Updating International Organizations,” Interna­ tional Organizations Law Review 2 (2005): 1–​8.

 

954   constituent instruments of the organization in order to make them more representative.45 However, to a great extent constitutional development is taking place without formal amendment of constituent instruments, in the practice of international organizations and in the interpretation of their constitutions. The remainder of this part of the chapter will focus on this way of constitutional development.

Special Rules for the Interpretation of Constitutions? It has long been recognized that the special characteristics of constitutions of international organizations may have implications for the interpretation of their provisions.46 For example, Judge H. Lauterpacht observed in 1955 that ‘[a]‌proper interpretation of a constitutional instrument must take into account not only the formal letter of the original instrument, but also its operation in actual practice and in the light of the revealed tendencies in the life of the organization’.47 However, the 1969 and 1986 Vienna Conventions on the Law of Treaties do not formulate special rules for the interpretation of constitutions of international organizations, but contain a single set of general rules for the interpretation of treaties (including constitutions of international organizations). At the same time, in two respects these Vienna Conventions open the door to a special regime for the interpretation of constitutions of international organizations. First, according to Article 5 of both Vienna Conventions, they apply to any treaty ‘which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization’ (emphasis added). Constitutions may therefore contain rules that deviate from rules of the two Vienna Conventions, including rules on interpretation that deviate from the rules on interpretation of these Vienna Conventions. Second, the single set of general rules for the interpretation of treaties in these Conventions encompasses a wide variety of means of interpretation. Therefore, the next question is whether these different means of interpretation should be used similarly for the interpretation of constitutional provisions as for the interpretation of provisions of other treaties. There 45   See further R. Zacklin, The Amendment of the Constitutive Instruments of the United Nations and the Specialized Agencies (Leiden/​Boston: Martinus Nijhoff Publishers, 2005 [original edition 1968]). 46   See, e.g., R. Monaco, “Le Caractère constitutionnel des actes institutifs d’organisations internationales,” in Mélanges offerts à Charles Rousseau: la communauté international (Paris: Pedone, 1974), 153–​72; Rosenne, “Is the Constituent Instrument of an International Organization an International Treaty?”; C. F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd ed. (Cambridge:  Cambridge University Press, 2005), in particular at 25–​61; C. Brölmann, The Institutional Veil in Public International Law: International Organizations and the Law of Treaties (Oxford: Hart Publishing, 2007), in particular at 113–​23; C. Brölmann, “Specialized Rules of Treaty Interpretation: International Organizations,” in The Oxford Guide to Treaties, ed. D. B. Hollis (Oxford: Oxford University Press, 2012), 507–​24. 47   South-​West Africa—​Voting procedure, Advisory Opinion of 7 June 1955, Separate Opinion of Judge Lauterpacht, ICJ Reports 1955, 67 (quotation at 106).

 

constitutional development   955 is much support in practice and in doctrine for the view that the interpretation of constitutions of international organizations requires an approach that is somewhat different from that regarding the interpretation of other treaties.48 According to this view, particular attention must be given to the object and purpose of the relevant constitution and the aims of the international organization concerned.49 One comprehensive study of the case law of a number of international courts has demonstrated that these courts base their interpretation of the relevant constituent instruments on one fundamental principle: to give a meaning to constitutional provisions that is most favourable for giving effect to the objectives of the organization; or, in other words, ‘la poursuite de l’effectivité des finalités institutionnelles’.50 At the same time, both Courts have also used this principle to establish limits to the scope of interpretation (auto-​limitation judiciaire, or self-​restraint; judicial caution).51

Interpretation by the New Legal Person and its Organs The most fundamental special characteristic of constitutions of international organizations is the fact that a new legal person is created. As a result, those who create 48   See the literature mentioned (nn. 45 and 48). A few authors criticize this view. See, e.g., G. Arangio-​ Ruiz, “The Normative Role of the General Assembly of the United Nations and the Declaration on Principles of Friendly Relations—​with an Appendix on the Concept of International Law and the Theory of International Organization,” Recueil des Cours 137 (1972/​III): 409–​742, in particular at 708–​ 20; J. Klabbers, An Introduction to International Institutional Law, 2nd ed. (Cambridge:  Cambridge University Press, 2009), 91–​2. 49   P. Pescatore, Les Objectifs de la Communauté européenne comme principes d’interprétation dans la jurisprudence de la Cour de Justice, in Miscellanea W.J. Ganshof van der Meersch II (Brussel/​Paris: Emile Bruylant, 1972), 325–​63; Monaco, “Le Caractère constitutionnel des actes institutifs d’organisations internationals,” in particular at 170; K. Skubiszewski, “Remarks on the Interpretation of the United Nations Charter,” in Völkerrecht als Rechtsordnung, Internationale Gerichtsbarkeit, Menschenrechte, Festschrift für Hermann Mosler, ed. R. Bernhardt et al. (Berlin/​Heidelberg/​New York: Springer Verlag, 1983), 891–​902, in particular at 891–​4; I. Seidl-​Hohenveldern and G. Loibl, Das Recht der Internationalen Organisationen einschließlich der Supranationalen Gemeinschaften, 7th ed. (Cologne/​Berlin/​Bonn/​ Munich:  Carl Heymanns, 2000), 247; J. E. Alvarez, International Organizations as Law-​ makers (Oxford:  Oxford University Press, 2005), ch. 2 (“Constitutional Interpretation”), 65–​108 (an earlier version of this chapter was published in J.-​M. Coicaud and V. Heiskanen (eds.), The Legitimacy of International Organizations (Tokyo: United Nations University Press, 2001), 104–​54); M. Ruffert and C. Walter, Institutionalisiertes Völkerrecht (Munich: Beck, 2009), 48–​9. According to Judge Weeramantry, in the interpretation of constitutions of international organizations, “particularly one which sets before itself certain sociological or humanitarian goals, the task of interpretation should be guided by the object and purpose … A literal interpretation, using strict methods of anchoring interpretation to the letter rather than the spirit … , would be inappropriate” (WHO Nuclear Weapons, Dissenting Opinion, ICJ Reports 1996, 148). 50   D. Simon, L’Interprétation judiciaire des traités d’organisations internationales (Paris: Pedone, 1981), 317. The same conclusion is drawn by P. Sands and P. Klein, Bowett’s Law of International Institutions, 6th ed. (London: Sweet & Maxwell, 2009), 455–​6. 51  Simon, L’Interprétation judiciaire des traités d’organisations internationals, 309–​15.

 

956   constituent instruments an international organization implicitly accept that not only are they entitled to give interpretations of the relevant constitution, but that this is also done by organs of the organization they have created. Indeed, in practice it is often these organs that, in taking decisions, give interpretations of constitutional provisions. In its 1962 Certain Expenses advisory opinion the ICJ stated:52 In the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the ICJ were not accepted; the opinion which the Court is in course of rendering is an advisory opinion. As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction.

These words apply not only to the UN General Assembly, but also to organs of other international organizations. In general, it is these organs themselves that first of all give an interpretation of the rules of the constitution that they apply, unless constitutions give specific powers in this respect to other organs. In a number of constitutions, the competence to interpret constitutional provisions is given to specific organs of the organization. In some cases these are policy-​ making organs or the secretariat.53 Within financial and commodity organizations, the competence to give interpretations is usually given to their executive organs.54 In some organizations a prominent role in this regard is given to judicial organs.55

Guidance from the International Court of Justice? Within the UN, the ICJ has a special role to play in this regard, as the ‘principal judicial organ of the United Nations’.56 Even though no judicial review power has been given to the ICJ in 1945—​as was emphasized by the ICJ in Certain Expenses—​the Court has in practice played an important role in this field, by giving concrete interpretations of the 52   Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion, ICJ Reports 1962, 168 (emphasis added). 53   See e.g., in the WTO the exclusive authority to interpret the constitution is given to the Ministerial Conference and the General Council (Art. IX.2 of the Agreement establishing the World Trade Organization). In the Association of Southeast Asian Nations (ASEAN), member states may request the Secretariat to interpret the ASEAN Charter (ASEAN Charter, Art. 51.1). 54   See e.g., IMF, Art. XXIX; World Bank, Art. IX; Asian Development Bank, Art. 60; Caribbean Development Bank, Art. 59(1); International Coffee Organization (International Coffee Agreement 2007, Art. 39); International Cocoa Organization (2010 International Cocoa Agreement, Art. 50); the European Stability Mechanism (ESM), Art. 37 (if the ESM member concerned contests the interpretation by the Board of Governors, the dispute shall be submitted to the Court of Justice of the EU). 55   See e.g., the ILO (International Court of Justice), the EU (Court of Justice of the EU), and also other regional organizations (e.g., the Andean Community (the Andean Court of Justice); the African Union and the International Conference on the Great Lakes Region (African Court of Justice)). 56   UN Charter, Art. 92.

 

constitutional development   957 UN Charter and of constitutions of other international organizations, by the approach it has followed in giving such interpretations, and by making some general observations that transcend specific individual advisory opinions. This will now be elaborated. The ICJ has given interpretations of constituent instruments of international organizations in particular in its advisory opinions. These opinions mostly concerned the Charter of the UN, but also other constitutions.57 In these interpretations, the Court has usually first of all given a certain interpretation on the basis of a number of arguments, and has subsequently found support for its analysis in the practice of the organization. For example,58 in Reparation for Injuries, the Court stated: ‘Practice—​ in particular the conclusion of conventions to which the Organization is a party—​ has confirmed this character of the Organization’ (‘this character’ was analysed in preceding sentences on the basis of the text of the UN Charter).59 The importance attached by the Court to the organization’s practice is clear from its 1971 Namibia advisory opinion, in which it accepted a practice that seemed to be against the explicit text of Article 27, paragraph 3 of the Charter.60 In addition, this technique has not only been used by the ICJ, but also by other international courts and tribunals.61 Already in 1976, E. Lauterpacht therefore rightly concluded that:62 [i]‌ t is probably necessary to recognize that recourse to the practice of international organizations now stands on an independent legal basis; that is to say, that there exists a specific rule of the law of international organization to the effect that recourse to such practice is admissible and that States, on joining international organizations, impliedly accept the permissibility of constitutional development in this manner.

The ‘recourse to practice’ approach by the ICJ and other international courts and tribunals serves as a ‘reality check’: it will be more convincing to follow a particular interpretation if this interpretation finds support in practice. However, at the same time there are limits to this technique. If not used properly, it could easily amount to circular reasoning (because ‘practice’ is used as an argument for a particular 57   In particular the constitutions of the International Maritime Consultative Organization (Constitution of the Maritime Safety Committee of the Inter-​Governmental Maritime Consultative Organization, Advisory Opinion of 8 June 1960, ICJ Reports 1960, 150) and the World Health Organization (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66). 58   For a more detailed overview, see E. Lauterpacht, “The Development of the Law of International Organizations by the Decisions of International Tribunals,” Recueil des Cours 152 (1976): 377–​478. 59   Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174 (quotation at 179). See for examples in other advisory opinions:  Competence of Assembly Regarding Admission to the United Nations, ICJ Reports 1950, 9; and, more recently, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, 149–​50. 60   Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, 22. 61  See for examples N. Blokker, “Beyond ‘Dili’: On the Powers and Practice of International Organizations,” in State, Sovereignty and International Governance, ed. G. Kreijen et al. (Oxford: Oxford University Press, 2002), 299–​322, 315. 62   Lauterpacht, “The Development of the Law of International Organizations by the Decisions of International Tribunals,” 460.

 

958   constituent instruments interpretation, while it is precisely the lawfulness of this practice that is questioned). The Court has therefore almost always used this technique to supplement a provisional conclusion drawn on the basis of a preceding legal analysis in which other means of interpretation are applied. The ICJ has always considered it important to take into account the practice of the organization in giving an interpretation of constitutional provisions, but it was only in its 1996 WHO Nuclear Weapons advisory opinion that the Court gave some legal underpinning of this approach. Having observed that ‘constituent instruments of international organizations are also treaties of a particular type’, the ICJ stated that ‘[s]‌uch treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional’. The Court specified this as follows: the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties.63

In this way, the Court distinguished constitutions from other treaties (that do not establish an international organization). In the interpretation of constitutions, their institutional nature should be taken into account. At the same time, the Court did not explicitly indicate what this means. Articles 31–​3 of the 1969 and 1986 Vienna Conventions on the Law of Treaties contain rules about the interpretation of treaties. To what extent should these rules be applied differently when the time comes to interpret constitutions? For example, should ‘the ordinary meaning’ of the terms of the treaty be less important, should their ‘object and purpose’ be more important when compared to the interpretation of other treaties? Should the travaux préparatoires be less important, should subsequent practice be more important? In the 1996 WHO Nuclear Weapons advisory opinion, the ICJ, having mentioned the elements ‘which may deserve special attention when the time comes to interpret these constituent treaties’, does not refer to Articles 31–​3 of the 1969 and 1986 Vienna Conventions in their entirety. Instead, the Court singles out some of the means of interpretation laid down in these articles, as follows:64 According to the customary rule of interpretation as expressed in Article 31 of the 1969 Vienna Convention on the Law of Treaties, the terms of a treaty must be interpreted ‘in their context and in the light of its object and purpose’ and there shall be ‘taken into account, together with the context: … (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. 63   Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66, at 75. 64  Ibid.

 

constitutional development   959 It is noteworthy that the Court does not explicitly refer to textual interpretation,65 which is laid down in the first part of Article 31.1 of the 1969 and the 1986 Vienna Conventions (‘[a]‌treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty’), but, instead, starts its reference to Article 31 by quoting the final part of paragraph 1 (‘in their context and in the light of its object and purpose’). In addition, the Court selects another means of interpretation mentioned in Article 31: ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. This is remarkable, as the Court has usually been reluctant to conclude that a specific method of interpretation should be followed because of the ‘constitutional’ character of the treaty in question.66 In the subsequent sections of the WHO Nuclear Weapons advisory opinion, the Court pays ample attention to practice of the WHO, sometimes referring to ‘practice of the Organization’,67 sometimes to ‘a practice establishing an agreement between the members of the Organization to interpret its Constitution as empowering it to address the question of the legality of the use of nuclear weapons’.68 Two comments are called for. First, the ICJ has now attempted to formulate a legal basis for referring to the practice of the organization. However, secondly, it may be questioned whether this legal basis is accurate, as ‘subsequent practice’ as a canon of interpretation laid down in the 1969 Vienna Convention refers to the practice of the states that are party to a particular treaty (‘the application of the treaty which establishes the agreement of the parties regarding its interpretation’), and not to the practice of the organization itself. In this sense, Article 31(3)(b) of the Vienna Convention seems to be incorrect as a foundation on which the ‘practice of the organization’ may rest.69 This also has a very practical implication:  whereas it is

65   As it has done earlier, e.g., in Competence of Assembly Regarding Admission to the United Nations, Advisory Opinion, ICJ Reports 1950,8. 66   Lauterpacht, “The Development of the Law of International Organizations by the Decisions of International Tribunals,” 414–​16. 67   Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, at 66, see paras. 21 and 27. 68   Ibid., para. 27. 69   A few authors have, briefly or in more detail, paid attention to the distinction between subsequent practice (Art. 31.3(b) of the Vienna Convention) and “practice of the organization.” See Rosenne, “Is the Constituent Instrument of an International Organization an International Treaty?,” 241; Brölmann, The Institutional Veil in Public International Law, 120–​1; Brölmann, “Specialized Rules of Treaty Interpretation: International Organizations,” 515–​16; L. Boisson de Chazournes, “Subsequent Practice, Practices, and ‘Family-​Resemblance’: Towards Embedding Subsequent Practice in its Operative Milieu,” in Treaties and Subsequent Practice, ed. G. Nolte (Oxford: Oxford University Press, 2013), 53–​68. Nolte, in the context of his work for the ILC on the topic “Treaties over Time,” has briefly observed that “the distinction between the practice of the organization itself and that of its member states must be taken into account.” See his Introductory Report for the ILC Study Group on Treaties over Time. This report has not been published as a UN Document, but is reproduced in G. Nolte (ed.), Treaties and Subsequent Practice (Oxford: Oxford University Press, 2013), 169–​209, quotation at 204. The only more extensive

 

960   constituent instruments required that all parties to the constitution must agree to a certain interpretation if it were to be considered as ‘subsequent practice’, such unanimous support is not required for ‘established practice’.70

Concluding Observations Constitutions of international organizations are a unique category of treaties. Even though there is a great variety in names, size, content, and parties, they share a number of characteristics of which the creation of a new legal person is most fundamental. Parties to a treaty creating an international organization can by definition exercise less control over the interpretation and application of this treaty than over other treaties. To some extent, therefore, it is true that constitutions create genies that may escape from the bottle. International organizations, following their creation, lead a life of their own. Nevertheless, this is not a life that is fully independent from the members. Members of international organizations remain the ‘Masters of the Treaties’, Herren der Verträge. Following the creation of an organization, they can amend its constitution and even decide to dissolve it. At the same time, dissolving an international organization usually does not stop the underlying interdependence and the need to cooperate in the field of activity of the organization.71 An international organization therefore usually has an intricate relationship with its members.72 This relationship has important elements of dependence (e.g. the powers and finances of the organization) and important elements of independence (e.g. legal status of the organization and its officials, inviolability of its premises), without which organizations cannot perform their functions, in the common interest of the members. The interpretation of constitutions of international organizations must be seen in this context. Here a most important and sometimes underestimated role is played by ‘practice of the organization’ as a technique of constitutional development. There are many examples illustrating the far-​reaching scope that this technique study is C. Peters, “Subsequent Practice and Established Practice of International Organizations: Two Sides of the Same Coin?,” Goettingen Journal of International Law 3 (2011): 617–​42 (most of which was subsequently used for his book Praxis Internationaler Organisationen - Vertragswandel und völkerrechtlicher Ordnungsrahmen (Heidelberg: Springer, 2016)). 70  See in particular Peters, “Subsequent Practice and Established Practice of International Organizations,” who refers to “established practice” as “a kind of quasi-​customary law of an international organization” (at 631). 71   This is one of the reasons why international organizations are only exceptionally dissolved. 72   See in more detail N. Blokker, “International Organizations and their Members,” International Organizations Law Review 1 (2004): 139–​61.

 

concluding observations   961 may have: from peacekeeping and authorizations to use force in the UN, to out-​of-​ area operations by NATO and tsunami-​warning functions given to the Preparatory Commission of the Comprehensive Nuclear-​Test-​Ban Treaty Organization.73 This technique provides constitutions with the necessary interpretative stretch and it enables organizations to influence and to respond to societal developments. With the exception of the somewhat unfortunate reference to ‘subsequent practice’ in the 1996 WHO Nuclear Weapons advisory opinion, the ICJ has since its earliest advisory opinions played an important role in this area, recognizing both the special nature of constitutions of international organizations as well as the importance of ‘practice of the organization’.

  The last mentioned example is discussed in Schermers and Blokker, International Institutional Law, 159–​61. 73

 

Chapter 45

MEMBERSHIP AND REPRESENTATION Stephen Mathias Stadler Trengove

The purpose of this chapter is to give a brief overview of membership practices in international organizations. The chapter will focus on criteria for membership, rights and obligations of membership, suspension, expulsion, and withdrawal. In addition to setting out the legal criteria in an international organization’s constitutive treaty relating to membership, we also discuss how these criteria have been applied in practice and how decisions that are political in nature have been made within the established institutional and legal framework. The chapter focuses on three different types of international organizations: the universal, represented by the United Nations (UN); the regional, such as the European Union (EU) and African Union (AU), where membership is restricted to countries from a particular geographic area; and the specialized agencies which, while fulfilling a limited and technical function, are often open to universal membership. We touch upon a range of tactics used by international organizations against members in order to restrict their participation when members have either not complied with decisions of the organization or where an international organization has sought to condemn a particular member’s policies and practices. These tactics have included rejecting credentials, limiting speaking rights, and denying access to meetings.

 

membership   963 We include a discussion on observers, including how observer states, dependent territories, intergovernmental organizations, and nongovernmental organizations (NGOs) have participated in the activities of the UN and its specialized agencies. Finally, we conclude that while formal criteria do exist in the constitutive treaties of international organizations for suspension, expulsion, and withdrawal, the latter two have rarely been used in practice, and the tendency has been to restrict participation through other means.

Membership Criteria for Membership Membership in an international organization is determined by its constitutive treaty or convention, which sets out the criteria for membership and the procedure that must be followed to obtain it. In the case of the UN, under Article 3 of its Charter: [t]‌he original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 110.

In addition, under Article 4.1, “[m]‌embership in the United Nations is open to all other peace-​loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.” Article 4.2 provides that “[t]he admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” There have been cases where the Security Council has taken decisions not to recommend an applicant for membership. However, there is no recorded case where the General Assembly has taken a decision against an application that has been recommended to it by the Security Council.1 This states-​only limitation does not apply in all international organizations. For example, Article 3 of the Convention of the World Meteorological Organization extends membership to any territory or group of territories that has its own meteorological service but does not have responsibility for the conduct of its own   For a discussion of cases of admission see Bruno Simma et al. (eds.), The Charter of the United Nations: A Commentary, 3rd ed. (Oxford: Oxford University Press, 2012), vol. 1, 342–​50. 1

 

964   membership and representation international relations, provided that the request for membership is presented by the member responsible for its international relations and secures approval by two-​ thirds of the members of the Organization. Such territories or groups of territories include the British Caribbean Territories, French Polynesia, Hong Kong, China, and Macao. Some organizations have a two-​tiered system of membership. Pursuant to Article II, paragraph 2 of the United Nations Educational and Scientific Organization’s (UNESCO) Constitution, for example, states that are not members of the UN may be admitted to membership of the Organization, upon recommendation of the Executive Board, by a two-​thirds majority vote of the General Conference. Article II, paragraph 3 permits “[t]‌erritories or groups of territories which are not responsible for the conduct of their international relations” to be admitted as Associate Members. The “nature and extent of the rights and obligations of Associate Members shall be determined by the General Conference.” Examples of associate members include the dependent territories of the British Virgin Islands, Aruba, and the Cayman Islands.

Additional Criteria Intergovernmental organizations often establish other criteria, in addition to statehood, for membership. In the case of the UN, prospective member states are required, under Article 4(1), to be peace-​loving, to accept the obligations contained in the present Charter, and in the judgment of the Organization, to be able and willing to carry out these obligations. In this case, the “judgment of the Organization” refers to the judgment of the Security Council and the General Assembly. The practice of the Security Council and the General Assembly, as evidenced by their respective rules of procedure,2 appears to be that the term “judgment of the Organization” as to whether an applicant satisfies the conditions set forth in Article 4(l) of the UN Charter refers to the judgment of both organs. The International Court of Justice (ICJ) has agreed, stating in its advisory opinion of May 28, 1948 on Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), that “[t]‌he judgment of the Organization means the judgment of the two organs mentioned in paragraph 2 of Article 4.”3

2   UN Doc. A/​520/​Rev.17, Rules of Procedure of the General Assembly, 2008; UN Doc. S/​96/​Rev.7, Provisional Rules of Procedure of the Security Council, 1983. 3   Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, ICJ Reports 1948, 62.

 

membership   965 Subsequently, the ICJ, in its advisory opinion of March 3, 1950 on the Competence of the General Assembly for the Admission of a State to the United Nations, stated that “the General Assembly can only decide to admit upon the recommendation of the Security Council [and] the recommendation of the Security Council is the condition precedent to the decision of the Assembly by which the admission is effected.”4 According to the Court, the admission of a state to membership in the UN “cannot be effected by a decision of the General Assembly when the Security Council has made no recommendation for admission, by reason of the candidate failing to obtain the requisite majority or of the negative vote of a permanent Member upon a resolution so to recommend.”5 These two decisions by the ICJ thus confirm that membership is a two-​step process involving both the General Assembly and the Security Council. As far as the criteria for admission is concerned, the ICJ was clear in its 1948 advisory opinion that Article 4 of the UN Charter contains an exhaustive list of conditions that must be fulfilled by states requesting admission to the UN and that a member of the UN cannot make its consent to admission dependent on conditions not expressly provided in Article 4, paragraph 1.6 The ICJ stated that Article 4 would lose its significance and weight if other conditions, unconnected with those laid down, could be demanded. For the ICJ “[t]‌he conditions stated in paragraph 1 of Article 4 must therefore be regarded not merely as the necessary conditions, but also as the conditions which suffice”7 and that member states do not have the power to impose new conditions.8 By Resolution 197(III) A  of December 8, 1948, the General Assembly recommended that each member of the Security Council and of the General Assembly, in exercising its vote on the admission of new members, act in accordance with this advisory opinion. Membership in regional organizations, such as the AU, Arab League, and EU, is limited to states from specific geographical areas. Pursuant to Article 1 of the Charter of the League of Arab States: [t]‌he League of Arab States is composed of the independent Arab states which have signed this Charter. Any independent Arab state has the right to become a member of the League. If it desires to do so, it shall submit a request which will be deposited with the Permanent Secretariat General and submitted to the Council at the first meeting held after submission of the request.9 [Emphasis added.]   Competence of Assembly Regarding Admission to the United Nations, Advisory Opinion, ICJ Reports 1950, 8. 5   Ibid., 10. 6   Admission of a State to the United Nations (Charter, Article 4), Advisory Opinion, ICJ Reports 1948, 65. 7 8   Ibid., 62.   Ibid., 63. 9   League of Arab States, Charter of Arab League, March 22, 1945, http://​www.refworld.org/​docid/​ 3ae6b3ab18.html. 4

 

966   membership and representation Under Article III of the Charter, the Council of the League consists of the representatives of member states of the League. Article 29 of the Constitutive Act of the AU provides that “[a]‌ny African State may, at any time after the entry into force of this Act, notify the Chairman of the Commission of its intention to accede to this Act and to be admitted as a member of the Union”10 (Emphasis added). Pursuant to Article 49 of the Treaty of the European Union, any European state which respects the values set out in the Treaty and is committed to promoting them may apply to become a member of the Union.11 In addition, there are more elaborate conditions for membership, defined at the European Council in Copenhagen in 1993 and referred to as “Copenhagen criteria.” Countries must meet these criteria in order to join the EU:12 • stable institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities • a functioning market economy and the capacity to cope with competition and market forces in the EU • the ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic, and monetary union. Countries wishing to join the EU must adopt EU regulations and rules as part of their own national law. These regulations and rules are not negotiable. Candidates agree on how and when to adopt and implement them and the EU obtains guarantees on the date and effectiveness of each candidate’s measures to do this.13 Membership in the UN is sufficient to obtain membership in many of the UN specialized agencies, such as UNESCO. If a state does not have UN membership, approval is required from the respective Agency’s intergovernmental bodies. In the case of the UN Industrial Development Organization (UNIDO) membership is automatic for UN member states and states members of specialized agencies or the International Atomic Energy Agency upon signature and ratification of the UNIDO Constitution. Some international organizations also provide an introductory process for states interested in membership. For example, NATO has a program of advice, assistance, and practical support, known as the Membership Action Plan (MAP),

  African Union, Constitutive Act of the African Union, July 11, 2000, http://​www.au.int/​en/​about/​ constitutive_​act. 11   EU, EU Treaties, Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, http://​europa.eu/​eu-​law/​decision-​making/​treaties/​index_​en.htm. 12   EU, Accession criteria (Copenhagen criteria), http://​europa.eu/​legislation_​summaries/​glossary/​ accession_​criteria_​copenhague_​en.htm. 13  European Commission, Conditions for membership, http://​ec.europa.eu/​enlargement/​policy/​ conditions-​membership/​index_​en.htm. 10

 

membership   967 which is individually tailored to the needs of countries wishing to join the Alliance. Participation in the MAP does not prejudge a decision by the Alliance on future membership. Current participants in the MAP include the former Yugoslav Republic of Macedonia and Montenegro.14

Membership of Intergovernmental Organizations in Other Intergovernmental Organizations Many international organizations take part in the work of other international organizations either as observers or members. The UN has, for example, allowed the EU, the AU, and the Commonwealth15 to participate as observers. The European Bank for Reconstruction and Development, on the other hand, permits the European Investment Bank to participate as a full member. Similarly, the EU has, since November 26, 1991, been a member of the Food and Agriculture Organization, a specialized agency, which under Article II of its Constitution allows its Conference to admit as a member of the Organization any regional economic integration organization meeting the criteria set out in paragraph 4 of this Article. Paragraph 4 states that: a regional economic integration organization must be one constituted by sovereign States, a majority of which are Member Nations of the Organization, and to which its Member States have transferred competence over a range of matters within the purview of the Organization, including the authority to make decisions binding on its Member States in respect of those matters.

The Marrakesh Agreement establishing the World Trade Organization (WTO) provided that one of its original members would be the European Community (now the EU). Specifically, Article XI (1) provides that “[t]‌he contracting parties to GATT 1947 as of the date of entry into force of this Agreement, and the European Communities, which accept this Agreement and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS shall become original Members of the WTO.”16

  NATO, Membership Action Plan (MAP), http://​www.nato.int/​cps/​en/​natolive/​topics_​37356.htm.   For a list of nonmember states, entities, and intergovernmental organizations that have observer status with the General Assembly, see UN Doc. A/​INF/​68/​5. 16   For a list of Organizations of which the EU is a member, see Henry G. Schermers and Niels M. Blokker, International Institutional Law: Unity within Diversity, 5th rev. ed. (Leiden: Martinus Nijhoff Publishers, 2011), 72–​6. 14 15

 

968   membership and representation

Process of Admission to Membership Criteria for admission are usually governed by an organization’s constitutive act or treaty, whereas the procedures for admission are usually set out in both the constitutive act and the rules of procedure of an organization’s governing bodies. In the case of the AU, admission is to be decided by a simple majority of member states. Each member state transmits its decision to the Chairperson of the AU Commission.17 However, the process for admission in other cases may involve one body making a recommendation to another. In the case of the EU, Article 49 of the Treaty of the European Union provides that: [t]‌he European Parliament and national Parliaments shall be notified of [the] application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

Membership in the UN is obtained under Article 4 upon a decision of the General Assembly based upon a recommendation of the Security Council. Under the Provisional Rules of Procedure of the Security Council18 and the Rules of Procedure of the General Assembly19 the procedure laid out for the consideration of membership applications requires that any state which desires to become a member of the UN must submit an application to the Secretary-​General containing a declaration, made in a formal instrument, that it accepts the obligations contained in the Charter. Unless the Security Council decides otherwise, the application is referred by the President of the Security Council to a Committee on the Admission of New Members, upon which each member of the Security Council is represented. The Committee reports back to the Security Council in due course. If the Security Council recommends the applicant state for membership, it forwards to the General Assembly the recommendation with a complete record of the discussion. If the Security Council does not recommend the applicant state for membership, or postpones consideration of the application, it submits a special report to the General Assembly with a complete record of the discussion. Under the Charter, the Rules of Procedure of the General Assembly, and the Provisional Rules of Procedure of the Security Council, if the Security Council recommends the applicant state for membership, the General Assembly decides on membership by a two-​thirds majority of the members present and voting. Should the Security Council not recommend the applicant state for membership   AU, Constitutive Act of the African Union, 2000, Art. 29, para. 1.   See Provisional Rules of Procedure of the Security Council, Rules 58–​60. 19   See Rules of Procedure of the General Assembly, Rules 134–​38. 17

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membership   969 or postpone consideration of the application, the General Assembly may, after full consideration of the special report of the Security Council, send the application back to the Council.20 Although the Secretary-​General has an administrative role under the Provisional Rules of Procedure of the Security Council and the Rules of Procedure of the General Assembly, which require him or her to circulate an application for membership among the members of both bodies, it has become customary for the Secretary-​General to conduct a technical review in order to verify that the application is receivable—​namely, that it is in due and proper form—​before providing it to the Security Council and the General Assembly. As a matter of practice, the Secretary-​General finds an application to be in due and proper form unless: 1. the application is not contained in a letter signed by the head of state, head of government or minister of foreign affairs 2. the application is from an entity that on its face could not be considered as a state or 3. the applicant state has not included a declaration confirming that it accepts the obligations contained in the Charter. Decisions of the General Assembly and Security Council may preclude the circulation of a membership application. For example, in 2007, member states forwarded a membership application for “the Republic of China (Taiwan).” This “application” was transmitted through a letter signed by twelve Permanent Representatives but was not accepted on the grounds that, in accordance with General Assembly Resolution 2758 (XXVI) of October 25, 1971, the representatives of the People’s Republic of China are, for UN purposes, the “only lawful representatives of China to the United Nations”21 and that Taiwan was, for UN purposes, part of China. In the case of Palestine, the Secretary-​General took the decision in 2011 to forward its application for membership22 to both the Security Council and the General Assembly. At the time, Palestine enjoyed, within the UN, observer status as an “entity” as opposed to a state.23 The Security Council referred the application to the Committee on the Admission of New Members,24 which was unable to make a unanimous recommendation to the Security Council because agreement could not be reached among Council members as to whether Palestine fulfilled the

20   Art. 18, para. 2 of the Charter; Rules 136 and 137 of the Rules of Procedure of the General Assembly and Rule 60 of the Provisional Rules of Procedure of the Security Council. 21   General Assembly (GA) Res. 2758(XXVI), October 25, 1971. 22   See UN Doc. A/​66/​371-​S/​2011/​592, September 23, 2011. 23   The status of Palestine within the UN pursuant to which it enjoyed the status of an entity as opposed to a state is set out in GA Res. 52/​250 of July 7, 1998. 24   UN Doc. S/​PV.6624, September 28, 2011.

 

970   membership and representation requirements of membership.25 The Committee’s report has not, to date, been taken up by the Security Council. The General Assembly, when according nonmember observer state status to Palestine in November 2012,26 expressed the hope “that the Security Council will consider favorably the application submitted on September 23, 2011 by the State of Palestine for admission to full membership in the United Nations.”27

Succession of States For the UN, the question of succession in relation to membership has arisen mainly in two types of cases: where a single member state has dissolved into a number of independent states and where a new state has seceded from an existing member state. Two well-​known examples of the first type of case are the dissolution of the Union of Soviet Socialist Republics (USSR) and the Socialist Federal Republic of Yugoslavia (SFRY). In the case of the USSR, there was no objection by member states or those states that had previously formed part of the USSR to Russia succeeding to the seat of the USSR in the General Assembly and to the permanent seat on the Security Council. The situation with Yugoslavia was more complicated. Following the promulgation of its constitution, the new Federal Republic of Yugoslavia (FRY) addressed a note to the Secretary-​General advising him that: the Assembly of the Socialist Federal Republic of Yugoslavia, at its session held on April 27, 1992, promulgated the Constitution of the Federal Republic of Yugoslavia. Under the Constitution, on the basis of the continuing personality of Yugoslavia and the legitimate decisions by Serbia and Montenegro to continue to live together in Yugoslavia, the Socialist Federal Republic of Yugoslavia is transformed into the Federal Republic of Yugoslavia, consisting of the Republic of Serbia and the Republic of Montenegro.

Accordingly, the note advised the Secretary-​General that the FRY intended to continue the international legal personality of the former SFRY and assume membership in those international organizations of which the SFRY had been a member.28 Bosnia and Herzegovina, Croatia, Slovenia, and the former Yugoslav Republic of Macedonia, all of which had been part of the SFRY and which had applied for and   See UN Doc. S/​2011/​705, November 11, 2011. 27   GA Res. 67/​19, November 29, 2012, para. 2.   Ibid., para. 3. 28   See UN Doc. A/​46/​915, May 7, 1992; see also UN Doc. S/​23877, May 5, 1992. 25

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succession of states   971 were admitted to membership in the UN in accordance with Article 4 of the Charter,29 objected. In its Resolution 47/​1 of September 22, 1992, the General Assembly, acting upon the recommendation of the Security Council in its Resolution 777 (1992) of September 19, 1992, considered: that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore decide[d]‌that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly.

The Legal Counsel of the UN took the view that this resolution of the General Assembly neither terminated nor suspended the membership of the SFRY in the UN.30 Consequently, the seat and nameplate remained, but in Assembly bodies representatives of the FRY could not sit behind the sign “Yugoslavia.” At the same time, the Legal Counsel expressed the view that the admission of the FRY to membership in the UN, in accordance with Article 4 of the UN Charter, would terminate the situation that had been created by General Assembly Resolution 47/​1.31 The ICJ in the case concerning the Legality of Use of Force (Serbia and Montenegro v United Kingdom) referred to the “confused and complex state of affairs” that obtained within the UN surrounding the issue of the legal status of the FRY in the Organization during this period.32 The ICJ indicated that this situation came to an end when the FRY applied33 and was admitted to membership pursuant to Security Council Resolution 1326 of October 31, 2000 and General Assembly Resolution 55/​ 12 of November 1, 2000.34 Developments with regard to the FRY, which in 2003 changed its name to the “Federal Republic of Serbia and Montenegro,”35 also illustrate the second type of case, in which a new state has seceded from an existing state. In a letter dated June 3, 2006, the President of the Republic of Serbia informed the Secretary-​General that membership in the UN of “Serbia and Montenegro” was being continued by the “Republic of Serbia” following Montenegro’s declaration of independence.

  See GA Res. 46/​237, May 22, 1992; GA Res. 46/​238, May 22, 1992; GA Res. 46/​236, May 22, 1992; and GA Res. 47/​225, April 8, 1993 respectively. 30   UN Juridical Yearbook (1992):  428. Also, UN, Summary of Practice of the Secretary-​General as Depositary of Multilateral Treaties, ST/​LEG/​7/​Rev. 1, 25, para. 89, and 89, para. 297. 31   UN Doc. A/​47/​485, September 30, 1992. 32   Legality of Use of Force (Serbia and Montenegro v United Kingdom), Preliminary Objections, Judgment, ICJ Reports 2004, 1321, para. 32. 33   UN Doc. A/​55/​528-​S/​2000/​1043 (Annex), President of the Federal Republic of Yugoslavia to the Secretary-​General, October 27, 2000. 34   Legality of Use of Force (Serbia and Montenegro v United Kingdom), Preliminary Objections, Judgment, ICJ Reports 2004, 1336–​7, paras. 73–​6. 35   UN Doc. A/​57/​728-​S/​2003/​170 (Annex), Permanent Representative of Serbia and Montenegro to the Secretary-​General, February 4, 2003. 29

 

972   membership and representation Montenegro subsequently applied for membership in the UN,36 which was granted pursuant to Security Council Resolution 1691 (2006) of June 22, 200637 and General Assembly Resolution 60/​264 of July 12, 2006. A more recent example of a seceding state becoming a member state of the UN is South Sudan, which seceded from Sudan on July 9, 2011 after a referendum pursuant to the 2005 Comprehensive Peace Agreement concluded between the Sudan People’s Liberation Movement and the government of Sudan. South Sudan subsequently applied for membership in the UN38 which was granted pursuant to Security Council Resolution 1999 of July 13, 201139 and General Assembly Resolution 65/​308 of July 14, 2011. This did not affect Sudan’s membership in the UN. In this regard, it is important to recall that the UN does, generally speaking, examine what the effect of secession would be when a new state has seceded from an existing state that is a member of the UN. The Sixth Committee of the General Assembly stated on October 7, 1947, that a “state which is a member of the United Nations does not cease to be a Member from the mere fact that its constitution or frontiers have been modified.” Thus secession would not have an effect on membership. Furthermore: [w]‌hen a new State is created, whatever the territory and the population which compose it, and whether these have or have not been part of a State Member of the United Nations, this new State cannot, under the system provided for by the Charter, claim the status of Member of the United Nations unless it has been formally admitted as such in conformity with the provisions of the Charter.40

This means that any new state would have to apply for membership using the procedures set out in the Charter.

Rights of Membership Participation in the Intergovernmental Process, Including the Right to Vote The most important attributes of membership in an intergovernmental organization are the right to participate in the activities of its organs that are open to all member  UN Doc. A/​60/​890-​S/​2006/​409 (Annex), President of the Republic of Montenegro to the Secretary-​General, June 5, 2006. 37 38   See also UN Doc. A/​60/​902, June 23, 2006.   A/​65/​900-​S/​2011/​418. 39   See also A/​65/​905. 40   UN GAOR, 2nd Session, 6th Comm., 43rd Meeting, October 7, 1947, 38, 40, 44. 36

 

rights of membership   973 states as well as their decision-​making processes, to stand for election, and to be elected to those organs that may be limited to a specific number of member states. For example, under Article 9 of the UN Charter, the General Assembly consists of all the members of the UN, which under Article 18 each have one vote. Membership in the principal organs of limited membership, the Security Council which consists of fifteen members and the Economic and Social Council (ECOSOC) which consists of fifty-​four members, is attained through election based upon equitable geographical representation, unless guaranteed by the Charter, as is the case for the permanent members of the Security Council.41 While members of the General Assembly and ECOSOC participate on an equal basis in decision-​making, the Charter provides, under Article 27, that decisions of the Security Council on nonprocedural matters be made by an affirmative vote of nine members including the concurring votes of the permanent members. Most international organizations operate on the basis of “one state, one vote.” However, some provide for weighted voting. This is the case, for example, with the International Monetary Fund (IMF)42 and the International Bank for Reconstruction and Development (IBRD).43 In certain rare cases international organizations can exercise the right to vote on behalf of their members. For example, the draft rules of procedure of the Conference of the Parties of the Framework Convention on Climate Change (FCCC) provide in Rule 41, paragraph 2 that: Regional economic integration organizations, in matters within their competence, shall exercise their right to vote with a number of votes equal to the number of their member States that are Parties to the Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right, and vice versa.44

Organizations with two-​tier membership, such as UNESCO, may provide for different participation rights for different types of members. Under Article IV, paragraph 8 of the UNESCO Constitution, state members are each entitled to one vote in the General Conference, which is not a right granted to associate members. 41   Under para. 3 of Res. 1991 A (XVIII), the General Assembly decided that the ten nonpermanent members of the Security Council shall be elected according to the following pattern: five from African and Asian states, one from Eastern European states, two from Latin American states, and two from Western European and other states. Under para. 4 of Res. 2847 (XXVI), the General Assembly decided that the fifty-​four members of ECOSOC as per Art. 61 of the Charter shall be elected according to the following pattern: fourteen members from African states, eleven members from Asian states, ten members from Latin American states, thirteen members from Western European and other states, and six members from Eastern European states. 42   IMF, Articles of the Agreement of the International Monetary Fund, Art. XII, Section 5. 43   IBRD, Articles of Agreement of the International Bank for Reconstruction and Development, Art. V. The actual number of votes of each member state can be found on the website of the IBRD, http://​web.worldbank.org. 44   FCCC/​CP/​1996/​2, Draft Rules of Procedure of the Framework Convention on Climate Change, May 22, 1996.

 

974   membership and representation

Accreditation and Representation Rights of membership can only be exercised by duly accredited representatives. In the case of the UN, the General Assembly has, on occasion, adopted resolutions that have excluded the representatives of a particular authority. Such resolutions have either involved situations in which the representatives of two rival authorities have sought to represent a single member or in which the Assembly has excluded the representatives of a member when the member has either not complied with decisions of the organization or when the Assembly has sought to condemn the member’s policies and practices. General Assembly Resolution 396 (V) of December 14, 1950, entitled “Recognition by the United Nations of the representation of a Member State,” recommended that, whenever more than one authority claims to be the government entitled to represent a member state in the UN and this question becomes the subject of controversy in the UN, the question should be considered in the light of the purposes and principles of the Charter and the circumstances of each case. That resolution also recommended that the attitude adopted by the General Assembly concerning any such question should be taken into account in other organs of the UN and in the specialized agencies. However, any view on such a question should “not of itself affect the direct relations of individual Member States with the State concerned,” thus emphasizing that any decision on representation should not affect what position member states may take in their bilateral relationships and pursuant to their own domestic law.45 In the case of China, the representatives of the National Government of China were seated until the adoption of Resolution 2758 (XXVI) of October 25, 1971, entitled “Restoration of the lawful rights of the People’s Republic of China in the United Nations.” In that resolution, the General Assembly decided “to recognize the representatives of [the People’s Republic of China] as the only legitimate representatives of China to the United Nations, and to expel forthwith the representatives of Chiang Kai-​shek … ” More recently, the General Assembly, in response to an unconstitutional change of government in Honduras, adopted Resolution 63/​301of June 30, 2009 condemning the coup d’état, demanding “the immediate and unconditional restoration of the legitimate and Constitutional Government of the President of the Republic of Honduras,” and calling “firmly and unequivocally upon States to recognize no Government other than that of the Constitutional President.” The UN Office of Legal Affairs advised that until the General Assembly decided otherwise, the UN Secretariat should act in a manner consistent with Resolution 63/​301, which meant that only those delegates from Honduras who could formally confirm that

  GA Res. 396 (V), December 14, 1950, paras. 1–​4.

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rights of membership   975 they were the duly authorized representatives of the previous government should be allowed to participate in the work of the General Assembly and its subsidiary bodies.46 This had the effect of excluding the de facto authorities from Honduras from participating in UN meetings. Several days later, the Organization of American States (OAS) decided on July 4, 2009 to suspend Honduras from its right to participate in the OAS, in accordance with Article 21 of the Inter-​American Democratic Charter.47 The Credentials Committee, a nine-​member committee appointed under the Rules of Procedure of the UN General Assembly, reviews credentials and makes recommendations to the General Assembly. Both the Committee and the Assembly have on occasion adopted resolutions refusing to accept the credentials submitted by particular members on behalf of their representatives.48 This has had the effect of barring those representatives from participating in the meetings of the General Assembly and its subsidiary bodies, even though those states remained members of the UN. One such case involved South Africa. The UN Office of Legal Affairs expressed the view in relation to South Africa’s credentials that should the General Assembly, where there is no question of rival claimants, reject the credentials of a member for the purpose of excluding it from participation in its meetings, this would have the effect of suspending a member state from the exercise of rights and privileges of membership in a manner not foreseen by the Charter, would not satisfy the requirements of Article 5 of the Charter that deals with suspension, and would therefore be contrary to the Charter.49 However, at the Twenty-​Ninth Session of the General Assembly in 1974, both the Credentials Committee and General Assembly decided not to accept the credentials of South Africa on the grounds of its apartheid policies.50 The President of the General Assembly made a ruling which he emphasized was strictly within the framework of the Rules of Procedure of the General Assembly and stated that the rejection of South Africa’s credentials was “tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work.”51 On December 16, 1974 the General Assembly adopted Resolution 3324 (XXIX) E expressly recommending “that the South African regime should be totally excluded from participation in all international organizations and conferences under the   UN Juridical Yearbook (2009): 407–​10.   OAS, AG/​RES. 2 (XXXVII-​E/​09), 37th Session, July 16, 2009. 48   For an explanation of the scope of credentials submitted under the Rules of Procedure of the General Assembly, see UN Juridical Yearbook (1970): 169. 49   UN Juridical Yearbook (1970): 169. 50   UN Doc. A/​9179, First Report of the Credentials Committee, October 4, 1973. 51   UN GAOR, 28th Session, 2281st Meeting, November 12, 1974, UN Doc. A/​PV.2281, paras. 159–​60. See also UN Juridical Yearbook (1975): 167. 46 47

 

976   membership and representation auspices of the United Nations so long as it continues to practise apartheid and fails to abide by United Nations resolutions concerning Namibia and Southern Rhodesia.” South Africa continued to be a member of the UN.52 Other techniques used by the General Assembly to restrict participation have included taking ad hoc procedural decisions that have prevented representatives, including Heads of State, from speaking in the General Assembly. This was the case when the General Assembly voted to prevent President Rajoelina of Madagascar from addressing the General Assembly on the grounds that he had come to power through unconstitutional means.53

Obligations of Membership The UN Charter imposes specific obligations on its members, which, under Article 2, paragraph 2, they must “fulfil in good faith … in accordance with the present Charter.” These obligations are of two types. The first is financial. Article 17, paragraph 2 provides that, “[t]‌he expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.” The effect of failing to meet this obligation is set forth in Article 19, which provides that: [a]‌Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member.

This loss of vote occurs ipso facto and Article 19 does not call for a decision of the General Assembly prior to the deprivation of vote.54 The Secretary-​General informs the President of the General Assembly about arrears in the form of a letter55 and a general practice has evolved whereby the attention of the General Assembly is drawn to the information contained in this document.56 The direct effect of Article   For further explanation, see UN Juridical Yearbook (1985): 128.   UN Doc. A/​64/​PV.8, September 25, 2009, 8. 54   UN Juridical Yearbook (1968): 186–​8. 55   For an example of a letter from the Secretary-​General to the President of the General Assembly on the status of arears, see UN Doc. A/​69/​722, January 12, 2015. 56   Simma et al. (ed.), The Charter of the United Nations, vol. 1, 651. 52 53

 

observers   977 19 is taken account of by either not allowing a member state to vote or not distributing a ballot paper to it. As far as authorization to exercise the right to vote in cases where the failure to pay is due to conditions beyond the control of the member, this is considered by the Committee on Contributions, a subsidiary body of the General Assembly. Member states which are in arrears can make their case to the Committee through both written and oral submissions which then makes a recommendation to the General Assembly.57 The General Assembly takes its decision by a majority of members present and voting. The second type of obligation imposed on UN members relates to the maintenance of international peace and security. Under Article 25, “[t]‌he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”58 Should there be any conflicting obligations between those assumed by a member under the Charter and obligations under another international agreement, Article 103 provides that the “obligations under the present Charter shall prevail.”

Observers The treaty or constitutive act of an intergovernmental body can also allow for the participation of nonmember states or other entities and international organizations, but without the right to vote. For example, under Article 35(2) of the Charter: [a]‌State which is not a member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.

In addition, under Articles 32 and 50 of the Charter, a nonmember state enjoys the right to participate without vote in discussions relating to a dispute under consideration by the Security Council to which it is a party as well as to engage in consultations with the Security Council on preventive or enforcement measures if the nonmember state finds itself confronted with special economic problems arising from execution of those measures. While not specifically provided for in the Charter of the UN, the Secretary-​ General has provided observer facilities in the General Assembly to nonmember   UN Doc. A/​69/​11, Report of the Committee on Contributions, 74th Session, June 2–​20, 2014.   See also Arts. 43, 48, and 49 of the Charter.

57

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978   membership and representation states that were admitted as full members of one or more specialized agencies or the International Atomic Energy Agency or had become parties to the Statute of the International Court of Justice, and which maintained permanent observer offices at headquarters. This has included Switzerland that became a member of several specialized agencies prior to becoming a member of the UN, such as UNESCO, UNIDO, as well as the World Health Organization. The General Assembly currently takes a specific decision on each state or organization that is granted observer status. By Decision 49/​426 of December 9, 1994 the General Assembly, in a decision entitled, “Question of criteria for the granting of observer status in the General Assembly,” determined that “the granting of observer status in the General Assembly should in the future be confined to States and to those intergovernmental organizations whose activities cover matters of interest to the Assembly.” At present, the Holy See and the State of Palestine participate as observer states pursuant to Resolutions 58/​314 of July 1, 2004 and 67/​19 of November 29, 2012 respectively, which grant to them specific rights and privileges of participation in UN organs as observers. International organizations such as the International Committee of the Red Cross, the International Federation of the Red Cross and Red Crescent Societies, and the Sovereign Military Order of Malta, and intergovernmental organizations and specialized agencies also enjoy observer status in the General Assembly.59 In addition to the two states that have observer status in the General Assembly and its subsidiary bodies, two nonmember states, the Cook Islands and Niue have participated on an equal basis with member states in certain conferences convened under the auspices of the UN. While the formulas used by the General Assembly that allow for equal participation have differed, they have generally included wording to the effect that a conference would be open to the full participation of “all States” or to “Member states and states members of Specialized Agencies.”60 The ECOSOC rules of procedure,61 as well as those of their functional commissions,62 allow for the participation of nonmember states, national liberation movements, specialized agencies, intergovernmental organizations that enjoy   For a list of nonmember states, entities, and intergovernmental organizations that have observer status with the General Assembly see UN Doc. A/​INF/​68/​5, January 14, 2014. 60   The conference convened under the auspices of the General Assembly to draft and to sign both the Convention relating to the Status of Refugees and the Protocol relating to the Status of Stateless Persons was open, pursuant to para. 4 of Res. 429 (V) of December 14, 1950 to “Members and non-​members of the United Nations.” Paragraph 16 of GA Res. 67/​207 of December 21, 2012 on the follow-​up to and implementation of the Mauritius Strategy for the Further Implementation of the Program of Action for the Sustainable Development of the Small Island Developing States and para. 15 of Res. 68/​279 of June 30, 2014 on the 3rd International Conference on Financing for Development provided that the conference shall be open to “States Members of the United Nations or States members of Specialized Agencies.” 61   UN Doc. E/​5715/​Rev.2, Rules of Procedure of the Economic and Social Council, 1992. 62   UN Doc. E/​5975/​Rev.1, Rules of Procedure of the Functional Commissions of the Economic and Social Council, 1994. 59

 

suspension and expulsion   979 observer status with the General Assembly or those that are designated on an ad hoc or continuing basis by ECOSOC, and NGOs in consultative status with ECOSOC. The latter is pursuant to Article 71 of the Charter, which authorizes ECOSOC to make suitable arrangements for consultation with NGOs, which are concerned with matters within its competence.63 NGOs also participate within the UN in UN Conferences and other bodies convened under the auspices of the General Assembly, such as the High-​Level Political Forum on Sustainable Development.64 Finally, an international organization can partner with nonmember countries in executing its activities. A recent example is the NATO Partnership for Peace program. Twenty-​two states participate in this program, which involves practical bilateral cooperation between individual Euro-​Atlantic partner countries and NATO.65

Suspension and Expulsion A distinction should be made between the suspension of the rights of membership, which can mean the complete or partial suspension of rights and privileges in organs in which a member is represented, and expulsion, which means that a member ceases to be a part of an international organization.

Suspension Article 5 of the UN Charter provides that “[a]‌Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council.” The UN Office of Legal Affairs has advised that Article 5 lays down the following requirements for the suspension of a member from the rights and privileges of membership: (a) Preventive or enforcement action has to be taken by the Security Council against the member concerned.   These arrangements are currently set out in ECOSOC Res. 1996/​31 of July 25, 1996.   GA Res. 67/​290, July 9, 2013. 65  NATO, The Partnership for Peace Program, http://​www.nato.int/​cps/​ar/​SID-​91A898D5-​ 7584DA15/​natolive/​topics_​50349.htm. 63

64

 

980   membership and representation (b) The Security Council has to recommend to the General Assembly that the member be suspended from the exercise of the rights and privileges of membership. The General Assembly must act affirmatively on the forgoing recommendation by a two-​thirds vote, in accordance with Article 18, paragraph 2 of the Charter, which lists “the suspension of the rights and privileges of membership” as an “important question.”66 No member of the UN been suspended from the rights and privileges of membership under Article 5. There has, however, been a case in which a member has been suspended from participation in a subsidiary body of the General Assembly. When establishing the Human Rights Council by Resolution 60/​251 of March 15, 2006, the Assembly decided that when electing the forty-​seven members of the Council, members shall take into account the contribution of candidates to the promotion and protection of human rights. The Assembly further decided that it could, “by a two-​thirds majority of the members present and voting … suspend the rights of membership in the Council of a member of the Council that commits gross and systematic violations of human rights.”67 Thus, by Resolution 65/​265 of March 1, 2011, the Assembly decided to suspend Libya’s rights of membership in the Human Rights Council. There has been some practice of suspension by regional organizations. One well-​ known example relates to Cuba and the OAS. Notwithstanding the fact that Cuba was a founding member of the OAS, it was excluded from participating in OAS activities between January 21, 1962 and June 3, 2009.68 Article 23 of the Constitutive Act of the AU authorizes the Assembly to impose sanctions on any member that defaults on the payment of its contributions to the budget and on any member that fails to comply with the decisions and policies of the Union, and Article 30 provides that, “Governments which shall come to power through unconstitutional means shall not be allowed to participate in the activities of the Union.” Decisions have been taken by the AU Peace and Security Council suspending member states from its activities. For example, on March 20, 2009 the Peace and Security Council decided, in accordance with the Lomé Declaration on Unconstitutional Changes of Government and the Constitutive Act of the AU, “to suspend Madagascar from participating in the activities of the AU until the restoration of constitutional order.” It also decided to impose measures, “including sanctions, on the perpetrators of the unconstitutional change and on all those who contribute to the maintenance of the illegal status quo, if constitutional order is not restored.”69 Similarly, after the coup d’état in Guinea Bissau on April 12, 2012, 67   UN Juridical Yearbook (1970): 170.   GA Res. 60/​251, March 15, 2006, para. 8.  Final Act, 8th Meeting of Consultation of Ministers of Foreign Affairs serving as Organ of Consultation in Application of the Inter-​American Treaty of Reciprocal Assistance, Punta Del Este, Uruguay, January 22–​31, 1962 (OEA/​Ser.C/​II.8, 1962). 69   AU Peace and Security Council, Communiqué of the 181st Meeting, March 20, 2009, Addis Ababa, Ethiopia, Doc. No. PSC/​PR/​COMM (CLXXXI), para. 4. 66 68

 

suspension and expulsion   981 the Peace and Security Council decided, “to suspend, with immediate effect, the participation of Guinea Bissau in all activities of the African Union until the effective restoration of constitutional order.” Furthermore, “given the frequency of coups d’état in Guinea Bissau,” the Peace and Security Council requested the AU Commission in consultation with ECOWAS and the AU partners to submit proposals “for additional sanctions against the perpetrators of the coup d’état and their civilian and military supporters, including travel ban, asset freeze and other measures.”70 The Constitutions and Conventions of many specialized agencies allow them to implement decisions on suspension made by the UN. For example, Article II, paragraph 4 of the UNESCO Constitution provides that “Members of the Organization which are suspended from the exercise of the rights and privileges of membership of the United Nations Organization shall, upon the request of the latter, be suspended from the rights and privileges of this Organization.” In addition, Article IV, paragraph 8 of the UNESCO Constitution does not allow a member state to have a vote in the General Conference if the total amount of contributions due from it exceeds the total amount of contributions payable by it for the current year and the immediately preceding calendar year. Like the UN Charter, the UNESCO Constitution provides in Article IV, paragraph 8 for the possibility of an exception under this paragraph, “if [the General Conference] is satisfied that failure to pay is due to conditions beyond the control of the Member State.” Similar provisions are contained in the Conventions of other specialized agencies.71

Expulsion Expulsion from the UN is addressed in Article 6 of the Charter, which states that, “[a]‌Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon recommendation of the Security Council.” This provision echoes the provision on membership—​that is, if a state is admitted to membership by the General Assembly upon recommendation of the Security Council, then it should be expelled in a similar manner. No member of the UN has been expelled from membership, although attempts to apply Article 6 have been made. For example, on December 22, 1955, a draft Security Council resolution proposed “to expel Israel from the United Nations under Article 70   AU Peace and Security Council, Communiqué of the 318th Meeting, April 17, 2012, Addis Ababa, Ethiopia, Doc. No. PSC/​PR/​COMM (CCCXVIII), para. 6. 71  See also Arts. 62 and 93 bis of the Chicago Convention, which is the Constitution of the International Civil Aviation Organization.

 

982   membership and representation 6 of the Charter for her persistent violation of the principles of the Charter.”72 However, the Security Council did not vote on it.73 Efforts were also made to expel South Africa from membership. Specifically, the General Assembly, affirming that the racial policies being pursued by the government of South Africa were a “flagrant violation of the Charter of the United Nations and the Universal Declaration of Human Rights and [were] inconsistent with the obligations of a Member State,”74 requested, “the Security Council to take appropriate measures, including sanctions, to secure South Africa’s compliance with the resolutions of the General Assembly and of the Security Council on this subject and, if necessary, to consider action under Article 6 of the Charter.”75 The Security Council did not react to this request.76 The UN came closest to applying Article 6 when in October 1974 the Security Council discussed a draft resolution “recommend[ing] to the General Assembly the immediate expulsion of South Africa from the United Nations in compliance with Article 6 of the Charter.”77 The draft resolution failed to be adopted due to the negative votes of three permanent members, France, United Kingdom, and the United States.78 Like suspension, a member state’s expulsion from the UN could affect its membership in the specialized agencies of the UN. Article II, paragraph 5 of the UNESCO Constitution provides that, “Members of the Organization which are expelled from the United Nations Organization shall automatically cease to be Members of this Organization.”79 There is no practice in the UN or specialized agencies implementing this provision on expulsion.

Withdrawal The UN Charter contains no express provision prohibiting, permitting, or regulating the question of withdrawal from the Organization, and the Organization has on only one occasion had to deal with this situation. In 1965, Indonesia informed the Secretary-​General, after the seating of Malaysia as a member of the Security   UN Doc. S/​3519, December 22, 1955.   Simma et al. (ed.), The Charter of the United Nations, vol. 1, 382. See also “Extracts Relating to Article 6 of the Charter of the United Nations,” in Repertory of Practice of United Nations Organs, Supp. 6 (1979–​84), vol. 1, 130. 74   GA Res. 1598(XV), April 13, 1961; GA Res. 1663(XV1), November 28, 1961. 75   GA Res. 1761(XVII), November 6, 1962. 76   Simma et al. (ed.), The Charter of the United Nations, vol. 1, 382. 77  SCOR 29th Year Supp (October–​December 1974)  34, UN Doc. S/​11543; summarized in UN Juridical Yearbook 28 (1974): 109–​15. 78   Simma et al. (ed.), The Charter of the United Nations, vol. 1, 383. 79   See also Art. 93 bis of the Chicago Convention. 72 73

 

conclusion   983 Council, that the government of Indonesia had decided to withdraw from the UN.80 The following year, Indonesia informed the Secretary-​General that Indonesia had decided to resume participation in its activities starting with the Twenty-​First Session of the General Assembly.81 The constitutions of some of the specialized agencies allow for withdrawal82 or denunciation.83 According to the UN Handbook on the Final Clauses of Multilateral Treaties, “[t]‌he words denunciation and withdrawal express the same legal concept. Denunciation (or withdrawal) is a procedure initiated unilaterally by a State to terminate its legal engagements under a treaty. The treaty in question continues to produce its effects with respect to other parties to the treaty.”84 Article 31 of the Charter of the AU on the cessation of membership provides: 1. Any state which desires to renounce its membership shall forward a written notification to the Chairman of the Commission, who shall inform Member States thereof. At the end of one year from the date of such notification, if not withdrawn, the Act shall cease to apply with respect to the renouncing State, which shall thereby cease to belong to the Union. 2. During the period of one year referred to in paragraph 1 of this Article, any Member State wishing to withdraw from the Union shall comply with the provisions of this Act and shall be bound to discharge its obligations under this Act up to the date of its withdrawal. Article 50, paragraph 1 of the Treaty of the European Union provides that “[a]‌ny member state may decide to withdraw from the Union in accordance with its own constitutional requirements.”

Conclusion Membership remains a fundamental constitutional question for any international organization and its members.85 This was recently illustrated by the application by   UN Doc. A/​5857 and S/​6157, January 21, 1965; UN Doc. A/​5899; S/​6202, February 26, 1965.   Egon Schwelb, “Withdrawal from the United Nations:  The Indonesian Intermezzo,” American Journal of International Law 61 (1967): 661–​72. For further discussion on the history of the Indonesian “withdrawal,” see UN Juridical Yearbook (1966): 222. 82   See Art. II, para. 6 of the UNESCO Constitution and Art. 1, para. 5 of the ILO Constitution; Art. XIX of the Constitution of the Food and Agriculture Organization; the Constitution of the UN Industrial Organization; Art. 73(a) of the 1948 Convention on the International Maritime Organization. 83   See Art. 18 of the 1967 Convention establishing the World Intellectual Property Organization. 84   Final Clauses of Multilateral Treaties, Handbook (2003), https://​treaties.un.org/​doc/​source/​publications/​FC/​English.pdf. 85  Inis L. Claude, Swords into Plowshares:  The Problems and Progress of International Organization (New York: Random House, 1964), 85; Alison Duxbury, The Participation of States in 80 81

 

984   membership and representation Palestine for membership in the UN and the divisions that ensued among members over its application.86 Given the huge growth in the number of international organizations since 194587 and the fact that international organizations are becoming an increasingly important, and even indispensable, venue for the conduct of international relations, being granted admission to an international organization can be seen as a practical necessity for states. In addition, gaining membership is seen as a device for affirmation and legitimacy in the international community. Moreover, it appears to be important to members of international organizations to maintain their membership even when faced with criticism or worse from within the organization. Notwithstanding repeated condemnation, including the application of sanctions, for example, states have chosen to remain members of international organizations at both the universal or regional level. This suggests that the value associated with membership and participation in these organizations is substantial. The suspension of member states from the AU in recent years is a new phenomenon in contemporary practice and can be contrasted with the lack of practice with suspension or expulsion by the UN under the relevant provisions of the Charter. It should be noted, however, that the absence of such practice at the UN may have a variety of explanations. While it could reflect, for example, that members have lacked the necessary resolve to implement these provisions, it may also result from their belief that the Organization’s interests are better served by having offending members within as opposed to outside its ranks. Moreover, as noted, members have found ad hoc ways to curb an offending member’s rights of participation in organs such as the General Assembly through the Assembly’s rules of procedure. While this ad hoc approach may have given the Organization more flexibility when dealing with offending members, it has also meant that there is less predictability and less certainty when it comes to membership and rights of participation.88

International Organizations: The Role of Human Rights and Democracy (Cambridge: Cambridge University Press, 2011), 16.   UN Doc. S/​2011/​705, Report of the Committee on the Admission of New Members Concerning the Application of Palestine for Admission to Membership in the United Nations, November 11, 2011. 87   Duxbury lists the existence of 247 “conventional inter-​governmental organizations” in 2008. See Duxbury, The Participation of States in International Organizations, 15. 88   Simma et al. (ed.), The Charter of the United Nations, vol. 1, 386. 86

 

Chapter 46

LEGAL CAPACITY AND POWERS Dan Sarooshi

The law of international organizations is undergoing profound changes. This has been caused in large part by the increasingly important role that international organizations have played in exercising powers conferred on them by national governments. This phenomenon has led to concerted attempts by states, international courts and tribunals, and domestic courts to seek to ensure accountability for these exercises of power by imposing corresponding limits on international organizations. This chapter focuses, first, on the development of international law relating to the legal personality of international organizations, including in this context a brief consideration of the issue of immunity; and then, second, turns to discuss the relationship between states and international organizations and the implications of this relationship for the responsibility of states and in some cases the responsibility of international organizations.

 

986    legal capacity and powers

The Development of International Law Relating to International Legal Personality: The Curious Case of International Organizations One of the landmark cases in this area is the International Court of Justice (ICJ) advisory opinion in the Reparation for Injuries Suffered in the Service of the United Nations case.1 The ICJ clearly established that an international organization can possess international legal personality and pursuant to that personality may well be able to exercise certain powers and have certain capacities on the international plane and indeed the domestic plane. But the Court was equally clear in saying that this recognition of the international legal personality of the UN is not the same thing as saying that the competences of the Organization are analogous to those of a state:  states, in the Court’s view, are ‘superhuman’ type beings on the international legal plane and international organizations by comparison are at best mere mortals.2 This approach was later confirmed by the ICJ in its advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict.3 International organizations have been established in a variety of ways, but what is common in all cases is some form of international agreement or instrument between states governed by international law. The existence of such an international agreement was previously the main criterion employed by the law to distinguish international organizations from nongovernmental organizations (NGOs): this is certainly the approach adopted by the UN,4 and also the approach taken by the International Law Commission (ILC) in its work on the responsibility of international organizations.5 International law has, however, developed to be agnostic on the related issue of how an organization can be created. International law does not require what I call the ‘big bang’ approach to creation: the law recognizes that it is possible for an organization to be created by evolution over time. The ‘big bang’ approach referred to is the immediate creation of an international organization by states by the entry into force of a constituent treaty. This has certainly been the most common form of establishing international organizations, but 1   Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174 (11 April). 2   Ibid., 179. 3   Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, ICJ Reports 1996, 66, 78 (8 July). 4   See also ECOSOC Res. 1296 (XLIV), 23 May 1968; and Res. 1996/​31, 25 July 1996. 5   See Report of the International Law Commission, 55th Session (2003), UN Doc. A/​58/​10, 38.

 

international legal personality   987 it is certainly not the only way. An agreement by states to establish an international organization can also be expressed in several other ways, including a decision to establish an organization by government representatives assembled in a conference without using a treaty and thus without the formal requirement of subsequent ratification of the treaty by states. This was the way the Asian-​African Legal Consultative Committee was originally established and the basis on which it was operated.6 It is also the way that the Organization of the Petroleum Exporting Countries was created by a resolution adopted by a conference of states in 1960. International law allows an entity to evolve over time into an international organization. The following section contains two case studies detailing how a private law foundation can be transformed over time into an international organization or something akin to an international organization with international legal personality, possessing powers and functions on both the international and domestic planes. The first case considers the transformation of the International Union of Official Travel Organizations (IUOTO), an NGO governed by Swiss law, into the World Tourism Organization (WTO);7 while the second is provided by the transformation of the Global Fund to Fight AIDS, Tuberculosis and Malaria which was initially a Swiss private law foundation into something akin to an international organization with international legal personality, possessing powers and functions on both the international and domestic planes.

The Case of the World Tourism Organization The IUOTO was initially established in 1946 as a private law association governed by the Swiss civil code.8 Due, however, to increasing changes in the complexity and international nature of tourism and the increasing importance of tourism to broader economic, social, and cultural goals, the IUOTO determined that it needed

  It was only at the 43rd Session of the Organization in 2004 that it was decided formally to adopt a new and revised Text of Statutes which are in effect a constituent instrument of the Organization. 7   The WTO was subsequently transformed again in 2003 into a UN specialized agency and is now known as the UNWTO:  in 2003 the WTO General Assembly approved the transformation of the WTO into a UN specialized agency by Res. 453(XV). This transformation into a specialized agency was made effective by the adoption by the UN General Assembly of its Res. A/​RES/​58/​232. The World Tourism Organization added the letters “UN” to the start of its previously used abbreviation “WTO” in English and also to the corresponding version in Russian, by approval of the UN General Assembly in December 2005. The UNWTO’s abbreviation remains OMT in French and Spanish. Since the period being discussed in this briefing paper predates the change in the WTO’s name, I shall refer throughout mainly to the “WTO” and not to the “UNWTO.” 8   J. Castaneda, “Une nouvelle méthode pour la création d’organismes internationaux le cas recent de l’U.I.O.O.T.,” Annuaire Français de Droit International XVI (1970): 40. 6

 

988    legal capacity and powers to transform itself from an international NGO ‘governed by private law to an inter-​ governmental institution governed by public [international] law’.9 The internal IUOTO process leading to its transformation into the WTO started in 1966 at the Seventy-​Ninth Meeting of the IUOTO Executive Council in Madrid which approved a proposition to modify the legal statutes of the Union and created a working group to study the effects and consequences of this change.10 The first major step in the direction to transform the IUOTO into an international organization was taken at the XXth IUOTO General Assembly,11 held in Tokyo in October 1967,12 where a resolution was adopted recommending that governments create an intergovernmental tourism organization. It was envisaged that the transformation of the organization would enable it to deal with all matters concerning tourism on a worldwide scale, and would put it in a better position to establish cooperation with other relevant organizations, especially those within the UN system.13 Following this decision by the IUOTO General Assembly in Tokyo, the IUOTO Executive Committee put forward a draft international convention designed to be the constitutive treaty of an intergovernmental tourist organization. In October 1968 this draft constituent treaty was circulated to the Ministries of Foreign Affairs of all states whose national tourist organizations were IUOTO members.14 Simultaneously, these countries were invited to attend a conference in Sofia in May 1969 with a view to drafting, adopting, and opening for signature this constitutive treaty. Prior to the Sofia meeting, however, the IUOTO Executive Committee met in Cairo in March 1969, and their examination of the comments received from states on the draft convention indicated that there was far from unanimous support for the creation of an independent tourist organization outside the UN system.15 According to an article in the Annals of Tourism Research, the countries that raised objections were not, however, opposed to the establishment of an international organization provided that it was functionally linked with the UN and that it preserved its administrative and financial autonomy.16 As a result, the Executive Committee decided to broaden the objectives of the Sofia Conference, beyond the negotiation and conclusion of a constituent treaty, to include all available options likely to lead to the creation of an international organization for tourism. At the subsequent Sofia Conference held in May 1969, a resolution was adopted by the states present, which provided in part:   “The Creation of the World Tourism Organization,” Annals of Tourism Research (November 1973):

9

8.

11   Obtained from the history section of the UNWTO website.   See n. 7.   This appears to be confirmed in UN General Assembly (UNGA) Res. 2529 (XXIV), operative para. 2. 13   “Creation of the Inter-​Governmental World Tourism Organization,” Annals of Tourism Research (May/​June 1975): 240–​1. 14 15 16   Ibid., 241.  Ibid.  Ibid. 10 12

 

international legal personality   989 Convinced accordingly that the establishment of an inter-​governmental organization is the most appropriate and effective way to rationalize and further strengthen efforts in the national and international planes in the ever expanding field of tourism, especially as the International Union of Official Travel Organizations, which has so far endeavored to play this role, is limited in its operation because it is a non-​governmental organization.17

The Annals of Tourism Research (1975) states that, ‘The negotiations connected with the work of the [Sofia] Conference revealed a very strong opinion in favor of the creation of the inter-​governmental organization. Two-​thirds of the participants voted in favor. This majority was composed of the developing countries but included a number of industrialized States.’18 The Conference also invited the Economic and Social Council (ECOSOC) to approve and adopt a series of guidelines for the creation of an intergovernmental tourism organization and to recommend its creation to the UN General Assembly. The XXIst IUOTO General Assembly met later that year in Dublin in October 1969 and adopted a resolution which reaffirmed ‘its determination to set up, as promptly as possible and by the most appropriate means, a tourism organization of inter-​governmental character’.19 There was, however, a recognition in this resolution that the classic procedure for establishing an international organization as indicated by the Sofia Conference did not necessarily represent the only, or indeed the best, way to establish a world tourism organization, and that there were other procedures which may make it possible to reach an agreement more rapidly amongst governments. Specifically, the resolution proposed a solution ‘which consisted of adapting the present Statutes of the Union to the inter-​governmental character of an international tourist organization at an Extraordinary General Assembly which would be convened by its President’.20 This difference in approach between the Sofia Conference—​made up solely of states—​and the resolution adopted by the XXIst IUOTO General Assembly likely derives from the fact that the General Assembly was comprised of both states and non-​state members of the IUOTO. The report of the Sofia Conference was transmitted by the UN Secretary-​General to the UN General Assembly. Subsequently, the UN General Assembly adopted Resolution 2529 (XXIV) on 5 December 5 1969 which also called for the establishment of an international organization on tourism in the following terms: Acknowledging the vital contribution that international tourism is making to the economic, social, cultural and educational progress of mankind and in safe-​guarding world peace, … Considering the active interest taken by the United Nations, its organs and specialized agencies in various fields related to tourism, and the continuing need for co-​ordination of their activities in these fields, Conscious of the leading role that the Union has hitherto played in the field of tourism and the technical ability and experience that it has built up,

 Ibid.   18 Ibid., 242.   19 Ibid.   20 Ibid.

17

 

990    legal capacity and powers Recognizing, nevertheless, that the operational capacity of the Union in the field of tourism has been limited by its status as a non-​governmental organization, Taking note of the determination, reaffirmed by the General Assembly of the Union in its resolution XXI/​5, to set up as promptly as possible and by the most appropriate means a tourism organization of an inter-​governmental character, Further taking note that in that resolution the Union recognized that the procedure indicated by the Intergovernmental Conference on Tourism for the creation of an intergovernmental tourism organization within the United Nations does not necessarily constitute the only means of establishing the best organization for world tourism, 1.  Believes that a formula that would allow agreement to be reached more readily among Governments for the establishment of an international tourism organization of an intergovernmental character, particularly to assist the developing countries would be: (a) The conversion of the International Union of Official Travel Organizations into an intergovernmental organization through a revision of its statutes; … 3.  Recommends those States whose national official tourist organizations are members of the [IUOTO] to take joint action at its forthcoming extraordinary General Assembly to amend the statutes of the Union in order to give the organization an intergovernmental character.21

This UN General Assembly resolution is significant since it affirms the process of transforming an NGO governed by Swiss law (the IUOTO) into an international organization by means of the revision and adoption by states of the IUOTO’s Statutes. The envisaged Extraordinary General Assembly of the IUOTO was held in Mexico City in September 1970, and the IUOTO General Assembly voted in favour of creating the World Tourism Organization by approving the revised IUOTO Statutes (now entitled The Statutes of the World Tourism Organization). The voting record was seventy states voting in favour, twelve abstentions, and no votes against the approval by the General Assembly of the revised Statutes. This approval by the Assembly of the revised Statutes did not, however, bind states (even those who voted in favour of the approval in the Assembly) on an individual basis.22 In order for a state to become a member of the new international organization it had to make, pursuant to Article 5(2) of the Statutes of the World Tourism Organization, a formal declaration that it adopted the Statutes and accepted the obligations of 21   UNGA Res. 2529 (XXIV) (5 December 1969)  (emphasis added). Adopted by the UN General Assembly without opposition with ninety-​six votes in favour and seven abstentions: “Creation of the Inter-​Governmental World Tourism Organization,” Annals of Tourism Research (May/​June 1975): 242. 22   It is for this reason that Ambassador Castaneda of Mexico stated that “Cette résolution, qui est une manifestation de la volonté de l’Assemblée et non des Etats, n’était pas en réalité nécessaire, et, une certaine mesure, fait double emploi avec le vote meme”:  J. Castaneda, “Une nouvelle méthode pour la création d’organismes internationaux le cas recent de l’U.I.O.O.T.,” Annuaire Français de Droit International XVI (1970): 40, 632.

 

international legal personality   991 membership. The IUOTO General Assembly even proposed to states the text of such a declaration which was as follows (with a variant for those governments that could not bind their states without a subsequent domestic ratification or referendum): The government of … , having knowledge of the resolution … , adopted by the extraordinary general assembly, as well as the revised statutes contained in the annex, formally declares that it approves the statutes of the proposed World Tourism Organization, and accepts the obligations inherent in membership.23

It was clearly understood that a number of states would need to obtain domestic ratification pursuant to their internal constitutional and other lawful requirements before being able to give their final consent to be bound by the Statutes. Accordingly, Article 42 of the WTO Statutes adopted in Mexico City in September 1970 provided as follows: During the year following the entry into force of the present Statutes [1976], States whose national tourism organizations were members of IUOTO at the time of adoption of these Statutes and which have adopted the present Statutes subject to [domestic] approval may participate in the activities of the Organization with the rights and obligations of a Full Member.

As at December 1974, states which fell within Article 42 included Australia, Austria, Bolivia, Canada, France, Federal Republic of Germany, Israel, Italy, Libya, Portugal, Switzerland, Uganda, and Uruguay.24 These states were thus able, without being actual members, to participate in the activities of the WTO for a limited duration, and this included, importantly, the work of the WTO Preparatory Consultative Committee.25 Article 36 of the WTO Statutes required that fifty-​one states whose national tourism organizations were IUOTO members at the time of the Extraordinary General Assembly at Mexico City must ratify the Statutes before they will enter into force 120  days after the fifty-​first ratification,26 thereby giving life to the WTO. The WTO Statutes entered into force on 2 January 1975, and it was on this date that the WTO formally came into existence as an international legal person. The first General Assembly of the WTO opened in Madrid on 12 May 1975, and saw many operational issues being discussed and finalized including the following:27

  My translation from the French text contained ibid.   “Establishment of the World Tourism Organization,” Annals of Tourism Research (November/​ December 1974): 83, 87. 25  Ibid. 26   Art. 36 of the Statutes provides: “The present Statutes shall enter into force one hundred and twenty days after fifty-​one States whose official tourism organizations are Full Members of IUOTO at the time of adoption of these Statutes have formally signified to the provisional Depositary their approval of the Statutes and their acceptance of the obligations of membership.” 27   “Creation of the Inter-​Governmental World Tourism Organization,” Annals of Tourism Research (May/​June 1975): 244. 23

24

 

992    legal capacity and powers the adoption of budget and financial regulations;28 the adoption of a formula for fixing contributions of Full, Associate, and Affiliate Members;29 the adoption of staff regulations; the approval of an agreement on cooperation with the UN; the election of officers; the appointment of the Secretary-​General; and the location of the WTO’s headquarters.30

The Case of the Global Fund to Fight AIDS, Tuberculosis and Malaria and Issues of Privileges and Immunities The Global Fund to Fight AIDS, Tuberculosis and Malaria (the Global Fund) was established in 2002 in Switzerland, ostensibly as a private Swiss foundation established under Swiss law. It is an international financing institution dedicated to attracting and distributing resources to prevent and treat AIDS, malaria, and tuberculosis and its work is estimated to have saved millions of lives. The Global Fund seeks to work below the formal level of the nation-​state to promote partnerships between government, civil society, the private sector, and the communities directly affected by the three diseases. The Global Fund has fifty-​nine states who participate in its work, but it also has a strong civil society component:  for example, full members of the Global Fund Board include persons who actually suffer from the three diseases and various major donors to the Global Fund such as the Bill & Melinda Gates Foundation. The Global Fund is one of the best-​funded international organizations in the world. Between 2002 and 2015, fifty-​four donor governments pledged US$ 28.8 billion and have already paid US$ 24 billion to the Global Fund,31 quite apart from the very significant contributions made by private foundations such as the Gates Foundation.32 The Global Fund is continually giving away its money to fund the fight against the three diseases and it has supported more than 1,000 programmes in 151 states. Initially the Global Fund had concluded with the World Health Organization (WHO) an Administrative Services Agreement (ASA) such that Global Fund   The budget was adopted at $5 million for a two-​year period, and it was decided that no nation should contribute more than 5 per cent of the total budget. 29   The contributions were scaled to reflect the GNP and tourism income of member states. The contribution of Affiliate Members was at the time fixed at $500 per year, and the membership of the latter had to be approved by their national governments. 30   The government of Spain offered the Organization a new headquarters building at a construction cost of not less than $11 million, and after several rounds of voting the WTO General Assembly decided to select Spain as the site of the headquarters. 31  See http://​www.theglobalfund.org/​en/​government/​. 32  See http://​www.theglobalfund.org/​en/​donors/​private/​gatesfoundation/​. 28

 

international legal personality   993 officials were formally employed by the WHO so that these Global Fund officials enjoyed the privileges and immunities of WHO officials. The Global Fund (despite its formal status as a Swiss private law foundation) and its officials have also given extensive privileges and immunities within Switzerland pursuant to the Headquarters Agreement between the Global Fund and the Swiss Federal Council dated 13 December 2004.33 The Headquarters Agreement also states in relation to the Global Fund’s legal personality the following in Article 1: ‘The Swiss Federal Council recognizes for the purposes of this Agreement the international juridical personality and legal capacity in Switzerland of the Global Fund to Fight AIDS, Tuberculosis and Malaria … ’. Moreover, the Global Fund had also entered into a Trust Fund arrangement with the World Bank with whom it kept its assets in the United States thereby allowing Global Fund property to enjoy the Bank’s immunity from legal process and execution within the United States pursuant to the US International Organizations Immunities Act 1945. Finally, in terms of the Global Fund’s privileges and immunities (as opposed to its assets kept in the World Bank trust), the Fund has been granted extensive privileges and immunities within the United States by its designation as an international organization enjoying privileges and immunities pursuant to s. 288 of the US International Organizations Immunities Act of 1945. The US President in an Executive Order dated 13 January 2006 officially designated the Global Fund as ‘a Public International Organization Entitled to Enjoy Certain Privileges, Exemptions, and Immunities’. The Global Fund at a certain point decided that it wanted to terminate the ASA, and did so with effect from January 2009. With the termination of the ASA there was a real need for the Global Fund to enjoy privileges and immunities under international law to ensure that the Global Fund and its officials could continue to do their important work focused on the fight against the three diseases without having to pay significant sums of money—​through taxes of various types and forms, including, for example, taxes on currency transfers—​to the various states where it had programmes and also to protect Global Fund staff who may have to investigate a country programme for fraud or other potentially problematic reasons. The high level of protection enjoyed by the Global Fund, its assets, and its officials within Switzerland and the United States did not change as a consequence of the termination of the ASA. However, in the rest of the world the Global Fund and its officials now face a number of serious risks as a consequence of the termination of the ASA, and these include the following: Global Fund officials, even while travelling in the performance of their official functions, are not immune from arrest or detention; Global Fund officials are not immune from any legal process for acts and words spoken or written in the discharge of their duties; Global Fund officials 33   The formal title being the Agreement between the Swiss Federal Council and the Global Fund to Fight AIDS, Tuberculosis and Malaria in view of determining the legal status of the Global Fund in Switzerland.

 

994    legal capacity and powers may be subjected to different levels of taxation by their states of nationality leading to Global Fund resources being diverted into the treasuries of these states and the Global Fund not being able to fix comparable salary levels for comparable posts; Global Fund officials are not immune from national military service obligations as may be required by their state of nationality; and Global Fund officials do not possess the right to use the UN laissez-​passer with its associated privileges nor indeed are accorded any such travel privileges. Additional risks to the Global Fund itself are that it may be sued by present or former employees in any courts, and the Global Fund and its assets will not be immune in relation to the enforcement of any such court decision. In relation to Global Fund officials, the termination of the ASA meant that there was a need for the Fund to ensure that it could maintain the independence of its officials from their states of nationality and otherwise to provide them with protection in relation to the discharge of their duties on behalf of the Global Fund. The following finding by the ICJ in the Reparations case is of particular relevance here: In order that the agent may perform his duties satisfactorily, he must feel that this protection is assured to him by the Organization, and that he may count on it. To ensure the independence of the agent, and, consequently, the independent action of the Organization itself, it is essential that in performing his duties he need not have to rely on any other protection than that of the Organization.34

The Global Fund subsequently engaged with a number of its donor and recipient states and together they drafted a treaty that confers privileges and immunities on the Global Fund.35 This treaty—​the Agreement on Privileges and Immunities of the Global Fund to Fight AIDS, Tuberculosis, and Malaria—​was adopted by the Global Fund Board in 2010 when it adopted a decision recommending to all Global Fund states, and indeed all states, that they ratify this treaty, and the process of ratification of this treaty is now ongoing. The rationale here for the conferral by states of such privileges and immunities on the Global Fund, despite its formal status as an international organization being unclear, is that the conferral of privileges and immunities on an organization is within the sole gift and discretion of states. The generally accepted privileges and immunities of international organizations operate to exempt an organization from the adjudicative and enforcement jurisdictions of the state36—​in practice, international organizations and their officials are immune from all forms of legal process within states, they do not have to pay certain taxes, and the police and other arms of

  ICJ Reports 1949, 183.   This author had the privilege of assisting the Global Fund in drafting this treaty and in its subsequent negotiations with states over its content. 36   An international organization is still bound by the laws of the states in which it operates: see, e.g., H. Schermers and N. Blokker, International Institutional Law, 5th ed. (Leiden: Martinus Nijhoff, 2011), 1037. 34 35

 

international legal personality   995 the executive branch of government cannot exercise certain of their powers in relation to the international organization or its officials. As such, it is entirely open to states to conclude a treaty that confers privileges and immunities on an entity with an international mandate and objectives, and this is precisely what happened in the case of the Global Fund. Indeed there is precedent for a similar—​though certainly not identical—​approach in the case of the International Committee of the Red Cross (ICRC). The ICRC like the Global Fund is a private association under Swiss law, and they are both listed by the Swiss Federal Department of Foreign Affairs in its document entitled ‘International Organizations in Switzerland’ under the heading ‘Other [i.e. non-​UN System] international organizations in Switzerland’. The ICRC, however, is widely recognized as enjoying privileges and immunities that are comparable to those of the UN and other international organizations. These privileges and immunities are largely contained in the Headquarters Agreements and concomitant legislation in the nearly eighty countries in which the ICRC carries out significant operations, but before an international tribunal the ICRC has had to rely on privileges and immunities under customary international law, most notably before a Trial Chamber of the UN International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1999 decision in the Simic case.37 The ICTY decision in the Simic case concerned the Prosecutor’s proposal in the criminal trial of Simic and others to call a former ICRC employee who was willing to give evidence of facts that came to his knowledge by virtue of, and during, the course of his official acts as an ICRC employee. The ICRC opposed this before the ICTY on the basis that the testimony of a former ICRC employee would involve a violation of, inter alia, the ICRC’s international mandate and its privileges and immunities under customary international law. The ICTY held in the Simic case that: It is widely acknowledged that the ICRC, an independent humanitarian organization, enjoys a special status in international law, based on the mandate conferred upon it by the international community.

An important way in which this mandate is conferred on the ICRC is by the Geneva Conventions, and the ICTY went on to state that: As is well known, the Geneva Conventions enjoy nearly universal participation as virtually all States are parties to the four Geneva Conventions … The Trial Chamber is of the view that, by accepting to be bound by the Geneva Conventions, the States party to them have agreed to the special role and mandate of the ICRC.38

37   Prosecutor v Simic et al., Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, Case No. IT-​95-​9-​PT, 27 July 1999. 38   It was, in large part, on the basis of this special status that the ICTY found that the ICRC has a right under customary international law to non-​disclosure of the information in the knowledge of a

 

996    legal capacity and powers Although the Global Fund may not be able to claim that it operates on the basis of a mandate conferred upon it by a treaty as such, all this means is that it would not be easy at present for the Global Fund to claim that it enjoys the privileges and immunities of an international organization under customary international law. But there is nonetheless a strong case to be made that the Global Fund is carrying out a mandate conferred by the international community. In the case of the Global Fund, Section II of the Framework Document of the Global Fund, entitled ‘Purpose’, provides as follows: The purpose of the Fund is to attract, manage and disburse additional resources through a new public-​private partnership that will make a sustainable and significant contribution to the reduction of infections, illness and death, thereby mitigating the impact caused by HIV/​ AIDS, tuberculosis and malaria in countries in need, and contributing to poverty reduction as part of the Millennium Development Goals.

It is arguable that in order to achieve these purposes it is necessary for the Global Fund to be able to operate on the international plane with a large degree of independence from its donor and recipient states. Otherwise it would not, for example, be possible for the Global Fund to ensure that the grants it makes are being used effectively and in a financially accountable way by recipient states to reduce in a ‘sustainable and significant’ way the impact caused by HIV/​AIDS, tuberculosis, and malaria. The Global Fund has also concluded a number of agreements with recipient states which impose obligations on these states in relation to use of Global Fund grants and this requires the Fund to have a position of detachment in order to ensure these states are complying with their obligations.39 All of this is quite apart from the requirement for the Global Fund to provide functional protection to its officials as explained above. The real potential problem here in my view is whether there exist adequate mechanisms by states to exercise control over an international institution such as the Global Fund to ensure that it does not abuse the privileges and immunities granted to it by states. It will be for each state to consider the decision-​making processes of an international institution such as the Global Fund and to decide for themselves whether these are in its view appropriate such that it is willing to confer privileges and immunities on the specific institution.

former employee before the ICTY, and on this basis the ICTY decided that the evidence sought to be presented by the Prosecutor should not be given. 39   Moreover, the Global Fund in its Foundation Board and Secretariat possesses a power of binding decision-​making that is independent from that of its participant states. Also, the Fund By-​Laws provide in Article 7.1 that the voting members of the Foundation Board shall consist of:  “[1]‌Seven representatives from developing countries, one [State] representative based on each of the six World Health Organization (‘WHO’) regions and one additional [State] representative from Africa. [2] Eight representatives from donors [States]. [and  3] Five representatives from civil society and the private sector … ”

 

conferral by states of powers on ios    997 This chapter now turns to examine the relationship between states and international organizations and the implications of this relationship for the responsibility of states and in some cases the responsibility of international organizations.

The Conferral by States of Powers on International Organizations and the Issue of Responsibility for Unlawful Acts by an Organization States confer powers on international organizations to allow them to achieve specified objectives. However when considering issues of responsibility—​whether of the organization or state or both—​there needs to be careful consideration given to the nature of the specific relationship between a state and an international organization since these vary greatly in practice. Indeed the mechanism by which these powers can be conferred by states on an organization also varies—​they may be conferred by means of a state’s ratification of a constituent treaty which provides for such conferrals40 or they may be conferred by states on an ad hoc basis outside the context of a membership scenario. A useful way of analysing these relationships is to consider the degree to which a state has given away, or conferred, its powers to an international organization.41 These conferrals of powers can be considered as being on a spectrum that has at one end a conferral of power which establishes an agency relationship between the state and the international organization and at the other extremity there is a conferral of power which involves the ‘transfer’ of powers to the international organization. The intermediate category of conferral can usefully be characterized as a ‘delegation’ by states of powers to an international organization. There are three characteristics of conferrals that can be used to ascertain the degree to which powers have been given away by a state, and thus within which category a particular conferral of powers can be placed. First is the question of revocability: can a state lawfully revoke its conferral of powers onto an international organization? Second is the degree to which states retain control over the exercise 40   Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 66, 79, para. 25. 41   See generally D. Sarooshi, International Organizations and their Exercise of Sovereign Powers (Oxford: Oxford University Press, 2005).

 

998    legal capacity and powers of powers by the international organization. The third is whether an international organization possesses an exclusive right to exercise conferred powers or whether states have retained the right to exercise powers concurrently with the international organization. In the case of an ‘agency relationship’,42 the conferral of powers is revocable on a unilateral basis; states can exert direct control over the international organization’s exercise of powers; and states retain the right to exercise powers concurrent with, and independent of, the organization’s exercise of powers. In the case of a ‘delegation of powers’,43 the conferral of powers is revocable on a unilateral basis; states cannot exert direct control over the international organization’s exercise of powers, but states retain the right to exercise powers concurrent with, and independent of, the international organization’s exercise of powers. An example of a delegation of powers is the conferral by states of powers on the UN. Finally, in the case of a ‘transfer of powers’, the conferral of powers is irrevocable according to law. In this category, states cannot exert direct control over the international organization’s exercise of powers and nor do states retain the right to exercise powers concurrent with, and independent of, the international organization’s exercise of powers—​that is, a state has consented to be bound by obligations that flow from the international organization’s exercise of conferred powers. It is particularly difficult to measure the precise degree to which states have given away their powers in the case of transfers, but we can distinguish between ‘partial transfers’ and ‘full transfers’ depending on the extent to which states consented to be bound by obligations that flow from an international organization’s exercise of conferred powers. In the case of ‘partial transfers’, a state agrees to be bound by obligations that flow from the international organization’s exercise of powers—​that is, as a consequence of its decisions—​on the international plane. An example of a partial transfer is provided by the case of the WTO dispute settlement system where states have consented to be bound by decisions of the WTO panels and Appellate Body in a case. In the case of ‘full transfers’, however, the state has also agreed to give direct effect within its domestic legal order to the obligations that flow from the international organization’s exercise of powers such that they can be relied on by persons within the state without the need for separate domestic legislation. The best, and most obvious, instance of a ‘full transfer’ is the case of the European Union (EU) where, for example, Council regulations have direct effect within the legal systems of member states and will, in the view of the European Court of Justice, prevail over all domestic law sources.   On the existence of such agency relationships, see D. Sarooshi, “Conferrals by States of Powers on International Organizations:  The Case of Agency,” British Yearbook of International Law 74 (2004): 291–​332. 43   On such delegations of powers, see Sarooshi, International Organizations and their Exercise of Sovereign Powers, ch. 5. 42

 

conferral by states of powers on ios    999 These categories are not watertight compartments and especially in the ‘delegation’ and ‘transfer’ categories a state’s relationship with an international organization may well have elements of both types of conferrals of power. Yet these categories are very useful when considering the differing relationships between states and international organizations and can help clarify a number of the consequences that flow from these relationships, including, for present purposes, issues of responsibility. This chapter will limit itself to a consideration of the issues of responsibility relating to transfers and delegations of power.44

Transfers of Powers to International Organizations and the Issue of Responsibility The question here is whether states can be held responsible on a primary or secondary basis for an internationally wrongful act committed by an international organization exercising transferred powers. It is useful to consider this matter in relation to the separate categories of ‘partial’ and ‘full’ transfers of powers since they have differing consequences. We recall from above that a partial transfer of powers is where the decision by an international organization in the exercise of transferred powers imposes an international legal obligation on the state to comply with the decision; while the case of a full transfer is where the international organization’s decision has direct effect within the state’s internal legal order without the need for domestic legislative enactment.

Partial Transfers of Powers In case of a ‘partial transfer of power’ the state is bound on the international plane to comply with decisions of an international organization over which the state has no direct control. But the lack of direct control by a state over an internationally wrongful act committed by an international organization does not exclude all potential bases of responsibility for the state. Control is sufficient but not always necessary for establishing attribution for the purposes of state responsibility. There is still arguably a potential basis for attributing the internationally wrongful acts of an international organization to transferring states by application of Article 5 of the ILC Articles on State Responsibility. This provision, relating to the conduct of persons or entities exercising elements of governmental authority, states: The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority   In the case of agency relationships between States and international organizations, see ibid., ch. 4.

44

 

1000    legal capacity and powers shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance. [Emphasis added.]

It seems clear that such an ‘entity’ could include an international organization which exercises conferred powers of government. The Commission’s commentary on Article 5 states that ‘[t]‌he justification for attributing to the State under international law the conduct of “para-​statal” entities lies in the fact that the internal law of the State has conferred on the entity in question the exercise of certain elements of the governmental authority’.45 But the commentary provides a limitation to the potential scope of application of this provision when it states that ‘[t]he formulation of article 5 clearly limits it to entities which are empowered by internal law to exercise governmental authority’.46 In my view Article 5 clearly does apply in the case of a full transfer of powers since a transfer of powers will, by its nature, have taken place pursuant to an internal law of the state, but it is arguably applicable in the case of a partial transfer of powers where a state will have agreed under its internal law to be bound by the international organization’s exercise of powers on the international plane. In addition to this potential case of attribution there are arguably three other potential bases for states being held responsible for internationally wrongful acts of an international organization exercising partially transferred powers. Two of these bases flow from the state’s own acts or omissions. The first is where a state’s implementation within its domestic legal system of a decision by an international organization involves the state committing an internationally wrongful act. In the case of partial transfers of powers, the international organization’s decision does not have direct effect within the state’s legal system and as such the state can choose not to give domestic legal effect to a decision where this would involve the commission of an internationally wrongful act. If the state were, however, to implement the international organization’s decision and commit an internationally wrongful act, then it would clearly be held responsible under international law for this act pursuant to Article 1 of the ILC Articles on State Responsibility. And yet this is obviously problematic for the state concerned, since it is being required in such a case to disobey an obligation on the international plane which flows from the international organization’s exercise of transferred powers. It is for this reason that, when states transfer powers to an international organization, they must try and ensure that the international organization’s exercise of powers cannot lead to the imposition on them of obligations that are inconsistent with a prior treaty obligation owed to another state (or indeed to another international organization) that is not a party to the treaty that transfers powers. 45   Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries 2001, Report of the International Law Commission on the Work of its 53rd Session (A/​56/​10), Yearbook of the International Law Commission II/​2 (2001): 31–​143. 46  Ibid.

 

conferral by states of powers on ios    1001 In practice, however, it may be very difficult for a state to determine in advance whether the transfer of powers to an international organization may lead to such a conflict of treaty obligations. A possible way to avoid such a conflict is for the negotiating states to decide, where possible, to ‘delegate’ and not ‘transfer’ their powers to an international organization so that they will not be bound to comply with decisions taken by the international organization when exercising conferred powers. The second case where a state’s responsibility can be engaged in relation to the exercise by an international organization of partially transferred powers is where a state aids or assists the international organization in the commission of an internationally wrongful act. This responsibility flows from the application, mutatis mutandis, of Article 16 on state responsibility, which provides as follows: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.

If these conditions in (a) and (b) are met in a case, then a state may be held responsible for the act of rendering assistance to an international organization in its commission of an internationally wrongful act in the exercise of partially transferred powers. However, in the case of a partial transfer of powers, the primary responsibility of the state would only arise in relation to the actions taken by the state to implement the international organization’s decision within its domestic legal system. An important element of the acts of aid or assistance covered by Article 16 is that they are entirely voluntary and, since in the case of partial transfers the state is bound on the international plane by decisions of the international organization, then the state can only be held primarily responsible for those voluntary acts of aid or assistance rendered to an international organization within its domestic legal system where it is not so bound. Finally, there is a potential secondary responsibility of states that flows from the commission by an international organization of an internationally wrongful act in the exercise of partially transferred powers. This secondary responsibility is arguably engaged where states actively pursue or support the particular decision in the international organization that causes the commission of the internationally wrongful act. It is even arguable that states should take action within the international organization—​for instance, by voting against a decision—​to try and ensure that the international organization does not commit an internationally wrongful act, and that the failure to do so may engage a secondary responsibility of the state for the act of the international organization. This rule of secondary responsibility is necessary, arguably, to ensure the systemic integrity of international law. Otherwise it would be a simple matter for states to avoid their obligations under international law by

 

1002    legal capacity and powers establishing an international organization to which they transfer powers and then disclaim all responsibility for the way in which those powers are exercised within the international organization.

Full Transfers of Powers In the case of a full transfer of powers the decision of the international organization binds the state on the international plane but also has direct effect within a state’s legal system. In these cases the main basis for the internationally wrongful acts of an international organization being attributable to a transferring state is by application of Article 5 of the ILC Articles on State Responsibility. Cases of full transfer are clearly instances where states have conferred on an international organization ‘the exercise of certain elements of governmental authority’ and thus, according to Article 5, ‘shall be considered an act of the State under international law’. Moreover, the main limitation placed by the Commission’s commentary on the scope of application of Article 5—​that it is limited ‘to entities which are empowered by internal law to exercise governmental authority’—​is more than adequately fulfilled in the case of full transfers where decisions of the international organization go further to have a direct effect within the state’s legal system. A good example of the potential application of Article 5 is where an international organization exercises transferred powers in such a way that it violates the human rights obligations owed by states. In such cases, a state cannot successfully contend that its hands were tied by the international organization’s exercise of transferred powers. The jurisprudence of the European Court of Human Rights is instructive on this point, particularly the decision of the Court in the Waite and Kennedy case. The Court was concerned, in part, with the question whether the United Kingdom could be held responsible on an individual basis for an alleged act of the European Council that was said to be in violation of the European Convention on Human Rights. The act in question was a decision of the European Council concerning the election of the members of the European Parliament which in effect excluded those persons who were living in Gibraltar, a dependent territory of the United Kingdom, from having the right to participate in the election. The UK government contended, inter alia, that, while there may be circumstances where a party to the European Convention on Human Rights might infringe its Convention obligations by entering into other treaty obligations that were incompatible with the Convention, they considered that in the present case the position was not the same, since ‘acts adopted by the Community or consequent to its requirements could not be imputed to the member States, together or individually, particularly when those acts concerned elections to a constitutional organ of the Community itself ’.47 Moreover, at the hearing the UK government suggested—​based presumably   Matthews v United Kingdom, European Court of Human Rights, Judgment of 18 February 1999, para. 26. 47

 

conferral by states of powers on ios    1003 on Article 8 of the ILC Articles on State Responsibility—​that to engage the responsibility of a state under the Convention requires the state to have a power of effective control over the act complained of and that, in the case of the Community provisions relating to the election of the European Parliament, the UK government had no such control. This argument lacks cogency. In addition to Article 8 there is still the case of full transfers by a state of powers to international organizations, with the potential basis of attribution provided by Article 5 on state responsibility. The European Court in the Matthews case made several pronouncements in support of the application of Article 5 in cases of full transfers (in casu, to the European Community). The Court found in its judgment that, although the European Convention does not exclude states parties being able to confer powers on international organizations, it does require that if such conferrals take place then Convention rights must continue to be ‘secured’. The Court went on to state that member states’ responsibility under the European Convention ‘continues even after such a transfer’.48 In the end, however, the European Court did not have to deal directly with the issue of UK responsibility for a Community act since it found that the 1976 Act was not a ‘ “normal” act of the Community, but is a treaty within the Community legal order’. Accordingly, the Court based the responsibility of the United Kingdom on its subsequent acceptance of the Act, being as it was an ‘international instrument’ which was ‘freely entered into by the United Kingdom’. In the context of our discussion above, this represents the commission by the United Kingdom of its own internationally wrongful act rather than having an internationally wrongful act of the European Community attributed to it. There is, finally, a potential secondary responsibility of states in the case of full transfers where states have actively pursued or supported within the international organization the decision that mandates the commission of the internationally wrongful act. The considerations relating to this secondary responsibility are the same as those pertaining in the case of a partial transfer of powers already considered earlier.

Delegations of Powers to International Organizations and Issues of Responsibility In the case where an international organization commits an internationally wrongful act then Article 3 on the responsibility of international organizations makes clear that this engages the international responsibility of the international organization. The remaining question is whether such an act can be attributed to a state that has delegated powers to an international organization thus establishing a state’s primary

  Ibid., para. 32.

48

 

1004    legal capacity and powers responsibility under international law. In the case of agency relationships, the issue of responsibility is clear: effective control (a definitional element of agency) exercised by states over an international organization means that its acts are attributable to states. In cases of delegation, however, such control does not exist and, applying by analogy the ILC Articles on State Responsibility, there would seem to be no other possible bases for attribution of an international organization’s wrongful acts to delegating states. But this only relates to the issue of state responsibility for an international organization’s acts. There are three other circumstances where a state should arguably be held responsible in connection with an internationally wrongful act by an international organization that exercises delegated powers. In all three cases the responsibility of the state does not flow from its relationship with the international organization to which it has delegated powers, but from its own acts or omissions. We recall that in the case of delegations a state is not bound by the international organization’s exercise of delegated powers. Where, accordingly, a state chooses to participate in, or implement domestically, an internationally wrongful act committed by an international organization exercising delegated powers, then the state will be held responsible on a primary basis for its own commission of an internationally wrongful act pursuant to the Commission’s Article 1 on state responsibility. The state cannot seek to escape responsibility for its own acts in such cases by hiding behind the non-​binding decision of an international organization in the case of delegations of powers. The second case where a state’s responsibility can be engaged in relation to the exercise by an international organization of delegated powers is where a state aids or assists the international organization in the commission of an internationally wrongful act pursuant to the application, mutatis mutandis, of Article 16 on state responsibility as already explained above in the case of a transfer of powers. However, the argument in relation to Article 16 applies with greater force in the case of delegation of powers, since any aid or assistance given by a state to an organization in such cases is entirely voluntary and as such a state will very likely be caught by Article 16. Finally, there is also the arguable secondary responsibility of the state that is engaged where states actively pursue or support within the international organization the decision that causes the commission of the internationally wrongful act.

Concluding Remarks The modern history of international law comprises the history of states. The future history of international law will likely be written to a greater extent by international

 

concluding remarks   1005 organizations. International organizations are today increasingly exercising sovereign powers—​whether it is the EU or the World Trade Organization—​and the exercise of these powers are effecting important normative and societal changes within states. Yet the way in which states have conferred powers on these organizations continues to be important. There is an inextricable link in some cases between the type of conferral of powers by states on an organization and the question of responsibility of states and an organization for unlawful acts by the organization.

 

Chapter 47

ASSESSING THE LEGALITY OF DECISIONS Jan Wouters Jed Odermatt

The present chapter examines the avenues available for assessing the legality of acts adopted by international organizations (IOs). The broader issue of ‘accountability’1 (examined in detail in Chapter 54 of this volume) is an important issue in the law of IOs, and entails legal, political, administrative, financial, and democratic dimensions. The present chapter focuses on the legal/​judicial accountability of IOs. ‘Judicial review’ in reference to acts of IOs has been defined as ‘a process by which a court of law determines whether a legal person has acted substantively within the scope of its powers and procedurally in a correct manner’.2 Using this definition of review, one finds that there is a serious lack of judicial review of acts of IOs at the international level. This stems mostly from the absence of appropriate bodies to exercise judicial review in a meaningful way.

1   See International Law Association, Berlin Conference, Final Report, Accountability of International Organizations (2004), 5; I. F. Dekker, “Accountability of International Organizations:  An Evolving Concept?,” in Accountability for Human Rights Violations by International Organizations, ed. J. Wouters et al. (Antwerp: Intersentia, 2010), 21–​36. 2   E. Lauterpacht, “Judicial Review of the Acts of International Organisations,” in International Law, the International Court of Justice and Nuclear Weapons, ed. L. Boisson de Chazournes and P. Sands (Cambridge: Cambridge University Press, 1999), 92.

 

acts of international organizations    1007 The first part of this chapter discusses the variety of IOs that are now active and the diverse types of acts they produce. It then examines the forums where these acts can be legally challenged. The next part examines the grounds for review upon which acts of IOs are challenged and the legal consequences that flow from an act being found to be in violation of legal requirements. Finally, the chapter examines non-​judicial review mechanisms, such as non-​compliance and withdrawal from an organization. We conclude that the legal review of acts of IOs remains an underdeveloped area of the law of international organizations, especially given the impact such acts can have on states and individuals.

Acts of International Organizations In its Draft Articles on the Responsibility of International Organizations, the International Law Commission uses the following definition of ‘international organization’: ‘international organization’ means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. International organizations may include as members, in addition to States, other entities.3

While there is no commonly accepted definition of an IO in public international law, this definition captures two important features of an IO:  it is a body established by an international instrument and it has legal personality and ‘separate will’ distinct from its members. For the purposes of this chapter we will focus on the IOs included in the ILC definition. While this includes a tremendous variety of IOs,4 it does not cover bodies such as the G20 and the Financial Stability Board, which are growing in significance but nevertheless lack international legal personality. IOs vary in a number of ways including their membership, structure, and decision-​making processes. They are also extremely diverse in terms of the types of acts they adopt. They include an array of resolutions, declarations, directives, regulations, guidelines, best practices, standards, guiding principles, codes of conduct, and programmes of action. This diversity makes it difficult to generalize about how acts adopted by IOs may be challenged. Whereas some bodies have well-​developed

3  Art. 2, Draft Articles on the Responsibility of International Organizations, International Law Commission, 30 May 2011, A/​66/​10. 4   See J. Wouters and J. Odermatt, “Are All International Organizations Created Equal?,” International Organizations Law Review 9/​1 (2012): 7–​14.

 

1008    assessing the legality of decisions review mechanisms, the vast majority of IOs do not have avenues available for assessing the legality of their acts. First, acts vary in terms of their legal effects. Many are legally non-​binding, but may nonetheless be highly influential in terms of policy or even law. For instance, standards developed by scientific or technical organizations may have a great impact even though they are legally non-​binding according to the law of the IO at hand. Resolutions of the UN General Assembly (UNGA) are typically non-​binding for UN member states (except when they relate to the life of the organization, such as the adoption of the biannual budget) but may nevertheless reflect the state of customary international law.5 The UN Security Council (UNSC) has the power to take decisions that have binding legal effect on all UN member states6 and have precedence over member states’ conflicting international obligations.7 Second, acts of IOs vary in terms of the method by which they are to be implemented. The European Union (EU) adopts regulations which are directly applicable within the legal order of the member states.8 Much of its legislation however is in the form of directives, which require member states to implement them in their national legal systems and give greater choice to the member states regarding the method of implementation.9 The UNSC now plays a greater ‘legislative’ role,10 adopting resolutions responding to international terrorism,11 weapons of mass destruction12 and other threats,13 in a manner characteristic of national legislation.14 International legislation remains exceptional, however, and the majority of acts of IOs are in the form of broader declarations which give members greater scope to decide how they will be implemented. This can make it difficult to challenge their legality since they are often couched in broad and general terms, rather than setting out defined and immediate legal obligations.

  R. Higgins, Problems and Process:  International Law and How We Use It (Oxford:  Clarendon, 1994), 24–​8; S. Schwebel, “The Legal Effect of Resolutions of the UN General Assembly on Customary International Law,” Proceedings of the Annual Meeting of the American Society of International Law (1979): 301. 6   Arts. 24 and 25 of the UN Charter. For a recent illustration of this see UNSC Res. 2118 (2013) (Middle East): “Underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions.” 7   Art. 103 of the UN Charter.    8  Art. 288 of the Treaty on European Union (TEU). 9  Ibid. 10   J. Wouters and J. Odermatt, “Quis Custodiet Consilium Securitatis? Reflections on the Lawmaking Powers of the Security Council,” in The Security Council as Global Legislator, ed. V. Popovski and T. Fraser (London: Routledge, 2014), 71. 11 12   UNSC Res. 1373 [2001].   UNSC Res. 1540 [2004]. 13  See S. Talmon, “Security Council Treaty Action,” Revue Hellénique de Droit International 62 (2009): 65, 89. 14   See P. Szaz, “The Security Council Starts Legislating,” American Journal of International Law 96 (2002): 901; S. Talmon, “The Security Council as World Legislature,” American Journal of International Law 99 (2005): 175. 5

 

forum   1009 Third, acts of IOs vary in terms of their addressees. They include internal rules such as staff regulations, budgetary decisions, or decisions regarding the establishment of committees and subsidiary organs. They may be addressed to the membership of the organization generally or to one member or a group of members. Even when they are addressed to the organization’s membership, they may nevertheless have significant effects on individuals and legal persons. The UNSC’s action to combat international terrorism, for example, while strictly imposing obligations on UN member states, establishes sanctions against individuals, legal persons, and groups.15 Decisions taken by IOs responsible for the administration of territory, such as the UN’s administration of Kosovo16 or East Timor,17 may have considerable effects on individuals, and there remain few avenues to challenge these acts. IOs also affect individuals when they exercise individual criminal jurisdiction, such as the International Criminal Court (ICC) and the ad hoc tribunals established by the UNSC. In most cases an individual will not have the right to challenge directly an act of an IO, even though the impact thereof on individuals highlights the need for review mechanisms. The next section will examine some of the internal review mechanisms that have been established in certain IOs. This chapter will focus on review mechanisms at the international and regional level. Although individuals have sought to challenge acts of IOs before domestic courts,18 they often run into the problem of the immunity of IOs.19 The topic of Privileges and Immunities is the subject of Chapter 49 of this volume, and is not discussed in detail here. The issue of ‘Internal Rules and Administrative Tribunals’ is discussed extensively in Chapter 51 and therefore this chapter does not address legal mechanisms established to hear complaints from members of staff of IOs in the course of their employment.

Forum Perhaps the greatest obstacle preventing parties from challenging acts of IOs is the lack of a legal forum where such disputes may be brought. While there is an 16 17   UNSC Res. 1672 [2006].   UNSC Res. 1244 [1999].   UNSC Res. 1272 [1999].   See C. Ryngaert, “The Immunity of International Organizations before Domestic Courts: Recent Trends,” International Organizations Law Review 7 (2010): 121. J. Wouters and P. Schmitt, “Challenging Acts of Other United Nations’ Organs, Subsidiary Organs and Officials,” in Challenging Acts of International Organizations Before National Courts, ed. A. Reinisch (Oxford: Oxford University Press, 2010), 77–​110. 19   See M. Parish, “An Essay on the Accountability of International Organizations,” International Organizations Law Review 7 (2010): 277; A. Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (Oxford: Oxford University Press, 2013). 15

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1010    assessing the legality of decisions apparent lack of judicial forums within IOs, judicial bodies at the international and domestic level have played a role in reviewing acts of IOs.

Internal Review Mechanisms The most appropriate forum for review in many cases is the IO itself. Some IOs contain dispute settlement clauses in their founding documents that allow members to challenge acts of the IO. Some technical organizations allow for dispute resolution in their constituent treaties20 but these are rarely employed. Moreover, these clauses remain the exception; very few IOs provide mechanisms for direct legal review of their acts within their constitutive documents.

Court of Justice of the European Union One organization that stands out in this regard is the EU. The European Community, as it was called for many years, began as primarily a regional economic integration organization, and its Court of Justice was established to resolve disputes and provide judicial review of the acts of its institutions. As the activities of its institutions expanded, the Court found itself dealing with a broader array of issues, including fundamental rights.21 Nowadays, the Court of Justice of the European Union (CJEU) comprises the Court of Justice and the General Court, along with ‘specialized courts’.22 It is entrusted with the task of ensuring ‘that in the interpretation and application of the Treaties the law is observed’.23 The CJEU’s jurisdiction is prescribed by the EU Treaties, and it may only hear cases according to the procedures established therein.24 As the Court held in Les Verts,25 the European Community (now Union) is based on the rule of law, and member states and institutions cannot avoid judicial review of their acts. According to Article 19(3) of the Treaty on European Union (TEU), the CJEU hears three types of cases: (a) actions brought by a member state, an institution or a 20   See, e.g., Art. XVIII of the Agreement Relating to the International Telecommunications Satellite Organisation (INTELSAT) (1971); Art. 17 of the Operating Agreement of the Intersputnik International Organization of Space Communication (2002); Art. 31 of the Convention on the International Maritime Satellite Organization (1976). 21   G. De Búrca, “The Evolution of EU Human Rights Law,” in The Evolution of EU Law, ed. P. Craig and G. De Búrca (Oxford: Oxford University Press, 2011), 465–​97. 22   Art. 19(1) of the TEU; e.g., the EU Civil Service Tribunal. 23   Art. 19(1) of the TEU. This provision has been the basis for review in light of fundamental rights. See K. Lenaerts and P. Van Nuffel, European Union Law (London: Sweet & Maxwell, 2011), 826–​9. See Case 4/​73 Nold v Commission [1974] ECR 491; Case 11/​70 Internationale Handellsgeselschaft v Einfuhr-​ und Vorratsstelle für Getreide und Futtermitte [1970] ECR 1126: “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.” 24   See K. Lenaerts, I. Maselis, and K. Gutman, EU Procedural Law (Oxford: Oxford University Press, 2014); A Türk, Judicial Review in EU Law (Cheltenham: Edward Elgar, 2009). 25   Case 294/​83 Les Verts v Parliament [1986] ECR 1339, para. 23.

 

forum   1011 natural or legal person;26 (b) preliminary rulings,27 at the request of courts or tribunals of the member states, on the interpretation of Union law or the validity of acts adopted by the institutions; and (c) other cases provided for in the Treaties.28 The CJEU plays a role in both ensuring that EU law is correctly applied and interpreted in the EU member states and by providing judicial review of EU acts. Article 263 of the Treaty on the Functioning of the European Union (TFEU)29 provides an avenue for EU acts to be directly reviewed by the CJEU. A wide array of legal acts may be reviewed, including ‘the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-​à-​vis third parties.’30 It also applies to ‘acts of bodies, offices or agencies of the Union intended to produce legal effects vis-​à-​vis third parties’.31 Some EU acts remain explicitly exempt from judicial review, such as (with certain exceptions32) acts adopted in the field of the EU’s Common Foreign and Security Policy.33 Access to judicial review depends on whether the party has standing (locus standi) before the CJEU. A ‘privileged applicant’ (EU member state or EU institution) has an automatic right to review of decisions,34 while natural and legal persons have more restricted access. They must satisfy certain conditions in annulment proceedings, such as showing the act is of direct and individual concern to them.35 Grounds for judicial review include lack of competence, the breach of a procedural requirement, infringement of the EU Treaties and any rule of law relating to its application, and the misuse of powers. The CJEU may find that the act in question was not adopted by the correct procedure or is in violation of general principles of law. An EU act may also be challenged on the basis that it infringes international law, including customary international law and treaties to which the EU is a party.36 In addition to the annulment procedure (the ‘direct route’), the CJEU may deal with the issue of validity of an EU act via a reference for a preliminary ruling (the ‘indirect route’).37 This is a procedure whereby a national court of a member state requests the CJEU to answer questions regarding the interpretation or the validity of EU law. The CJEU has jurisdiction to provide a preliminary ruling on ‘the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’.38 In contrast with the direct challenge involved in annulment proceedings, a 26  These procedures include Art. 258 of the TFEU (infringement action by the European Commission); Art 259 of the TFEU (infringement action by a member state against a member state); Art 263 of the TFEU (action for annulment); Art. 268 of the TFEU (liability). 27 28   Art. 267 of the TFEU.   Arts. 272 and 273 of the TFEU. 29 30 31   Art. 263 of the TFEU.  Ibid.  Ibid. 32 33   Art. 275 of the TFEU and Art. 40 of the TEU.   Arts. 24(1) and 275 of the TEU. 34 35   Art. 263 of the TFEU.  Ibid. 36   Case C-​377/​98 Netherlands v European Parliament and Council [2001] ECR I-​7079. 37 38   Art. 267 of the TFEU.  Ibid.

 

1012    assessing the legality of decisions reference for a preliminary ruling first involves the party seeking relief in the member states’ legal system. The EU harbours the most developed system of internal review mechanisms of any of the IOs discussed in this chapter. It should also be noted that alongside the CJEU, the Court of Justice of the European Free Trade Association (the EFTA Court) is also given tasks similar to that of the CJEU with regard to the EFTA states parties to the Agreement on the European Economic Area (Iceland, Liechtenstein, and Norway).39

Regional Bodies Systems of judicial review and dispute resolution are also contained in other regional bodies, mostly those charged with establishing regional economic integration. While some of these courts share features with (or have borrowed from40) the CJEU, none provide individuals with the same capacity to review the legality of acts. It should also be pointed out that, while review mechanisms have been written into the treaties of several regional bodies, they often remain under-​utilized in practice due to legal, political, or practical restraints. While certain features of the CJEU system may be emulated, such as the preliminary ruling system from domestic courts, states have also included clauses that safeguard the sovereignty of member states.41 Within the Central American Integration System, the Central American Court of Justice has the competence, inter alia, to hear cases for annulment against acts of the Central American Integration System which may be brought by natural and legal persons.42 Similarly, the Court of Justice of the Andean Community also may declare the nullity of acts adopted by organs of the Andean Community43 which are allegedly in violation of the Andean Community legal system, and may be brought by member states44 or by natural or legal persons.45 The Court of Justice of the Economic Community of West African States (ECOWAS) hears cases on the interpretation and application of the Treaty of the Economic Community of West African States (and its Annexes and Protocols).46 Cases may be brought against both member states and institutions of the Community. Since a 2005 Amendment,

39   Art. 36, Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, 1992. 40   See K. J. Alter and L. R. Helfer, “Transplanting the European Court of Justice: the Experience of the Andean Tribunal of Justice,” American Journal of Comparative Law 6 (2012): 629–​64. 41   See K. Alter, “The Global Spread of European Style International Courts,” West European Politics 35 (2012): 135–​54, 151. 42   Art. 22 (b) and (g) of the Statute of the Central American Court of Justice. 43   Art. 17 of the Treaty Creating the Court of Justice of the Cartagena Agreement (1979). 44   Art. 18 of the Treaty Creating the Court of Justice of the Cartagena Agreement (1979). 45   Art. 19 of the Treaty Creating the Court of Justice of the Cartagena Agreement (1979). 46   Art. 9 of Protocol A/​P.l/​7/​91 on the Community Court of Justice, revised by Supplementary Protocol A/​SP.I/​01/​05.

 

forum   1013 the ECOWAS Community Court of Justice also has jurisdiction to hear human rights cases.47 The Southern African Development Community (SADC) had a Tribunal with jurisdiction to rule on the validity of protocols, instruments adopted in the framework of the Community, and acts of its institutions.48 However, the SADC Tribunal was de facto suspended at the 2010 SADC Summit after several rulings against the Zimbabwean government.49 The Council of Ministers has decided that a new Protocol should be negotiated that is ‘confined to interpretation of the SADC Treaty and Protocols relating to disputes between member states’.50 The East African Court of Justice was established to ensure the adherence to law in the interpretation and application of the Treaty for the Establishment of the East African Community.51 The Court of Justice for the Common Market for Eastern and Southern Africa (COMESA)52 has jurisdiction to hear cases regarding violations of the COMESA Treaty, which may be referred to it by the Secretary-​General,53 by a member state,54 or by an individual after exhaustion of domestic remedies.55 The Court of Justice of the African Union (AU) was intended to be the ‘principal judicial organ of the Union’.56 However, in 2008, before the Court was able to commence operations, the AU decided that the Court of Justice would be merged with the existing African Court on Human and Peoples’ Rights into a single court,57 the African Court of Justice and Human Rights. According to its Statute, the jurisdiction of this Court includes ‘all acts, decisions, regulations and directives of the organs of the Union.’58 The Protocol is well short of the fifteen ratifications required to bring the Court to life, however. The Caribbean Court of Justice (CCJ)59 also contains a review mechanism within the Caribbean Community. The CCJ exercises both appellate jurisdiction as well as

47   Art. 3(4) of ECOWAS, Supplementary Protocol A/​SP.1/​01/​05 Amending the Preamble and Arts. 1, 2, 9, and 30 of Protocol A/​P.1/​7/​91 Relating to the Community Court of Justice and Art. 4, para. 1 of the English Version of Said Protocol (2005). 48  Arts. 14, 17, and 18 of the Protocol on the Tribunal in the Southern African Development Community (2008). 49  See E. de Wet, “The Rise and Fall of the Tribunal of the Southern African Development Community: Implications for Dispute Settlement in Southern Africa,” ICSID Review 28/​1 (2013): 45–​63. 50   Final Communiqué of the 32nd Summit of the SADC Heads of State and Government, Maputo, Mozambique, 18 August 2012. 51  East African Community, Treaty for the Establishment of the East African Community (as amended on 14 December 2006 and 20 August 2007). 52   Art. 19 of the Agreement Establishing the COMESA. 53   Art. 25 of the Treaty Establishing a Common Market for Eastern and Southern Africa. 54 55   Art. 24, ibid.   Art. 26, ibid. 56   Art. 2(2) of the Protocol of the Court of Justice of the African Union, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, 11 July 2003. 57   Art. 1 of the Protocol on the Statute of the African Court of Justice and Human Rights (2008). 58 59   Art. 28(e), ibid.   Agreement Establishing the Caribbean Court of Justice.

 

1014    assessing the legality of decisions original jurisdiction with regard to the interpretation and application of the Treaty Establishing the Caribbean Community.60 This overview may give the impression of a wide array of internal review mechanisms in IOs. Many of these bodies are primarily involved in establishing regional economic integration, and review of acts is often limited to economic issues rather than concerns with human rights.61 Yet in practice the review mechanisms remain limited. States have sought to safeguard their sovereignty and are reluctant to embrace a system that would allow an intrusion into their internal affairs to the same extent as the EU system. While the treaties and protocols establishing these tribunals provide for review mechanisms, few regional bodies have a well-​developed system of judicial review to adequately protect individuals.

External Review As the previous section demonstrates, few IOs provide avenues for internal judicial review of their acts. In order to challenge acts of IOs, parties have sought judicial review by other mechanisms, at the international, regional, and domestic levels.

European Court of Human Rights It is uncommon for a court in one legal order to cast judgment on the legal validity of the acts in another. In this way, the European Court of Human Rights (ECtHR) has been highly reluctant to rule on decisions and acts of other IOs. The ECtHR has been called upon to indirectly rule on the validity of acts of IOs, most notably the EU and UN. At present, only states are parties to the European Convention on Human Rights (ECHR), although the EU is in the process of acceding to the Convention.62 This means that an applicant seeking to challenge an act of an IO runs into an immediate problem: since it is only the member states of the IO that are parties to the ECHR, the IO itself is not directly bound by the legal obligations under it. Therefore, applicants have requested indirect review of acts of IOs by bringing action against one or more member states.63 In Matthews64 the issue arose whether an EU member state could be responsible for a violation (the absence of elections in Gibraltar to the European Parliament) that stems, not directly from its own action, but from the primary law of the EU.   Art. XII, ibid.   See S. Eborah, “Litigating Human Rights before Sub-​Regional Courts in Africa: Prospects and Challenges,” African Journal of International and Comparative Law 17 (2009): 79–​91. 62   On 18 December 2014, the CJEU found in Opinion 2/​13 that the Draft Agreement on the European Union’s Accession to the European Convention on Human Rights was incompatible with Union law. 63  See Nada v Switzerland (2013) 56 EHRR 18. 64   Matthews v United Kingdom (1999) 28 EHRR 361. 60 61

 

forum   1015 The ECtHR held that ‘[t]‌he Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be secured’.65 This means that contracting parties to the ECHR may join an international organization such as the EU and transfer powers to it, but they must still ensure that the rights in the Convention will be respected. Another issue arises when a member of an IO implements binding law emanating from that organization that leads to a human rights violation. This occurred in Bosphorus66 where the respondent Republic of Ireland had impounded an aircraft pursuant to an EU regulation implementing sanctions adopted by the UN Security Council against the former Republic of Yugoslavia.67 The ECtHR held that it would not directly review the legality of EU acts as long as the EU secured a level of human rights protection that was equivalent to that of the ECHR system. This is known as the ‘equivalent protection test’—​the Court will refrain from exercising its jurisdiction in such cases unless there is a manifest deficit in the protection guaranteed by the IO.

International Court of Justice Whereas regional human rights mechanisms like the ECHR are designed to monitor states, and may be ill-​suited to the task of reviewing (other) IOs, the International Court of Justice (ICJ), ‘the principal judicial organ of the United Nations’,68 may potentially play a role, especially reviewing acts adopted within the UN system. The ICJ has heard several cases where the legal validity of an act of an IO has been called into question. Yet the ICJ was not established as an appellate court capable of conducting judicial review of IOs or UN organs. The ICJ stated in Namibia that it ‘does not possess powers of judicial review or appeal in respect of decisions taken by the United Nations organs concerned’.69 Yet it has been argued that, despite the lack of explicit powers of judicial review given to the ICJ in the UN Charter, it may nevertheless exercise judicial review as a necessary element of its judicial function and its role as principal judicial organ of the UN.70 While the ICJ can and does review the legality of acts that are before it, its procedural rules make it difficult to act as a court of judicial review; rather it is only given the opportunity to undertake review in an incidental fashion, via contentious proceedings and through its advisory function.   Ibid., para. 32.    66  Bosphorus Airways v Ireland (2006) 42 EHRR 1.   Council Regulation (EEC) No. 990/​93 of 26 April 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro), OJ 1993 L 102/​14. 68   Art. 92 of the UN Charter. 69   Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16, para. 89. 70   D. Akande, “The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of the Political Organs of the United Nations?,” International and Comparative Law Quarterly 46 (1997): 309, 331. See the separate opinion of Judge E. Lauterpacht in Application of 65

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1016    assessing the legality of decisions The first obstacle is standing. Only states may be parties before the ICJ.71 An IO may be asked to present relevant information to the ICJ in certain cases,72 and the Registrar shall notify an IO ‘whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question’.73 However, an IO can neither bring a case to the ICJ nor may a state bring a case against an IO directly. For instance, in the Legality of Use of Force74 cases the Federal Republic of Yugoslavia (FRY) could not bring an action directly against the North Atlantic Treaty Organization (NATO) in relation to its air campaign against FRY, and therefore instituted separate proceedings against the NATO members concerned. In certain cases, the constitutive instrument of an IO may allow a dispute between members relating to the interpretation and application of its law to be brought before the ICJ. For instance, the constitutive treaties of the World Health Organization (WHO),75 the UN Educational, Scientific and Cultural Organization (UNESCO),76 the International Atomic Energy Agency (IAEA),77 the International Civil Aviation Organization (ICAO),78 and the International Labour Organization (ILO)79 allow for disputes relating to the application or interpretation of their founding treaties to be brought before the ICJ. Such referral normally takes place after attempts to resolve the dispute through negotiation have taken place, and does not rule out other forms of dispute resolution that states may choose to adopt. The ICJ may review an act of an IO in an indirect manner through contentious proceedings. In Lockerbie80 the legality of a UNSC resolution was directly called into question and the ICJ was asked to determine its power to exercise judicial review of UN organs.81 UNSC Resolution 731 (1992) called upon Libya ‘to provide a full and effective response’ to UK and US requests for surrender of the suspects involved in the destruction of Pan Am flight 103 and UTA flight 772. Libya argued that this the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Request for the Indication of Provisional Measures, 13 September 1993, para. 99. 72   Art. 34(1) of the Statute of the International Court of Justice.   Art. 34(2), ibid.   Art. 34(3), ibid. 74   Legality of Use of Force (Yugoslavia v United States of America), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999. 75   Art. 75 of the Constitution of the World Health Organization. 76   Art. XIV of the UNESCO Constitution. 77   Art. XVII of the Statute of International Atomic Energy Agency. 78   Art. 84 of the Convention on International Civil Aviation (“Chicago Convention”). See Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan), Judgment of 18 August 1972, ICJ Reports 1972, 46. 79   Art. 37 of the Constitution of the International Labour Organization. 80   Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Request for the indication of Provisional Measures, Order of 14 April 1992, ICJ Reports 1998, 115. 81   Wouters and Odermatt, “Quis Custodiet Consilium Securitatis? Reflections on the Lawmaking Powers of the Security Council,” 77. 71

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forum   1017 resolution went beyond the power of the Security Council under the UN Charter and violated the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention). Ultimately, however, the ICJ did not conclusively decide upon the issue of its powers to review UNSC resolutions as the case did not proceed to the merits stage. In the Bosnia Genocide Case82 the ICJ was also asked to rule, inter alia, on the issue of the legality of UNSC Resolution 713 (1991) imposing an arms embargo on Bosnia which was said to breach Bosnia’s right to defend itself under Article 51 of the UN Charter and customary international law.83 Although the ICJ seems to have ruled out a power of judicial review,84 the ICJ might be able to play a role in indirectly reviewing acts of the UNSC, particularly since there is no other legal body that would be capable of ensuring the UNSC complies with the UN Charter and general international law. However, in doing so the ICJ would be in a position of potentially ‘second-​guessing’85 the UN’s organ tasked with the ‘primary responsibility’ of maintaining international peace and security86 and therefore it would be highly reluctant to interfere in this role. Moreover, where the legality of an act of an IO is raised incidentally in contentious proceedings, the IO may not have an adequate opportunity to fully defend the legality of the measure in question since IOs may not appear as full parties before the Court.87 The ICJ may also review acts of IOs via its advisory function. It may be asked by the UNSC or the UNGA to provide an opinion on ‘any legal question’88, which may include the validity of decisions of IOs, including UN organs. Other UN organs and specialized agencies may request an advisory opinion on legal questions ‘arising within the scope of their activities.’89 For instance, in the 1960 advisory opinion Re Constitution of the Maritime Safety Committee of the Inter-​Governmental Maritime Consultative Organization the ICJ examined whether the Maritime Safety Committee of the Inter-​Governmental Maritime Consultative Organization was established in accordance with the organization’s constitutive treaty.90 In many cases the competence of an IO to actually request an advisory opinion will be challenged. In the Wall advisory opinion Israel argued that the UNGA did not have the 82   Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, ICJ Reports 1993. 83   Ibid., 3. 84  See Namibia (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971; Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), Advisory Opinion of 20 July 1962, ICJ Reports 1962, 168. 85   K. Roberts, “Second-​Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review,” Pace International Law Review 7 (1995): 281, 322. 86   Art. 24(1) of the UN Charter. 87   See Lauterpacht, “Judicial Review of the Acts of International Organisations,” 95; K. Wellens, Remedies against International Organisations (Cambridge: Cambridge University Press, 2002), 55. 88 89   Art. 96(a) of the UN Charter.   Art. 96(b), ibid. 90   Constitution of the Maritime Safety Committee of the Inter-​Governmental Maritime Consultative Organization, Advisory Opinion of 8 June 1960, ICJ Reports 1960, 150.

 

1018    assessing the legality of decisions competence to request an advisory opinion on the construction of the wall in the Occupied Palestinian Territory, although the ICJ rejected this argument.91 In the Nuclear Weapons advisory opinion the ICJ held that the WHO, a specialized agency of the UN, did not possess the competence to request an advisory opinion on the legality or illegality of the use of nuclear weapons.92 Such incidental review does not present an adequate form of judicial review. Advisory opinions are relatively rare since they can only be requested by a very limited range of parties; moreover, they lack legally binding effect. While it may indirectly review acts of IOs in certain cases, the ICJ is not well placed to become a ‘global administrative court’.

Grounds for Judicial Review If a party is able to obtain judicial review of an act of an IO, what are the grounds upon which such an act may be challenged? There is little doubt that ‘[i]‌nternational organizations are subjects of international law and, as such, are bound by the obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties’.93 Yet there remains debate over the precise limits to the decision-​making capacity of IOs and the extent to which this capacity is restricted by international law.

Internal Law of the IO First, an act of an IO may be contrary to its own internal law. This includes an act being adopted by the wrong organ of the IO. This can occur in IOs such as the UN, where organs can have somewhat overlapping mandates. For example, both the UNGA and the UNSC play roles in the maintenance of international peace and security.94 The ‘internal law’ of an IO is not restricted to the IO’s constitutive treaty or instrument; it may also include law of the IO established by the organization’s practice and case law. It is not sufficient that an act merely meets the formal procedural 91   Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, paras. 24–​8. 92   Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports 1996. 93   Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion of 20 December 1980, ICJ Reports 1980, 73, para. 37. 94   See UNGA Res. 377 (V) (“Uniting for Peace”), UN Doc. A/​1775, 3 November 1950.

 

grounds for judicial review    1019 requirements to be valid. It must also conform to the legal order of the organization and its founding instrument. For example, an act may breach the internal law of the IO by going against the aims and objectives of the founding treaty. In this way, an act of a UN organ may be challenged on the basis of violating the ‘purposes and principles’ of the UN Charter.95 Second, an act may be challenged on the basis that it goes beyond the organization’s powers (ultra vires). IOs are not sovereign entities and exercise powers only to the extent that member states have conferred those powers to them. However, according to the doctrine of implied powers,96 an IO may take decisions concerning issues that are not explicitly mentioned in its constitution where this is required for the IO to fulfil its tasks and objectives. It may be difficult to delineate the extent of the powers of an organ of an IO; while the constitutive document of the IO is of paramount importance, the subsequent practice of the IO is also highly significant in determining the scope of its powers.97 Acts of IOs may be challenged on the basis of other principles—​founded in domestic administrative or constitutional law—​although it is often difficult to identify and apply these principles at the international level. For example, it has been argued that IOs are limited by the principle of proportionality; that is, their acts must not be disproportionate to the aim pursued by the IO. For example, it has been argued that the measures the UNSC may take to maintain international peace and security must be proportionate to the actual threat posed.98 However, due to lack of pertinent practice, it is difficult to state with certainty whether these rules apply to the law of IOs. While proportionality remains an important legal issue—​for example, in the context of human rights law, WTO law, and EU law—​it remains underdeveloped in other contexts.

Contrary to International Law Acts of IOs may also be challenged on the basis of violations of international law. As discussed above, states cannot evade their international responsibilities by creating an IO that is able to breach these obligations. However it is notoriously difficult to determine which international legal obligations bind IOs. Unlike states, IOs are generally not parties to a host of binding international treaties, and it may be difficult   These are set out in Arts. 1, 2, and 24(2) of the UN Charter.   Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports 159, 182. 97  J. Arato, “Treaty Interpretation and Constitutional Transformation:  Informal Change in International Organizations,” Yale Journal of International Law 38 (2013): 289. 98   See S. Talmon, “The Security Council as World Legislature,” American Journal of International Law 99 (2005): 175, 185; N. Tsagourias, “Security Council Legislation, Article 2(7) of the UN Charter, and the Principle of Subsidiarity,” Leiden Journal of International Law 24 (2011): 539, 555. 95

96

 

1020    assessing the legality of decisions to pinpoint their precise international obligations. Some argue, for instance, that an IO could be bound by international treaties that are binding on all IO members, especially obligations stemming from universal human rights treaties.99 A  problem with this argument, however, is that it overlooks the fact that IOs are distinct international legal entities, separate from their members. States may be reluctant to establish a new IO if it is to be encumbered by the international obligations of its members immediately upon its creation, particularly obligations under human rights treaties.100 However, this argument is less persuasive when applying universal human rights norms—​since states can only confer powers upon an IO they legally possess, they cannot confer to an IO the power to violate fundamental human rights. Even the UNSC is not regarded as ‘legibus solutus (unbound by law)’.101 The situation is even more complex with regard to the duty to respect customary international law. One difficulty is to identify which rules bind an IO and how they limit its powers. Similarly, while it is generally accepted that IOs cannot take decisions in violation of jus cogens norms, and that such a decision would be void from the moment they were adopted (void ab initio), the question remains which judicial body is capable of actually ruling upon such question.

Legal Consequences and Remedies Consequences Even if an act of an IO is found to be legally flawed, this does not necessarily lead to the act itself being null and void. It is still difficult to say with much precision what the legal consequences will be in a given case,102 although this will generally depend on the reason for the legal flaw. First, if an act was adopted in breach of a procedural requirement, or by a body that was not properly constituted, it may nevertheless be regarded as having legal effects. In Certain Expenses, the ICJ implied that acts adopted by the wrong organ of

  See O. De Schutter, “Human Rights and the Rise of International Organisations: The Logic of Sliding Scales in the Law of International Responsibility,” in Accountability for Human Rights Violations by International Organisations, ed. J. Wouters et al. (Antwerp: Intersentia, 2010), 57–​68. 100   Ibid., 64. 101   Prosecutor v Dušco Tadić a/​k/​a “Dule,” Decision on the Defence Motion For Defence Motion for Interlocutory Appeal on Jurisdiction, ICTY, 2 October 2005, IT-​94-​1, para. 28. 102   E. Lauterpacht, “The Legal Effect of Illegal Acts of International Organizations,” in Cambridge Essays in International Law (London: Stevens & Sons, 1965). 99

 

legal consequences and remedies    1021 an IO according to its constitutive treaty may nevertheless retain legal validity.103 In Constitution of the Maritime Safety Committee of the Inter-​Governmental Maritime Consultative Organization104 the ICJ held that the Maritime Safety Committee of the Inter-​Governmental Maritime Consultative Organization was not made in accordance with the constitutive treaty, yet this did not result in decisions being rendered null and void. A similar conclusion was reached in Appeal Relating to the Jurisdiction of the ICAO Council (India v Pakistan).105 The ICJ would not examine the topic of procedural irregularities or defects unless they ‘prejudice in any fundamental way the requirements of just procedure’.106 The limited jurisprudence of the ICJ as well as the academic literature on the subject is of the view that, short of a fundamental disregard for the procedures of the IO, breaches of procedural requirements do not result in the invalidity of the institutional act.107 The result is different when an IO acts beyond its powers (ultra vires). Generally if an IO takes a decision which it did not possess the competence to take, the decision itself is without legal effect. Within the EU, the CJEU may annul an act if it is found to violate the EU Treaties or international law binding the Union (see ‘Court of Justice of the European Union’, earlier in this chapter). The situation is less clear in other IOs. As discussed above, due to the implied powers doctrine, it may be difficult to establish that an IO took a decision that was outside of its powers. To a certain extent there is a presumption of competence in favour of IOs. As the ICJ stated in Certain Expenses: when the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such an action is not ultra vires the Organisation.108

There is debate about the legal consequences of an act violating international law binding upon the IO. Even where an act is ultra vires, the question arises whether it would be void from the moment of the adoption of the decision (void ab initio) or from the moment it was declared invalid (ex nunc). A common view is that acts that violate general international law are voidable—​that is, legally valid until determined otherwise by a judicial determination. This is a problematic situation, however, given the lack of judicial mechanisms competent to declare upon the validity of IO acts. For acts that violate jus cogens norms, however, there is a view that these would be void ab initio and shall not be enforced by states.   Certain Expenses, Advisory Opinion of 20 July 1962, ICJ Reports 1962, 168.   Advisory Opinion of 8 June 1960, ICJ Reports 1960. 105 106   Judgment of 18 August 1972, ICJ Reports 1972, para. 44.   Ibid., para. 45. 107   P. Sands and P. Klein, Bowett’s Law of International Institutions (London: Sweet & Maxwell, 2009), 298. 108   Certain Expenses, Advisory Opinion of 20 July 1962, ICJ Reports 1962, 168. E. Osieke, “The Legal Validity of Ultra Vires Decisions,” American Journal of International Law 77 (1983): 246. See J. Wouters and J. Odermatt, “Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter), International Court of Justice [1962] ICJ Rep 151,” in C. Ryngaert et al., Judicial Decisions on the Law of International Organizations (Oxford: Oxford University Press, 2016). 103

104

 

1022    assessing the legality of decisions Due to the lack of practice of acts of IOs being found invalid, it is difficult to articulate the precise consequences that flow from this. Much of the discussion in this field is influenced by (primarily Western) domestic administrative law principles. However, domestic analogies may not be applicable or relevant when discussing review of decisions at the international level. Rather than implementing systems of judicial review, states have preferred to resolve disputes with IOs using political or diplomatic means.

Remedies There are few legal remedies available where an act of an IO is found to be invalid. The ICJ may issue an advisory opinion or a declaratory judgment stating an act to be invalid. Many of the ‘remedies’ available within IOs are not legal remedies at all but involve initiatives such as ombudspersons,109 Inspection Panels,110 Commissions of Inquiry,111 and other non-​judicial review mechanisms. While these types of bodies help increase political accountability, they are often far from adequate in terms of providing access to court and a judicial remedy. In Kadi II, for instance, the CJEU reiterated its view that the system established to review decisions of the UNSC on terrorist sanctions did not provide for adequate judicial protection.112 A  judicial body may still rule on questions of the legality of decisions of IOs without going so far as to rule on whether they are ultra vires or void. A court may also put into doubt the legality of an act in its judgment without taking the somewhat bold step of proclaiming a right to pronounce on the legality of the act.

Informal Review Mechanisms Given the lack of legal avenues to challenge acts of IOs, states have employed a variety of ‘extra-​legal’ avenues to challenge acts they view as invalid. 109   e.g., Office of the Ombudsman of the 1267 Committee, established by UNSC Res. 1904 [2009] regarding removal of individuals, groups, and entities from the Security Council’s Al-​Qaida Sanctions Committee List. 110   e.g., World Bank Inspection Panel, established by the Board of Executive Directors, Res. No. IBRD 93-​10, 22 September 1993. 111   e.g., Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, United Nations (1999). 112   Judgment in Joined Cases C-​584/​10 P, C-​593/​10 P and C-​595/​10 P, Commission and Others v Kadi, EU:C:2013:518, paras. 133–​4.

 

informal review mechanisms   1023

Non-​compliance The first option is for a state to simply not comply with an act of an IO, or to not fully implement it. This step would presumably put the state in breach of its international obligations. However, it has been argued that non-​compliance with an act of an IO could constitute a legally valid response in circumstances where an IO has acted contrary to international law or its own internal rules.113 Whether a state has the inherent right not to comply with an act it deems ultra vires is subject to debate.114 In a decentralized legal system without any formal review body, it could be argued that it is up to states to interpret whether acts are ultra vires. Yet it may be difficult for an IO to function effectively if states were to determine unilaterally which acts were legally valid and therefore choose which to implement. This is especially the case in the context of the UN Security Council where the Council will often be called upon to act quickly in response to international developments.

Non-​Funding Another step available to states is to withdraw fully or partly their assessed contributions to an IO. In the 1980s the US began the practice of withholding parts of its assessed contributions to the UN. While insisting that it was legally bound to pay its assessed contributions, the US made the legal argument that withholding contributions was a justified response to ‘ultra vires’ acts of the UN.115 More recently, following the decision of the UNESCO General Conference to admit Palestine as a member, the United States, which contributes 22 per cent of the UNESCO budget,116 withdrew funding from that organization. The constitutive treaties of IOs generally oblige their members to pay dues to fund the expenses of the organization.117 Yet the legal position is unclear regarding members who withhold or refuse to pay dues to fund the implementation of acts they view as illegal or ultra vires.118 Such acts are often taken due to political reasons. There have been attempts to legally justify the 113  See A. Tzanakopoulos, Disobeying the Security Council:  Countermeasures against Wrongful Sanctions (Oxford: Oxford University Press, 2011). 114   See Osieke, “The Legal Validity of Ultra Vires Decisions,” 254. 115   See J. F. Murphy (ed.), The United States and the Rule of Law in International Affairs (Cambridge: Cambridge University Press, 2004), ch. 3, “UN Dues”; J. E. Alvarez, “Financial Responsibility,” in The United Nations and International Law, ed. C. C. Joyner (Cambridge: Cambridge University Press, 1997), 418. 116  UNESCO, “UNESCO Director General Presses Washington to Restore U.S. Funding,” Press Release, 15 December 2011, http://​www.unesco.org/​new/​en/​media-​services/​single-​view/​news/​unesco_​ director_​general_​presses_​washington_​to_​restore_​us_​funding. 117   e.g., Art. 17(2) of the UN Charter; Art. VII of the Agreement Establishing the World Trade Organization. 118   J. E. Alvarez, “Legal Remedies and the United Nations’ à la Carte Problem,” Michigan Journal of International Law 12 (1991): 229, 231.

 

1024    assessing the legality of decisions right to withhold funds,119 yet there is not yet enough state practice to establish the withholding of funds as a legitimate legal response to an illegal decision of an IO.120 Moreover, legal sanctions that might exist against states that withhold funding have rarely been enforced. The withholding of funding remains an act closer to ‘civil disobedience’ than a remedy regulated under international law.

Withdrawal from or Non-​Cooperation with the IO A more drastic response is for the aggrieved member to either no longer cooperate with the IO or to withdraw from the IO altogether. The option of non-​cooperation with an IO is designed to have political, rather than legal, effects. Some African states have declared that they would no longer cooperate with the ICC, in response to the prosecutorial strategy of the Office of the Prosecutor, which they view as unfairly targeting African states.121 Despite a warrant of arrest for Sudanese President Omar al-​Bashir and repeated calls by the ICC for states to cooperate fully with it, certain African states have allowed al-​Bashir to enter their territory, an act which arguably breaches their obligations as ICC state parties.122 Although states can still be subject to sanctions and other measures for non-​compliance, the use of such measures against non-​compliant states is rare. Another step is for the state to leave the IO altogether. For instance, the Kenyan Parliament took steps towards Kenya’s withdrawal from the ICC.123 While withdrawal is permitted under Article 127 of the Rome Statute, it does not come into effect until one year after notification to the UN Secretary-​General and does not prejudice the consideration of matters that were before the Court before the withdrawal became effective.124 The legal possibility of withdrawal is enshrined in the statutes of many, but not all, IOs.125 Once a state has left an IO, acts of the IO from the date of withdrawal will no longer bind the member. It is less clear, however, whether previous acts of the IO will continue to bind the (former) member.126  See E. Zoller, “The ‘Corporate Will’ of the United Nations and the Rights of the Minority,” American Journal of International Law 81 (1987): 610, 632. 120  See the discussion in N. White, The Law of International Organisations, 2nd ed. (Manchester: Manchester University Press, 2005), 154. 121   See “Decision on International Jurisdiction, Justice and the International Criminal Court,” AU Doc. Assembly/​AU/​13(XXI), contained in Decisions, Declarations and Resolution of the Twenty-​First Ordinary Session of the Assembly of the Union, May 2013. 122   See, e.g., ICC, Prosecutor v Omar Hassan Ahmad Al Bashir, “Decision Regarding Omar Al-​ Bashir’s Visit to the Federal Republic of Nigeria,” ICC-​02/​05-​01/​09. 123   “Kenyan Lawmakers Vote to Leave International Court,” New York Times, 5 September 2013. 124   Art. 127(2) of the Rome Statute of the International Criminal Court. 125   See H. G. Schermers and N. M. Blokker, International Institutional Law: Unity Within Diversity, 5th ed. (Leiden: Martinus Nijhoff, 2011), 99–​101. 126   H. G. Schermers and N. M. Blokker, “International Organizations or Institutions, Membership,” in Max Planck Encyclopedia of Public International Law, Oxford Public International Law, http://​opil. ouplaw.com/​home/​EPIL, para. 15. 119

 

conclusion   1025

Conclusion Very few IOs contain internal mechanisms for judicial review of their acts, and review mechanisms that do exist often remain relatively unused and underdeveloped. This has led states and individuals to challenge decisions in other forums, such as regional human rights bodies, the ICJ, and domestic legal systems. States have also sought to challenge acts of IOs by resorting to extra-​legal responses, such as non-​compliance with them or withholding of funds. The grounds upon which acts may be challenged, and the legal consequences of an act being found invalid, remain uncertain, primarily due to the lack of case law at the international level. Much of this discussion remains theoretical and based on domestic administrative law concepts that are not always applicable at the international level, where states continue to employ diplomatic and other measures. It is often stressed that the growing normative and decision-​making power of IOs is not matched with an equivalent level of accountability and control. Moreover, ‘accountability’ mechanisms at the international level often emphasize financial or political elements of accountability rather than assessment of acts according to legal standards. Given the power of IOs to affect individuals in an ever-​expanding range of fields, this lack of judicial mechanisms is highly problematic, especially when the acts concerned affect fundamental human rights. It should be kept in mind that the issue of legality of an act and the availability of review mechanisms are two separate issues. The lack of review mechanisms does not imply that the principle of legality does not apply to the acts of an IO. Unlike at the domestic level, there remains no central body capable of reviewing acts of IOs, leaving judicial review to an array of international, regional, and domestic courts to each play a role. The best place for review of a decision of an IO is arguably within the legal order of the IO itself. However states have been reluctant to develop sufficient internal review mechanisms for the IOs they establish. It could be argued that by establishing an IO without sufficient legal safeguards, the founding members are themselves breaching their international human rights obligations to allow access to a remedy and access to court.127

127  M. Parish, “An Essay on the Accountability of International Organizations,” International Organizations Law Review 7 (2010):  277, 329–​ 34; A. Reinisch, “Securing the Accountability of International Organizations,” Global Governance 7 (2001): 131, 133.

 

Chapter 48

RESPONSIBILITY Pierre Klein

The very notion that international organizations may be subject to the application of rules relating to responsibility in the international legal order has for a long time been seen as eminently theoretical. It is true that the first advisory opinion delivered by the International Court of Justice (ICJ) in Reparation of Injuries Suffered in the Service of the United Nations reflected the fact that an international organization such as the United Nations (UN) may be the victim of an internationally wrongful act and present a claim against the responsible state.1 And the UN itself ended up in the latter position a few years later, faced with the claims presented by several states for the damages suffered by their nationals in the context of the UN Operation in the Congo (ONUC).2 But such instances were (very) few and far between. While it was generally admitted as a matter of principle that, being international legal persons, international organizations were subject to a regime of responsibility in the international legal order, the limited scope of most organizations’ activities—​and, possibly, the attention they paid to compliance with their international obligations—​resulted in a general perception that there were hardly any situations where such regime of responsibility would apply in practice. This perception however evolved over time, following developments such as the massive litigation generated by the “bankruptcy” of the International Tin Council (ITC) or—​to a more limited extent—​by the demise of the Arab Organization for   ICJ Reports 1949, 174.   See, e.g., the exchange of letters constituting an agreement between the UN and Greece relating to the settlement of claims filed against the UN in the Congo by Greek nationals, June 20, 1966, UN Juridical Yearbook (1966): 39. 1

2

 

responsibility   1027 Industrialization (AOI).3 At the turn of the twenty-​first century, the topic of the responsibility of international organizations was considered sufficiently ripe to be included in the work program of the UN International Law Commission (ILC).4 This resulted in the adoption by the Commission of a complete set of Draft Articles on the Responsibility of International Organizations (DARIO) in 2011,5 that follow to a large extent the pattern of the 2001 Draft Articles on State Responsibility for Internationally Wrongful Acts. While the 2011 DARIO have been subjected to significant criticism regarding both the method followed by the ILC6 and the content of various provisions of the draft,7 these may however be considered to provide a globally adequate normative framework for the study of the regime of responsibility of international organizations in the international legal order. The general structure of the Draft Articles will therefore be used as a template for the exposition of the regime of responsibility of international organizations in the present chapter. This is not to say, however, that the draft as a whole should be considered as an authoritative statement of the present state of international law on this issue. While some of its provisions may be considered as safely grounded in practice, such is by no means the case for all of them—​this was indeed one of the main reasons for the criticism mentioned above. Furthermore, whether some of the rules drawn up by the ILC absent such elements of practice will find sanction later on certainly remains open to question. In spite of   For more on these, see “Interplay between the Responsibility of International Organizations and that of their Member States” later in this chapter. 4   See, e.g., the report of the working group established by the ILC on that topic in the 2002 ILC Report, Doc. A/​57/​10, Chapter VIII. 5   The Draft Articles are appended to UN General Assembly (UNGA) Res. 66/​100 of December 9, 2011 by which the UNGA “took note” of the Draft Articles (para. 3). 6   See, e.g., the very strong criticism voiced by Jose Alvarez (“International Organizations: Accountability or Responsibility?,” speech at the Canadian Council of International Law 2006, http://​www.temple.edu/​law/​ ils/​CCILspeech.pdf; and “Revisiting the ILC’s Draft Rules on International Organization Responsibility,” ASIL Proceedings 105 (2011): 344–​8) or the more specific objections raised by Pieter-​Jan Kuyper and Esa Paasivirta (“Further Exploring International Responsibility: The European Community and the ILC’s Project on Responsibility of International Organizations,” International Organizations Law Review 1 (2004): 114; “Does One Size Fit All? The European Community and the Responsibility of International Organizations,” Netherland Yearbook of International Law 36 (2005):  169–​ 226). See also, e.g., Jean d’Aspremont, “The Articles on the Responsibility of International Organizations: Magnifying the Fissures in the Law of International Responsibility,” International Organizations Law Review 9 (2012): 15–​28. 7   See, e.g., Christiane Ahlborn, “The Rules of International Organizations and the Law of International Responsibility,” International Organizations Law Review 8 (2011): 451; Esa Paasivirta, “Responsibility of a Member State of an International Organization: Where Will it End? Comments on Article 60 of the ILC Draft on the Responsibility of International Organizations,” International Organizations Law Review 7/​ 1 (2010): 50; Niels Blokker, “Abuse of the Members: Questions Concerning Draft Article 16 of the Draft Articles on Responsibility of International Organizations,” International Organizations Law Review 7/​1 (2010): 43; August Reinisch, “Aid or Assistance and Direction and Control between States and International Organizations in the Commission of Internationally Wrongful Acts,” International Organizations Law Review 7/​1 (2010):  72; Natasa Nedeski and André Nollkaemper, “Responsibility of International Organizations ‘in Connection with Acts of States’,” International Organizations Law Review 9/​1 (2012): 33. 3

 

1028   responsibility these limitations, the significance of the adoption of the DARIO—​and the Articles’ relevance—​should not be overlooked. They indeed reflect the fact that international organizations are now seen as “mature” subjects of the international legal order susceptible to the application of a comprehensive regime of responsibility whenever they breach international obligations in the exercise of their—​sometimes considerable—​powers. The responsibility regime devised by the ILC is intended to constitute a general—​ one could almost say a “default”—​regime applicable only to the extent that the international organization concerned has not adopted specific rules to deal with responsibility issues. Article 64 of the draft, entitled Lex specialis, thus provides that: [t]‌hese draft articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of an international organization, or of a State in connection with the conduct of an international organization, are governed by special rules of international law. Such special rules of international law may be contained in the rules of the organization applicable to the relations between an international organization and its members.

The adoption of such special rules does not, however, seem to constitute a very common phenomenon for the time being. One of the rare instances where the question has so far been raised is the case of the temporal and financial limitations established by the UN General Assembly on compensation for the consequences of wrongful acts committed in the course of peacekeeping operations8—​and serious doubts have been expressed as to whether these regulations could indeed qualify as lex specialis within the meaning of draft Article 64.9 All in all, the ILC draft thus provides a useful template for the examination of the responsibility regime of international organizations under international law. The present chapter will cover exclusively the responsibility of international organizations for internationally wrongful acts as distinguished from liability in the context of domestic legal orders or the internal legal order of an organization itself.10 The application of these various regimes of responsibility/​liability may nevertheless be interconnected. The ITC and Westland/​AOI cases offer a perfect illustration of this. While the claims against these organizations and their member states originated in the nonperformance of private law contracts, it was clearly established then that “[w]‌hether States have concurrent or subsidiary liability for the fulfilment of such obligations due solely to their membership in an international organization is a matter of international law, whether a claim by a third party is made in an   A/​RES/​52/​247 of July 17, 1998 (“Third-​Party Liability: Temporal and Financial Limitations”).   See in particular Pierre Bodeau-​Livinec, “Les Faux-​semblants de la lex specialis—​l’exemple de la résolution 52/​247 de l’Assemblée générale des Nations Unies sur les limitations temporelles et financières de la responsabilité de l’ONU,” Revue belge de droit international 1 (2013): 117. 10   See in particular in that regard the tortious liability regime established by Art. 340(2) of the Treaty on the Functioning of the European Union. 8

9

 

issues of attribution   1029 international court or tribunal or a national court.”11 It is therefore only to the extent that they are related to issues of international responsibility that claims arising from the breach of obligations under domestic law will be referred to in the following pages. In a 1996 report to the General Assembly, the Secretary-​General wrote that the international responsibility of the UN is: a reflection of the principle of state responsibility—​widely accepted to be applicable to international organizations—​that damage caused in breach of an international obligation and which is attributable to the state (or to the organization) entails the international responsibility of the state (or of the organization) and its liability in compensation.12

This quotation perfectly evidences the main elements of the regime of international responsibility applicable to international organizations:  the components of the internationally wrongful act that entails the responsibility of the organization (breach of an international obligation and attribution of the breach to the organization) and the content of responsibility (with emphasis on the duty to provide reparation). These will be addressed in turn in the present chapter, which also covers more specific issues, such as the applicability of circumstances precluding wrongfulness to international organizations, the interplay between the responsibility of international organizations and that of their member states, and the problems raised by the implementation of responsibility when conduct of international organizations is at stake.

Issues of Attribution Attributing conduct for the purpose of establishing international responsibility amounts to determining the acts or omissions which can in principle be regarded as conduct of a subject of international law—​and in particular, in the context of the present chapter, of an international organization.13 This does not give rise to difficulties when the act or omission in question is performed by an agent or organ of an international organization. In the Cumaraswamy advisory opinion the ICJ stated 11   Art. 4(b) of the Resolution of the Institut de droit international on The Legal Consequences for Member States of the Non-​Fulfilment by International Organizations of their Obligations toward Third Parties, Institut de droit international 66/​2 Annuaire (1995): 444. 12  Report on the Administrative and budgetary aspects of the financing of the United Nations Peacekeeping Operations, Doc. A/​51/​389, September 20, 1996, para. 6. 13   See, for States, the Report of the ILC for 1973, Yearbook of the International Law Commission II (1973): 189, para. 3.

 

1030   responsibility as a matter of principle that the UN “may be required to bear responsibility for the damage … incurred as a result of acts performed by the United Nations or by its agents acting in their official capacity.”14 In a similar vein, the European Court of Justice observed that “[i]‌n the event of non-​performance of the Agreement [concluded by the European Commission with the United States regarding the application of their competition laws] by the Commission, […] the Community could incur liability at international level.”15 The conduct of all organs and agents of an international organization, in the institutional sense, will be attributable to the latter, irrespective of the “position the organ or agent holds in respect of the organization.”16 Reference may, for instance, be made in that respect to the International Criminal Tribunal for Rwanda’s case law, which provides evidence that responsibility may flow for an international organization from conduct of judicial—​just as well as “executive”—​organs acting within the organization’s institutional framework.17 The rules of each organization will of course play a central role for the identification of the organs of that organization—​and for the subsequent attribution of conduct. But attribution may also be based on less formal bonds between the author of a breach and an international organization. In the context of the DARIO, the ILC thus retained the broad definition of “agent” used by the ICJ in the Reparation case, stating that “agent of an international organization” means “an official or other person or entity, other than an organ, who is charged by the organization with carrying out, or helping to carry out, one of its functions, and thus through whom the organization acts.”18 It is indeed common practice for international organizations, whose human and material resources are often limited, to make use of the services of such external persons or entities to help them carry out their functions. Private contractors or experts are typical cases in point. It is far from obvious, however, that the latter’s conduct is generally considered in practice to be attributable to the international organizations on behalf of which they perform a specific task. To the contrary, several organizations emphasized in their comments on the Draft Articles that they systematically provide in their contracts with private parties that the latter are not authorized to commit the organization to expenditures or other obligations.19 The main difficulty in that respect relates to the fact that organizations have very limited control—​if any—​over such external actors, and thus very limited means to ensure

  Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ Reports 1999, 62, 88–​9 (para. 66). See also Art. 6 of the DARIO. 15   Case C-​327/​91, France v Commission, August 9, 1994, Rep. (1994) I-​3674, para. 25. 16   Art. 6(1) of the DARIO. 17   See, e.g., Case No. ICTR-​98-​44C-​T, The Prosecutor v André Rwamakumba, Decision on Appropriate Remedy, January 31, 2007, paras. 17–​18. 18   Art. 2(d) of the DARIO. 19   An example of such a clause is given by the UN Educational, Scientific and Cultural Organization (UNESCO); see also the ILO’s comments to the same effect (Doc. A/​CN.4/​568 add. 1, at 9–​10). A similar concern was expressed by the World Health Organization. 14

 

issues of attribution   1031 that international obligations incumbent upon the organization are not breached in the performance of these actors’ tasks on behalf of the organization. In so far as they extend the possibility of attribution of conduct to international organizations in such circumstances, the DARIO may therefore not be seen as reflecting actual practice on this point. It may of course be argued that the more extensive approach of the notion of “agent” favored by the ILC would induce international organizations to exercise more control on the way external actors contribute to the accomplishment of these organizations’ functions—​ and thus ensure compliance with the organizations’ international obligations. But, desirable as it may be, such a result will most likely prove difficult to achieve in practice, precisely in view of the limited means of action and supervision that led international organizations to have recourse to external actors in the first place. One is clearly faced here with a tension between a wish to ensure better compliance with international law in the course of activities of international organizations, on the one hand, and the practical constraints on the day-​ to-​day functioning of these organizations, on the other. Any legal regime will yield effective results only in so far as it proves to be applicable in practice without generating an unreasonable burden for the subjects of the legal order concerned. The crucial importance of control for attribution of conduct to an international organization is furthermore evidenced in the context of another classic situation where organizations make use of external resources to ensure the carrying out of their functions: that of organs or agents of a state or of an international organization put at the disposal of another international organization. The decisive criterion for the attribution of conduct of such organs or agents to the organization at the disposal of which they are placed is whether that conduct took place where the organ or agent was acting under the “effective control” of that organization.20 As early as the 1960s, the UN accepted responsibility for the breaches of international humanitarian law committed by members of national contingents put at the disposal of the Organization in the context of peacekeeping operations since these operations are carried out under an exclusive UN chain of command.21 The same reasoning was later applied to attribute to the UN the conduct of national contingents that were part of the UN Mission in Kosovo (UNMIK)22 or UNPROFOR (Former Yugoslavia),23 for instance. This does not mean, however, that the conduct of peacekeeping forces will systematically be attributed to the UN. The application   See Art. 8 of the DARIO.   See, e.g., on these early developments Derek W. Bowett, United Nations Forces: A Legal Study of United Nations Practice (London: Stevens & Sons, 1964), 245. 22   European Court of Human Rights (ECtHR), Behrami and Behrami v France and Saramati v France, Germany and Norway, Decision of May 2, 2007 on the admissibility of Application Nos. 71412/​ 01 and 78166/​01, at paras. 142–​3. 23   See, e.g., District Court of The Hague, Case No. 265618 HA, Mustafic v The Netherlands, September 10, 2008, at paras. 4.10 et seq. and 4.15. 20 21

 

1032   responsibility of the “effective control” test could indeed lead to a different result—​namely attribution to the national state of the contingent or even dual attribution to the latter and to the UN24—​whenever the circumstances warrant such a result. In a case involving the conduct of UNPROFOR’s Dutch Battalion (DutchBat) following the fall of Srebrenica, for instance, the Supreme Court of the Netherlands ruled that this conduct was attributable not to the UN but to the Netherlands.25 The Court held that the application of the “effective control” test meant that “the attribution of conduct to the seconding state or the international organization is based on the factual control over the specific conduct in which all factual circumstances and the special context of the case must be taken into account.”26 And it ruled that the factual circumstances surrounding the conduct at stake—​DutchBat’s failure to provide adequate protection to one of its contractors—​pointed to attribution to the Netherlands exclusively.27 The linkage between attribution and effective control in such situations rests on strong conceptual grounds. Elements of fairness and effectiveness have been emphasized in that respect: it seems indeed fair to attribute an actor’s conduct to the entity that actually controls and supervises this actor, and only the controlling entity will be in a position to actually ensure that that conduct will be compliant with international law.28 Different views have been expressed on whether military contingents of member states were similarly “put at the disposal” of the UN—​and their conduct attributable to the latter as a consequence—​when these contingents were merely acting on the basis of an authorization given by the UN Security Council (UNSC) and not under a UN chain of command. In the Behrami and Saramati case, the ECtHR ruled that conduct of national contingents composing the NATO force in Kosovo (KFOR) was ultimately attributable to the UN in view of the fact that the deployment of KFOR had been authorized by UNSC Resolution 1244 (1999) and that the Security Council therefore exercised “ultimate authority and control” over this operation.29 This ruling has however drawn strong criticism by reason of the fact that it drifts away from the “effective control” criterion evidenced by practice and

24   This outcome was specifically envisaged by the ILC; see the Commission’s comment on the introduction of Chapter 2, Part II of the Draft, at para. 4. 25   Supreme Court of the Netherlands, Case No. 12/​03329, The State of the Netherlands v H. Nuhanovic, September 6, 2013; see also Supreme Court of the Netherlands, Case No. 12/​03329, The State of the Netherlands v M. Mustafic, September 6, 2013. 26   Supreme Court of the Netherlands, Case No. 12/​03329, The State of the Netherlands v H. Nuhanovic, September 6, 2013, at para. 3.11.3. 27   Ibid., at para. 3.12.2. 28   See the arguments put forward in that sense by Roberto Ago in the context of the ILC’s work on State responsibility (Third Report, at para. 214). 29   Behrami and Behrami v France and Saramati v France, Germany and Norway, Decision of May 2, 2007 on the admissibility of Application Nos. 71412/​01 and 78166/​01, at para. 133.

 

issues of attribution   1033 set forth by the ILC—​while at the same time invoking the authority of the ILC draft—​and, more generally, that it results in a delinkage between attribution and control.30 The ECtHR appears to have subsequently reverted—​at least in part—​to a more “classical” approach. It ruled in 2011 that the acts of British forces in Iraq after the 2003 invasion of that country could not be attributed to the UN in spite of the fact that UNSC Resolution 1511 (2003) authorized “a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq,” since the Security Council “had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-​National Force.”31 Such a conclusion certainly appears easier to renconcile with the effective control requirement, since it is widely admitted that the UN in general and the Security Council in particular cannot be said to exercise any factual control over the actual conduct of the states that have been authorized by the Council to take coercive actions.32 Once again, this shows how closely control and attribution are interrelated. An overall limitation on the possibility of attributing conduct of organs and agents to an international organization flows from the requirement that that conduct take place in the performance of the organ’s or agent’s functions.33 Whenever the conduct at stake takes place in the “private sphere” of the agent’s activities, it will be considered as devoid of any relation with the organization concerned, and thus as nonattributable to the latter. Hence, it does not appear that any attempt was made at holding the UN responsible for the attempted smuggling of explosives into Israel by a member of the UN Interim Force in Lebanon’s Senegalese contingent while he was not on duty; the latter was prosecuted before Israeli courts in his individual capacity only.34 It is well accepted, however, that the conduct of organs and agents of an international organization is attributable to the latter even when the organ or agent exceeded the bounds of its competence (i.e. acts ultra vires).35 Attribution is but one of the elements of an internationally wrongful act entailing the responsibility of an international organization. The other is that the conduct in question constitutes a breach of an international obligation.

  See, e.g., Aurel Sari, “Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases,” Human Rights Law Review 8/​1 (2008): 159. 31   Al-​Jedda v United Kingdom, Application No. 27021/​08, Judgment, July 7, 2011, para. 84. 32   See, e.g., Erika De Wet, The Chapter VII Powers of the United Nations Security Council (Oxford/​ Portland: Hart Publishing, 2004), 272. 33   See Art. 6(1) of the DARIO. 34   District Court of Haifa, Papa Coli Ben Dista Saar case, May 10, 1979 (1979) UNJY 223. 35   See Art. 8 of the DARIO. 30

 

1034   responsibility

Breach of  an International Obligation For conduct attributable to an international organization to entail the latter’s international responsibility, the conduct must amount to a breach of an international obligation. Absent such breach there will be no responsibility whatsoever. Hence, while it admitted responsibility for damages sustained by civilians in breach of international humanitarian law in the context of the (first) UN operation in the Congo, the UN clearly stated that it would not bear any responsibility for damages resulting from lawful acts of war.36 Beyond this, international organizations will incur international responsibility whenever conduct attributable to them amounts to a breach of an international obligation binding upon the organization concerned.37 Obvious as it may seem as a matter of principle, this requirement frequently gives rise to complex issues when it comes to its application in a given situation. It is common, indeed, for responsibility of international organizations to be alleged by states or private claimants in various situations where the organizations concerned deny any such responsibility on the grounds that they were not bound by the obligation that had allegedly been breached. One may, for instance, refer to the constant stance taken by international financial institutions regarding the applicability of international human rights norms to their activities. Representatives of the latter institutions have constantly denied that these organizations were bound by such norms and the International Monetary Fund reaffirmed in its comments on the ILC’s Draft Articles “that the issue of whether there is a breach of an international obligation by an international organization can only be determined by reference to the rules of the organization (save in exceptional cases involving peremptory norms of general international law).”38 Similarly, the UN—​implicitly but surely—​rejected the notion that it was bound by obligations flowing from the mandate issued by the Security Council for the peace operations undertaken in Rwanda and Bosnia–​Herzegovina, respectively, and that such obligations—​particularly those relating to the protection of civilian populations or areas—​had possibly been breached in these two cases. In the context of both situations, the Organization’s responsibility was acknowledged in strictly political terms only and great care was taken not to give any impression—​let alone express recognition—​that the UN’s responsibility was at stake in legal terms.39 36   See, e.g., the exchange of letters constituting an agreement between the UN and Greece relating to the settlement of claims filed against the UN in the Congo by Greek nationals, June 20, 1966, UN Juridical Yearbook (1966): 39. 37 38   See Art. 11 of the DARIO.   Doc. A/​CN.4/​.582 (2007), 8. 39   See respectively Report of the Secretary-​General pursuant to General Assembly Resolution 53/​35—​ The Fall of Srebrenica, Doc. A/​54/​549, November 15, 1999; Report of the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide in Rwanda, Doc. S/​1999/​1257, December 15, 1999.

 

breach of an international obligation    1035 What is at stake here goes beyond issues of responsibility strictly speaking. It is about the determination of the realm of international norms incumbent upon international organizations as subjects of the international legal order. As such, it is an issue that has much more to do with so-​called “primary rules”—​that is, rules of conduct—​than with “secondary rules” such as those defining the regime of responsibility under international law.40 There is no doubt that the determination of the scope of such “primary rules” binding upon international organizations is a question that extends beyond the scope of the present chapter and that cannot possibly be undertaken here. We will therefore limit ourselves to two remarks in that respect. The first is that the assessment of the scope of primary rules incumbent upon international organizations appears now to constitute the principal challenge to the implementation of a regime of international responsibility to international organizations. As long as the scope of the latter’s obligations under international law remains undetermined, there will be little room for—​or at least great difficulties in—​the practical implementation of such a regime. The second remark relates to the fact that the most restrictive position upheld by some organizations, as examplified hereabove, appears difficult to reconcile with the only authoritative pronouncement on this issue. It should indeed be recalled that in its advisory opinion of December 20, 1980 on the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, the ICJ stated that “[i]‌nternational organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.”41 What constitutes obligations incumbent upon international organizations “under general rules of international law” certainly remains open to debate. But it seems in any event obvious that it goes further than a mere reference to the rules of the organization when it comes to determining the normative framework against which the possible responsibility of an international organization must be assessed. This is not to say, however, that the rules of the organization are devoid of any relevance in this context. To the contrary, Article 10(2) of the DARIO provides that breaches of international obligations for which an international organization may be responsible can include “the breach of any international obligation that may arise for an international organization toward its members under the rules of the organization.”42 While this may indeed be the case of a number of internal rules of the organization, it has been observed that Article 10(2) may have gone too far in extending the scope of the regime of international responsibility of international 40   On this distinction, see generally Eric David, “Primary and Secondary Rules,” in The Law of International Responsibility, ed. James Crawford, Alain Pellet, and Simon Olleson (Oxford:  Oxford University Press, 2010), 27–​33. 41   ICJ Reports 1980, 89–​90, para. 37. 42   This may in a way be viewed as a confirmation that, as for states, international organizations will be held responsible for the breach of an international obligations incumbent upon them “regardless of the origin or character of the obligation concerned” (Art. 10(1) in fine DARIO).

 

1036   responsibility organizations to matters that were primarily intended to be dealt with in the organization’s institutional framework, thereby generating confusion between the “constitutional” and “contractual” dimensions of the constitutive treaty of the organization.43 It is telling, in that respect, that various organizations insisted in their comments on earlier versions of the Draft Articles that breaches of the rules of an international organizations should be not be included in the scope of the draft.44 Whether such extension of the scope of the regime of responsibility of international organizations is indeed admissible will therefore have to be confirmed by future practice. Even in situations when a breach of an international obligation incumbent upon an organization is attributable to that organization, this does not necessarily mean that it will incur international responsibility. It is indeed well established that special circumstances may come into play that deprive the conduct in question of its wrongful character.

Circumstances Precluding Wrongfulness and their Relevance to International Organizations Based upon practice, the ILC identified six circumstances that preclude wrongfulness in the context of its work on state responsibility: consent, force majeure, countermeasures, self defense, distress, and necessity.45 In spite of very limited practice in this area and the fact that some of these circumstances were obviously relevant for a (very) limited number of organizations only,46 these were all deemed equally applicable to international organizations, even if their conditions of application may then be different than for states.47 The paucity of practice makes it unnecessary to address these various circumstances in depth here. It may just be noted that the recognition by the ILC of the possibility for countermeasures to come into play   See in particular Christiane Ahlborn, “The Rules of International Organizations and the Law of International Responsibility,” 459; see also Alvarez, “Revisiting the ILC’s Draft Rules on International Organization Responsibility,” 346. 44   See, e.g., the comments of the European Commission, ILO, and UNESCO (Doc. A/​CN.4/​568, Add. 1, 2006, 17–​19). 45   See Chapter V of Part I of the DARIO. 46   The most obvious case in point was self defense, since very few organizations carry out military activities. 47   See the introduction to Chapter V of the draft, ILC Report 2011, 48, para. 2. This is particularly visible regarding counter-​measures (Art. 22) and necessity (Art. 25). 43

 

international organizations and their member states    1037 not only in relations between international organizations and third parties but also in relations between the former and their members—​even if stringent conditions are laid down for the application of countermeasures in that context48—​once again raises the issue of the respective scope of application of institutional law, on the one hand, and of the general regime of international responsibility, on the other.49

Interplay between the Responsibility of International Organizations and that of their Member States The question of the interplay between the responsibility of international organizations and that of their member states is a complex issue. On the one hand, it is common for—​and one could even say consubstantial to—​international organizations to act at the impulse of or through their member states. On the other hand, international organizations are autonomous subjects of international law, endowed with a separate legal personality and distinct from their members. These two distinctive features therefore have to be taken into account in any attempt at defining a credible regime of responsibility for international organizations. Such issues were at the core of litigations involving the liability/​responsibility of international organizations in the 1980s. Hence, in the ITC case, creditors attempted to sue certain member states of that organization after it emerged that the ITC itself was financially not in a position to make good the claims it was faced with following the nonperformance of various contracts it had concluded with banks or brokers.50 A similar attempt was made against member states of the AOI following that organization’s failure to perform a contract concluded with a British company (Westland  See in particular the limitations set in Art. 22(3) of the DARIO, according to which “Countermeasures may not be taken by an international organization against a member State or international organization in response to a breach of an international obligation under the rules of the organization unless such countermeasures are provided for by those rules” (and the reverse limitation for countermeasures taken by a state or organization against an international organization of which it is a member in Art. 52(2)). 49  See generally Simone Vezzani, “Countermeasures by Member States against International Organizations,” in Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie, ed. Maurizio Ragazzi (Leiden, Boston: Brill, 2013); Yann Kerbrat, “Sanctions et contre-​mesures: risques de confusion dans les articles de la CDI sur la responsabilité des organisations internationales,” Revue belge de droit international (2013): 103. 50   See, e.g., Eric J. McFadden, “The Collapse of Tin: Restructuring a Failed Commodity Agreement,” American Journal of International Law 80 (1986): 811. 48

 

1038   responsibility Helicopters). In both cases a number of arguments were put forward to that effect, in attempts to bypass the “corporate veil” that is supposed to shield members of corporate entities from direct legal actions initiated by third parties. It was for instance argued that members were controlling the organizations concerned, that the latter were acting as agents of their members, or that members were to bear subsidiary responsibility in the absence of clauses excluding such responsibility in the organizations’ constitutive instruments.51 These arguments were ultimately dismissed by the courts which heard those cases in the United Kingdom and Switzerland respectively. As a judge of the High Court put it, “by conferring on the ITC the legal capacities of a body corporate, Parliament has granted it sufficient legal personality to enable it to incur liabilities on its own account which are not the liabilities of its members.”52 The judges held that the concept of agency and control did not provide an adequate reflection of the actual functioning of the international organizations concerned—​and of the vast majority of international organizations in general—​and that no inference could properly be drawn from the absence of institutional clauses limiting the liability of members. This approach was later confirmed by the Institute of International Law whose 1995 resolution on the Legal Consequences for Member States of the Non-​Fulfilment by International Organizations of their Obligations Toward Third Parties states that save special circumstances such as acquiescence, “there is no general rule of international law whereby States members are, due solely to their membership, liable concurrently or subsidiarily, for the obligations of an international organization of which they are members.”53 In a similar way, Article 62 of the DARIO provides that a state member of an international organization will be responsible for an internationally wrongful act of that organization only if “it has accepted responsibility for that act towards the injured party or it has led the injured party to rely on its responsibility,” implying thereby that there will be no responsibility of member states for acts of the organization in other circumstances. As a general rule, it is therefore widely admitted that the separate legal personality of international organizations

  For more on these various arguments, see e.g. Romana Sadurska and Christine Chinkin, “The Collapse of the International Tin Council: A Case of State Responsibility?,” Virginia Journal of International Law 30 (1990): 845; and the initial award in ICC Case No. 38/​79, Westland Helicopters United/​Arab Organization for Industrialization, March 25, 1984, Journal du droit international 112 (1985): 232. 52   Maclaine Watson v Dpt of Trade, Millet J, High Court, Chancery Division, May 13, 1987, 77 ILR 45; see also J. H. Rayner v Dept of Trade, House of Lords, October 26, 1989, 81 ILR 704. In Switzerland, see Arab Organization for Industrialization, Arab British Helicopter Company and Arab Republic of Egypt v Westland Helicopters Ltd, United Arab Emirates, Kingdom of Saudi Arabia and State of Qatar, Federal Supreme Court (First Civil Court) July 19, 1988, 80 ILR 652. 53  Art. 6(a), (1995) AIDI, 444. The special circumstances referred to are listed in Art. 5 of the Resolution (specific undertaking by the member, situations where the organization actually acts as an agent of a member, application of a general principle of law such as acquiescence, or abuse of right). 51

 

international organizations and their member states    1039 entails that they are sole responsible for a breach of their obligations, except in situations where their members explicitly or impliedly accepted such responsibility. But it is equally admitted that members of an international organization may in certain circumstances incur responsibility as a consequence of their own conduct in connection with an internationally wrongful act of that organization—​and vice-​versa; that is, that an international organization may in certain circumstances incur responsibility as a consequence of its own conduct in relation to an internationally wrongful act of one or several of its members. In its articles on the responsibility of international organizations, the ILC thus identified various situations of “Responsibility of a State in connection with the conduct of an international organization”54 and of “Responsibility of an international organization in connection with the act of a State or another international organization.”55 Most of these situations are identical to those which had been identified by the Commission in the Articles on State Responsibility as giving rise to the responsibility of a state in connection with the act of another state.56 They include the aid or assistance provided to the author of the internationally wrongful act (Arts. 14 and 58 respectively), and the direction or control (Arts. 15 and 59 respectively) or coercion (Arts. 16 and 60 respectively) exercised over the latter. Practice offers few examples of such situations involving international organizations. Regarding aid or assistance, the ILC Commentary however refers to a position taken by the UN Legal Counsel regarding the support provided by the UN mission in the Democratic Republic of the Congo (MONUC) to that country’s armed forces (FARDC) in a context where the latter were allegedly responsible for breaches of human rights and international humanitarian law. According to the Legal Counsel: If MONUC has reason to believe that FARDC units involved in an operation are violating one or the other of those bodies of law and if, despite MONUC’s intercession with the FARDC and with the Government of the DRC, MONUC has reason to believe that such violations are still being committed, then MONUC may not lawfully continue to support that operation, but must cease its participation in it completely … MONUC may not lawfully provide logistic or “service” support to any FARDC operation if it has reason to believe that the FARDC units involved are violating any of those bodies of law … This follows directly from the Organization’s obligations under customary international law and from the Charter to uphold, promote and encourage respect for human rights, international humanitarian law and refugee law.57

While aid and assistance are not explicitly mentioned here, it seems obvious that the continued support of FARDC by MONUC under the circumstances could make the UN responsible as a consequence of the fact that it would aid a state in the commission 55   Part Five of the Draft.   Chapter IV of Part Two of the Draft.   Chapter IV of Part One of the Articles on State Responsibility. 57  ILC Report 2011, 37, para. 6.  The original reference of the quote is The New  York Times, December 9, 2009. 54 56

 

1040   responsibility of an internationally wrongful act (Art. 14 of the DARIO). The reasoning behind the various provisions that have just been mentioned thereby emerges clearly: the international organization (or state) does not incur responsibility because it commits an internationally wrongful act (MONUC forces are not engaging in breaches of human rights or international humanitarian law), but because it plays a determining role in the commission of that act (should MONUC continue providing logistic support to the armed forces which are allegedly engaged in such breaches).58 Along the same lines, one could see a precedent illustrating the concepts of direction and control in various UNMIK Human Rights Advisory Panel’s opinions59 according to which the UN mission in Kosovo was to be held responsible for the conduct of the territory’s Provisional Institutions of Self-​Government as a consequence of the fact that UNMIK “retained a power of oversight” over these institutions and was actually intervening in their functioning.60 In addition to aid or assistance, direction and control, and coercion, which the ILC deemed to be as applicable in relations between states and international organizations as they are between states, the Commission identified another similar situation specific to the relations between international organizations and their members.61 DARIO, Articles 17 and 61 envisage the situation where the responsibility of one of these actors may flow from the fact that it makes use of its institutional partner to “circumvent” its own international obligations. This may be the case when an international organization adopts “a decision binding member States or international organizations to commit an act that would be internationally wrongful if committed by the former organization” or authorizes its members to commit such an act (Art. 17(a) and (b) respectively). An international organization may indeed take advantage of the fact that its members are not bound by a given international obligation incumbent upon it—​for instance a treaty concluded by that organization and not by its members62—​to have them act in a way which is contrary to the obligation at stake. It seemed fair to the Commission that the organization

58   It has been queried in that respect whether the ILC was not incorporating thereby primary rules (i.e., rules of conduct) in the regime of international responsibility, thus drifting away from the scope of such regime, initially understood to include secondary rules only; for more on this issue, see, e.g., Pieter-​Jan Kuyper, “Attributed or Direct Responsibility or Both?,” International Organizations Law Review 7/​1 (2010): 9–​33, 22ff.; d’Aspremont, “The Articles on the Responsibility of International Organizations,” 23. 59   For more on this body, see “Issues of Implementation” later in this chapter. 60   See, e.g., the opinion of March 20, 2009, Case No. 02/​08, Nexhmedin Spahiu v UNMIK, para. 29; and the opinion of March 24, 2010, Case No. 38/​08 (and others), Petko Milogoric and Others v UNMIK, para. 18, “Responsibility of International Organizations ‘in Connection with Acts of States’,” http://​ www.unmikonline.org/​hrap/​Eng/​Pages/​Cases-​by-​Date.aspx. 61   It should be noted here that the DARIO provisions on aid or assistance, direction and control, and coercion apply irrespective of the fact that the states concerned by such situations are members of the international organization in connection with which breaches of international law are committed. 62   ILC Report 2011, 41, para. 3.

 

international organizations and their member states    1041 should in such case incur responsibility whenever it could be established that it had directed or authorized its members to act with such an intent63—​or, in the words of a commentator, it had “ ‘outsourc[ed]’ its actors.”64 The same logic applies in the reverse situation, namely when a state member of an international organization: by taking advantage of the fact that the organization has competence in relation to the subject-​matter of one of the State’s international obligations, … circumvents that obligation by causing the organization to commit an act that, if committed by the State, would have constituted a breach of the obligation. [Art. 61(1)]

The latter provision is founded—​at least in part—​on the ECtHR case law. In several cases since the 1990s the Court had to deal with applications against states for alleged breaches of their obligations under the European Convention on Human Rights (ECHR) resulting from action they had undertaken as a consequence of their membership of international organizations. In Waite and Kennedy, for instance, Germany was accused of breaching the applicants’ right to access to justice due to German courts’ decisions to uphold the immunity from jurisdiction of the branch of the European Space Agency of which the applicants were (former) employees in Germany. The European Court noted that: Where States establish international organizations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organizations certain competences and accord them immunities, there may be implications as to protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.65

The same reasoning may be found in the Court’s Bosphorus judgment a few years later, where the applicant was claiming that Ireland’s decision to freeze its assets pursuant to an EC regulation—​itself adopted pursuant to a UNSC resolution imposing sanctions upon the former Yugoslavia—​was in breach of its right to property. Strasbourg judges recalled that in: establishing the extent to which a State’s action can be justified by its compliance with obligations flowing from its membership of an international organisation to which it has

63   The fact that “circumvention” implies intention is specifically emphasized by the ILC (ibid., para. 4). It has been noted that the emphasis on such a subjective requirement—​intention being moreover often (very) difficult to establish—​was running against the generally “objective” conception behind the contemporary regime of international responsibility and was making the actual application of the notion of “circumvention” illusory (see, e.g., Nedeski and Nollkaemper, “Responsibility of International Organizations ‘in Connection with Acts of States’,” 47). 64   Austrian delegate’s intervention in the 6th Committee (A/​C.6/​59/​SR.22, para. 44), quoted in ILC Report 2009, 88, para. 1. 65   Judgment of February 18, 1999, Application No. 26083/​94, ECtHR Reports, 1999-​I, 410, para. 67. The Court ruled that no breach of Art. 6 had taken place, since alternative remedies accessible to (former) employees were provided for in ESA’s rules (412, para. 73).

 

1042   responsibility transferred part of its sovereignty, the Court has recognised that absolving Contracting States completely from their Convention responsibility in the areas covered by such a transfer would be incompatible with the purpose and object of the Convention; the guarantees of the Convention could be limited or excluded at will, thereby depriving it of its peremptory character and undermining the practical and effective nature of its safeguards … The State is considered to retain Convention liability in respect of treaty commitments subsequent to the entry into force of the Convention.66

The ECtHR’s case law thus makes it clear that states parties to the Convention which are members of international organizations may continue to incur responsibility for breaches of the Convention taking place in the context of the functioning of these organizations, at least to the extent that no equivalent protection is ensured to fundamental rights within the organizations concerned. Once again, member states are responsible not for the acts of the organization as such, but as a consequence of their failure to ensure that the international obligations incumbent upon them are not breached by the international organization to which they have transferred the exercise of powers. The requirements for the application of the “circumvention” regime envisaged by the ILC nevertheless appear more restrictive than those resulting from the ECtHR’s case law, especially in as much as they put the emphasis on a clearly subjective element in the member state’s conduct in relation to the organization’s (the member must “caus[e]‌the organization to commit an act”).67 Whether future practice in this respect will develop along these more restrictive lines—​which cannot be said to be grounded in the ECtHR’s case law—​or along the more flexible scheme reflected in the abovementioned judgments therefore remains to be seen. What appears determining in any event is a clear will to address such situations of interplay between the conduct—​and possible ensuing responsibility—​of international organizations and (member) states. The obvious concern is preventing such situations from falling in a gap between the responsibility regime applicable to states, on the one hand, and that applicable to international organizations, on the other. The main challenge in that respect is to ascertain the amount of responsibility incurred by each category of players involved in the complex relations which characterize the functioning of international organizations, without unduly hampering this functioning or calling into question the quintessential autonomy of international organizations.

66   Bosphorus Hava Yollary Turizm ve Ticaret Anonim Sirketi v Ireland, Judgment of June 30, 2005, Application No. 45036/​98, ECtHR Reports, 2005-​VI, 157–​8, para. 154 (references omitted). Here too, the Court ruled that there was no breach of Protocol 1 to the Convention in view of the “equivalent protection” granted to individual rights within the Community legal order (158, para. 155). 67   The ILC’s Commentary to Art. 61 expressly emphasizes the requirement that the state’s conduct be intentional (ILC Report 2011, 93, para. 2).

 

issues of implementation   1043

Issues of Implementation Whenever the constitutive elements of responsibility are present, an essential step to give responsibility an actual meaning and content is implementation. Implementation supposes the formal invocation of the responsibility of an international organization by an entity—​in the case of states and international organizations—​or a person which can qualify as an injured party—​that is, as the entity or person the obligation breached by the organization was owed to.68 In the case of damages caused to civilians by ONUC contingents in breach of international humanitarian law, for instance, the national states of the victims brought a claim against the UN on behalf of their nationals.69 Any state and international organization—​provided its functions include the safeguard of the interest of the international community at stake—​may also invoke the responsibility of an international organization for breaches of erga omnes obligations (obligations owed to all).70 Beyond the question of who has the right to claim against an international organization for a breach of its international obligations, implementation also raises the question of the means and forums that may be used for that purpose. The situation in that respect is very different according to the claimant’s status. For international organizations71 and states—​including when these present claims on behalf of their nationals72—​implementation of the international responsibility of an international organization essentially amounts to the settlement of an international dispute.73 All means available to that end under international law may therefore be used by the claimant. In practice, direct—​and (very) discrete—​negotiations with the 68   See Art. 43 of the DARIO. It should be noted that the ILC’s Articles exclusively deal with the implementation of the responsibility of international organizations by states or by other organizations. Article 50 merely specifies in that respect that the draft’s rules on implementation are “without prejudice to the entitlement that a person or entity other than a State or an international organization may have to invoke the international responsibility of an international organization.” 69   See n. 2. 70   See Art. 49 of the DARIO. This has remained merely theoretical so far, no such breach on the part of an international organization having been formally alleged to this day. 71   Based on publicly available information, it does not appear that an international organization has ever formally invoked the international responsibility of another organization up to this day. 72   In which case the traditional rule of the exhaustion of local remedies applies whenever such remedies are available within the—​allegedly—​responsible organization’s legal order (Art. 45(2) of the DARIO). The most obvious situation referred to in that respect is that of the European Union (EU) where the existence of judicial remedies open to private claimants is clearly established (see the ILC’s Commentary in Report 2011, 73, para. 6). 73   Even if the ICJ’s contentious jurisdiction does not encompass international organizations, it may be recalled in that respect that under Art. 36(2)(c) of the Statute, the Court’s jurisdiction includes legal disputes concerning “the existence of any fact which, if established, would constitute a breach of an international obligation.”

 

1044   responsibility organization whose responsibility is invoked are most often resorted to. Once again, the settlement of claims against the UN in the context of ONUC is a case in point: a final settlement was reached with each of the claimant states through negotiations and its outcome was embodied in exchanges of letters.74 Contentious options may also be accessible. Absent any possibility to make use of the ICJ’s jurisdiction when an international organization is involved,75 arbitration emerges as the most obvious solution in that respect. It is often provided for in treaties concluded between international organizations and states or other organizations for the settlement of disputes that may arise regarding the implementation of the said treaties. Such is for instance the case of the Status of Forces Agreements (SOFAs) concluded by the UN with states on the territory of which a peacekeeping operation is deployed.76 In spite of some attempts to that effect,77 however, it does not appear that arbitral proceedings have been used so far in the context of claims against international organizations for breaches of their international obligations.78 The situation of individuals is more delicate in that respect. In the vast majority of cases, informal means of action will be the only avenue open to private parties claiming to have suffered from a violation of international law—​most often in the areas of human rights or international humanitarian law—​by an international organization. In exceptional circumstances only do they have access to more formal procedures. Such will be the case, for instance, when the EU becomes a party to the ECHR, which will entail the possibility for individuals to bring claims against the EU before the ECtHR for breaches of the Convention.79 In a much more limited way, the EU also established in 2009 a Human Rights Review Panel entrusted with reviewing claims against the EU mission in Kosovo for breaches of international human rights.80 This was tailored upon the Human Rights Advisory Panel set up by UNMIK a few years before with a similar mandate.81 75   See n. 2.   See Art. 34 of the ICJ’s Statute.   See Art. 53 of the model Status of Force Agreement (Comprehensive Review of the whole question of peace-​keeping operations in all their aspects, Doc. A/​45/​594, October 9, 1990). 77   In the context of the UN mission in Rwanda (1994). It should be noted that contrary to the practice followed in that respect in many other treaties, the provisions on the settlement of disputes in most agreements concluded by international organizations do not foresee the failure of one of the parties to take part in the arbitral proceedings and do not organize alternative procedures to ensure the proper functioning of the arbitration. Such is for instance the case of UN SOFAs. 78   On the basis of publicly available information at least. 79   See Art. 6(2) of the Treaty on European Union and the Draft Revised Agreement on the Accession of the European Union to the European Convention on Human Rights (Council of Europe, Doc. 47+1(2013)008, April 5, 2013). This draft agreement was however deemed incompatible with the EU Treaties by the Court of Justice of the European Union in its Opinion 2/​13 of December 18, 2014 and the process of accession will be significantly delayed as a consequence. 80   For more on this institution and its functioning, see “Responsibility of International Organizations ‘in Connection with Acts of States’,” http://​www.hrrp.eu/​index.php. 81   See UNMIK Reg. 2006/​12 of March 23, 2006; and, for an in-​depth discussion, Bernhard Knoll and Robert-​Jan Uhl, “Too Little Too Late: The Human Rights Advisory Panel in Kosovo,” European Human Rights Law Review 5 (2007):  534–​49; and Pierre Klein, “Le Panel consultatif des droits de l’homme 74

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content of responsibility   1045 It should however be noted that both these procedures are strictly advisory and do not therefore qualify as mechanisms of implementation of the concerned organization’s responsibility properly speaking. They nevertheless constitute the (very) few mechanisms allowing individuals to invoke the responsibility of international organizations—​in a very specific area—​following formal procedures. In other situations where organizations are not involved in international territorial administration as they were in Kosovo but rather conduct significant activities, such as peacekeeping, involving potential breaches of international law within a state’s borders, the organizations concerned have merely consented to the establishment of complaints mechanisms for disputes “of a private law character.”82 In view of the fact that private persons or groups are much more frequently affected than states or international organizations by situations where the international responsibility of organizations is at stake, the creation of mechanisms allowing for the invocation of such responsibility by private claimants definitely emerges as one of the most significant challenges in this area for the years to come. Up to now, indeed, international organizations have not proven keen to even consider the creation of such mechanisms and display a considerable degree of resistance toward such evolutions. The ILC remained elusive in that respect, noting simply in Art. 50 of the DARIO that the rules it had drafted on the implementation and invocation of responsibility of international organizations “were without prejudice to the entitlement that a person … may have to invoke the international responsibility of an international organization.” In the overall absence of such “entitlement” in practice, this is not saying much.

Content of Responsibility The expression “content of responsibility” actually refers broadly to the various consequences flowing from international responsibility once it has been established. These consequences include the traditional obligation to provide reparation, but (Human Rights Advisory Panel) de la MINUK: une étape dans le processus de responsabilisation des Nations Unies?,” in Perspectives of International Law in the 21st Century:  Liber Amicorum Christian Dominicé (Leiden/​Boston: Nijhoff, 2012), 225–​55. 82   See in particular Art. 51 of the UN Model SOFA mentioned earlier. It is however well known that the claims commissions which are supposed to settle claims under this provision are never actually established and that claims against the UN in the context of peacekeeping operations are dealt with following an internal administrative procedure (local claims review boards) (see, e.g., Kristin Schmalenbach, “Third Party Liability of International Organizations,” International Peacekeeping 10 (2006): 42–​3).

 

1046   responsibility they also encompass the cessation of the internationally wrongful conduct (in cases of continuing breaches of international obligations) or the duty to “offer appropriate assurances and guarantees of non-​repetition, if circumstances so require.”83 Practice offers some illustrations of the latter, in particular in UNMIK Human Rights Advisory Panel’s opinions recommending that UNMIK takes “appropriate steps as a guarantee of non-​repetition” of the breaches of the ECHR observed by the Panel.84 It is however mainly regarding issues related to reparation that some questions have been raised in the practice of international organizations. The very principle that international organizations are under an obligation to provide adequate reparation for the harmful consequences of their wrongful conduct does not appear to have been called into question as such.85 It has been expressly accepted in general terms in various statements by the UN Secretary-​General,86 and the UN provided monetary compensation to the states whose nationals had been victims of breaches of humanitarian law in the course of the Organization’s operation in the Congo.87 Similarly, the UNMIK Human Rights Advisory Panel recommended on several occasions that UNMIK take “the appropriate steps toward payment of adequate compensation” of damages suffered by claimants due to breaches of rights flowing from the ECHR.88 More specific problems arose in that respect in situations where the organization itself lacked financial resources to offer proper compensation for the damages suffered by third parties. Such was the case for the International Tin Council which was facing a situation of virtual bankruptcy and was as a consequence not in a position to provide adequate compensation to its creditors.89 The final settlement of that case was ultimately made possible by member states which agreed to put the ­organization into funds in order to enable it to offer partial compensation to its creditors.90   DARIO, Art. 30(a) and (b) respectively.   See, e.g., the opinion of October 31, 2013, in Case No. 48/​09, P.S. v UNMIK, 29, “Responsibility of International Organizations ‘in Connection with Acts of States’,” http://​www.unmikonline.org/​hrap/​ Eng/​Pages/​Cases-​by-​Date.aspx. 85   See, however, the reservations expressed by José Alvarez, pointing to the limited financial resources of international organizations (“International Organizations: Accountability or Responsibility?,” 28). 86   See, e.g., the statement quoted in the introduction to this chapter. 87   See the references to the various exchanges of letters at the beginning of the chapter. 88   See, among many others, the opinions of October 31, 2013, in Case No. 48/​09, P.S. v UNMIK, 29 and in Case No. 135/​09, Milisav GOGIC v UNMIK, 26, para. 2(c); the opinion of June 6, 2013 in Case No. 04/​09, D.P. v UNMIK, 20, para. 3(d). 89   This was indeed the reason why these creditors turned against the ITC’s member states and attempted to engage the latter’s responsibility qua members of the organization (see “Interplay between the Responsibility of International Organizations and that of their Member States” earlier in this chapter). 90   See Chittharanjan F. Amerasinghe, “Liability to Third Parties of Member States of International Organizations,” American Journal of International Law 85 (1991):  269; Ignaz Seidl-​Hohenveldern, “Failures of Controls in the Sixth International Tin Agreement,” in Towards More Effective Supervision by International Organizations:  Essays in Honor of Henry G.  Schermers, ed. Niels Blokker and Sam Muller (Dordrecht: Nijhoff, 1994), 267. 83

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conclusion   1047 This solution is reflected in the ILC’s Articles on Responsibility of International Organizations, which provide that “[t]‌he members of a responsible international organization shall take all the appropriate measures that may be required by the rules of the organization in order to enable the organization to fulfil its obligations” of reparation.91 At this stage too, special care has thus been taken not to create any legal connection between members of the organization and affected third parties; even if members contribute to the organization’s finances to enable it to provide reparation, it is ultimately the organization itself that will do so.92

Conclusion Responsibility of international organizations emerges as one of the areas of international law that has experienced the most significant maturation over the last years. The adoption of a complete set of articles on that topic by the ILC is one of the most visible elements bearing witness of this development. While the fate of the Draft Articles remains to some extent uncertain and the content of several provisions is certainly open to criticism, their adoption reflects the coming into age of international organizations as fully fledged subjects of the international legal order. It should nevertheless be kept in mind that responsibility of international organizations will to a large extent remain an essentially theoretical concept as long as the scope of primary obligations incumbent upon international organizations is not significantly clarified and remedies open to individual victims of internationally wrongful acts committed by organizations are not established.

  Art. 40(2).  For more on this issue, see Paolo Palchetti, “Exploring Alternative Routes:  The Obligation of Members to Enable the Organization to Make Reparation,” in Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie, ed. Maurizio Ragazzi (Leiden: Brill, 2013). 91

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Chapter 49

PRIVILEGES AND IMMUNITIES August Reinisch

It is generally accepted that international organizations require a broad range of privileges and immunities in order to carry out their tasks independently from any interference by the domestic law and courts of host or other states. This functional necessity rationale has become the established justification for granting a special treatment and has been rarely questioned by courts or other decision-​makers. Only recently, the growing scope of activities of international organizations coupled with a heightened rights-​awareness of those who might be negatively affected by broad privileges and immunities of international organizations has induced questions about the legitimacy of sweeping privileges and, in particular, of often de facto absolute immunity from the jurisdiction of domestic courts. This chapter1 will briefly outline the development of privileges and immunities of international organizations. It will focus on how the standard of ‘functional’ immunity has been applied in practice and will try to assess the future perspectives concerning the challenges to and continued justification of such a ‘preferential’ legal position.

1   This chapter draws on August Reinisch, “Privileges and Immunities,” in Research Handbook on the Law of International Organizations, ed. Jan Klabbers and Asa Wallendahl (Cheltenham: Edward Elgar, 2011), 132–​55.

 

past and present   1049

The Past and Present Typical Content of Privileges and Immunities of International Organizations The traditional subjects of international law—​sovereign states and their representatives—​have enjoyed privileges and immunities for centuries. One of the first international organizations to be endowed with privileges and immunities, the League of Nations, provides an interesting example of the initial uncertainty whether these new subjects of international law should also enjoy such special rights. Its constituent instrument, the Covenant, merely stipulated ‘diplomatic’ privileges and immunities of the League’s employees and the inviolability of its property.2 Only a subsequent agreement with its host state Switzerland, the so-​called modus vivendi, provided that the League itself possessed international personality and that it could not ‘in principle, according to the rules of international law, be sued before the Swiss Courts without its consent’.3 It was this model that proved crucial for other international organizations to enjoy both personality and privileges and immunities. After World War II, the UN Charter prominently adopted the notion of functional personality as well as functional privileges and immunities. Pursuant to Article 104 of the UN Charter: ‘The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.’4 According to Article 105 of the UN Charter: The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.5

Most other international organizations set up after 1945 have followed the UN’s example and contain express privileges and immunities provisions in a functional sense. Thus, the constituent treaties of the World Health Organization,6 the   Arts. 7(4) and (5) of The Covenant of the League of Nations, 28 June 1919, 225 CTS 195, only provided for “diplomatic immunities” for League officials “engaged on the business of the League” and that League property was to be “inviolable.” 3  Para. I  of the Communications du Conseil Fédéral Suisse concernant le Régime des Immunités Diplomatique du Personnel de la Société des Nations et du Bureau International du Travail, entered into by the League of Nations and the Swiss Government on 18 September 1926, 7 OJLN (1926), Annexe 911a, 1422 (“Le Gouvernement fédéral suisse reconnaît que la Société des Nations, possédant la personnalité international et la capacité juridique, ne peut être, en principe, selon les règles du droit des gens, actionnée devant les tribunaux suisses sans son consentement exprès”). 4   Art. 104 of the Charter of the United Nations, San Francisco, 26 June 1945 (UN Charter). 5   Art. 105(1) of the UN Charter. 6   Art. 67(a) of the Constitution of the World Health Organization, New  York, 22 July 1946, 14 UNTS 185. 2

 

1050   privileges and immunities Organization of American States,7 the World Trade Organization (WTO),8 or the Council of Europe,9 equally provide for functional privileges and immunities. Privileges and immunities in turn cover a wide spectrum of special rights and prerogatives, often in the form of exceptions from parts of a national legal order. In general, privileges are exemptions from the otherwise applicable substantive law of a state, while immunities are usually regarded as exemptions from the administrative, adjudicatory, or executive powers of a state.10 The typical ‘privileges’ of international organizations are partial exemptions from some areas of national law, such as taxes, foreign exchange controls,11 customs,12 or immigration rules.13 Most prominent are the fiscal privileges which comprise exemptions from the obligation to pay any direct taxes for an international organization itself 14 and regularly also for its employees.15 Disagreements about fiscal privileges are rare, though sometimes the scope of functional tax exemptions of international organizations16 or of their staff has led to disputes.17 With regard to indirect taxes various reimbursement schemes   Art. 133 of the Charter of the Organization of American States, Bogotá, 30 April 1948, 119 UNTS 3.   Art. VIII(2) of the Agreement Establishing the WTO, Marrakesh, 15 April 1994, 33 ILM (1994), 13. 9   Art. 40(a) of the Statute of the Council of Europe, 5 May 1949, ETS No. 1. 10  See Henry G. Schermers and Niels Blokker, International Institutional Law, 5th ed. (Leiden, Boston: Martinus Nijhoff Publishers, 2011), 257 et seq. 11   See, e.g., Art. II, s. 5 of the Convention on the Privileges and Immunities of the United Nations, 13 February 1946, 1 UNTS 15 (the General Convention) (“Without being restricted by financial controls, regulations or moratoria of any kind, (a) The United Nations may hold funds, gold or currency of any kind and operate accounts in any currency; (b) The United Nations shall be free to transfer its funds, gold or currency from one country to another or within any country and to convert any currency held by it into any other currency.”) 12   See, e.g., Art. II, s. 7 of the General Convention (“The United Nations, its assets, income and other property shall be: (b) Exempt from customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or exported by the United Nations for its official use”). 13   See, e.g., Art. V, s. 18 of the General Convention (“Officials of the United Nations shall: … (d) Be immune, together with their spouses and relatives dependent on them, from immigration restrictions and alien registration”). 14   See, e.g., Art. II, s. 7 of the General Convention (“The United Nations, its assets, income and other property shall be: (a) Exempt from all direct taxes”). 15   See, e.g., Art. V, s. 18 of the General Convention (“Officials of the United Nations shall: … (b) Be exempt from taxation on the salaries and emoluments paid to them by the United Nations”). 16  See European Molecular Biology Laboratory v Germany, Arbitration Award, 29 June 1990, 105 ILR (1997) 1, in which it was held that the functional tax privileges of an international organization for its “official activities” did not cover VAT exemptions as far as food and accommodation was supplied against payment. 17  See Tax Regime Governing Pensions Paid to Retired UNESCO Officials Residing in France (France—​ UNESCO), 14 January 2003, XXV UNRIAA 231–​66, in which an arbitral tribunal found that the privilege contained in an international organization’s headquarters agreement, exempting the salaries and emoluments of staff members, did not extend to pension payments since such payments would be due to “former” staff members and not to staff members and because they were not covered by the notions of “salary or emolument.” See also the similar interpretations reached in M. Aquarone v France, Conseil d’État, 148683, 6 June 1997, ILDC 1809 (FR 1997); and in X v State Secretary for Finance, Supreme Court (Netherlands), 16 January 2009, Netherlands Judicial Decisions Involving Questions of Public International Law, 2008–​ 2009, LANM Barnhoorn, Netherlands Yearbook of International Law 41 (2010): 379–​491. 7

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past and present   1051 are frequently envisaged.18 In addition, the typical privileges and immunities of an international organization also encompass such special rights as the inviolability of premises and archives19 and the freedom of communication.20 In the field of immunities, the exemption from ‘legal process’, jurisdictional immunity, and immunity from execution or enforcement measures have proven to be most important in practice.21 In addition to an organization’s own immunity from legal process, its staff and representatives of members also partake of an organization’s functional immunity.22 Not intended for their personal interest,23 officials usually enjoy immunity from legal process for their ‘official’ acts.24 Only top officials enjoy absolute diplomatic immunity. ‘Functional’ immunity is also granted to experts on mission to protect the specific tasks entrusted to them.25 State representatives enjoy, at a minimum, functional immunity.26 In practice, they are often accorded diplomatic immunity. 18   See, e.g., Art. II, s. 8 of the General Convention (“While the United Nations will not, as a general rule, claim exemption from excise duties and from taxes on the sale of movable and immovable property which form part of the price to be paid, nevertheless when the United Nations is making important purchases for official use of property on which such duties and taxes have been charged or are chargeable, Members will, whenever possible, make appropriate administrative arrangements for the remission or return of the amount of duty or tax”). 19   See, e.g., Art. II, s. 3 of the General Convention (“The premises of the United Nations shall be inviolable”) as well as Art. II, s. 4 of the General Convention (“The archives of the United Nations, and in general all documents belonging to it or held by it, shall be inviolable wherever located”). 20   See, e.g., Art. III, s. 9 of the General Convention (“The United Nations shall enjoy in the territory of each Member for its official communications treatment not less favourable than that accorded by the Government of that Member to any other Government including its diplomatic mission in the matter of priorities, rates and taxes on mails, cables, telegrams, radiograms, telephotos, telephones and other communications; and press rates for information to the press and radio. No censorship shall be applied to the official correspondence and other official communications of the United Nations”). 21   See Art. II, s. 2 of the General Convention (“The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity shall extend to any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution”). 22   See Art. 105(2) of the UN Charter (“Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization”). 23   Art. V, s. 20 of the General Convention (“Privileges and immunities are granted to officials in the interests of the United Nations and not for the personal benefit of the individuals themselves”). 24   Art. V, s. 18(a) of the General Convention (“Officials of the United Nations shall: Be immune from legal process in respect of words spoken or written and all acts performed by them in their official capacity”). 25   See Art. VI, s. 22(b) of the General Convention (“Experts … shall be accorded: In respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind”). See also Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, 62. 26   See Art. IV, s. 11(a) of the General Convention (“Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the

 

1052   privileges and immunities In addition to jurisdictional immunity, the said categories of persons also enjoy a number of other privileges and immunities, such as personal inviolability as well as inviolability of their documents, exemptions from immigration restrictions and registration requirements for foreigners, and diplomatic privileges in regard to exchange facilities. Officials additionally enjoy exemptions concerning their taxable income and with regard to national (military) service obligations.

The Legal Bases of Privileges and Immunities Privileges and immunities are accorded to international organizations mostly by different types of treaties. In addition to provisions contained in constituent instruments, which often generally provide for ‘functional privileges and immunities’,27 the privileges and immunities of international organizations are frequently laid down in more detail in separate multilateral privileges and immunities agreements for each organization. Within the ‘UN family’ there are two conventions of this type, the so-​called General Convention28 and the Specialized Agencies Convention,29 dealing with the privileges and immunities of the United Nations and its specialized agencies respectively. Similar treaties have been concluded with regard to the Council of Europe,30 the Organization of American States,31 and other organizations. Further, ‘headquarters agreements’ or ‘seat agreements’, bilateral treaties between the international organization and the country where it has its headquarters or seat, or treaties concluded with non-​host states in which international organizations operate regularly contain additional provisions on the exact scope of privileges and immunities.32 following privileges and immunities: (a) Immunity from personal arrest or detention and from seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind”). 27   Art. 105 of the UN Charter with its grant of privileges and immunities “necessary for the fulfilment of [the organization’s] purposes” is a typical example. See UN Charter. 28   General Convention. 29   Convention on the Privileges and Immunities of the Specialized Agencies, 21 November 1947, 33 UNTS 261 (the Specialized Agencies Convention). See on both conventions, August Reinisch (ed.), The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies. A Commentary (Oxford: Oxford University Press, 2016). 30   General Agreement on Privileges and Immunities of the Council of Europe, 2 September 1949, ETS No. 2, 250 UNTS 14. 31   Agreement on Privileges and Immunities of the OAS, 15 May 1949, OAS Treaty Ser. 22. 32   See, e.g., Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations, 26 June 1947, US–​UN, 11 UNTS 11; Agreement regarding

 

the justification for privileges and immunities    1053 The question of whether there is customary international law concerning privileges and immunities of international organizations and, if so, the precise content of such customary law has remained controversial.33 In addition, domestic legislation may contain privileges and immunities of international organizations. Countries following a dualist legal tradition of incorporation will require a special national legal basis for granting privileges and immunities to international organizations.34 But also countries of a ‘monist’ legal tradition sometimes enact specific legislation. Such legislation may clarify the interpretation of the due privileges and immunities of international organizations given by a certain state. It may also be necessary in case a state wishes to extend privileges and immunities to an international organization of which it is not a member and with which it has not (yet) concluded a treaty or in order to confer privileges and immunities also on entities not strictly falling into the category of an international organization.35

The Justification for Privileges and Immunities International organizations are in essence the creatures of their members. They are funded and controlled by member states which decisively influence the activities of international organizations through their actions in various organs of international organizations. The independence of international organizations vis-​ à-​ vis their members—​though legally enshrined in the ‘concept’ (or ‘fiction’) of international legal personality—​is less clear. International organizations regularly possess certain the Headquarters of the Food and Agriculture Organization (FAO), 31 October 1950, 1409 UNTS 521; Headquarters Agreement between the Government of the United Kingdom and the International Tin Council, London, 9 February 1972, 834 UNTS 287.   See Mirka Möldner, “International Organizations or Institutions, Privileges and Immunities,” in The Max Planck Encyclopedia of Public International Law, ed. Rudiger Wolfrum (Oxford: Oxford University Press, 2012), para. 11; Michael Wood, “Do International Organizations Enjoy Immunity Under Customary International Law?,” in International Organization Law Review 10 (2014): 287–​318; Andreas Ziegler, “Article 105,” in The Charter of the United Nations, ed. Bruno Simma et al., 3rd ed. (Oxford: Oxford University Press, 2012), 2162, MN 7. 34   See, e.g., International Organisations Act 1968 (IOA), c. 48, Halsbury’s Statutes of England, 4th ed., vol. 10, title Constitutional Law (Pt 5). 35   International Organizations Immunities Act (IOIA) 1945, 59 Stat. 669, 22 USCA §§ 288 et seq. See also Law on the Granting of Privileges and Immunities to International Organizations, Federal Act of 14 December 1977, Austrian Federal Law Gazette No. 677/​1977, which was mainly adopted in order to permit the granting of privileges and immunities to the CSCE/​OSCE which was not generally recognized as an international organization. 33

 

1054   privileges and immunities institutional features to guarantee their independence, such as secretariats or other organs more removed from the direct influence of member states like expert organs or judicial institutions. Nevertheless, it is important to provide additional safeguards preventing individual members from exercising undue influence or pressure on an organization. One form of such external pressure could lie in the requirement to litigate before domestic courts. This could subject international organizations to an indirect control by member states through the latter’s judiciary.36 This consideration has made the ‘functional’ necessity of removing international organizations from the jurisdiction of national courts a generally accepted rationale for the granting of immunity from suit.37 Sometimes it is even broadly asserted that ‘[u]‌nder international law, an international organization generally enjoys such privileges and immunities from the jurisdiction of a member state as are necessary for the fulfilment of the purposes of the organization, including immunity from legal process, and from financial controls, taxes, and duties’.38 As regards financial privileges, however, it is less the independent functioning argument that justifies the various tax exemptions regularly accorded to international organizations than equality considerations in favour of all members.39 The exemption from the locally applicable tax rules of host states and other states where international organizations operate primarily ensures that such states do not receive an unfair financial gain by taxing the international organization.40 Since the funds for such tax expenses would mostly come from membership dues, taxation would in fact lead to a unilateral enrichment of taxing states at the expense of the (other) member states.   See the amicus curiae brief of the UN in the course of the US litigation in Broadbent v OAS, 481 F Supp 907 (DDC 1978), 628 F 2d 27 (DC Cir 1980). The UN submission is reprinted in the UN Juridical Yearbook (1980): 229 (“Intergovernmental organizations may be considered as collective enterprises of their member States. Their constituent treaties define precisely the influence each member is to have on the operations of the organizations, and how that influence is to be exercised—​generally through collective organs. If individual members could then exert additional influence on those organizations, largely through the fortuitous circumstance of where their headquarters, or the offices or officials or assets, happen to be located this could drastically change the constitutionally agreed sharing of power within the organizations. Thus the immunity granted by states to an intergovernmental organization is really their reciprocal pledge that none will attempt to garner unilaterally an undue share of influence over its affairs”). 37   See Chittharanjan F. Amerasinghe, Principles of the Institutional Law of International Organizations, 2nd ed. (Cambridge: Cambridge University Press, 2005), 316; Charles H. Brower II, “International Immunities: Some Dissident Views on the Role of Municipal Courts,” Virginia Journal of International Law 41 (2000): 1; Jan Klabbers, An Introduction to International Institutional Law (Cambridge: Cambridge University Press, 2002), 148; August Reinisch, International Organizations before National Courts (Cambridge: Cambridge University Press, 2000), 234; Schermers and Blokker, International Institutional Law, 258; M. Singer, “Jurisdictional Immunity of International Organizations: Human Rights and Functional Necessity Concerns,” Virginia Journal of International Law 36 (1995): 53. 38   Restatement (Third) of the Foreign Relations Law of the United States (1986), § 467, para. 1. 39  Reinisch, International Organizations before National Courts, 241. 40  See UN Juridical Yearbook (1972): 190, 191 (the purpose of tax privileges “is to achieve equality of treatment for all officials independently of nationality and to ensure that funds contributed by all Members to the budget of the Organization are not channelled into the Treasury of a State by levying taxes on staff members’ salaries”). 36

 

the scope of jurisdictional immunity    1055 In addition to the predominant functional necessity rationale there are a number of other justifications for the conferment of privileges and immunities which may be found in court practice as well as in legal writings. Privileges and immunities are sometimes regarded as inherent qualities of international legal personality or considered to stem from state immunity as a kind of derived immunity.41

The Core Issue: The Scope of Jurisdictional Immunity The scope of privileges and immunities depends upon the precise wording of the various applicable legal sources. As regards the central immunity accorded to international organizations, immunity from suit, the applicable sources usually offer a heterogeneous picture with immunity ranging from ‘functional’ to ‘absolute’ or even ‘sovereign’ at the same time. Thus, many controversies concern the exact scope of the jurisdictional immunity enjoyed by international organizations.

Functional Immunity For the majority of international organizations functional immunity represents the most relevant standard as it is normally found in their constituent instruments.42 It is, however, remarkable that functional immunity is usually not clearly defined. Hardly any instrument providing for functional immunity explains what is meant by the immunity ‘necessary for the functioning’ of an international organization. As will be discussed later this has led to broadly diverging interpretations of the vague and general notion of functional immunity.

Absolute Immunity Though most constituent documents provide for functional immunity of international organizations, the more detailed privileges and immunities instruments often provide for absolute immunity of the same international organizations which suggests that they cannot be sued in any case. A clear example of this can be seen in the case of the UN and its specialized agencies. Both the General Convention and the  Reinisch, International Organizations before National Courts, 245 et seq.   See text at n. 27.

41

42

 

1056   privileges and immunities Specialized Agencies Convention provide that the UN and its agencies ‘shall enjoy immunity from every form of legal process except in so far as in any particular case it has expressly waived its immunity’.43 In a similar vein, other multilateral privileges and immunities treaties provide for an unqualified, thus absolute, immunity of the beneficiary international organization.44 ‘Immunity from every form of legal process’ is also frequently provided for in headquarters agreements.45

Quasi-​Sovereign Immunity Some immunity instruments expressly incorporate a state immunity standard. The most important example of such a sovereign immunity grant is the US International Organizations Immunities Act (IOIA)46 which has given rise to a considerable number of cases attempting to determine whether the legislative intent really was to confer upon international organizations a restrictive sovereign immunity—​as codified in the Foreign Sovereign Immunities Act (FSIA)—​or whether it was meant to bestow international organizations with the same absolute sovereign immunity enjoyed by foreign states before US courts at the time the IOIA was adopted.47

Specifically Restricted Immunity Sometimes privileges and immunities instruments contain specific exceptions from a broad jurisdictional immunity. Examples are a number of more recent treaties specifically stating that the organization should not enjoy immunity in cases arising from car accidents.48 Another attempt at restricting the scope of functional immunity can be found in provisions delimiting the scope of official activities for which an international   Art. II, s. 2 of the General Convention; Art. III, s. 4 of the Specialized Agencies Convention.   Art. 3 of the Council of Europe Agreement; Art. 2 of the OAS Agreement. 45   See, e.g., Art. VIII, s. 16 of the Agreement regarding the Headquarters of the FAO, 31 October 1950, 1409 UNTS 521; Art. 8 of the Headquarters Agreement between the Government of the United Kingdom and the International Tin Council, London, 9 February 1972, 834 UNTS 287. 46   Title I, s. 2(b) IOIA 1945 (“International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract”). 47   See text at n. 65. 48  Art. 3(1)(b) of the EPO Protocol on Privileges and Immunities of the European Patent Organisation, 5 October 1973, 1065 UNTS 199 (no immunity “in the case of a civil action brought by a third party for damage resulting from an accident caused by a motor vehicle belonging to, or operated on behalf of, the Organisation, or in respect of a motor traffic offence involving such a vehicle”); see also Art. IV(1)(b) of the Annex I to the Convention for the Establishment of a European Space Agency, Paris, 30 May 1975, 14 ILM (1975), 855. 43

44

 

jurisdictional immunity of ios in practice    1057 organization enjoys immunity. For instance, some privileges and immunities instruments may closely circumscribe the nature of ‘official activities’ as those ‘strictly necessary for its operation’.49 A different sort of restricted immunity generally applies in the case of various international financial institutions. Their immunity from suit is generally more limited. Development banks, in particular, are usually not endowed with immunity concerning their lending operations. Here, the functionality rationale is more or less reversed. Because a general immunity from suit would decrease the creditworthiness of such an organization, immunity only applies in limited areas. A good example of such a limited immunity can be found in the International Bank for Reconstruction and Development (IBRD)’s Articles of Agreement which do not provide for the Bank’s immunity as a matter of principle. Rather, they declare in which country court actions against the Bank may be brought, while stating that no actions may be brought which derive claims from members.50 This may have been one of the reasons why a US court resorted to customary international law in order to justify the World Bank’s immunity from suit in an employment dispute51 and to refute the argument that such a provision could be viewed as a waiver of immunity under the IOIA.52

The Jurisdictional Immunity of International Organizations in Practice Against the background of such diverging standards of immunity from suit the precise meaning and reach of the jurisdictional immunity of international organizations 49   Art. 3(4) of the EPO Immunities Protocol (“official activities of the Organisation shall, for the purposes of this Protocol, be such as are strictly necessary for its administrative and technical operation, as set out in the Convention”). 50   Art. VII, s. 3 of the IBRD Articles of Agreement, Washington, DC, 27 December 1945, 2 UNTS 134 (“Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Bank shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Bank”). 51   Mendaro v The World Bank, 717 F 2d 610, 615 (DC Cir 1983) (holding that immunity from suit by employees of the organization “is now an accepted doctrine of customary international law”). 52   Ibid., 620 (holding that Art. VII, s. 3 of the Bank’s Articles of Agreement waived immunity from jurisdiction only for “actions arising out of [the Bank’s] external commercial contracts and activities”).

 

1058   privileges and immunities has been difficult to ascertain. A large number of national courts have tried to come to terms with notions like ‘functional’ and ‘restrictive’ immunity and they have reached widely diverging results.53 In practice, the prevailing concept of functional immunity often leads to a de facto absolute immunity. One of the reasons for this development certainly is the vagueness of the generally accepted concept of functional immunity. There is a tendency in some jurisdictions to interpret functional immunity as absolute immunity. Multilateral privileges and immunities treaties often provide for an unqualified, hence absolute, immunity even where the constituent instrument speaks of functional immunity.54 Courts may regard the more precise and detailed rules of the multilateral treaties as an interpretation of what ‘functional’ means in respect to jurisdictional immunity.55 Functional immunity may also lead to absolute immunity as a result of the functional personality concept of international organizations. If international organizations enjoy legal personality only to the extent required to perform their functions, they are—​in a legal sense—​unable to act beyond their functional personality. Any acts not covered by such a limited personality are ultra vires; that is, beyond the powers of the organization. This idea has been aptly captured in the phrase that ‘any activity of an international organization is either official or ultra vires’.56 If international organizations enjoy functional immunity—​covering acts in the performance of their functions—​and can only act within the scope of their functional personality, there is no room left for non-​functional acts for which immunity would be denied. This has led national courts to conclude that ‘the immunity of international organizations, within the framework of their functional restrictions, is to be regarded in principle as absolute’.57 Further, courts may rely on the traditional absolute immunity enjoyed by states in their approach to the immunity of international organizations. This is particularly pertinent where courts are relying on statutory language which accords to international organizations the same immunity as states, such as in the case of the US IOIA,58 or where they consider a parallel to sovereign immunity principles applicable as a matter of customary law. 53   For an overview of judicial practice, see Reinisch, International Organizations before National Courts; as well as the more recent contributions in August Reinisch (ed.), The Privileges and Immunities of International Organizations in Domestic Courts (Oxford: Oxford University Press, 2013). 54   This is the case for the UN and its specialized agencies. 55   The UN Office of Legal Affairs stated that the “detailed application” of the principle contained in Art. 105 of the Charter “was effected inter alia through the [General Convention]”: UN Juridical Yearbook (1983): 222. Others regard the multilateral instruments as “implementation of the brief and general provisions of the constituent instrument of the organization”:  Pieter H. Bekker, The Legal Position of Intergovernmental Organizations (Dordrecht: Martinus Nijhoff, 1994), 129 et seq. 56   Ignaz Seidl-​Hohenveldern in an unpublished report to the ILA Committee on State Immunity, quoted in the Final Report on State Immunity, ILA Buenos Aires Conference 1994, 475. 57   Firma Baumeister Ing. Richard L v O, Austrian Supreme Court, 14 December 2004, 10 Ob 53/​04 y; ILDC 362 (AT 2004), para. 12. 58   See n. 47.

 

jurisdictional immunity of ios in practice    1059 Where national courts have not concluded that international organizations should be accorded an unqualified immunity from legal process, their restrictions on the scope of immunity generally remain within modest realms. The only significant exceptions to the general reluctance of national courts to assert jurisdiction over international organizations can be found in Italian59 and US case law.60 Their courts often rely upon the iure gestionis–​iure imperii dichotomy borrowed from state immunity in order to deny jurisdictional immunity in case of non-​governmental activities, such as commercial transactions, as opposed to sovereign activities. In the case of Italy, the application of sovereign immunity principles often results from specific reservations to privileges and immunities instruments pursuant to which Italy only granted ‘restrictive’ immunity accorded to foreign states under general principles of international law.61 The legality of such a reservation has been controversial and led to a major crisis between Italy as the headquarters state of an international organization and the latter.62 It resulted from the persistent exercise of judicial jurisdiction over cases brought against a UN specialized agency, the FAO, as affirmed by the Italian Supreme Court in 1982.63 Only when Italy withdrew its reservation and its courts started to grant FAO unqualified immunity from jurisdiction64 was this crisis defused. In the case of the United States, the wording of the IOIA clearly indicates that state immunity principles should be relevant for deciding on the jurisdictional immunity of international organizations.65 US courts had difficulties with determining whether the reference to state immunity—​made at a time when absolute immunity for foreign states was the accepted principle—​was ‘frozen’ in time and thus implied absolute immunity for international organizations or was ‘dynamic’ and thus referred to the principles of state immunity at the time proceedings are brought. Since the acceptance of a restrictive immunity doctrine by the US executive branch66 and the adoption of the FSIA in 1976,67 restrictive state immunity has been firmly established in US law. This would imply that international organizations should also enjoy only

59   See Riccardo Pavoni, “Italy,” in The Privileges and Immunities of International Organizations in Domestic Courts, ed. August Reinisch (Oxford: Oxford University Press, 2013). 60  See Charles H. Brower II, “United States,” in The Privileges and Immunities of International Organizations in Domestic Courts, ed. August Reinisch (Oxford: Oxford University Press, 2013). 61   See Reinisch, International Organizations before National Courts, 186. 62   See for more details on the Italy/​FAO dispute, ibid., 131 et seq. 63   Food and Agriculture Organization of the United Nations v Istituto Nazionale di Previdenze per i Dirigenti di Aziende Industriali (INPDAI), Corte di Cassazione, 18 October 1982, Case No. 5399, UN Juridical Yearbook (1982): 234, 87 ILR 1. 64   FAO v Colagrossi, Corte di Cassazione, 18 May 1992, No. 5942, 101 ILR 386. 65   See n. 47. 66   See the so-​called Tate Letter of the US State Department of 1952, 26 Dep’t State Bull. (1952), 984; see also Alfred Dunhill of London v Republic of Cuba, 425 US 682 (1976). 67   US Foreign Sovereign Immunities Act 1976, 90 Stat 2891, 28 USCA §§ 1330 et seq; 15 ILM 1388 (1976).

 

1060   privileges and immunities restrictive immunity.68 The majority of US cases, however, managed to avoid this question by holding that even under a restrictive state immunity standard a particular action would be inadmissible against an international organization.69 Only recently a split of opinions manifested itself on the appellate level. While the DC Circuit Court held that the reference to the historic absolute state immunity standard would prevail,70 the Court of Appeals for the 3rd Circuit found that the immunity conferred by the IOIA would change with the law of foreign sovereign immunity,71 leading to a denial of immunity for a commercial transaction with a private party.

The Impact of Access to Justice Considerations on Jurisdictional Immunity The broad, usually absolute, immunity accorded to international organizations in most jurisdictions implies that potential claimants are regularly deprived of access to domestic courts in order to pursue their claims against international organizations. The scope of such potential claimants ranges from staff members to private parties harmed by peacekeeping activities, from unsuccessful bidders in international 68   Dupree Associates, Inc. v Organization of American States and the General Secretariat of the Organization of American States, US District Court DC, 31 May 1977, 22 June 1977, No. 76-​2335 (memorandum orders); 63 ILR 92. 69   Morgan v IBRD, US District Court DC, 13 September 1990, 752 F Supp 492 (DDC 1990); De Luca v United Nations Organization, Perez de Cuellar, Gomez, Duque, Annan, et al., US District Court SDNY, 10 January 1994, 841 F Supp 531 (SDNY 1994); Tuck v Pan American Health Organization, US District Court DC, 17 November 1980, No. 80-​1546 (DDC 1980); US Court of Appeals DC Cir, 13 November 1981; 668 F 2d 547 (DC Cir 1981); UN Juridical Yearbook (1981): 177. See also Reinisch, International Organizations before National Courts, 197 et seq. 70   Atkinson v Inter-​American Development Bank, 156 F 3d 1335, 1341 (DC Cir 1998) (“In light of this text [of the IOIA] and legislative history, we think that despite the lack of a clear instruction as to whether Congress meant to incorporate in the IOIA subsequent changes to the law of immunity of foreign sovereigns, Congress’ intent was to adopt that body of law only as it existed in 1945—​when immunity of foreign sovereigns was absolute”). 71   OSS Nokalva v European Space Agency, 617 F 3d 756 (3d Cir 2010) (“If Congress wanted to tether international organization immunity to the law of foreign sovereign immunity as it existed at the time the IOIA was passed, it could have used language to expressly convey this intent. For example, Congress could have simply stated that international organizations would be entitled to the ‘same immunity as of the date of this Act.’ Or, it could have just specified the substantive scope of the immunity it was conferring. Because it did neither, we interpret the IOIA in light of the Reference Canon to mean that Congress intended that the immunity conferred by the IOIA would adapt with the law of foreign sovereign immunity”).

 

the impact of access to justice considerations    1061 organizations’ tender procedures to victims of traffic accidents. With very few exceptions, national courts will usually not permit their lawsuits to proceed. As long as these potential claimants have alternative ways of legal recourse, the fact that they cannot sue before national courts may be acceptable. However, that is not always the case. While administrative tribunals exist for most international organizations, there are some international organizations that have no such mechanism for the settlement of staff disputes. Even where international organizations are subject to the jurisdiction of administrative tribunals these tribunals are regularly only competent to decide disputes between organizations and existing staff members. This implies that job applicants are normally unable to bring legal proceedings before administrative tribunals.72 Private parties that have entered into contractual relations with international organizations—​such as for the provision of goods or services—​may have been able to secure an arbitration clause pursuant to which alternative remedies are available in case of a dispute.73 But disappointed participants in tender proceedings in the course of public procurement are regularly unable to access a dispute settlement mechanism against the international organization for whose contract they may have made a bid.74 However, the entire group of ‘innocent bystanders’ affected by the delictual or tort acts of an international organization still seems to remain at the mercy of an international organization deciding whether a claims settlement mechanism is to be set up or to agree upon ad hoc arbitration. In fact, some international organizations have done so, such as the UN with regard to some claims arising from peacekeeping activities.75 But also in this context the UN may be unwilling to agree on dispute settlement ex post as was recently demonstrated in the case concerning the victims of the cholera outbreak in Haiti.76   See, e.g., two cases before the ILO Administrative Tribunal which were dismissed because job applicants were not (yet) staff members: Liaci v EPO, ILOAT Judgment No. 1964, 12 July 2000; and Klausecker v EPO, ILOAT Judgment No. 2657, 11 July 2007. 73   See Panayotis Glavinis, Les litiges relatifs aux contrats passés entre organisations internationales et personnes privées (Paris: Librairie générale de droit et de jurisprudence, 1990). 74   See, e.g., the General Assembly’s Fifth Committee’s (Administrative and Budgetary) Call for a reform of the UN procurement system, “Enhanced Transparency, Strengthened Accountability Needed, as United Nations Procurement Grows in Size, Complexity, Budget Committee Told,” 23 October 2006, http://​www.un.org/​News/​Press/​docs/​2006/​gaab3760.doc.htm; UN Procurement Practitioner’s Handbook, November 2006, http://​www.unops.org/​SiteCollectionDocuments/​Procurement%20docs/​ UN%20procurement%20practitioners%20handbook.pdf. 75   See Kirsten Schmalenbach, Die Haftung Internationaler Organisationen im Rahmen von friedenssichernden Maßnahmen und Territorialverwaltungen (Frankfurt am Main: Peter Lang, 2004). 76   In response to compensation claims raised by Haitian victims of a Cholera outbreak in 2010 which was probably caused by insufficient hygienic precautions prevailing in a UN Peacekeepers camp the UN Legal Counsel indirectly invoked the UN’s immunity by qualifying them as claims implying a “review of political and policy matters.” See Letter of Patricia O’Brien, Under-​Secretary-​General for Legal Affairs, The Legal Counsel, to Brian Concannon, Esq., IJDH, 21 February 2013 (“With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters. Accordingly, these claims are not receivable, pursuant to section 29 of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946”). 72

 

1062   privileges and immunities

Access to Justice These disappointed potential claimants against international organizations, regularly unable to take the jurisdictional hurdle of immunity, usually have a strong interest in pursuing their claims. Over the last decades, however, the policy demands of having a legal forum where claims against international organizations can be adjudicated have been supported by legal arguments about the right of access to justice as a fundamental right. In addition, one should note that a number of privileges and immunities instruments contain an express treaty obligation to make available, ‘appropriate modes of settlement of … disputes arising out of contracts or other disputes of a private law character’.77 Access to court has been a traditional part of many international human rights instruments, as well as national fundamental rights guarantees. But with regard to potential claims against international organizations it has been ‘dormant’ for a long time. To be precise, most human rights treaties do not explicitly contain a right of access to court. Instead, instruments like the Universal Declaration of Human Rights,78 the International Covenant on Civil and Political Rights,79 or the European Convention of Human Rights (ECHR),80 provide for due process or fair trial guarantees. However, in the actual application of such standards it has become clear that the right to a fair trial requires not only a trial to be fair if one is provided for under national procedural law, but also the right to have a trial in the first place.81 Human rights bodies together with national, often constitutional, courts have developed the notion that access to justice must be effective. This implies that exemptions, which include jurisdictional immunity,82 are granted only where   See, e.g., Art. VIII, s. 29(a) of the General Convention (“the United Nations shall make provisions for appropriate modes of settlement of … disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”). 78   Art. 10 of the Universal Declaration of Human Rights, GA Res. 217(III) (1948) (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”). 79   Art. 14(1) of the International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 (1976). 80   Art. 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, entered into force 3 September 1953, 213 UNTS 221. 81   Golder v United Kingdom, Application No. 4451/​70, 21 February 1975, Series A No. 18, [1975] ECHR 1, para. 36; Osman v United Kingdom, European Court of Human Rights (ECtHR), Application No. 23452/​94, 28 October 1998, [1998] ECHR 101, para. 136. 82   Some of the older case law was premised on the idea that where certain potential defendants/​ respondents enjoyed immunity, a state lacked jurisdiction and was not able to grant access to court. See, e.g., Ary Spaans v The Netherlands, ECommHR, Application No. 12516/​86, 12 December 1988 (Admissibility), 58 Decisions and Reports (1988), 119 (“The Commission notes that it is in accordance with international law that States confer immunities and privileges to international bodies like the Iran-​United States Claims Tribunal which are situated in their territory. The Commission does not consider that such a restriction of national sovereignty in order to facilitate the working of an international body gives rise to an issue under the Convention”). 77

 

the impact of access to justice considerations    1063 alternative—​equally effective—​ways of dispute settlement are readily available. This concept of the availability of an alternative forum has been inspired by the fundamental rights debate within the EC.83 It was then integrated into the immunity versus access to court debate by national courts and human rights institutions and it has nowadays become part of a widely accepted view on how international organizations should work. The leading case in this regard is Waite and Kennedy,84 in which the ECtHR reconsidered Strasbourg’s traditional approach to immunities of international organizations by no longer accepting a general carve-​out of international organizations from the jurisdiction of national courts. Instead, the Court recognized that (civil) claims against international organizations involved the right of access to court under Article 6 of the ECHR. It further held that while this right of access to justice might be limited for legitimate purposes, such as protecting the independent functioning of an international organization, such limitation was only legitimate and permissible if it also was proportionate. In the Court’s view, the proportionality of the grant of immunity depended upon the availability of ‘reasonable alternative means’.85 The possibility of legal recourse to administrative tribunals or similar institutions for staff members of an international organization, to arbitration for contractors of international organizations, or to claims commissions for victims of vehicle accidents or military measures taken by peacekeeping forces may embody such alternative remedies. The idea that individuals have a right of access to justice concerning the determination of their rights and obligations is not merely a specific European approach limited to the contracting parties of the ECHR; it is also reflected in various other   National courts like the German Constitutional Court exerted some pressure on the Community by holding that they would exercise their fundamental rights review even over Community acts “as long as” the Community did not have its own internal corresponding system of control. Internationale HandelsgesellschaftmbH v Einfuhr-​und Vorratstelle für Getreide und Futtermittel, Federal Constitutional Court, 29 May 1974, [1974] 2 CMLR 540 (Solange I). Only when the ECJ developed its fundamental rights jurisprudence in the 1970s, national courts renounced their judicial control powers “as long as” the ECJ itself provided adequate relief. In re application of Wünsche Handelsgesellschaft, Federal Constitutional Court, 22 October 1986, [1987] 3 CMLR 225 (Solange II). 84   Waite and Kennedy v Germany, Application No. 26083/​94, ECtHR, 18 February 1999, [1999] ECHR 13; Beer and Regan v Germany, Application No. 28934/​95, ECtHR, 18 February 1999, [1999] ECHR 6. The case arose from the fact that German courts granted the European Space Agency jurisdictional immunity from suit by two individuals who claimed to be employees of the organization. The claimants considered that this violated their right of access to court under Art. 6 of the ECHR. See C. Ryngaert, “The Immunity of International Organizations before Domestic Courts: Recent Trends,” International Organizations Law Review 7 (2010): 121; August Reinisch and Ulf A. Weber, “In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement,” International Organizations Law Review 1 (2004): 59. 85   Waite and Kennedy v Germany, para. 68 (“a material factor in determining whether granting … immunity from … jurisdiction is permissible is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention”). 83

 

1064   privileges and immunities international courts and tribunals86 as well as administrative tribunals of international organizations which have recognized the ‘general principle’ that employees should have access to a form of employment dispute settlement.87

The Waite and Kennedy approach in national courts National courts have also espoused the Waite and Kennedy test to the extent that today the availability of ‘reasonable alternative means’ of redress are often considered to be a requirement for the grant of jurisdictional immunity to international organizations. Already well before the Waite and Kennedy judgment, the German Constitutional Court did not only affirm that German courts lacked jurisdiction over employment disputes between the European Organization for the Safety of Air Navigation (EUROCONTROL) and its staff in Hetzel v EUROCONTROL.88 It also held that the organization’s immunity before German courts did not violate minimum requirements of the rule of law principle contained in the German Constitution because the exclusively competent Administrative Tribunal of the International Labour Organization (ILOAT) provided an adequate alternative remedy.89 Although the German Constitutional Court has adopted a rather deferential attitude towards the adequacy of alternative means such as administrative tribunals of international organizations,90 it is obvious that it insists on retaining the ultimate power of control. Comparable jurisprudential developments have taken place in France. Traditionally, French courts routinely dismissed actions directed against international organizations because they would interfere with the independent operation of such organizations.91 In 1997, however, a French appellate court actually refused

86   See Advocate General Tesauro in SAT Fluggesellschaft mbH v EUROCONTROL, Case 364/​92, ECR I [1994], 43, 48. 87   See, e.g., Rubio v Universal Postal Union, ILO Administrative Tribunal, 10 July 1997, Judgment No. 1644, para. 12. 88   Hetzel v EUROCONTROL, Federal Constitutional Court, Second Chamber, 10 November 1981, BVerfG 59, 63. See also Albert Bleckmann, Internationale Beamtenstreitigkeiten vor nationalen Gerichten (Berlin: Duncker & Humblot, 1981); Ignaz Seidl-​Hohenveldern, Die Immunität internationaler Organisationen in Dienstrechtsstreitfällen (Berlin: Duncker & Humblot, 1981). 89   Hetzel v EUROCONTROL, Federal Constitutional Court, Second Chamber, 10 November 1981, BVerfG 59, at 91 (“status and procedural principles conformed to an international minimum standard of basic procedural fairness as it results from developed legal orders following the rule of law and from the procedural law of international courts”). 90  See B.  et  al v EPO, Federal Constitutional Court, Second Chamber, 3 July 2006, 2 BvR 1458/​ 03; D. v Decision of the EPO Disciplinary Board, Federal Constitutional Court, Second Chamber, 28 November 2005, 2 BvR 1751/​03. 91   Chemidlin v Bureau international des Poids et Mesures, Tribunal Civil of Versailles, 27 July 1945, 12 Ann Dig (1943–​5), 281; International Institute of Refrigeration v Elkaim, Court of Appeal of Paris (21st

 

the impact of access to justice considerations    1065 to accord immunity to an international organization where the claimant would have been deprived of a forum hearing his claims.92 A similar reasoning was applied in Banque africaine de développement v M.A. Degboe.93 The availability of ‘reasonable’ alternative means of redress as a requirement for the grant of jurisdictional immunity to international organizations has also been crucial in Belgian court decisions. In Siedler v Western European Union,94 the Brussels Labour Court of Appeal found that the internal procedure for the settlement of staff disputes within the WEU did not offer the guarantees inherent to a fair trial. Thus, the limitation on the access to domestic courts as a result of the organization’s immunity from suit was incompatible with Article 6(1) of the ECHR. Expressly relying on the ECtHR decision in Waite and Kennedy,95 the Belgian court investigated whether the internal appeals procedure of the WEU constituted a ‘reasonable alternative means’96 to effectively protect the plaintiff ’s rights. The court found that there were no provisions for the execution of the judgments of the WEU appeals commission,97 that there was no public hearing and the publication of decisions was not guaranteed,98 that the members of the commission were appointed by the Intergovernmental Council of the WEU for a short time mandate (two years) which created an excessively close link with the organization itself and that it was not possible to challenge a particular member of the appeals commission.99 As a result, the Belgian court concluded that the WEU personnel statute did ‘not offer all the guarantees inherent in the notion of due process’ and that thus ‘the limitation on the access to the normal courts by virtue of the jurisdictional immunity of the WEU [was] incompatible with Article 6(1) ECHR’.100 The Siedler case which was upheld by the Belgian Supreme Court101 is remarkable because it demonstrates that national courts may be willing to abandon functional immunity considerations when they consider the requirement of an adequate alternative means of dispute settlement not available. This consideration was equally present in the Energies nouvelles et environnement v Agence Chamber), 7 February 1984, 77 ILR (1988), 498–​506; Cour de Cassation, 1. ch. civ., 8 November 1988, 35 AFDI (1989), 875.   UNESCO v Boulois, Tribunal de grande instance de Paris, 20 October 1997, Rev. Arb. (1997) 575; Cour d’Appel Paris (14e Ch. A), 19 June 1998, Yearbook Commercial Arbitration XXIV (1999): 294, 295 (“UNESCO’s immunity would inevitably lead to preventing [claimant] from bringing his case to a court. This situation would be contrary to public policy as it constitutes a denial of justice and a violation of the provisions of Article 6(1) of the [ECHR]”). 93   Banque africaine de développement v M.A. Degboe, Cour de Cassation, Chambre sociale, 25 January 2005, 04-​41012, 132 Journal du droit international (2005) 1142. 94   Siedler v Western European Union, Brussels Labour Court of Appeal (4th Chamber), 17 September 2003, Journal des Tribunaux 2004, 617, ILDC 53 (BE 2003). 95   Waite and Kennedy v Germany.   96  Ibid., para. 68. 97   Siedler v Western European Union, para. 59. 98   Ibid., para. 60.    99  Ibid., para. 61.    100  Ibid., paras. 62 et seq. 101   Western European Union v Siedler, Appeal judgment, 21 December 2009, ILDC 1625 (BE 2009). 92

 

1066   privileges and immunities spatiale européenne case102 where a Brussels court upheld ESA’s immunity from suit because in the specific case the claimant had one or more ‘reasonable’ alternative means.103 In its judgment, the court also explicitly relied upon the case law of the ECtHR and found that the possibility of diplomatic representations by the Belgian representative to ESA or even the seizure of the organization’s ombudsman, while not strictly speaking a form of judicial or administrative redress, would constitute ‘reasonable alternative means’ in the sense of the ECtHR’s jurisprudence.104 Finally, Belgian courts extended the Waite and Kennedy rational demanding ‘reasonable’ alternative means to enforcement measures in Lutchmaya.105 Since the international organization had not made available any dispute settlement mechanism to execute a compensation judgment the claimant’s right of access to a court was restricted to such an extent that the very substance of this right would be affected. Similar decisions are found in Italy where courts have upheld the immunity of international organizations in employment disputes as long as they have set up effective alternative dispute settlement procedures. Thus the judgments in European University Institute v Piette,106 Pistelli v European University Institute,107 and Drago v International Plant Genetic Resources Institute108 have basically endorsed the result of the Waite and Kennedy jurisprudence. Also Swiss courts have adopted a similar reasoning. Already before the Waite and Kennedy case, the Swiss Federal Supreme Court held in ZM v Arab League109 that the Arab League enjoyed absolute immunity in Switzerland only as long as a procedure for the settlement of disputes with private parties existed. Finally, in Consortium X. v Swiss Federal Government (Conseil federal)110 the Swiss Supreme Court upheld the immunity of an international organization only after first satisfying itself that the alternative remedies provided for were sufficient from a human rights perspective. However, it may be premature to predict whether national courts will generally follow the Waite and Kennedy approach.111 In fact, a number of courts seem 102   Energies nouvelles et environnement v Agence spatiale européenne, Civ Bruxelles (4th Chamber), 1 December 2005, Journal des tribunaux (2006), 171. 103 104   Journal des tribunaux (2006), 171, 173.  Ibid. 105   Lutchmaya v General Secretariat of the ACP Group, Appeal decision, 4 March 2003, Journal des Tribunaux (2003), 684; ILDC 1363 (BE 2003); General Secretariat of the ACP Group v Lutchmaya, Final appeal judgment, 21 December 2009, ILDC 1573 (BE 2009). 106   European University Institute v Piette (2000) RDIPP 472 (Court of Cassation, 18 March 1999, No. 149). 107   Paola Pistelli v European University Institute, ILDC 297 (IT 2005). 108   Drago v International Plant Genetic Resources Institute (2007) Giustizia civile Massimario 2, ILDC 827 (IT 2007). 109   ZM v Arab League, Swiss Federal Supreme Court, 4 C.518/​1996, unpublished judgment of 25 January 1999, partly published in Revue suisse de droit international et européen 10 (2000): 627, 642. 110   Consortium X. v Swiss Federal Government (Conseil federal), Swiss Federal Supreme Court, 1st Civil Law Chamber, 2 July 2004, partly published as ATF 130 I 312, ILDC 344 (CH 2004). 111  See Cedric Ryngaert, “The Immunity of International Organizations before Domestic Courts: Recent Trends,” International Organizations Law Review 7 (2010): 121; August Reinisch and Ulf A. Weber, “In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International

 

the impact of access to justice considerations    1067 to have rejected it and continue to grant immunity to international organizations irrespective of whether alternative mechanisms of dispute settlement exist or not. A case on point is the UK judgment in Entico Corp Ltd v UNESCO.112 In that case the High Court rejected the argument that the right to a fair trial under Article 6 of the ECHR ‘conditioned’ UNESCO’s immunity. Rather, it found that the Waite and Kennedy reasoning was inapplicable because the applicable immunity instrument, the 1947 Specialized Agencies Convention,113 was adopted long before the ECHR entered into force for a minority of the Convention’s contracting parties. As a result it upheld the defendant organization’s immunity. Also the Dutch Supreme Court in the well-​known Srebrenica case114 gave only short shrift to the Waite and Kennedy approach. The case was a tort action brought by relatives of the victims of a genocidal massacre committed during the war in Bosnia–​ Herzegovina. The UN as co-​defendant invoked its immunity from legal process under the UN Charter and the 1945 General Convention.115 In rejecting the Waite and Kennedy argument, the Dutch Supreme Court reasoned that the ECtHR had not considered the relationship between Article 6 of the ECHR and Article 103 of the UN Charter. It thus found that there was no reason to assume that the ECtHR had meant to include the UN when it had held that the availability of ‘reasonable alternative means to protect effectively their rights under the Convention’ was ‘a material factor’ in determining whether the grant of immunity to an international organization was permissible under the ECHR. This was particularly implausible in the Dutch Supreme Court’s view as regards acts of the UN under Chapter VII of the UN Charter. In the ECtHR’s recent judgment in the Srebrenica case, in Stichting Mothers of Srebrenica v The Netherlands,116 the Strasbourg court upheld this Dutch immunity decision and found no violation of the right of access to court as a result of respecting the UN’s immunity from suit. According to the ECtHR, it would not follow ‘that in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court’.117 The Court expressly relied on the ICJ’s Jurisdictional Immunities case118 with regard to sovereign immunity and Organizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement,” International Organizations Law Review 1 (2004): 59; August Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” Chinese Journal of International Law 7 (2008): 285.   Entico Corporation Ltd v United Nations Educational, Scientific and Cultural Association (UNESCO) [2008] EWHC 531 (Comm) (18 March 2008). 113   Specialized Agencies Convention. 114   Mothers of Srebrenica v Netherlands and United Nations, Final appeal judgment, 12 April 2012, LJN: BW1999; ILDC 1760 (NL 2012). 115   General Convention. 116   Stichting Mothers of Srebrenica v The Netherlands, Application No. 65542/​12, ECtHR, 11 June 2013. 117   Ibid., para. 164. 118   Jurisdictional Immunities of the State (Germany v Italy:  Greece intervening), ICJ Judgment, 3 February 2012. 112

 

1068   privileges and immunities continued to say that neither could Waite and Kennedy be interpreted ‘in such absolute terms’.119 In spite of such apparent set-​backs to the Waite and Kennedy approach recently, it appears that many national courts, in particular in Europe, have ‘internalized’ the demands of effective alternative remedies to be available against international organizations to such an extent that they may be willing to curtail their immunity from suit in future cases.

Conclusion The privileges and immunities of international organizations mainly serve the purpose of enabling them to function independently from any outside interference. The exemption from the jurisdiction of national courts also serves this central purpose. A closer examination of the applicable standards of immunity from suit has demonstrated, however, that immunity is not always accorded as an ‘absolute’ one, but often as a ‘functional’ or ‘restrictive’ one. Recent judicial developments have shown that the actual granting of immunity from suit to international organizations in specific cases is increasingly made dependent upon the availability of reasonable alternative dispute settlement mechanisms to individual claimants insisting on their fundamental right of access to justice.

  Stichting Mothers of Srebrenica v The Netherlands, Application No. 65542/​12, ECtHR, 11 June 2013, para. 164. 119

 

Chapter 50

THE LAW OF  THE INTERNATIONAL CIVIL SERVICE Santiago Villalpando

Every international organization faces the problem of identifying the rules that shall govern the status and conditions of service of its employees and of establishing mechanisms to settle disputes arising in the framework of the employment relationship. Earlier international organizations relied on the work of national civil servants (generally, those of the host country, with the financial assistance of other member states), who were seconded to the administration of an international bureau or office, but remained subject to the laws and jurisdiction of their own home country. This practice was adopted by international organizations emerging in the nineteenth century, and has occasionally been followed in more recent times.1 With the evolution and later multiplication of international organizations, however, a truly international civil service has arisen, subject to the constituent act of the organization The views expressed in the present contribution are solely those of the author and do not necessarily reflect those of the United Nations. I would like to thank Mr. Aleksandr Shapovalov for his insightful comments on the manuscript (any mistakes being solely my own). 1  M. B. Akehurst, The Law Governing Employment in International Organizations (Cambridge: Cambridge University Press, 1967), 3.

 

1070    the law of the international civil service and its own rules and regulations. This phenomenon saw its first manifestation in the International Institute of Agriculture (1905), whose personnel was granted special status by the host Italian government,2 but found its real consolidation with the secretariats of the League of Nations and the International Labour Organization, and later the United Nations (UN). Since then, all major international organizations have opted for the model of an international civil service. The law of the international civil service is therefore an essential feature of the contemporary phenomenon of international organizations. It raises, however, complex theoretical and practical issues that have been discussed for decades but are yet to be fully resolved, including with regard to its relationship with the international legal order, the legal nature of the relations it regulates and whether it can be construed as a single integrated field of law. The general principle in this area is that the relationship between the international organization and its staff is not governed by any kind of municipal law, but rather falls under the purview of a set of rules established by the organization itself. As mentioned, this idea was not followed at the outset of the phenomenon of international organizations and took some time to take hold,3 but it is generally recognized by international administrative tribunals. The adoption of autonomous rules applicable to the employment relationship is considered to be both an important practical tool to ensure the efficient functioning of the international administration and an essential safeguard of the independence of the international civil service. These rules ensure that all employees—​whatever their nationality, their place of recruitment, or their duty station—​be subject to comparable conditions of service and offered the same legal guarantees. They establish rights and obligations that are incumbent upon international officials in the exercise of their functions, and provide for mechanisms to impose disciplinary sanctions or settle disputes, when the relevant circumstances arise. These rules serve both an internal purpose (ensuring the smooth relationship between the public administration and a wide variety of employees) and an external one (protecting officials from undue national pressures which could affect their impartiality). The law of the international civil service, in other words, is instrumental to the goal of ensuring that the international organization carries out its objectives in accordance with the principles commonly agreed by its member states.4 The law of the international civil service is a vast field, the study of which would require detailed consideration of the different sets of rules adopted by each 2  C. Vitta, “La Coopération internationale en matière d’agriculture,” Hague Academy Collected Courses 56 (1936): 301–​405, 330. 3   In his manual on the law of the UN, for example, Hans Kelsen considered that the employment relationship in the UN was governed by the municipal law of the host state: Hans Kelsen, The Law of the United Nations (New York: Praeger, 1950), 318. 4   See, e.g., Akehurst, The Law Governing Employment in International Organizations, 5–​10; C. F. Amerasinghe, The Law of the International Civil Service (as Applied by International Administrative Tribunals) (Oxford: Clarendon Press, 1994), vol. 1, 6–​9.

 

the nature of the law    1071 international organization and the case law of international administrative tribunals. In the present study, the focus will be placed, first, on the existential issue of the nature of this field of law, and, second, on the identification of its sources of law.

The Nature of the Law of  the International Civil Service Together with other rules relating to its functioning (such as those concerning the establishment of an institutional structure, the internal rules of procedure of the various organs, the adoption of the budget, etc.), the law of the international civil service forms part of the internal law of an international organization. In its first decision, the League of Nations administrative tribunal stated that it was “bound to apply the internal law of the League of Nations” to settle the dispute before it.5 The precise nature of this law remains, however, a matter of theoretical debate.

The Relationship of the Law of the International Civil Service with International Law Several models of the relationship between the law of the international civil service and the international legal order have been proposed.6 On the one hand, the legal validity of the rules that govern international civil service appears to be based on the international legal order. These rules are part of the “derivative” law of the international organization, flowing from the latter’s constituent act, which is (usually) an international agreement, namely a source of international law. It is only because states have agreed to the constituent act and the rules that derive from it that such rules are to be applied to the employment 5   League of Nations Tribunal, Di Palma Castiglione, Judgment No. 1, 1929, 3 (quoted by Amerasinghe, The Law of the International Civil Service, vol. 1, 10). See also, e.g., Administrative Tribunal of the International Labour Organization (ILOAT), Waghorn, Judgment No. 28, July 12, 1957 (“the complainant wrongly alleges that English law is applicable as his national law … the Tribunal is bound exclusively by the internal law of the Organisation”); World Bank Administrative Tribunal (WBAT), de Merode et al., Decision No. 1, June 5, 1981, para. 27 (“The Tribunal, which is an international tribunal, considers that its task is to decide internal disputes between the Bank and its staff within the organized legal system of the World Bank and that it must apply the internal law of the Bank as the law governing the conditions of employment”). 6  For a classical discussion of this issue, see Akehurst, The Law Governing Employment in International Organizations, 249–​63.

 

1072    the law of the international civil service relationship.7 Furthermore, the written sources of the law of the international civil service are far from covering all possible areas of regulation, and require some reference to general principles that need to be found in a surrounding legal order: since this cannot be municipal law (which would defeat the purpose of having an autonomous law of the international civil service), the only alternative candidate appears to be international law. On the other hand, the law of the international civil service has some features that are alien to international law. Indeed, the relationships governed by international civil service law never involve (at least directly) states themselves, which remain the major actors of the law of nations. They are further characterized by the subjection of one of the parties (the employee) to the authority of the other (the administration), an unusual trait in the international legal system. Even if one may not deny today the role that both international organizations and individuals play as international actors, the problem remains that many international sources (e.g., international agreements, custom) are often inadequate to settle the disputes at stake in this area. In addition, contrary to international law in general, the law of the international civil service is characterized by a rigid hierarchy of sources and usually incorporates compulsory mechanisms of implementation. To circumvent this conundrum, some have advanced the theory that the internal law of international organizations should be considered an autonomous legal order in between international and municipal law.8 This argument, however, also faces difficulties, such as that of identifying an autonomous legal foundation for this law and sources to be referred to when the written rules fail to regulate some aspects of the employment relationship. International administrative tribunals have generally avoided entering into such theoretical enquiries. To settle the disputes before them, however, they have often referred to international agreements, international customary law, general principles of law, and even the case law of international tribunals (such as the International Court of Justice (ICJ)), thus confirming that international law remains present, at least as the backdrop of the law of the international civil service.

The Nature of the International Civil Service Relationship The precise nature of the international civil service relationship is also a matter of debate.

7   See, e.g., S. Bastid, “Les Tribunaux administratifs internationaux et leur jurisprudence,” Collected Courses of the Hague Academy of International Law 92 (1957): 343–​517, 471. 8   See, e.g., P. Reuter, “Organisations internationales et évolution du droit,” in L’évolution du droit public: études offertes à Achille Mestre (Paris: Sirey, 1956), 457.

 

the nature of the law    1073 One of the particularities of this law is that it becomes applicable among the parties upon the establishment of a service relationship between the individual and the organization. This, however, raises a problem, since municipal systems have different conceptions of how their own national civil service relationship is to be construed. In some countries (e.g., the United Kingdom and the Commonwealth) this relationship is based on a contract of employment, while in some others (e.g., in Continental Europe) it has traditionally been established by an act of public authority attributing a certain status to the individual, to which the application of a number of publicly sanctioned rules and regulations is attached.9 The practice of international organizations, in this regard, varies and has sometimes evolved, thus not providing clear guidance. Thus, while the 1946 provisional staff rules of the UN unambiguously stated that “[t]‌he letter of appointment and the letter of acceptance constitute the contract of employment,”10 the current UN staff rules omit any reference to the acceptance or contract, simply regulating the letter of appointment, which is to be issued to every staff member and shall contain “expressly or by reference all the terms and conditions of employment.”11 A similar practice is followed by other international organizations. In a 1954 advisory opinion, the ICJ expressed the view that the relationship between the staff member and the UN was based on a “contract of service.”12 International administrative tribunals have held the same opinion, and consistently refer to such contractual relationship in their case law. Thus, for example, the UN Administrative Tribunal (UNAdT) held that “[t]‌he legal status of staff members of the United Nations is defined by a contract entered into by the person concerned and the authority empowered to act on behalf of the Organization.”13 The World Bank Administrative Tribunal (WBAT) considered that “[e]mployment by the Bank … results from an offer followed by an acceptance, that is to say, a contract.”14 It follows that the law of the international civil service is interpreted and applied within the conceptual framework of contractual employment relations. However, international administrative tribunals have also pointed out that the contracts by which  Akehurst, The Law Governing Employment in International Organizations, 30.   Staff Rule 2 of the provisional Staff Rules of the United Nations of March 9, 1946. 11   See Staff Rule 4.1 (Staff Rules and Staff Regulations of the United Nations, ST/​SGB/​2014/​1*, January 1, 2014), which also specifies that all contractual entitlements of staff members are strictly limited to those contained expressly or by reference in their letters of appointment. 12   Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion of July 13, 1954, ICJ Reports 1954, 47, 53. 13   UN Administrative Tribunal (UNAdT), Mortished, Judgment No. 273, May 15, 1981, para. II. The Tribunal also noted that the “summary provisions contained in the letter of appointment are supplemented by documents of general application,” which—​by being referred to in the letter—​“are made an integral part of the contract.” When subsequently amended by the organization, these documents of general application (such as the staff rules and regulations) become an integral part of the contract upon their entry into force, which is notified to the staff member through their publication. 14  WBAT, de Merode et al., Decision No. 1, June 5, 1981, para. 17. 9

10

 

1074    the law of the international civil service the organization employs staff members “are not regular contracts,” since they are for the most part governed by staff regulations and rules, as well as administrative instructions.15 As explained by the Administrative Tribunal of the International Labour Organization (ILOAT) as early as in 1962, the terms of appointment of international civil servants “derive both from the stipulations of a strictly individual character in their contract of appointment and from Staff Regulations and Rules, which the contract of employment by reference incorporates.” They mix, therefore, some provisions of a statutory character, which may be modified at any time in the interest of the service, and other provisions which may be assimilated to contractual stipulations.16 This discussion is illustrative of a third question relating to the law of the international civil service, namely that of its unity.

The Question of the Unity of the Law of  the International Civil Service As it transpires from the case law of international administrative tribunals, the law applicable to an international civil servant depends on the constituent act, staff regulations and rules, and administrative issuances of the international organization to which he or she belongs. And all these may greatly vary from one organization to the other, not only in terms of the specificity of the relevant provisions, but also with regard to the concrete rights and obligations of staff members. For example, for the purpose of identifying the benefits linked to employment, international organizations may adopt different provisions with respect to the nationality that is considered relevant for the purposes of the organization, the recognition of benefits to partners outside marriage, the duties of staff members with regard to outside political activities, the rights relating to staff unions and representation, etc. This diversity may also affect the procedural and substantive remedies available to the staff member in case of nonobservance of the terms of appointment. Beyond this diversity, however, there are certain common features. Indeed, international organizations face the same categories of issues relating to employment and will tend to adopt solutions that are coherent with the general trend regarding the status of the international civil service in terms of selection and appointment, types of contract, salaries and benefits, promotions, termination, disciplinary measures, right of association, etc. This tendency is supported by certain institutional mechanisms. While there remain differences in the specific provisions of each institution, the UN   See UN Appeals Tribunal (UNAT), Castelli, Judgment No. 2010-​UNAT-​037, July 1, 2010, para. 23.  ILOAT, Lindsey, Judgment No. 61, September 4, 1962, para. 12.

15

16

 

the nature of the law    1075 Common System ensures homogenous conditions of service not only for the UN Secretariat, the funds and programs, and the specialized agencies, but also for other organizations that enter into an agreement with the Organization for that purpose.17 In 1974, the UN General Assembly (UNGA) established the International Civil Service Commission for the regulation and coordination of the conditions of service of the UN Common System. This Commission, which comprises fifteen members appointed in their personal capacity, aims at “the development of a single unified international civil service through the application of common personnel standards, methods and arrangements.” It makes recommendations to the General Assembly on broad principles for the determination of the conditions of service of the staff, the scales of salaries and post adjustments, allowances and benefits, and staff assessment, and is active in a wide variety of other human resources matters, such as standards of recruitment and career development.18 In addition, in the UN system there is the Chief Executives Board for Coordination, which, among other things, comprises a human resources network, bringing together directors of human resources departments from over thirty UN and related organizations to provide strategic advice and leadership in the management of human resources.19 Other entities in the system also contribute to the harmonization of conditions of service among different international organizations. This is the case, for example, of the UN Joint Staff Pension Fund, which serves twenty-​three organizations (including not only specialized agencies, but also other organizations),20 with respect to retirement benefits. International administrative tribunals have also proven to be a significant unifying source for the law of the international civil service. The ILOAT, in particular, whose jurisdiction is recognized by numerous organizations, has settled disputes with reference to the relevant rules applicable in the context of each organization, but has also maintained a coherent jurisprudence on general topics, such as appointments, selection, and interpretation of benefits. It appears therefore to be justified to consider the law of the international civil service from a coordinated and comprehensive perspective, searching for the

  Thus, e.g., under Art. 8 of the Agreement between the International Criminal Court and the United Nations of October 4, 2004, the two organizations “agree to consult and cooperate as far as practicable regarding personnel standards, methods and arrangements,” including on conditions of service, the duration of appointments, classification, salary scale and allowances, retirement and pension rights, and staff regulations and rules. See also, e.g., Art. X of the Agreement concerning the Relationship between the United Nations and the Organisation for the Prohibition of Chemical Weapons of October 17, 2000. 18   See the Statute of the International Civil Service Commission, as approved by UNGA Res. 3357 (XXIX) of December 18, 1974, http://​icsc.un.org/​resources/​pdfs/​general/​statute1.pdf. 19   See the official website of the UN System Chief Executives Board for Coordination at:  http://​ unsceb.org. 20   For a complete list, see http://​www.unjspf.org/​UNJSPF_​Web/​page.jsp?role=info&page=Membe rs&lang=eng. 17

 

1076    the law of the international civil service common trends in the status of international civil servants and having recourse, when necessary, to a comparative perspective to settle debated issues.

The Sources of the Law of  the International Civil Service The sources of the law of the international civil service are relatively well settled. They include: the constituent act of the organization; staff regulations and rules, as well as other relevant resolutions of the governing body; and administrative issuances (including bulletins, instructions, and circulars). These sources are usually considered to be organized in a clear hierarchy, which renders the law of the international civil service very similar to municipal legal systems.21 In addition, both the legal literature and international administrative tribunals have referred to other possible sources of law applicable to the international civil service.

The Constituent Act (and Other International Treaties Relating to the Organization) The constituent act of the international organization is the natural legal foundation of the rules relating to the international civil service and stands at the top of the hierarchy of sources of the internal law for a particular organization. Constituent acts generally contain provisions relating to the institution of a secretariat, and may make explicit reference to its staff. On occasion, they further include some general provisions regarding the appointment, rights, and duties of international civil servants. Thus, for example, the UN Charter expressly provides that “[i]‌n the performance of their duties the Secretary-​General and the staff shall not seek or   See, e.g., the case law of the UN Dispute Tribunal (UNDT): Hastings, Judgment No. UNDT/​2009/​ 030, October 7, 2009, para. 18 (“To establish the meaning and intention of a UN provision the relevant context is the hierarchy of the UN’s internal legislation. This is headed by the Charter of the UN followed by resolutions of the General Assembly, staff regulations and rules, Secretary-​General bulletins and then administrative instructions”); Villamoran, Judgment No. UNDT/​2011/​126, July 12, 2011, para. 29 (“At the top of the hierarchy of the Organization’s internal legislation is the Charter of the United Nations, followed by resolutions of the General Assembly, staff regulations, staff rules, Secretary-​General’s bulletins, and administrative instructions … Information circulars, office guidelines, manuals, and memoranda are at the very bottom of this hierarchy and lack the legal authority vested in properly promulgated administrative issuances”). 21

 

the sources of the law    1077 receive instructions from any government or from any other authority external to the Organization,” and “shall refrain from any action which might reflect on their position as international officials responsible only to the Organization” (Art. 100). The Charter further states that: [t]‌he paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible. [Art. 101.]

Similar provisions are included in the constituent acts of specialized agencies,22 as well as other international organizations.23 The constituent act has also been considered as the legal basis for the establishment of mechanisms for the settlement of employment disputes. Thus, for example, despite the silence of the Charter on the matter, the ICJ has found that “the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity.”24 For the Court, therefore, “[c]‌apacity to do this arises by necessary intendment out of the Charter” and, on the basis of Articles 7, 22, and 101, this capacity “may be exercised by the General Assembly.”25 In the context of the European Union (EU), Article 270 of the Treaty on the Functioning of the European Union explicitly provides that the Court of Justice has “jurisdiction in any dispute between the Union and its servants within the limits and under the conditions laid down in the Staff Regulations of Officials and the Conditions of Employment of other servants of the Union.” This provision constituted the basis for the exercise of jurisdiction by the Court itself and, later, by a specialized administrative tribunal. International administrative tribunals have consistently referred to the constituent acts as a source of the law of the international civil service. Already in its fourth judgment, in 1951, the UNAdT made explicit use of the provisions of the Charter to determine the role of internal justice mechanisms and limits to the power of the Secretary-​General to terminate employment contracts.26 In its constant jurisprudence, it took the view that “the integral law of the United Nations” consists “of the  See, e.g., the International Labour Organization (ILO) Constitution (Art. 9(4)), the United Nations Educational, Scientific and Cultural Organization (UNESCO) Constitution (Art. VI(4) and (5)), the World Health Organization (WHO) Constitution (Arts. 35 and 37), the Food and Agriculture Organization (FAO) Constitution (Arts. VIII(2) and (3)), and the World Intellectual Property Organization (WIPO) Convention (Art. 9(7) and (8)). 23   e.g., the Agreement Establishing the World Trade Organization (Art. VI(4)); the Rome Statute of the International Criminal Court (Art. 44(2)); the Charter of the Organization of American States (Arts. 118 and 120); the Charter of the Association of Southeast Asian Nations (Art. 12(8)). 24 25   ICJ Reports 1954, 57.   Ibid., 58. 26  UNAdT, Howrani, Judgment No. 4, August 25, 1951. 22

 

1078    the law of the international civil service Charter, Regulations adopted by the General Assembly, Staff Rules promulgated by the Secretary-​General, and the Statute and Rules of the Administrative Tribunal,”27 a position that continues to be held, in the current system, by the UN Dispute and Appeals Tribunals.28 Other classical examples are the Duberg case from the ILOAT (which applied the UNESCO Constitution to identify the duties of the DirectorGeneral vis-​à-​vis the applicant)29 and the Aicher case from the Appeals Board of the Organisation for Economic Co-​operation and Development (OECD) (which directly relied on the OECD Convention to determine the staff regulations applicable to the case).30 Similarly, in its first decision, the WBAT explained that the conditions of employment between the Bank and its staff members were to be found, as in other international organizations, in the constituent instrument of the organization (in this case, the Articles of Agreement) and its staff rules and regulations.31 Usually, however, the provisions of the constituent act are too general to provide simple and concrete solutions to the disputes submitted to the tribunals, and for this reason recourse is normally made to the other sources of the law of the international civil service. Other international treaties may be relevant for the determination of the status of international civil servants, and have occasionally been referred to by international administrative tribunals. These include the conventions on the privileges and immunities of the UN and specialized agencies, the agreement between the international organization and its host country, or other agreements between the organization and member states (for example, for the organization of conferences or the establishment of offices). Such treaties do not belong, properly speaking, to the internal law of the organization, but are relevant to the law of the international civil service insofar as they may directly affect the status of staff members.

Staff Regulations and Rules Beyond the constituent act, international organizations establish a set of general rules applicable to their employment relationship with staff members. Such rules are usually implemented through the adoption of so-​called “staff regulations” and

  See, for the first time: UNAdT, Aglion, Judgment No. 56, December 14, 1954, para. 14.   See, e.g., UNDT, Hastings, paras. 18–​19; Villamoran, para. 29. For references to the Charter in the case law of the UNAT, see Sandiwi, Judgment No. 2010-​UNAT-​084, October 27, 2010, para. 47; Megerditchian, Judgment No. 2010-​UNAT-​088, October 27, 2010, para. 14; Ljungdell, Judgment No. 2012-​UNAT-​265, November 1, 2012, para. 30; Valimaki-​Erk, Judgment No. 2012-​UNAT-​276, November 1, 2012, paras. 42–​4. 29  ILOAT, Duberg, Judgment No. 17, April 26, 1955, para. E. 30   Quoted by Akehurst, The Law Governing Employment in International Organizations, 63–​4. 31  WBAT, de Merode et al., para. 18. 27

28

 

the sources of the law    1079 “staff rules,” which form together a sort of legislation of the status of international civil servants in the relevant organization. The constituent acts of contemporary international organizations usually contain a provision regarding the establishment of “regulations” applicable to the staff members. While the Covenant of the League of Nations did not include any provision in this regard, the practice soon emerged of establishing such regulations to govern the status of international officials: these were initially drawn up by the Secretary-​ General of the League, but were later submitted to the Assembly which, in relation to its responsibility with regard to the adoption of the budget of the organization, started to exercise a more direct supervision over the Secretariat.32 This practice was later crystallized at the UN in Article 101 of the Charter, which provides that “[t]‌he staff shall be appointed by the Secretary-​General under regulations established by the General Assembly.” Today, in most international organizations, this function is also entrusted to the most representative intergovernmental body, which therefore exercises control on the conditions of service of staff members.33 In the EU, the adoption of the Staff Regulations of Officials of the European Union and the Conditions of Employment of other servants of the Union is jointly assigned to the European Parliament and the Council.34 Staff regulations are usually succinct and of a general character, thus identifying a limited set of principles that shall regulate the conduct of staff members and their relationship with the organization. The Staff Regulations of the UN provide a good illustration of this.35 As explained in their Preamble, the Staff Regulations “embody the fundamental conditions of service and the basic rights, duties and obligations of the United Nations Secretariat,” representing “the broad principles of human resources policy for the staffing and administration of the Secretariat.” They comprise twelve articles, which cover the topics of duties, obligations and privileges, classification of posts and staff, salaries and related allowances, appointment and promotion, annual and special leave, social security, travel and removal expenses, staff relations, separation from service, disciplinary measures, and appeals. They are accompanied by annexes on salary scales, letters of appointment, termination indemnity, and repatriation grants.   See Akehurst, The Law Governing Employment in International Organizations, 39.   e.g.:  the Governing Body of ILO (Art. 9(1) of the ILO Constitution); the General Conference of UNESCO (Art. VI(4) of the UNESCO Constitution); the Health Assembly of the WHO (Art. 36 of the WHO Constitution); the Conference of FAO (Art. VIII(1) of the FAO Constitution); the Coordination Committee of WIPO (Art. 9(7) of the WIPO Convention); the Ministerial Conference of the WTO (Art. VI(3) of the Agreement Establishing the WTO); the Assembly of States Parties of the International Criminal Court (Art. 44(3) of the Rome Statute); the Council of the Arab League (Art. XII of the Charter of the Arab League); etc. 34   Art. 336 of the Treaty on the Functioning of the European Union. 35   The first set of such regulations was established by UNGA Res. 590(VI) of February 2, 1952, but Staff Regulations have been amended periodically. The latest version of the UN Staff Regulations is contained in ST/​SGB/​2014/​2 (January 1, 2014). 32 33

 

1080    the law of the international civil service Staff regulations, however, are often considered too broad to govern the details of employment relations in an international organization and, for this reason, are usually supplemented by “staff rules.” These are the most immediate reference to determine the status of international civil servants in the organizations. In general terms, they follow the structure of the staff regulations, but contain a more specific regulation of the matters involved. The preparation of such rules is usually delegated to the chief administrative officer of the organization, but they are to be submitted for approval by the body that has drawn the staff regulations. At the UN, for example, the Secretary-​General may make staff rules and amendments to implement the Regulations, but needs to report them annually to the General Assembly.36 Usually, the letter of appointment of a staff member explicitly states that the appointment is subject to the provisions of staff regulations and staff rules applicable to the relevant category of appointment and to changes which may be duly made in such regulations and rules from time to time. Staff members shall also receive a copy of those staff regulations and rules, at the time of appointment, which therefore regulate their relationship with the organization. This is the reason why the statutes of international administrative tribunals often make reference to the breach of regulations and rules as a case of nonobservance of the terms of appointment or contract of employment, and why many cases heard by these tribunals revolve around the interpretation and application of such regulations and rules.

Administrative Issuances The governance of employment relations in an international organization requires a further degree of specificity. Therefore, staff regulations and rules are supplemented by a series of other administrative issuances adopted by the administration. Administrative issuances may take different forms, but are ultimately attributable to the chief administrative officer, and form an integral part of the internal legal system of the organization, albeit at the lowest level. These include formal instruments that are issued directly by the chief administrative officer of the organization, such as bulletins and administrative instructions. At the UN, the publication and promulgation of such issuances is strictly regulated. Thus, the issuance of Secretary-​General’s bulletins is required for certain   See Reg. 12.2, which also foresees that the Staff Rules may be applied provisionally, pending the submission to the UNGA. The UNGA may direct that a rule or amendment inconsistent with the intent and purpose of the Regulations be withdrawn or modified, subject to which the staff rules will enter into full force and effect on January 1 following the year in which the report was made (see Reg. 12.3 and 12.4). The latest version of the UN Staff Rules is contained in ST/SGB/2014/1 (January 1, 2014). 36

 

the sources of the law    1081 specific matters.37 These bulletins normally need to be approved and signed by the Secretary-​General, and shall be issued in the working languages of the Secretariat (with the exception of those concerning the organization of the Secretariat and the Staff Regulations and Rules, which shall be issued in all official languages).38 Administrative instructions, on the other hand, prescribe instructions and procedures for the implementation of the Financial Regulations and Rules, the Staff Regulations and Rules, or the Secretary-​General’s bulletins, and are promulgated by the Under-​Secretary-​General for Management or other officials with delegated authority.39 In its case law, the UN Dispute Tribunal has underlined the importance of these formal requirements. Noting that these are dictated by the fact that such administrative issuances “regulate matters of general application and directly concern the rights and obligations of staff and the Organization,” it has refused to apply a memorandum from the Office of Human Resources Management concerning a matter of general application, which was issued without following the required procedures and proper publication.40 In addition to these formal administrative issuances, which are regulatory in nature and therefore follow a clear procedure of promulgation and publication, administrations also use a myriad of other instruments that implement the human resources policies of the international organization, such as information circulars, policy guidelines, memoranda, and manuals. These instruments must remain in conformity with the administrative rules of the organization (regulations, rules, bulletins, instructions, etc.), but are often relied on by the human resources offices in their work. As such, they are very often invoked by international administrative tribunals as evidence of the practice of the international organization in matters relating to the international civil service.

Other Sources In addition to the instruments described above, international administrative tribunals regularly have recourse to other sources in their settlement of disputes relating to the employment relationship between an international organization and its staff. In the legal literature, therefore, reference has been made, as possible additional

  Specifically, the promulgation of rules for the implementation of regulations, resolutions and decisions adopted by the General Assembly; the promulgation of regulations and rules for the implementation of resolutions and decisions adopted by the Security Council; the organization of the Secretariat; and the establishment of specially funded programs (see ST/​SGB/​2009/​4 (December 18, 2009), section 3.1). Bulletins may also be promulgated in connection with any other important decision of policy, as decided by the Secretary-​General (section 3.2). 38 39   Ibid., sections 3.3 and 3.6.   Ibid., section 4. 40  UNDT, Villamoran, paras. 30–​8. 37

 

1082    the law of the international civil service sources of the law of the international civil service, to the general principles of law, equity, judicial precedents, the administrative practice of the organization or of other organizations, customary international law, and international treaties. Among these other sources, the one that poses the greatest challenges, and which is most referred to in the case law of international administrative tribunals, is certainly the category of general principles of law. Such principles are not explicitly recognized in the statutes of international administrative tribunals,41 but are one of the sources of international law enumerated in Article 38, paragraph 1 of the ICJ Statute. As such, their invocation by administrative tribunals could be interpreted as recognition that the law of the international civil service is part of the international legal order. Such principles play a crucial role in this field, since the administrative issuances of any of the international organizations—​despite their number and complexity—​will never be able to cover all aspects of the employment relationship and the settlement of possible disputes. The invocation of general principles of law is often hidden in the judgments of international tribunals, being implicit, for example, in the rules applied for:  the interpretation of legal instruments; the principles used in the determination of appropriate remedies; the calculation of damages, interests, and costs; the conduct of the proceedings before the tribunal (calculation of time-​limits, discovery, and appraisal of evidence, hearings, etc.); among many other matters. On some occasions, however, international administrative tribunals have felt the need to justify their recourse to such principles, and have expressly described the elements which led them to hold their existence. It is in this context that tribunals may refer to the case law of other international tribunals, international instruments (such as international conventions not directly applicable to the employment relationship, resolutions of international organizations, etc.), or even municipal laws and practices in the field of administrative law. The case law of the UN tribunals provides recent examples of this methodology, which may be taken as illustrations of the many precedents of various tribunals in this area.42 For example, in the Tabari case, where the appellant was challenging the rate of the special occupation allowance he was entitled to as an employee of the UN Relief and Works Agency for Palestine Refugees, the UN Appeals Tribunal found that “[d]‌enial of pay is a violation of the principle of ‘equal pay for equal work’,” which it deduced from Article 23, paragraph 2 of the Universal Declaration of 41   See, however, Art. III of the Statute of the Administrative Tribunal of the International Monetary Fund, which provides that, in deciding on an application, “the Tribunal shall apply the internal law of the Fund, including generally recognized principles of international administrative law concerning judicial review of administrative acts.” 42   For a brief description of the case law of international administrative tribunals with regard to general principles of law see, e.g., A. Plantey and F. Loriot, Fonction publique internationale. Organisations mondiales et européennes (Paris: CNRS, 2005), 69–​73.

 

conclusion   1083 Human Rights (adopted under a nonbinding UNGA resolution).43 In the Obdeijn case, in which the applicant contested the administrative decision not to extend his fixed-​term contract with the UN Population Fund, the UNDT, while recognizing that the employment relationship of international civil servants with the organization “is governed by the internal law prevailing within the organization” and that “national labour laws do not as such constitute part of the internal law of the Organisation,” held that “international administrative tribunals may rely on, among other sources, general principles of law—​including international human rights law, international administrative law and labour law—​which may be derived from, inter alia, international treaties and international case law.” In its reasoning, the Tribunal therefore found guidance in: the case law of counterpart tribunals, ILO Conventions and Recommendations, as well as Digests of Decisions of specialized committees and Reports of the Committee of Experts on the Application of Conventions and Recommendations of the ILO, all of which are standard-​ setting and standard-​defining and create international labour norms, even though they may not be obligation-​creating.44

Conclusion The law of the international civil service is among the least-​known dimensions of the phenomenon of international organizations. Yet, it constitutes an essential tool to ensure their efficient functioning, in addition to being a direct corollary of the independence of their officials. Through the establishment of standards governing the relationship between the organization and its staff members, the law of international civil service fulfills the double role of guaranteeing conditions of service adequate to the achievement of the goals enshrined in the constituent act and of protecting officials from undue external pressures. It is therefore not surprising that these internal rules are a matter of constant attention within international organizations. Even when they were not originally 43  UNAT, Tabari, Judgment No. 2010-​UNAT-​030, March 30, 2010, para. 17. See also Muthuswami et al., Judgment No. 2010-​UNAT-​034, July 1, 2010, para. 30 (with reference to the so-​called Noblemaire principle, according to which international civil servants shall get equal pay for work of equal value, whatever their nationality or the salaries earned in their own country, and international organizations shall offer pay that will draw and keep citizens of countries where salaries are highest); and UNDT, Chen, Judgment No. UNDT/​2010/​068, April 22, 2010, paras. 39–​45 (also referring to the International Covenant on Economic, Social and Cultural Rights and the International Labour Organization’s Equal Remuneration Convention No. 100). 44  UNDT, Obdeijn, Judgment No. UNDT/​2011/​032, February 10, 2011, paras. 30–​1.

 

1084    the law of the international civil service foreseen upon the creation of the organization, their establishment has inescapably arisen in the performance of the latter’s mandate. With the growth of the organization, the multiplication of staff members and the increased complexity of employment relations, internal legal and justice systems must develop progressively, in view of ensuring that the basic standards of due process and the rule of law be respected. In other words, the law of the international civil service is an essential tool for lawmakers in international organizations, since it is instrumental in the pursuit of the objectives agreed by member states in the constituent acts. This field of law, however, also deserves the attention of anyone who has an interest in international law in general, in so far as it constitutes a unique laboratory of ideas and institutions that have subsequently been explored in other areas of the law of nations. The law of the international civil service and the jurisprudence of international administrative tribunals, for example, have played a pioneering role in the international regulation of relations between public authorities and individuals or in the identification of “general principles of law” applicable in the international arena. As such, the techniques and lessons learned in this area may prove useful for a better understanding of issues that have arisen in other fields of international law, such as investment law or criminal justice. Similarly, the current debates on global governance and the concepts of transparency, legitimacy, review of legal processes, rule of law, accountability, etc. may be enriched by a study of this area of law, in which such concepts have been tested and put to practice. For all these reasons, international administrative law, which has traditionally drawn the attention of the most experienced academics and practitioners of international law (as judges of the ICJ and international administrative tribunals, as advisers in international organizations, and in their legal writings), should never cease to be part of the curriculum of international law.

 

Chapter 51

INTERNATIONAL ADMINISTRATIVE TRIBUNALS Santiago Villalpando

The establishment of international administrative tribunals is intrinsically linked to the existence of the law of the international civil service, which was described in Chapter  50. These tribunals are part of the internal systems of administration of justice that international organizations have put into place to settle employment disputes, which would otherwise fall under no jurisdiction. International organizations are generally granted immunity from municipal jurisdiction, which implies that their employees are, in principle, barred from having recourse to national tribunals (both those of the host country and their own state of nationality). Privileges and immunities are considered an essential tool for the performance of the international organization’s mandate, and are usually recognized both by the constituent act and the host country agreement. In its 1954 advisory opinion on the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, the International Court of Justice (ICJ) The views expressed in the present contribution are solely those of the author and do not necessarily reflect those of the United Nations. I would like to thank Mr. Aleksandr Shapovalov for his insightful comments on the manuscript (any mistakes being solely my own).

 

1086   international administrative tribunals observed that, when the United Nations (UN) Secretariat was organized, it was “inevitable that there would be disputes between the Organization and staff members as to their rights and duties.” Since the Charter contains no provision which authorizes any of the principal organs to adjudicate these disputes and Article 105 secures for the UN jurisdictional immunities in national courts, the Court considered that it would: hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.1

Most international organizations have provided for some sort of internal justice mechanism to address this kind of dispute. In bigger international organizations, such mechanisms are quite complex, and may include administrative review of decisions affecting staff members, informal means of conflict resolution, peer review by an advisory board, and—​last but not least—​international administrative tribunals. Practical considerations may dictate, especially in smaller organizations, the adoption of lighter mechanisms fulfilling the same role. To understand international administrative tribunals, it is important first to place their establishment in the context of the evolution of internal justice systems of international organizations. In the contemporary landscape, administrative tribunals remain the most sophisticated mechanism for the settlement of employment disputes between international organizations and their staff and, for that reason, deserve special attention.

The History of Internal Justice Systems in  International Organizations Internal justice systems of international organizations have been under constant evolution since the first days of the international civil service, and continue to raise significant challenges even today.

  ICJ Reports 1954, 56.

1

 

the history of internal justice systems in ios    1087

The Evolution of International Administrative Tribunals While the Covenant of the League of Nations did not foresee any internal justice system to address employment disputes, the matter was discussed in the League’s earliest days of operation.2 At first, it was decided that at least the most serious disputes should be referred to the Council (i.e., one of the two main political organs of the League).3 However, when the first of such disputes (the Monod case) arose in 1925, the Council submitted the matter to an advisory opinion of an ad hoc committee of jurists, which it undertook to accept. Thereafter, in 1927, the Assembly decided to establish an administrative tribunal, which was first set up for a trial period and was then confirmed as a permanent body, in 1931.4 This tribunal had jurisdiction over the League Secretariat, but also the Pension Fund and the International Labour Office,5 and dealt with a total of thirty-​seven cases between 1929 and 1946.6 Upon the liquidation of the League, in 1946, the International Labour Organization (ILO) was immediately confronted with the problem of finding alternative means to settle disputes involving its personnel. Acting on a request of the League Assembly, the International Labour Conference reconstituted the League’s tribunal (with the same composition) under the name of “Administrative Tribunal of the International Labour Organization” (ILOAT), which therefore became the successor of the Tribunal of the League of Nations. Its Statute was almost identical to that of the League’s tribunal, with one important addition, Article XII, which will be further considered hereinafter. In the meantime, the newly created United Nations Organization was faced with the problem of establishing its own mechanism for the settlement of employment disputes. The Preparatory Commission of the UN had recommended the creation of an administrative tribunal, but several delegations unfamiliar with such an organ

  For a description of the early history of international administrative tribunals (until 1957), see S. Bastid, “Les Tribunaux administratifs internationaux et leur jurisprudence,” Collected Courses of the Hague Academy of International Law 92 (1957):  343–​517, 365–​404. See also Memorandum by the International Labour Office, ICJ Pleadings, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 49–​56. 3  Resolution adopted by the Assembly, December 17, 1920, which gave officials who had been appointed for five years or more the right to appeal to the Council in case of dismissal. A similar right to appeal to the Governing Body was granted to officials of the International Labour Office. 4   See the resolution adopted by the Assembly on September 26, 1927, containing the Statute and Rules of Court of the Administrative Tribunal (League of Nations, Official Journal (May 1928), 751). The International Institute of Agriculture followed suit in 1932, setting up an administrative tribunal, which did not deal with any dispute (C. Vitta, “La coopération internationale en matière d’agriculture,” Hague Academy Collected Courses 56 (1936): 301–​405, 330–​1). 5  M. B. Akehurst, The Law Governing Employment in International Organizations (Cambridge: Cambridge University Press, 1967), 13–​ 14; A. Plantey, The International Civil Service: Law and Management (New York, etc.: Masson, 1981), 11. 6   See C. Comtet-​Simpson, “The ILO Administrative Tribunal,” http://​www.ilo.org/​public/​english/​ tribunal/​download/​articleccenglish.pdf. 2

 

1088   international administrative tribunals in their national civil services (including those of the United States and the Soviet Union) resisted the idea, which they considered as interfering with the attributions of the Secretary-​General as the head of the Secretariat.7 It was only in 1949 that the UN General Assembly (UNGA) finally decided to establish a tribunal competent to hear and pass judgment upon disputes involving staff members of the Secretariat of the UN, the so-​called UN Administrative Tribunal (UNAdT).8 This delay had an important repercussion on one of the specialized agencies, and was ultimately to determine the overall landscape of international administrative justice. The World Health Organization (WHO), which was established in 1948, was seeking in those early years a means to settle disputes involving its staff. Having considered, but set aside, the possibility of creating its own administrative tribunal, the WHO approached the ILO to make temporary arrangements for the submission of such disputes to the ILOAT. In 1949, the International Labour Conference amended Article II of the Statute of the ILOAT to extend, under certain conditions, the latter’s jurisdiction to other international organizations.9 The WHO accepted the jurisdiction of the ILOAT on July 19, 1949, stating that this arrangement was to be provisional, pending the establishment of a United Nations tribunal.10 In the early 1950s, some judgments of the UNAdT raised controversy. After the Tribunal awarded substantial amounts in compensation to eleven staff members who had been wrongfully dismissed, the Secretary-​General included such amounts in the budget for consideration by the UNGA.11 This triggered a lively debate, some states arguing that the Assembly should be able to decide that such compensation, awarded by one of its subsidiary organs, should not be paid.12 It was decided to request an advisory opinion on the matter from the ICJ. In its 1954 advisory opinion on the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (quoted earlier), the Court stood firmly on the side of the Tribunal, finding that the UNGA had no right on any grounds to refuse to give effect to its awards of compensation.13 The Court stated, in particular, that, while the Tribunal was subordinate to the Assembly in the sense that the latter could  Akehurst, The Law Governing Employment in International Organizations, 14.   UNGA Res. 351 (IV) (November 24, 1949). See also Art. 2(1) UNAdT Statute. 9   See Art. II(5) of the ILOAT Statute and its Annex. 10   Comtet-​Simpson, “The ILO Administrative Tribunal,” 2. 11   These staff members had been dismissed, between December 1952 and May 1953, as a consequence of their refusal to answer questions by an investigating committee of the US Senate related to membership in the Communist Party or subversive activities against the United States. See ICJ Pleadings, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 308. 12   This was not unprecedented. In 1946, the Assembly of the League of Nations had decided not to pay the compensation awarded by its Administrative Tribunal under thirteen judgments (ICJ Pleadings, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 60–​70). The UNAdT had already awarded compensation to staff members in prior years, which had been duly paid by the Organization (ibid., 288). 13   ICJ Reports 1954, 62. 7

8

 

the history of internal justice systems in ios    1089 abolish it or amend its Statute, the Assembly had established a judicial body, which could make decisions binding on it.14 In this institutional landscape, the international organizations that were created after World War II faced a choice with respect to international administrative tribunals: (i) they could recognize the jurisdiction of the UNAdT; (ii) they could recognize the jurisdiction of the ILOAT; or (iii) they could establish their own judicial instance. When it set up the UNAdT in 1949, the UNGA included in its Statute a provision similar to that of the ILOAT, by which the UNAdT’s competence could be extended to any specialized agency upon the terms of a special agreement between such agency and the Secretary-​General.15 The only agreements that were concluded on the basis of this provision, however, were with the International Civil Aviation Organization, in 1960, and the Inter-​Governmental Maritime Consultative Organization (later, International Maritime Organization), in 1964. In 1955, on the recommendation of the General Assembly,16 the specialized agencies participating in the UN Joint Staff Pension Fund (UNJSPF) accepted the jurisdiction of the Tribunal to decide on applications alleging the nonobservance of the regulations of the Fund arising out of a decision of the Joint Staff Pension Board.17 In 1997, the Assembly decided to amend the corresponding provision, with three objectives in mind: (a) to extend the competence of the Tribunal to the staff of the Registry of the ICJ; (b) to recognize formally the competence of the Tribunal in UNJSPF cases; and (c) to open possibility that the Tribunal’s competence be extended to international organizations participating in the common system of conditions of service, including the International Seabed Authority, the International Tribunal for the Law of the Sea, and the Organisation for the Prohibition of Chemical Weapons.18 Of these, only the two former accepted the jurisdiction of the Tribunal, while the latter opted for the ILOAT. Most specialized agencies and several other international organizations have chosen to accept the jurisdiction of the ILOAT. Significantly, the WHO preferred to maintain its arrangement with this Tribunal, which became permanent. It was soon followed, in 1953, by the International Telecommunications Union, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Meteorological Organization, and the Food and Agriculture Organization.19 Today,   Ibid., 61.   Art. 12 of the UNAdT Statute, as adopted by UNGA Res. 351 (IV) (November 24, 1949). 16   See UNGA Res. 678 (VII) (December 21, 1952). 17   See UNGA Res. 956 (X) (November 3, 1955). 18  See Amendment to Article 13 of the Statute of the United Nations Administrative Tribunal, Note by the Secretary-​General, A/​52/​142/​Add.1 (September 17, 1997). 19   This decision by the WHO and other specialized agencies was influenced by the uncertainties regarding the fate of the UNAdT which surrounded the advisory opinion described above (A. Pellet, “Les Voies de recours ouvertes aux fonctionnaires internationaux, recherche sur quelques problèmes d’actualité—​l’exemple de la Commission de recours de l’O.C.D.E.,” Revue générale de droit international public (1981): 253–​312, 268). 14 15

 

1090   international administrative tribunals the jurisdiction of the ILOAT extends to fifty-​nine organizations, which include not only universal organizations (such as the World Trade Organization, the International Atomic Energy Agency, the World Intellectual Property Organization, and the International Criminal Court), but also regional institutions in Europe (e.g, the European Organization for Nuclear Research (CERN) or the European Free Trade Association), Africa (e.g., the African Training and Research Centre in Administration for Development), and the Americas (e.g., the Pan American Health Organization, under the aegis of the WHO).20 Finally, some international organizations have chosen to establish their own administrative tribunals, an option which is often set aside due to the significant costs involved. Most of these other tribunals are part of regional organizations, such as the African Development Bank, the Organization of American States, the Organisation for Economic Co-​operation and Development, or the European Union (EU). Three institutions of the UN system have also opted to establish their own judicial mechanisms, namely the World Bank (which created its Administrative Tribunal in 1981), the International Monetary Fund (which established its own Administrative Tribunal as of 1994), and the UN Relief and Works Agency for Palestine Refugees (which set up a Dispute Tribunal in 2010, the judgments of which are subject to appeal before the UN Appeals Tribunal).

The Internal Justice Systems of International Organizations International administrative tribunals are only the most visible part of the internal systems of administration of justice in international organizations, which usually include other mechanisms for the settlement of employment disputes. First of all, a few international organizations have put in place informal means of resolution of conflicts in the workplace. The UNGA has placed particular emphasis on these means, pointing out that “informal resolution of conflict is a crucial element of the system of administration of justice” and that “all possible use should be made of the informal system in order to avoid unnecessary litigation.”21 Building on the structures that had been created in prior years in the UN system,22 the Assembly 20  See http://​www.ilo.org/​public/​english/​tribunal/​membership/​index.htm. The ILOAT jurisdiction covers around 46,000 individuals (Comtet-​Simpson, “The ILO Administrative Tribunal,” 3), which remains less than the number of international civil servants falling under the jurisdiction of the UN tribunals, which was estimated, in 2013, at approximately 74,000 persons (see Composition of the Secretariat: Staff Demographics, Report of the Secretary-​General, A/​68/​356 (August 30, 2013)). 21   UNGA Res. 61/​261 (April 4, 2007), para. 11. 22   In 1993, the Office of the UN High Commissioner for Refugees appointed its first Mediator (later renamed “Ombudsman” in 2009)  and, in June 2002, the executive heads of the UN Development Programme, the UN Population Fund, and the UN Office for Project Services established a common Office of the Joint Ombudsperson. In October 2002, the Office of the Ombudsman was established in the Executive Office of the Secretary-​General.

 

the history of internal justice systems in ios    1091 established a “single integrated and decentralized” Office of the United Nations Ombudsman and Mediation Services, which started to operate on January 1, 200823 and exercises the double role of informal dispute resolution, including through mediation, and independent monitoring on cross-​cutting issues regarding managerial practices and employment relations. Second, the staff rules of several organizations open the possibility for staff members to request a review of contested administrative decisions by a hierarchical superior. This administrative review—​which is well known in domestic public administrations—​is often a prerequisite for the triggering of formal mechanisms, under the general principle that administrative remedies shall be exhausted before formal proceedings are instituted.24 Thus, for example, the current UN Staff Rules provide that a staff member wishing to formally contest an administrative decision by alleging noncompliance with his or her contract of employment or terms of appointment “shall, as a first step, submit to the Secretary-​General in writing a request for a management evaluation of the administrative decision,”25 which is entrusted to an independent Management Evaluation Unit in the Office of the Under-​Secretary-​General for Management.26 Third, in many international organizations, recourse to the judicial body is also preceded by proceedings before an advisory board. Bodies of this sort have different denominations (appeals board, advisory committee, etc.), but usually have two features in common: (i) they form a mechanism of peer review, in so far as they are composed by staff members; and (ii) they deliver a nonbinding recommendation on the settlement of the case, since the final determination is remitted to the decision of the chief administrative officer of the organization. Furthermore, the ICJ has sometimes been called to intervene in the settlement of employment disputes. Under Article XII of the ILOAT Statute, in any case in which the executive board of the international organization concerned (for the ILO, the Governing Body) challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the executive body to the Court for an advisory opinion; this advisory opinion shall be binding. This mechanism has been used only twice, in 1955 and in 2010, respectively on judgments relating to UNESCO and the International Fund for Agricultural Development (IFAD), and in both cases the Court confirmed the competence of the Tribunal.27 Following the 1954 advisory opinion referred to above, the UNGA added, in 1955, a similar provision   See UNGA Res. 61/​261, para. 12; and 62/​228 (December 22, 2007), para. 25. 25   UNGA Res. 62/​228, para. 51.   UN Staff Rule 11.2(a). 26   UNGA Res. 62/​228, para. 52. 27  See Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO, Advisory Opinion (October 23, 1956), ICJ Reports 1956, 77; Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion (February 1, 2012). 23

24

 

1092   international administrative tribunals to the UNAdT Statute, providing for the possible review of the judgments of this Tribunal before the Court.28 In the course of the years, however, only three cases were brought to the Court29 and, in 1995, the Assembly, noting that this procedure “has not proved to be a constructive or useful element in the adjudication of staff disputes within the Organization,” decided to delete the provision.30

The Reform of Internal Justice Systems of International Organizations With the evolution of each international organization, the expansion in the number of staff members, and the increased complexity and diversity of employment relations, internal justice systems are always subject to close scrutiny and possible reform. Recent trends show a continued preoccupation to ensure dedicated, professionalized, and efficient dispute settlement mechanisms, which has led some organizations to introduce several tiers of judicial review. At the EU, jurisdiction over employment disputes was originally exercised by the Court of Justice and then, as of its establishment in 1989, by the Court of First Instance. In 2004, a specialized judicial instance was set up (pursuant to Art. 257, which empowers the European Parliament and the Council to establish specialized courts “to hear and determine at first instance certain classes of action or proceedings brought in specific areas”) specifically dedicated to the settlement of such disputes: this is the so-​called European Union Civil Service Tribunal (EUCST), which is attached to the Court of First Instance.31 This articulate framework, however, is in the course of changing yet again: on December 5, 2015, the Council of the European Union adopted a reform providing for the progressive increase in the number of judges at the General Court and the merging of the EUCST with the General Court, which would therefore take up fist-​instance cases relating to the EU civil service.32 The UN has undertaken a substantial reform of its internal justice system.33 The former system was based on the review of each case by an advisory board, 28   The grounds of review and the procedure were slightly different from those applicable to the ILOAT: see Art. 11 UNAdT Statute. 29   For the advisory opinions of the Court, see ICJ Reports 1973, 166; ICJ Reports 1982, 325; and ICJ Reports 1987, 18. In all three cases, the Court upheld the judgment of the Tribunal. 30   See UNGA Res. 50/​54 (December 11, 1995). For a review of the problems encountered, see Review of the Procedure Provided for Under Article 11 of the Statute of the Administrative Tribunal of the United Nations, Report of the Secretary-​General, A/​C/​6/​49/​2 (October 17, 1994). 31   See Council Decision 2004/​752/​EC, Euratom, November 2, 2004. 32   See “Court of Justice of the EU: Council Adopts Reform of General Court,” http://​www.consilium. europa.eu/​en/​press/​press-​releases/​2015/​12/​03-​eu-​court-​of-​justice-​general-​court-​reform/​. 33   See H. Buss, T. Fitschen, T. Laker, C. Rohde and S. Villalpando, Handbook on the Internal Justice System at the United Nations (Turin: UNSSC, 2014).

 

the history of internal justice systems in ios    1093 composed of staff members serving on a voluntary basis, which made a recommendation to the Secretary-​General, who determined the case, exercising his discretion as chief administrative officer of the Organization. This decision was subject to judicial review by the UNAdT. Several attempts were made along the years to improve this mechanism, but it was only in 2005 that the UNGA made the decisive push for reform, with its decision to form a panel of external and independent experts to consider redesigning the system as a whole.34 After six months of inquiry, the Redesign Panel submitted a damning report, which found that “the United Nations internal justice system [was] outmoded, dysfunctional and ineffective and that it lack[ed] independence,” and recommended the establishment of “a decentralized, streamlined and ultimately cost-​efficient system.”35 This triggered a thorough process of reform which led to the implementation, only three years later, of a fully revamped system of administration of justice in the Organization. The new system at the UN has several distinctive features.36 The most important innovation is the abolishment of the advisory boards and the UNAdT, and their replacement with a two-​tier formal system of administration of justice, which became operational on July 1, 2009, comprising a first instance UN Dispute Tribunal (UNDT) and a UN Appeals Tribunal (UNAT).37 The reform also comprises other institutional innovations. An Internal Justice Council was appointed, which vets the candidates for judges’ positions and has been entrusted with the tasks of drafting a code of conduct for the judges and providing its views on the implementation of the new system.38 An independent office responsible for the overall coordination of the formal system and for contributing to its functioning in a fair, transparent, and efficient manner, the Office of Administration of Justice, was also established, which comprises the registries of the Tribunals and an Office of Staff Legal Assistance.39 These newly created models have triggered a debate in international organizations, in so far as they take a step further in providing more sophisticated procedural

  UNGA Res. 59/​283 (April 13, 2005), paras. 47–​52.   Report of the Redesign Panel on the United Nations System of Administration of Justice, A/​61/​205 (July 28, 2006). 36   Including the reinforcement of informal conflict resolution and the establishment of centralized management evaluation, described above. 37   See UNGA Res. 61/​261, 62/​228 and 63/​253 (December 24, 2008). The entities that had access to the former UNAdT (the International Civil Aviation Organization, the International Maritime Organization, the UN Relief and Works Agency for Palestine Refugees, the International Seabed Authority, the International Tribunal for the Law of the Sea and the International Court of Justice) were given the option to decide whether to participate in the new system: they all opted to accept the competence of the UNAT, while preserving their own internal process on first instance. 38   UNGA Res. 62/​228, para. 37. The Internal Justice Council is a five-​member body, consisting of a staff representative, a management representative and two distinguished external jurists, one nominated by the staff and one by management, and chaired by a distinguished jurist chosen by consensus by the four other members (ibid., para. 36). 39   UNGA Res. 62/​228, paras. 10 and 11. See also ST/​SGB/​2010/​3 (April 7, 2010). 34 35

 

1094   international administrative tribunals guarantees for staff members. Organizations feel the need to reassess their internal justice systems, balancing the principles of the rule of law, due process, and managerial accountability with their own realities, including the size of their personnel, the kinds of disputes involved, the relations between management and staff, and—​ last but not least—​the costs involved and the feasibility of establishing an efficient and streamlined system of justice.

The Institutional Components of International Administrative Tribunals The institutional components of administrative tribunals vary, depending on the needs of each organization and the choices made at the time of their creation. They have, however, a number of common features.

Establishment and Composition Most international administrative tribunals have been instituted upon a decision of the governing body of the organization, which is also the one that holds the decision-​making power over budgetary and administrative matters. Thus, for example, the UNAdT, and later the UNDT and UNAT, were established by the UNGA, the ILOAT was created by the International Labour Conference, and the World Bank Administrative Tribunal (WBAT) was instituted by the Board of Governors. These bodies usually also adopt the statute of the tribunal, which therefore becomes an integral part of the internal law of the organization. International administrative tribunals have a very simple and reduced structure. The ILOAT, the WBAT, and the EUCST, for example, are composed of seven judges, while the International Monetary Fund Administrative Tribunal (IMFAT) has only five members;40 they all have their seat at the headquarters of the organization concerned.41 The new UN system is more complex:  the UNDT is composed of three full-​time judges, who exercise their functions in New  York, Geneva, and 40   See Art. III(1) of the ILOAT Statute; Art. 4(1) of the WBAT Statute; Art. 2(1) of the EUCST Statute; Art. VII(1) of the IMFAT Statute. 41   As the Court of Justice of the European Union (CJEU), the EUCST has its seat in Luxembourg.

 

institutional components   1095 Nairobi, and two half-​time judges, who rotate among duty stations;42 the UNAT (similarly to the former UNAdT) is composed of seven judges, who meet in New York, but may decide to hold sessions in Geneva or Nairobi.43 Judges are usually appointed by the governing body that established the tribunal.44 In some organizations, an advisory organ gives recommendations to the appointing body on suitable candidates, on the basis of the qualifications required under the Statute.45 Some organizations have also appointed additional judges, on a temporary basis, to support the work of the tribunal. Thus, the EUCST appointed a temporary judge to cover the absence of a judge who was prevented from participating in the disposal of cases for a lengthy period of time.46 As part of the transitional measures aimed at assisting the newly created UNDT in clearing the backlog inherited from the old system, the UNGA appointed ad litem judges, whose mandate was initially limited to one year, but then extended several times.47 The statutes of early administrative tribunals did not contain specific indication as to the qualifications required for judges, apart from the requirement that there shall not be two judges of the same nationality.48 Individuals appointed to these positions, however, tend to be experts in the field of employment law, the law of international organizations, and the international civil service, arbitration, and dispute resolution.49 The statutes of more recently established judicial   UNGA Res. 62/​228, para. 42. See also Arts. 4(1) and 5 of the UNDT Statute.   UNGA Res. 62/​228, para. 44. See also Arts. 3(1) and 4(1) of the UNAT Statute. 44   In the case of the ILOAT, the appointing authority is only the International Labour Conference (Art. III(2) of the ILOAT Statute), which means that the other organizations accepting the jurisdiction of the Tribunal have no say on its composition. 45   Procedures vary. The WBAT Statute provides that judges “shall be appointed by the Executive Directors of the Bank from a list of candidates nominated by the President of the Bank after appropriate consultation”: to this effect, the President appoints an “advisory committee” composed of four members, including representatives of management and staff associations, with one external expert (see O. Elias and M. Thomas, “Administrative Tribunals of International Organizations,” in The Rules, Practice and Jurisprudence of International Courts and Tribunals, ed. C. Giorgetti (Leiden, Boston: Martinus Nijhoff, 2012), 159–​88, 164). The EUCST judges are appointed by the Council, after taking the opinion of a panel of seven persons chosen from among former members of the CJEU and the General Court and lawyers of recognized competence. For the UNDT and UNAT, the UNGA appoints the judges on the recommendation of the Internal Justice Council. 46   See Art. 2(2) of the EUCST Statute. 47   See UNGA Res. 63/​253, para. 48; and later UNGA Dec. 64/​418 (March 20, 2010); UNGA Dec. 64/​553 (March 29, 2010); UNGA Res. 65/​251, para. 31; UNGA Res. 66/​237 (December 24, 2011), para. 42; UNGA Res. 69/​203 (December 18, 2014), para. 8. These reappointments hide an underlying discussion on whether the composition of the Dispute Tribunal should not be strengthened on a permanent basis. The Internal Justice Council has repeatedly expressed the view, shared by the judges of the Tribunal, that three additional permanent judges should be appointed to avoid a new backlog (A/​65/​304, para. 21; A/​66/​158, para. 9; A/​67/​98, para. 22). To date, however, the Assembly has not decided on the matter. 48  See, ILOAT Statute and UNAdT Statute, as originally adopted by the UNGA in 1949 (later amended to indicate that “[m]‌embers shall possess judicial experience in the field of administrative law or its equivalent within their national jurisdiction” (Art. 3(1))). 49   Elias and Thomas, “Administrative Tribunals of International Organizations,” 164. 42 43

 

1096   international administrative tribunals bodies have explicitly addressed the matter. For example, WBAT judges “shall be persons of high moral character that must possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence in the relevant fields such as employment relations, international civil service and international organization administration.”50 The qualifications of judges in the new UN system are stricter, requiring that candidates possess at least ten years (for the UNDT) or fifteen years (for the UNAT) of judicial experience in the field of administrative law, or the equivalent within one or more national jurisdictions. This requirement has raised some debate, in so far as it excludes from office candidates who have traditionally served in international administrative tribunals, such as professors of law or lawyers who have served as part-​time judges.51 The statutes of the UNDT and UNAT also impose that, in the appointment of judges, due regard shall be given to geographical distribution and gender balance.52 Finally, some statutes set certain restrictions on eligibility.53 The term of office of judges also varies, but generally allows the possibility of reappointment. There exist, however, some limitations. Since 2001, members of the WBAT, whose term is of five years, may only be reappointed for one additional term.54 At the UNDT and UNAT, judges are appointed for one nonrenewable term of seven years.55 The appointing body also has the power to remove a judge from office, for example in case of misconduct or incapacity.56 In addition, some international organizations have adopted codes of conduct, which regulate the exercise of judicial functions in their administrative tribunals.57

  Art. V(1) of the WBAT Statute. Similarly, Art. VII(1)(c) of the IMFAT Statute requires that members of the Tribunal “possess the qualifications required for appointment to high judicial office or be jurisconsults of recognized competence.” 51  See Letter dated 18 July 2008 from the President of the Administrative Tribunal addressed to the President of the General Assembly, A/​623/​253 (August 12, 2008), and Report of the Internal Justice Council, A/​67/​98, para. 35. In 2014, the UNGA amended the Statute of the UNAT to allow consideration of candidates with relevant academic experience, when combined with practical experience in arbitration or the equivalent, which may be taken into account toward five of the qualifying fifteen years (UNGA Res. 69/​203 (December 18, 2014), para. 42). 52   Art. 4 of the UNDT Statute; Art. 3 of the UNAT Statute. 53   Art. IV(1) of the WBAT Statute; Art. 4(6) of the UNDT Statute; Art. 3(6) of the UNAT Statute. 54   Art. IV(3) WBAT Statute (as amended in 2001). 55   Art. 4(4) of the UNDT Statute; Art. 3(4) of the UNAT Statute. 56   Art. VII(5) of the IMFAT Statute; Art. 4(10) of the UNDT Statute; Art. 3(10) of the UNAT Statute. 57   See the Code of Conduct for the UNDT and UNAT judges, adopted by UNGA Res. 66/​106 (December 9, 2011), or the Code of Conduct for the EUCST judges, adopted by the CJEU (Doc. 2007/​ C 223/​01, Official Journal of the European Union (September 22, 2007)). 50

 

institutional components   1097

Jurisdiction and Powers International administrative tribunals have jurisdiction to hear and pass judgment on cases alleging the breach of the terms of appointment and conditions of employment of staff members of the organization.58 In terms of material jurisdiction, this implies that administrative tribunals have competence to address breaches of the internal law of the organization affecting individual staff members in their employment, including violations of the staff rules and regulations and administrative instructions.59 It follows that tribunals deal with a wide array of employment disputes relating, for example, to appointments (e.g., nonselection or nonpromotion), benefits and entitlements, performance, disciplinary matters, and separation of service. The question arises as to the limits of this jurisdiction, particularly with regard to the review of the acts of the governing body of the organization. The IMFAT Statute provides that “[t]‌he Tribunal shall not have any powers beyond those conferred under this Statute.” It also indicates that nothing in the Statute “shall limit or modify the powers of the organs of the Fund under the Articles of Agreement, including the lawful exercise of their discretionary authority in the taking of individual or regulatory decisions, such as those establishing or amending the terms and conditions of employment with the Fund.”60 While no provision to this effect is included in the UNDT and UNAT Statutes, similar statements have been made by the UNGA in resolutions relating to the new UN system.61 In terms of personal jurisdiction, administrative tribunals are open to all current and former staff members of the organization, as well as to persons making claims in the name of an incapacitated or deceased staff member.62 The status of “staff member” is not always straightforward. In a 2012 advisory opinion, the ICJ was called to determine whether the ILOAT was competent to decide on a complaint filed against IFAD by a staff member of the Global Mechanism of the United Nations Convention to Combat Desertification, for which IFAD acts merely as housing organization. The Court found that, on the basis of her contract, the staff member had an employment relationship with IFAD and therefore confirmed the competence of the Tribunal to hear the complaint.63 58   e.g., Art. II(1) of the ILOAT Statute; Art. 2 (1)(a) of the UNDT Statute; Art. II(1) of the WBAT Statute. 59   The staff rules and regulations are usually referred to in the letter of appointment of officials of international organizations, and are therefore an integral part of their “contract of employment” or “terms of appointment.” Some statutes make this clear in explicit terms (Art. II(1) of the WBAT Statute; Art. 2(1)(a) of the UNDT Statute). 60   Art. III of the IMFAT Statute. 61   See UNGA Res. 63/​253, para. 28; 66/​237, para. 10; and 69/​203, para. 36. 62   e.g., Art. II(1) of the ILOAT Statute; Art. II(1) and (3) of the WBAT Statute; Art. II(1) of the IMFAT Statute; Art. 3(1) of the UNDT Statute. 63   Advisory Opinion (February 1, 2012), paras. 71–​82.

 

1098   international administrative tribunals A further problem is raised by the diversification of contractual relations within international organizations. At the UN, for example, the question was asked whether the so-​called “nonstaff personnel”—​a large category comprising volunteers, consultants, individual contractors, personnel under service contracts or service agreements, and daily paid workers—​should be granted access to the administrative tribunals.64 While the UNGA has not yet made a final determination on the matter, proposals have been made to rather create simplified mechanisms of dispute settlement for these individuals.65 Judgments of international administrative tribunals are usually without appeal.66 The systems of the EU and the UN are exceptional in this regard. The European system provides, in certain cases, for the possibility of three tiers of judicial review:  EUCST judgments, which settle on first instance employment disputes under Article 270 of the Treaty on the Functioning of the European Union,67 are subject to appeal on points of law to the General Court,68 the decisions of which may themselves be reviewed by the Court of Justice when there is a serious risk of the unity or consistency of Union law being affected.69 However, this complex system is to be simplified with the undergoing reform of the EU system described above, which will lead to the merging of the EUCST with the General Court. At the UN, judgments on first instance are subject to appeal before the UNAT when it is asserted that the UNDT has (a) exceeded its jurisdiction or competence; (b) failed to exercise jurisdiction vested in it; (c) erred on a question of law; (d) committed an error in procedure, such as to affect the decision of the case; or (e) erred on a question of fact, resulting in a manifestly unreasonable decision.70 Administrative tribunals may also have jurisdiction to hear applications for revision,71 correction of clerical or arithmetical mistakes, or interpretation of their judgments.72 The UNDT and UNAT are called, in certain cases, to make an order for the execution of their judgments, if it has not been carried out.73 64   See the report of the Redesign Panel (A/​61/​205, para. 20)  and the comments thereto by the Secretary-​General (A/​61/​758, para. 10). According to an estimation made by the Secretary-​General in 2007, nonstaff personnel would amount to as many as 45,000 individuals (A/​62/​294, para. 16 and Table 2). 65  See Administration of Justice at the United Nations, Report of the Secretary-​General, A/​65/​373, paras. 165–​83. 66   As described earlier, ILOAT judgments are however subject to review by the ICJ. 67   See Art. 1 of the EUCST Statute; Annex I  CJEU Statute; Doc. C115/​210, Official Journal of the European Union (2008). 68 69   Art. 11 of the EUCST Statute.   Art. 62 of the CJEU Statute. 70   Art. 2(1) of the UNAT Statute. 71   Art. XIII of the WBAT Statute; Art. XVI of the IMFAT Statute; Art. 12(1) of the UNDT Statute; Art. 11(1) of the UNAT Statute. 72   Art. XVII of the IMFAT Statute; Art. 12(2) and (3) of the UNDT Statute; Art. 11(2) and (3) of the UNAT Statute. 73   Art. 12(4) of the UNDT Statute; Art. 11(4) of the UNAT Statute.

 

institutional components   1099 Subject to all this, judgments of administrative tribunals are binding, final, and directly executable.74 The main remedy that may be granted by international administrative tribunals is the rescission of the contested decision or the specific performance of the obligation relied upon.75 The IMFAT has also the particular power, whenever it upholds an application challenging the legality of a regulatory decision, to annul such decision.76 Tribunals may award compensation for the damage caused to the staff member, but the statutes usually recognize this as a subsidiary remedy. Thus, the ILOAT and WBAT Statutes provide that compensation may be awarded as an alternative, when the rescinding of the administrative decision or the execution of the obligation is “not possible or advisable”77 or “would not be practicable or in the institution’s interest.”78 This power is sometimes subject to limitations. Under its Statute, the IMFAT may prescribe any measure required to correct the effects of the wrongful administrative decision, including the payment of money. However, when it prescribes measures other than a payment of money, the Tribunal shall fix an amount to be paid in compensation, should the Managing Director decide, in the interest of the Fund, that such measures shall not be implemented, in which case the amount of compensation shall not exceed, except in “exceptional cases,” the equivalent of 300 percent of the annual salary of the staff member.79 As for the UNDT, it has the power to order both the rescission of the contested administrative decision or specific performance and compensation. However, whenever the contested administrative decision concerns appointment, promotion, or termination, it must set an amount of compensation that the Secretary-​ General may elect to pay as an alternative to rescission of the decision or specific performance. In any event, compensation ordered by the Tribunal shall normally not exceed the equivalent of two years’ net base salary of the applicant, except in “exceptional cases.”80 The Statute further expressly bars the Tribunal from awarding exemplary or punitive damages.81 Finally, some statutes expressly recognize the power of the tribunal to award costs.82

74   Art. VI(1) of the ILOAT Statute; Art. XI(1) of the WBAT Statute; Art. XIII(2) of the IMFAT Statute; Art. 11(3) of the UNDT Statute; Art. 10(6) of the UNAT Statute. 75   Art. VIII of the ILOAT Statute; Art. XII(1) of the WBAT Statute; Art. XIV(1) of the IMFAT Statute; Art. 10(5) of the UNDT Statute. 76 77   Art. XIV(3) of the IMFAT Statute.   Art. VIII of the ILOAT Statute. 78 79   Art. XII(1) of the WBAT Statute.   Art. XIV(2) of the IMFAT Statute. 80 81   Art. 10(5) of the UNDT Statute.   Art. 10(7), ibid. 82   Art. XIV(4) of the IMFAT Statute; Art. 10(6) of the UNDT Statute.

 

1100   international administrative tribunals

Organization of Work and Procedure International administrative tribunals enjoy autonomy in the organization of their work, within the framework of their statutes. Their internal organizational structure is similar to that of other international courts and tribunals. The judges usually elect their own president,83 who is entrusted with various tasks relating to the functioning of the tribunal. The president has, for example, the function of supervising the work of the legal and administrative staff supporting the tribunal, representing the tribunal in administrative matters, and presiding over its meetings.84 The president is also sometimes attributed a role in the proceedings for the recusal of a judge.85 In their work, administrative tribunals are supported by an executive secretariat or registry, which is responsible to the tribunal in the discharge of its duties; in most cases, the executive secretary or registrar and his or her personnel are staff members of the organization, who are appointed by the administration.86 Most international administrative tribunals do not sit on a permanent basis, but hold a limited number of sessions in the course of which they hear the cases, make their deliberations, and attend to the administrative issues arising in their work.87 This is justified by the limited number of cases usually heard by these tribunals, but finds an exception in the systems that have recently introduced several tiers of jurisdiction. The judges of both the EUCST and the UNDT work throughout the year in the cases they hear on first instance, thus disposing a considerable number of cases on an annual basis.88 Judicial proceedings are governed by the statutes, which also provide that the tribunals shall establish their own rules of procedure.89 To be receivable, applications shall be submitted within strict time limits, and after all other remedies available

  Art. X(1) of the ILOAT Statute; Art. VI(1) of the WBAT Statute; Art. 4(7) of the UNDT Statute; Art. 3(7) of the UNAT Statute. See, however, the special case of the IMFAT, whose President is appointed by the Managing Director (Art. VII(1)(a) of the IMFAT Statute). 84   Art. IV of the ILOAT Statute; Art. VI(2) of the WBAT Statute; Art. 21(3) of the Rules of Procedure of the UNDT (UNDT Rules); Art. 21(3) of the Rules of Procedure of the UNAT (UNAT Rules). 85   Art. 28 of the UNDT Rules; Art. 23 of the UNAT Rules. 86   Art. VI(2) of the WBAT Statute; Art. IX(2) of the IMFAT Statute; Art. 6(2) of the UNDT Statute; Art. 5(2) of the UNAT Statute. The UNDT has three Registries, each headed by a Registrar, in New York, Geneva, and Nairobi, and the UNAT has a Registry, also headed by a Registrar in New York; a Principal Registrar oversees their work (UNGA Res. 62/​228, para. 47; ST/​SGB/​2010/​3, sections 5 and 6). 87   Art. IV of the ILOAT Statute; Art. VIII of the WBAT Statute; Art. XI of the IMFAT Statute; Art. 4 of the UNAT Statute. 88  The EUCST hears around 120 cases a year (see http://​curia.europa.eu/​jcms/​jcms/​T5_​5230/). The UNDT disposed of 320 cases in 2014 (Eighth Activity Report. Office of Administration of Justice (1 January to 31 December 2014), 4, http://​www.un.org/​en/​oaj/​unjs/​pdf/​Eighth_​activity_​report_​OAJ.pdf). 89   Art. X of the ILOAT Statute; Art. VII of the WBAT Statute; Art. X(2) of the IMFAT Statute. At the UN, the rules of procedure established by the Dispute and Appeals Tribunals are subject to approval by the UNGA (Art. 7 of the UNDT Statute; Art. 6 of the UNAT Statute). 83

 

institutional components   1101 in the organization (particularly administrative review or advisory committees) have been exhausted.90 It is foreseen that proceedings may include both a written and an oral phase, and specific rules govern the production of evidence, appearance of witnesses, conduct of hearings, etc.91 In general terms, however, administrative tribunals do not hold hearings very frequently, with the notable exception of those tribunals that operate as first instances.92 The languages of work depend on the organization concerned, and usually include all the official languages of the organization.93 Cases are usually heard by a panel of judges and decided by a majority vote. At the ILOAT, a meeting of the Tribunal shall be composed of three judges or, in exceptional circumstances, five, to be designated by the President, or all seven.94 At the WBAT, a quorum of five members suffices to constitute the Tribunal, but the latter may choose to form a panel of no less than three judges to deal with particular cases.95 At the IMFAT, cases are heard by a panel of three members, including the President.96 At the UNAT, cases on appeal are normally reviewed by a panel of three judges, but may be referred for consideration by the whole Tribunal (i.e., seven judges) when they raise a significant question of law.97 In the negotiations that led to the reform, the Secretary-​General had suggested that cases also be heard by a panel of three judges on first instance to ensure representation of diverse legal traditions and practices, as well as cultural and linguistic backgrounds.98 After thorough discussion, the UNGA decided that cases shall normally be considered by a single UNDT judge; however, the UNAT President may, upon a request of the UNDT President, authorize the referral of a case to a panel of three UNDT judges, when necessary, by reason of the particular complexity or importance of the case.99 Deliberations are confidential and the administrative tribunals render their judgments in writing. These judgments are made public and shall state the reasons, facts, and law on which they are based.100 90   Art. VII of the ILOAT Statute; Art. II(2) of the WBAT Statute; Art. V of the IMFAT Statute; Art. 8 of the UNDT Statute. 91   Art. V of the ILOAT Statute; Art. IX of the WBAT Statute; Art. IX of the IMFAT Statute; Art. 9 of the UNDT Statute. 92   The UNDT held 1345 court sessions from its establishment, on July 1, 2009, to 2014 (Eighth Activity Report. Office of Administration of Justice (1 January to 31 December 2014), 5, http://​www.un.org/​en/​oaj/​ unjs/​pdf/​Eighth_​activity_​report_​OAJ.pdf). 93   Art. 11(4) and (5) of the UNDT Statute; Art. 10(7) and (8) of the UNAT Statute. 94   Art. III(3) of the ILOAT Statute. 95   Art. V of the WBAT Statute. 96   Art. VII(4) of the IMFAT Statute. 97   Art. 10(1) and (2) of the UNAT Statute. 98   A/​62/​748 (March 14, 2008), and Corr.1 (April 8, 2008), para. 110. 99   Art. 10(9) of the UNDT Statute. For a description of the problems entailed by this complex mechanism, see A/​65/​304, para. 29. 100   Art. VI of the ILOAT Statute; Art. XI of the WBAT Statute; Art. XIII of the IMFAT Statute; Art. 11 of the UNDT Statute; Art. 10 of the UNAT Statute.

 

1102   international administrative tribunals

Conclusion International administrative tribunals constitute a key component of the exercise by international organizations of their mandate under their constituent acts. This has been recognized in the jurisprudence. In its 1954 advisory opinion, the ICJ linked the creation of administrative tribunals with the aims of the UN Charter, considering that, in ensuring that justice be given to its own staff, the Organization should do internally what it preaches. In its 1999 Waite and Kennedy Judgment, the European Court of Human Rights went a step further. In examining the claim of two individuals who challenged a decision of German courts upholding the immunity from jurisdiction of the European Space Agency (ESA) in an employment dispute, it noted that “a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the [European Convention on Human Rights] is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.”101 Indeed, for the European Court, “where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights.” It therefore held that it would be incompatible with the purpose and object of the Convention if the contracting states were thereby absolved from their responsibility in relation to the field of activity covered by such attribution, particularly with regard to the right of access to the courts.102 In other terms, the European Court contemplated the possibility that the immunity from jurisdiction of an international organization could be conditioned to the existence and adequacy of the latter’s internal justice system. While, in that particular case, the European Court confirmed the decision of German tribunals to grant immunity, taking into account the alternative means of legal process available to the applicants, domestic tribunals have inquired into the matter when faced with similar disputes and have occasionally refused to uphold the immunity of the organization.103 101   Waite and Kennedy v Germany, Application No. 26083/​94, Judgment of the Grand Chamber (February 18, 1999), para. 68. 102   Ibid., para. 67. 103   For example, in Siedler v Western European Union, a Belgian tribunal disregarded the immunity from jurisdiction of the Western European Union and accepted to settle an internal employment dispute, considering that the internal justice mechanism of the Union did not offer the necessary guarantees for a fair trial (Brussels Labour Court of Appeal (4th Chamber), September 17, 2003, Journal des Tribunaux (2004): 617, ILDC 53 (BE 2003)). See E. David, “Observations: l’immunité de juridiction des organisations internationales,” Journal des Tribunaux (2004): 619; A. Reinisch, “The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals,” Chinese Journal of International Law 7 (2008): 285–​306; J. Wouters, C. Ryngaert, and P. Schmitt, “Case Note,” American Journal of International Law 105 (2011): 560–​7.

 

conclusion   1103 In sum, when they establish internal systems of justice and administrative tribunals, international organizations are not simply addressing a moral issue relating to the fair treatment of their staff: they are facing an essential legal necessity, instrumental to the exercise of their mandate. Beneath the efforts to guarantee the availability and fairness of these systems of justice, the preservation of the immunity of the international organizations may be at stake.

 

 

Part I X

PRINCIPLES OF GOVERNANCE

 

 

Chapter 52

LEGITIMACY Dominik Zaum

This chapter examines the importance of legitimacy for international organizations,1 and their efforts to legitimate themselves vis-​à-​vis different audiences. Legitimacy, which for decades barely featured in the scholarly analysis of international organizations, has since the late 1990s been an increasingly important lens through which the processes, practices, and structures of international organizations have been examined. The growing emphasis on the legitimacy of international organizations has not been limited to scholars, but extends to political commentators, politicians, and representatives of international organizations. Legitimacy has become a common currency in contemporary discourses about international organizations. This emphasis on legitimacy raises several important questions for the study of international organizations. Why has the legitimacy of international organizations become the focus of such attention? Why, and how, is legitimacy supposed to matter for them? And if it matters, how do international organizations go about building or defending their legitimacy? This chapter aims to address some of these questions, with particular focus on the last of these:  how do international organizations go about legitimating themselves vis-​à-​vis different audiences, and for what purpose? It makes three main arguments. First, it argues that in most international organizations the most important actors engaging in legitimation efforts are not the supranational bureaucracies, but member states. This has important implications for our understanding of the purposes of seeking legitimacy, and for the possible practices.   For reasons of brevity and simplicity, this chapter refers to “international organizations” meaning both international and regional organizations. 1

 

1108   legitimacy Second, legitimacy and legitimation serve a range of purposes for these states, beyond achieving greater compliance with their decisions, which has been one of the key functional logics highlighted for legitimacy in the literature.2 Instead, legitimacy is frequently sought to exclude outsiders from the functional or territorial domains affected by an international organization’s authority, or to maintain external material and political support for existing arrangements. Third, one of the most prominent legitimation efforts, institutional reforms, often prioritizes form over function, with international organizations engaging in what the development economist Matt Andrews has called ‘isomorphic mimicry’, where reforms are not aimed at changing the underlying political structures and dynamics, but at signalling to important and powerful audiences to encourage their continued material and political support.3 To advance these arguments, the chapter is divided into four sections. It will start with developing the concept of legitimacy and its application to international organizations, and then ask why their legitimacy has become such an important intellectual and political concern in recent years. The second part will look in more detail at the legitimation practices of international organizations, focusing on who engages in these practices, who the key audiences are, and how legitimation claims are advanced. The third section will look in more detail at one of the most common forms of legitimation—​institutional. The chapter will conclude with some reflections on the contribution that a legitimacy perspective has made to our understanding of the practices of international organizations.

Legitimacy and International Organizations An institution is legitimate if its power is justified in terms of moral and other socially embedded beliefs, and if those subject to its rule recognize that it should be

  Henry Walker and Morris Zelditch, “The Legitimacy of Regimes,” Advances in Group Processes 20 (2003): 217–​49; Morris Zelditch, “Theories of Legitimacy,” in The Psychology of Legitimacy, ed. John Jost and Brenda Major (Cambridge: Cambridge University Press, 2001), 33–​53. 3   Matt Andrews, The Limits of Institutional Reform in Development:  Changing Rules for Realistic Solutions (Cambridge: Cambridge University Press, 2013). 2

 

legitimacy and international organizations    1109 obeyed.4 Legitimacy is therefore an inherently intersubjective and social concept. Thus, legitimacy is rooted in the collective beliefs of a particular community, which gives these beliefs a certain degree of stability, but also means that legitimacy can only be assessed with respect to this particular group: legitimacy judgements are not universal.5 Substantive understandings of what constitutes legitimacy are sustained and changed through the actions of those in an authority relationship: legitimacy needs to be recognized by those subject to rule and needs to be claimed and justified by those exercising authority. Such an understanding of legitimacy highlights that it is problematic to neatly distinguish between what Robert Keohane and Allen Buchanan call the normative dimension of legitimacy (the right to rule) and the sociological dimension of legitimacy (a widely held belief in the right to rule).6 An institution’s sociological legitimacy, ascribed as the result of the congruence of the institution’s objectives and practices with the beliefs, values, and expectations that provide a justification for its power, is judged on the basis of certain normative suppositions. Normative legitimacy, on the other hand, is usually ascribed to an institution if its structure, processes, and actions fulfil particular normative criteria, such as being based on some expression of consent, institutional integrity, or the promotion of justice. These criteria, however, are not universal and change over time: they arise as a consequence of social processes of argumentation, persuasion, and socialization, and are subject to social change. Both the normative and sociological dimensions of legitimacy are therefore inextricably interlinked. An arguably more useful way to unpack the concept of legitimacy is therefore to examine what kinds of underlying beliefs contribute to an institution’s legitimacy. The legitimacy literature has identified three types of belief in particular that give rise to different forms of legitimacy. The first are what Fritz Scharpf has called ‘output legitimacy’: shared beliefs about normatively desirable outcomes, and the ability of institutions to achieve them.7 In the case of international organizations, these could be welfare gains from cooperation and the establishment of common standards, the promotion of human rights, or restrictions on the use of force, or on the production and use of certain kinds of weapons, to name just a few. Failing to achieve these outcomes or changes in the underlying beliefs as to what outcomes are normatively desirable can lead to challenges to an organization’s legitimacy. A second set of beliefs relates to what has been called process legitimacy:  the ways in which power is exercised, the processes by which rulers are selected and by   David Beetham, The Legitimation of Power (Basingstoke: Palgrave Macmillan, 2001), 15–​35.  Steven Bernstein, “Legitimacy in Intergovernmental and Non-​State Governance,” Review of International Political Economy 18/​1 (2011): 17–​51. 6   Allen Buchanan and Robert Keohane, “The Legitimacy of Global Governance Institutions,” Ethics and International Affairs 20/​4 (2006): 405–​37. 7  Fritz Scharpf, Governing Europe:  Democratic and Effective? (Oxford:  Oxford University Press, 1999). 4 5

 

1110   legitimacy which decisions are made, and the processes that ensure that power is exercised in a procedurally fair manner.8 With regard to international organizations, such beliefs about legitimizing processes can entail the equal application of rules to all member states, transparency in decision-​making and opportunity for participation, or processes ensuring adequate representation, such as on a regional basis. The final set of legitimating beliefs are beliefs about the identity and particular qualities of an institution, contributing to what Mark Sutchman has called ‘structural legitimacy’.9 In Sutchman’s words, ‘[t]‌he structurally legitimate organization becomes a repository of public confidence because it is “the right organization for the job” ’.10 An international organization’s structural legitimacy might arise from shared beliefs about its epistemic capacities, its perceived ability to muster particular resources and expertise, or from certain qualities of its membership, such as the involvement of regional powers, or the democratic character of member states.

Why Does Legitimacy Matter for International Organizations? Legitimacy is widely seen as a motivation for compliance: because it instils a notion of obligation rooted in the perception that a legitimate institution’s demands are normatively appropriate, actors comply even in the absence of coercion or material rewards. As a source of compliance, legitimacy is very attractive: as it does not rely on constant monitoring or on material rewards, its costs are generally thought to be lower than those of coercion or incentives. In addition, it is argued to be more durable, as it is not vulnerable to shocks limiting the availability of coercion or incentives.11 Legitimacy, of course, is only one possible source of compliance. The most prominent international actors, states, have a range of options to induce compliance of either their citizens or of other states with their requests: in addition to the normative pull of legitimacy, most states have the resources to either coerce or incentivize compliance, especially of their citizens. However, as Inis Claude observed, most states combine the use of coercion or incentives with appeals to legitimacy: ‘lovers of naked power are far less typical than those who aspire to clothe themselves in the   Thomas M. Franck, Fairness in International Law and Institutions (Oxford:  Clarendon Press, 1995); Tom R. Tyler, “A Psychological Perspective on the Legitimacy of Institutions and Authorities,” in The Psychology of Legitimacy: Emerging Perspectives on Ideology, Justice, and Intergroup Relations, ed. John T. Jost and Brenda Major (Cambridge: Cambridge University Press, 2001), 416–​36. 9   Mark Sutchman, “Managing Legitimacy:  Strategic and Institutional Approaches,” Academy of Management Review 20/​3 (1995): 571–​610. 10   Ibid., 582. 11   Walker and Zelditch, “The Legitimacy of Regimes”; Zelditch, “Theories of Legitimacy.” 8

 

legitimacy and international organizations    1111 mantle of legitimate authority; emperors may be nude, but they do not like to be so, and think of themselves so, or to be so regarded’.12 Most international organizations, however, do not have the privilege of being able to use naked power, as they lack the coercive capacities and economic resources of states. Hence, they are likely to rely strongly on legitimacy to achieve compliance with their rules and decisions. Given the focus on compliance, the primary legitimacy relationship with regard to international organizations that is highlighted in the literature is the one between organizations and their members; after all, they tend to be the ones most directly affected by the authority of international organizations. However, as will be examined in more detail, many international organizations also need to seek support and recognition from either powerful non-​member states or from other international organizations in the sense that they do not interfere into an organization’s functional and territorial domains, or seek active material support from them for their activities. When examining the purposes of seeking legitimacy and engaging in legitimation, it is therefore important to consider a wider range of audiences rather than just member states and their compliance. Legitimacy questions also matter because they tend to be asked at times of crisis, when institutional arrangements are questioned either by those participating in them (e.g. members of international organizations) or by those outside it.13 Such crises can have multiple reasons—​they can be the consequence of sudden shocks that completely change the environment within which particular international organizations work (such as the end of the Cold War, or the global financial crisis), or they can be the consequence of gradual changes in international society. Such gradual changes can affect both the material environment within which organizations operate (e.g. the emergence of new great powers, and its implications for the balance of power) and the normative environment (e.g. a greater prominence of human rights). As Veijo Heiskanen suggests in his introduction to one of the first major explorations of the legitimacy of international organizations: Over the past fifty years, fundamental changes have taken place in the operating environment of these international organizations … As a result of these changes, many international organizations … have been struggling to maintain or re-​establish the role that they once were perceived, or expected to have in international relations.14

Legitimacy questions therefore provide us with an insight into the kinds of challenges that international organizations face from a range of sources, and into the 12   Inis Claude, “Collective Legitimization as a Political Function of the United Nations,” International Organization 20/​3 (1966): 386. 13  Mervyn Frost, “Legitimacy and International Organizations: The Changing Ethical Context,” in  Legitimating International Organizations, ed. Dominik Zaum (Oxford: Oxford University Press, 2013), 26. 14   Veijo Heiskanen, “Introduction,” in The Legitimacy of International Organizations, ed. Jean-​Marc Coicaud and Veijo Heiskanen (Tokyo: UN University Press, 2001), 1–​2.

 

1112   legitimacy relations between international organizations and both their members and the wider world. While the specific challenges to and crises of legitimacy that international organizations face or have faced differ, they broadly fall into four categories.15 The first are challenges to decision-​making structures and practices, which are central to the procedural legitimacy of organizations. Such challenges can take a range of forms. They might focus on a lack of transparency—​a challenge often raised against the World Bank and the International Monetary Fund, for example.16 They might highlight the role of particular powerful member states, and ascribe particular policy choices to their apparent hegemonic position, or focus on a lack of representativeness of decision-​making organs, as in the UN Security Council and its five permanent members. Such challenges, while predominantly internal, mostly come from member states who feel excluded, or from their publics who identify the decision-​making structures as elitist and non-​democratic—​a legitimacy challenge that has arguably been largely limited to the European Union (EU), with its unique reach into the domestic affairs of its member states. However, it can also come from actors outside an organization—​such as the challenges by the United States and European states to the Association of Southeast Asian Nations’ (ASEAN) legitimacy on the basis of its consensual decision-​making and the opportunities for obstruction this was perceived to offer.17 The second is the challenge of the non-​compliance of member states with an organization’s decisions or rules. When Nigeria and other member states of the Economic Community of West African States (ECOWAS) called on the UN Security Council to authorize military action in Côte d’Ivoire in 2011, and to intervene more forcefully in the post-​election stand-​off and protect civilians, they acted in direct contravention of the AU’s decision to call for a political dialogue, as the military intervention targeted only one of the conflict parties—​the forces of President Laurent Gbagbo. Similarly, the uses of force by the NATO and the United States and its allies in Kosovo (1999) and Iraq (2003) respectively are examples of non-​compliance with an organization’s rules, as both challenged the restrictions in the UN Charter on the use of force without Security Council authorization. While international organizations also call on non-​members (both states and non-​state actors) to act in certain ways, and might be ignored, non-​compliance by member states, especially powerful member states with a strong voice in the organization, obviously poses a much greater challenge to an organization’s legitimacy.

15  See Dominik Zaum, “Conclusion,” in Legitimating International Organizations, ed. Dominik Zaum (Oxford: Oxford University Press, 2013), 221–​3. 16   Ngaire Woods and Amrita Narlika, “Governance and the Limits of Accountability: The WTO, the IMF, and the World Bank,” International Social Science Journal 53/​170 (2001): 569–​83. 17   Alice Ba, “The Association of Southeast Asian Nations: Between Internal and External Legitimacy,” in Legitimating International Organizations, ed. Dominik Zaum (Oxford:  Oxford University Press, 2013), 147–​51.

 

legitimacy and international organizations    1113 Member states who want to limit the existing authority and autonomy of international organizations pose a third challenge to their legitimacy. These challenges question the existing authority relationships between international organizations and their members. An example of such a challenge is the efforts of recent British governments (and in particular Conservative Members of Parliament) to limit the authority of the EU and repatriate powers back to member states, in the process explicitly questioning the legitimacy of the EU’s exercise of certain powers.18 Efforts to restrict the UN’s involvement in the domestic affairs of states by members like Russia or China is another example. These challenges can arise for different reasons. An international organization might have pushed claims to authority to encroach upon the domestic jurisdiction of member states beyond the existing normative consensus and suffered from ‘normative overstretch’ (as has been argued with respect to the UN Security Council’s broadened conception of threats to international peace and security).19 Alternatively, changes in the balance of power might make some states both perceive the restrictions on their sovereignty that arise from an international organization’s authority as restrictive and irksome, and might enable them to challenge them more effectively. Russian efforts to reduce the autonomy of Organization for Security and Co-​operation in Europe (OSCE) institutions such as the Office for Democratic Institutions and Human Rights over the last decade, and its electoral observer missions who have been critical of practices by Russia and its allies, are cases in point: the critical Russian position arguably reflects both the consolidation of an increasingly authoritarian regime and the re-​emergence of Russia as an international power, and with it the greater desire and capacity to roll back some of the liberal norms and institutions advanced by the OSCE in the wake of the end of the Cold War.20 The final set of legitimacy challenges arises when the institutions and practices of international organizations conflict with, or no longer reflect, international norms. As discussed above, such norms are the benchmark against which the judgements about the legitimacy claims of international organizations are made. One example of this is the association of the UN Conference for Trade and Development with a ‘new international economic order’ that emphasized greater state control over the allocation of resources, a greater voice of developing countries in international economic institutions, and a more favourable transfer of financial resources to developing countries. While such a focus might have strengthened its legitimacy in the 1960s and 1970s,21 with changes in economic ideology in the 1980s such ideas—​and   See, e.g., “The EU Veto: The Tory MPs’ Letter to David Cameron,” Daily Telegraph, 11 January 2014.  George Andreopoulos, “The Challenges and Perils of Normative Overstretch,” in The UN Security Council and the Politics of International Authority, ed. Bruce Cronin and Ian Hurd, (Abingdon: Routledge, 2008), 105–​28. 20   Ingo Peters, “Legitimacy and International Organizations: The Case of the OSCE,” in Legitimating International Organizations, ed. Dominik Zaum (Oxford: Oxford University Press, 2013), 196–​220. 21   See UNGA Res. 3201 (S-​VI), Declaration on the Establishment of a New International Economic Order, 1 May 1974. 18

19

 

1114   legitimacy the organization associated with them—​became increasingly marginal, and in 2003 its headquarters in Geneva were described by one commentator as ‘a temple of a failed faith’.22 Also, regional norms that legitimate an organization might conflict with wider international norms and challenge the legitimacy of a regional organization in the light of external audiences, even if such regional normative frameworks are central to the organization’s legitimacy in the eyes of its member states. An example of this is the Shanghai Cooperation Organization (SCO), whose legitimacy amongst some external (especially Western) audiences is compromised by its challenge to liberal norms, while at the same time this challenge and the political and normative alternatives it opens up make it attractive and more legitimate to states who feel their interests threatened or marginalized by international organizations dominated by liberal Western states. These challenges to the legitimacy of international organizations highlight two important aspects of legitimacy. The first one is the inherently contested character of legitimacy:  different audiences will have different legitimacy perceptions, and some will challenge the legitimacy claims of international organizations. Without unpacking these processes of contestation and the relationships they involve, it is difficult to make meaningful judgements about the degree of legitimacy of a particular organization. The second aspect is the complex relationship between legitimacy and power. Legitimacy is seen as a source of power (and compliance); as an attribute of power, transforming ‘naked power’ into authority;23 and as a constraint on power, imposing self-​restraint on powerful actors.24 As the examples above highlight, power is also central to efforts to both maintain international organizations’ legitimacy and to challenge it. As David Beetham suggests: the important point to stress about the maintenance and reproduction of legitimacy—​the maintenance of rules, the reproduction of beliefs, the continued expression of consent—​is that these do not take place independently of the structures of power that they legitimate.25

Powerful states can deploy superior resources to influence the beliefs that legitimate both institutions and power relationships. While they cannot control these beliefs and the practices by which they are communicated, they have a 22   Adam Roberts, cited in John Toye, “Order and Justice in the International Trade System,” in Order and Justice in International Relations, ed. Rosemary Foot, John Lewis Gaddis, and Andrew Hurrell (Oxford: Oxford University Press, 2003), 114. 23   Allen Buchanan, “Political Legitimacy and Democracy,” Ethics 122 (2002):  689–​7 19; Ian Hurd, “Theories and Tests of International Authority,” in The UN Security Council and the Politics of International Authority, ed. Bruce Cronin and Ian Hurd (Abingdon: Routledge, 2008), 24–​6. 24   G. John Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars (Princeton, NJ:  Princeton University Press, 2001); Nico Krisch, “The Security Council and the Great Powers,” in The United Nations Security Council and War: The Evolution of Thought and Practice since 1945, ed. Vaughan Lowe et al. (Oxford: Oxford University Press, 2008), 133–​53. 25  Beetham, The Legitimation of Power, 104.

 

legitimation   1115 dominant voice in the discourses that shape the norms against which legitimacy judgements are made.26

Legitimation Legitimacy is not only an attribute of international organizations, but also a social practice: it needs to be claimed by those exercising authority and recognized in particular by those subject to it. Much of the legitimacy literature has focused on the latter: on the ways in which those subject to an organization’s authority recognize and validate its legitimacy claims. Domestically, the focus on democratic legitimation to validate the claims of office-​holders is a key example of this; while in international society, the emphasis on state consent for the generation of international legal obligations is one of the most prominent practices of recognizing the legitimacy of an organization.27 In international organizations, consent is primarily expressed through membership, and the acceptance of its rules and regulations that come with it. However, it can also be expressed through a range of day-​to-​day practices that confirm an organization’s legitimacy, ranging from rhetorical affirmation of an organization’s legitimacy claims (e.g. by emphasizing the importance of the World Trade Organization (WTO) framework for global trade talks) to calls for decisions by an organization to authorize or endorse a particular course of action (e.g. the refusal of some European states to deploy their armed forces in peace operations without a UN Security Council mandate). Member states, however, are not the only community at which legitimacy claims are directed, and whose recognition and validation is sought. Recognition by outsiders who are not directly affected by a legitimacy claim, or who might be able to make rival claims, is also important. In international society, the most prominent example of this form of legitimation is the practice of state recognition, where the  See, e.g., Jane Boulden, “Double Standards, Distance, and Disengagement: Collective Legitimization in the Post-​Cold War Security Council,” Security Dialogue 37/​3 (2006): 409–​23; Andrew Hurrell, “Power, Institutions, and the Production of Inequality,” in Power in Global Governance, ed. Michael Barnett and Raymond Duval (Cambridge: Cambridge University Press, 2005), 33–​58; Ngaire Woods, “The United States and the International Financial Institutions: Power and Influence within the World Bank and the IMF,” in US Hegemony and International Organizations, ed. Rosemary Foot, Neil MacFarlane, and Michael Mastanduno (Oxford: Oxford University Press, 2003), 92–​114. 27   Terry Nardin, “Legal Positivism as a Theory of International Society,” in International Society: Diverse Ethical Perspectives, ed. David Maple and Terry Nardin (Princeton, NJ: Princeton University Press, 1998), 17–​35; Bruno Simma, “From Bilateralism to Community Interest in International Law: Bilateralism and Community Interest Confronted,” Recueil des Cours 250 (1994): 229–​55; Dominik Zaum, “The Authority of International Administrations in International Society,” Review of International Studies 32/​3 (2006): 458–​61. 26

 

1116   legitimacy recognition by other states constitutes a political community as a member of the society of states with the concomitant rights and responsibilities, and legitimates its participation in the practices of international society. With regard to international organizations, such legitimation can be practised by at least three kinds of actors: by other international organizations recognizing and affirming the activities of a particular organization; by non-​members of an organization, especially great and regional powers that are politically, economically, or strategically important for many member states of an organization; and by prominent non​governmental organizations (NGOs) that can galvanize international public opinion. To be recognized, however, legitimacy needs to be claimed vis-​à-​vis these different audiences by international organizations and their members. Rodney Barker has called this process self-​legitimation:  ‘an action or series of actions—​speech, writing, ritual, display—​whereby people justify to themselves or others the actions they are taking and the identities they are expressing or claiming’.28 Thus, the ways in which international organizations make legitimacy claims and try to justify them can vary widely, reflecting differences in their mandates, the degree of institutionalization, and the character of their membership, and can range from mere rhetorical affirmation of a claim to investing in substantial organizational reforms to respond to international normative change, or challenges from member states, for example. This understanding of legitimation raises three specific questions with regard to international organizations:  first, what is the purpose of their legitimacy claims; second, who legitimates; and, third, who are the key audiences of these legitimation efforts?

The Purpose of Legitimation International organizations engage in legitimation for three reasons. The first purpose of legitimation is to confirm the desirability of the status quo and to affirm existing authority structures and defend them against rival authority claims. Challenges to the status quo can come from both inside an organization or from actors outside it. Internal challenges often focus on the scope of an organization’s authority over its members (such as perennial efforts by recent British governments to repatriate EU powers), or on perceptions of unfairness in the distribution of power (e.g. the privileges of the permanent five members of the UN Security Council) or of decision-​making processes (e.g. the decision-​making processes in the WTO29). Challenges to an  Rodney Barker, “Legitimacy, Legitimation, and the European Union:  What Crisis?,” in Law and Administration in Europe: Essays in Honour of Carol Harlow, ed. P. Craig and Richard Rawlings (Oxford: Oxford University Press, 2003), 163–​4. 29   Robert Howse and Kalypso Nicolaidis, “Enhancing WTO Legitimacy: Constitutionalization or Global Subsidiarity?,” Governance 16 (2003): 73–​94. 28

 

legitimation   1117 international organization’s authority can also come from outside actors, in particular from other international organizations or powerful states who question an organization’s authority over a particular issue. One example is the challenge to the UN Security Council’s charter-​based monopoly on the authorization of the use of force other than in self-​defence coming from the AU’s and ECOWAS’s claims about their role in the management of the use of force in their respective regions,30 or NATO and the United States’s actual use of force without Council authorization in Kosovo and Iraq. The second purpose of legitimation efforts is the recategorization or extension of authority relationships.31 As Clark argues, legitimation describes the processes by which the distinct normative beliefs of actors are reconciled and applied to a particular case.32 These processes of negotiating both applicable norms and the role that a particular international organization should play in their promotion or protection both lead to normative change and to changed understandings of the legitimate objectives and practices of international organizations. A good example of this is the rhetorical shift—​reinforced by institutional changes—​of the AU and ECOWAS from the traditional principle of non-​interference towards the principle of ‘non-​indifference’, a highly interventionist norm that has served to justify a range of political and military interventions by both organizations, in particular in response to unconstitutional power grabs.33 Given the often substantial impact of such changes on the relationship between an organization and its member states, such efforts can be highly contested. The third purpose of legitimation efforts is to confirm legitimacy claims in the light of social and political change. Such changes can result in legitimacy gaps as the objectives and practices of an international organization no longer match the normative beliefs and expectations of its members: changes in the international balance of power and the composition of international society, for example, have challenged the legitimacy of the UN Security Council, and in particular the privileged hegemony of the permanent five members, chosen in 1945. Similarly, the changing character of conflict in Africa in the post-​Cold War era, and the changing expectations of African states (many of which had democratized) towards an African regional organization undermined the legitimacy of the Organization of African Unity (OAU) and its key principle of non-​intervention. Importantly, though, any social

  See, e.g., Walter Lotze, “Building the Legitimacy of the African Union: An Evolving Continent and Evolving Organization,” in Legitimating International Organizations, ed. Dominik Zaum (Oxford: Oxford University Press, 2013), 111–​31. 31  Herbert Kelman, “Reflection on Social and Psychological Processes of Legitimization and Delegitimization,” in The Psychology of Legitimacy, ed. John Jost and Brenda Major (Cambridge: Cambridge University Press, 2001), 54–​73. 32   Ian Clark, Legitimacy in International Society (Oxford: Oxford University Press, 2001), 20. 33   See Alhaji Sarjoh Bah, “ECOWAS and the Legitimacy Question: A Normative and Institutional Approach,” in Legitimating International Organizations, ed. Dominik Zaum (Oxford: Oxford University Press, 2013), esp. 102–​6. 30

 

1118   legitimacy and political change is likely to affect different states in different ways, depending on their internal characteristics, their economic or military capacity, or their geopolitical position. Thus, rather than simply depriving international organizations of their normative underpinnings, such change opens them up for contestation again as the expectations of member states towards the organization diverge, or because previously existing differences come into the open.

Who Claims Legitimacy? International organizations often strive to give the impression that they are single corporate entities, which act ‘in their own right’. In their resolutions and statements, it is often the organization as a collective, not the individual member states, which ‘criticizes’, ‘endorses’, or even ‘authorizes’ particular actions. The perception that they are relatively autonomous, corporate entities pervades much of the literature on the legitimacy of international organizations. It has led to suggestions that the study of bureaucracies offers a useful lens to understand the legitimacy and legitimation practices of international organizations,34 and a range of scholars have argued that, like bureaucracies, international organizations embody what Weber has termed rational-​legal authority: they have issue-​specific authority (rather than the discretionary and plenipotentiary authority of a government), and their decision-​making is subject to closely prescribed and codified processes, which are well understood by the relevant audiences.35 Consequently, the legitimacy of their decisions can be rationally debated on the basis of these decision-​making rules. There are limits, however, on the degree to which international organizations can be attributed agency and the powers and responsibilities which flow from it. While many organizations have an identity greater than the sum of their parts, their decision-​making structures and processes are often ad hoc, opaque, and dominated by a few powerful states, rather than based on the application of well-​ understood rules.36 As intergovernmental organizations,37 one of the central roles of   Michael N. Barnett and Martha Finnemore, “The Politics, Power, and Pathologies of International Organizations,” International Organization 53/​4 (1999):  699–​732; Corneliu Bjola, “Legitimating the Use of Force in International Politics:  A  Communicative Action Perspective,” European Journal of International Relations 11/​2 (2005): 266–​303; Michael Matheson, Council Unbound: The Growth of UN Decision Making on Conflict and Post-​Conflict Issues after the Cold War (Washington, DC: USIP Press, 2006); Jens Steffek, “The Legitimation of International Governance: A Discourse Approach,” European Journal of International Relations 9/​2 (2003): 249–​75. 35   Max Weber, Economy and Society (New York: Bedminster Press, 1968). 36   See, e.g., Chinmaya Gharekan, The Horseshoe Table: An Inside View of the UN Security Council (Delhi: Dorling Kindersley, 2006), 13–​44. 37   A range of important international organizations have strong supranational elements, most notably the EU, the World Bank, and the International Monetary Fund. The specific legitimacy challenges this poses are beyond the scope of this chapter. 34

 

legitimation   1119 international organizations is to act as a focal point for facilitating the cooperation between states to address collective action problems in a complex, globalized world. International organizations also act as frameworks through which states pursue the legitimation—​and delegitimation—​of different conceptions of international order, and the role of respective international organizations within that order. Legitimation is therefore not only pursued collectively by an international organization as a whole, but also by different members individually, through the structures and processes of the organizations, and with reference to their mandates. Understanding their legitimation practices therefore requires not only looking at international organizations as relatively coherent, corporate entities, but also examining the practices of their member states, and unpacking the political dynamics occurring within the organizations. Most international organizations are therefore best understood as having a Janus-​faced character, defying easy characterization as either coherent, autonomous supranational bodies or institutional frameworks for intergovernmental cooperation. With regard to the UN, Inis Claude prominently captured this in his notion of the ‘two United Nations’—​the supranational UN of the Secretariat and its specialized agencies on the one hand, and the UN of the member states in the Security Council and the General Assembly on the other.38 This discussion of who engages in legitimation suggests that most international organizations are best considered as collective enterprises rather than unitary actors. With this in mind, one can distinguish between efforts where the members of international organizations are consciously deliberating and acting collectively (e.g. when they decide on organizational reforms), and those instances in which particular member states are taking the lead in making legitimacy claims. These can also be described as collective or pluralist forms of legitimation respectively. Collective legitimation practices describe the efforts of international organizations and their members as coherent actors to improve the normative properties of an institution to defend or sustain authority claims against both internal and external challenges. Pluralist legitimation efforts, on the other hand, are conducted by individual states and groups of states. These states use the structures and processes of particular international organizations instrumentally to protect or promote their particular vision of international or regional order. As international organizations can offer a permissive environment for norm-​based discourses,39 and act as ‘repertoires of collective understandings’ that structure norm-​based debates between states,40 they are a useful platform for states for such efforts.

38  Inis L. Claude, “Peace and Security:  Prospective Roles for the Two United Nations,” Global Governance 2 (1996): 289–​98. 39  Martha Finnemore, “Fights about Rules:  The Role of Efficacy and Power in Changing Multilateralism,” Review of International Studies 31/​S1 (2005): 187–​206. 40   Thomas Risse, “Let’s Argue! Communicative Action in World Politics,” International Organization 54/​1 (2000): 11.

 

1120   legitimacy

Who Are the Audiences? The legitimacy claims of international organizations are targeted at a range of different audiences. In an international order characterized by value pluralism and a diverse range of actors (both states and non-​state actors), these distinct audiences have different interests, different expectations towards an organization, and different normative reference points against which they judge legitimacy claims. International organizations therefore face the challenge of reconciling these competing demands,41 and if the expectations towards an organization by different audiences conflict, they limit the political space within which different legitimation practices and objectives can be successfully reconciled. Examples of the tensions between different normative reference points for legitimacy judgements abound: the peace operations literature has increasingly focused on the tensions between international and local conceptions of legitimacy,42 while an important part of the debate about EU legitimacy is framed in terms of a ‘democratic deficit’, where the EU and its institutions might be successfully legitimated vis-​à-​vis European elites, but not in the eyes of the wider population of the EU’s member states, as highlighted by the fate of the constitutional convention and treaty.43 One can broadly distinguish between three types of audiences of international organizations’ legitimacy claims. The first audience is internal—​member states and their publics. Given the association of legitimacy with authority, and thus with hierarchy and compliance, the relationship between international organizations and their members has received extensive attention in the literature. With regard to legitimation, it is important to note that member states themselves can often be deeply divided over a range of important issues that affect the scope of an international organization’s authority: even if an international organization reflects shared norms and values and advances common interests, states are frequently divided over the degree of authority that an organization should have with regard to its members, how centralized and supranational this authority should be, or what the best ways to promote particular objectives might be. Social change in particular can increase the differences between member states. In the case of the OSCE, for example, fissures between major members states (with Russia and former Commonwealth of Independent States members on the one hand, and the United States and Western European states on the other) about the kind of regional order that the OSCE should  Andrew Hurrell, “Legitimacy and the Use of Force:  Can the Circle be Squared?,” Review of International Studies, Special Issue on Force and Legitimacy in World Politics, 31 (2005): 15–​32. 42   Noah Feldman, What We Owe Iraq: War and the Ethics of Nationbuilding (Princeton, NJ: Princeton University Press, 2004); Jeni Whalan, How Peace Operations Work: Power, Legitimacy, and Effectiveness (Oxford: Oxford University Press, 2013); Dominik Zaum, The Sovereignty Paradox: The Norms and Politics of International Statebuilding (Oxford: Oxford University Press, 2007). 43  Thomas Risse and Mareike Kleine, “Assessing the Legitimacy of the EU’s Treaty Revision Methods,” Journal of Common Market Studies 45/​1 (2007): 69–​80. 41

 

legitimation   1121 help to uphold, and the degree of autonomy some of its bodies—​such as electoral observation missions—​should have, has deepened as both domestic Russian politics, and Russia’s political and economic international presence changed after the turmoil of the first post-​Cold War decade.44 The normative divisions within the membership of international organizations, and the existence of multiple internal audiences for legitimacy claims on behalf of international organizations, highlight the importance of considering international organizations not only as actors legitimating other actors and practices, or as institutions in need of legitimation, but also as frameworks for contesting and legitimating different international orders. Legitimacy relationships, however, are not only hierarchical, and many international organizations speak to—​and seek recognition from—​external audiences of non-​member states, especially other international organizations, or great powers. This is particularly pronounced in the case of organizations that do not have a near-​ universal membership, or organizations whose members are not among the leading economic and military powers: since they are embedded into a wider global order that reflects the values, interests, and expectations of the major powers, they have to negotiate the requirements and expectations of this global order, in addition to those of their membership. Powerful global actors often fulfil important economic and security functions in a region, and might even financially support some of the core activities of international organizations in the developing world: most of the conflict resolution and peacekeeping activities of the AU, for example, have been financially supported by external actors, in particular the EU.45 The AU therefore relies heavily on external support to be able to legitimize itself internally vis-​à-​vis its members and their publics. Failure to legitimate themselves vis-​à-​vis powerful external actors can therefore have significant material consequences if these actors withdraw their support or actively challenge an organization. An international organization might seek external recognition of its legitimacy claims to strengthen its legitimacy amongst its members: external material support can contribute to the capacity of an international organization to deliver on shared objectives of the membership and enhance its output legitimacy; or external recognition of its authority by other organizations of powerful states raises its legitimacy among member states. However, as internal and external values and expectations can also conflict, seeking external recognition of legitimacy claims can also detract from an organization’s legitimacy among its membership, and limit the political space available to an organization and its members within which to successfully pursue legitimation efforts.

  Peters, “Legitimacy and International Organizations.”   Between 2004 and 2012, the EU channelled more than €1.1 billion to the AU’s peace and security operations. European Commission, African Peace Facility:  Annual Report 2012 (Brussels:  European Commission, 2012). 44 45

 

1122   legitimacy The third audience of legitimacy claims of international organizations are NGOs and civil society, who do not easily fall into the categories of internal and external audiences discussed above. NGOs can play an important role in the diffusion of norms (and thus the benchmarks against which different audiences assess the legitimacy of international organizations and their practices),46 and in shaping and influencing international organizations’ policy-​making.47 However, they are also an important audience for international organizations because through their advocacy and lobbying efforts, their ability to mobilize networks of activists, and their promotion of particular norms, they can legitimize international organizations vis-​à-​ vis governments and their publics. NGOs can thus complement and reinforce the legitimation efforts of international organizations and their members. With respect to NGOs, the purpose of legitimation is not to achieve compliance with decisions or to engender material or political support. Legitimation towards NGOs and civil society is important as it can help to co-​opt them into an international organization’s legitimation efforts. Still, some international organizations, especially in the security field and in the developing world, have often been reluctant to actively engage with NGOs and civil society.48 Other organizations, in contrast, such as the OSCE, have strong links with civil society.49 A prominent example of the reaffirming and legitimating role of NGOs is the International Coalition for the Responsibility to Protect, which has contributed to anchoring the ‘responsibility to protect’ (R2P) in the language used to discuss humanitarian crises and conflicts,50 and has legitimated the role of the UN as the guardian of R2P.

Legitimation and Institutional Reform: Isomorphic Mimicry? One of the most prominent forms of legitimation has been institutional reform: the change of existing organizational structures, or the creation of new ones. While few—​if any—​organizations have gone as far as the OAU, which 46   Margaret Keck and Kathryn Sikkink, Activists beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press, 1998). 47   Thomas G. Weiss, Tatiana Carayannis, and Richard Jolly, “The ‘Third’ United Nations,” Global Governance 15/​1 (2009): 123–​42. 48   Margaret Karns and Karen Mingst, International Organizations: The Politics and Process of Global Governance (Boulder, CO: Lynne Rienner, 2010), 244–​5. 49   These go back to the OSCE’s predecessor, the CSCE, and the mutually supportive relationship between the CSCE and civil rights organizations in Eastern Europe. See Daniel Charles Thomas, The Helsinki Effect: International Norms, Human Rights, and the Demise of Communism (Princeton, NJ: Princeton University Press, 2001). 50   Alex Bellamy, “The Responsibility to Protect:  Five Years On,” Ethics & International Affairs 24 (2010): 143–​69.

 

legitimation   1123 reinvented itself as the AU with a whole new organizational architecture and a much more intrusive mandate, many international organizations have over time reformed or complemented their existing institutions: ASEAN, for example, created a Human Rights Commission, the EU created institutions such as the European Central Bank, the UN created the Peacebuilding Commission, and even the SCO, one of the most weakly institutionalized intergovernmental international organizations, created new structures including the Regional Anti-​ Terrorism Structure (RATS). The justifications for such organizational reforms seem to address two legitimacy concerns in particular. On the one hand, they are often attributed to a desire to more effectively promote shared interests and values—​that is, to increase the output legitimacy of international organizations. The establishment of the AU’s Peace and Security Architecture, of the Peacebuilding Commission in the UN, or the SCO’s RATS are examples of this. Other reforms of organizational structures and rules—​such as changes in working methods in the UN for example, or of expanded consultation mechanisms with NGOs and civil society in a wide range of organizations—​are aimed at achieving greater representatives and openness in decision-​making and contribute to greater procedural legitimacy. Importantly, not all of these institutional changes are targeted at strengthening the internal legitimacy of international organizations by strengthening the relevance of the organization to key members and their concerns. Especially in international organizations in the Global South that rely on the support or recognition of external actors and do not count great powers amongst their members, institutional change is often targeted also at external audiences to sustain their recognition and support. These international organizations then pursue particular reforms not to achieve substantive changes in their practices or performance, but in response to outside pressures to conform to externally defined expectations and values—​ a process described by Paul DiMaggio and Walter Powell as isomorphism.51 They identify three processes through which isomorphism works—​coercive pressures, mimetic processes, and normative pressures—​all of which are linked to issues of legitimacy.52 Coercive isomorphism, which works through external formal and informal pressures for organizational change to conform with wider norms, and mimetic isomorphism, where organizations emulate perceived well-​functioning practices or institutions, engage both output and procedural legitimacy questions. Normative isomorphism affects practices through the influence of professional standards, as has been explored in the international relations literature on epistemic

51   Paul DiMaggio and Walter Powell, “The Iron Cage Revisited:  Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review 48/​2 (1983): 147–​60. 52   Ibid., 150–​4.

 

1124   legitimacy communities, generating both shared understandings and practices with regard to particular issue areas,53 and engages with structural legitimacy. A growing literature in international development that looks at the difficulties of institutional reform has identified isomorphic mimicry—​‘the tendency to introduce reforms that enhance an entity’s legitimacy and support, even when they do not demonstrably improve performance’54—​as one of the key reasons why institutional reforms in many developing countries have had so little traction. While formal changes are important to sustain the continued financial support from donors, governing elites aim to limit substantive changes that threaten their core interests or that might provoke conflicts within the state.55 In some international organizations, we might be observing similar processes. They pursue organizational reforms that mimic international norms to generate and sustain external legitimacy, and with it recognition and material support. However, the substantive impact of these changes on the actual practices and performance of these international organizations is limited by the conflicting interests and values of member states. There are a range of examples of such isomorphic practices. ASEAN’s establishment of a regional human rights system, for example, has been interpreted as the mimetic adoption of Western institutions to be recognized as advanced countries with internationally legitimate values.56 Similarly, regional organizations promoting economic integration, such as the South American trade organization MERCOSUR,57 and the Southern African Development Community (SADC) have mimetically adopted practices and structures from arguably the most successful example of such integration, the EU.58 While some of these organizational changes might affect the performance of international organizations, others are instances of the primacy of form over function: as they are a response to external expectations and not the interests and values of an organization’s members, these changes might look like substantive reforms but, in terms of their substantive outcomes, they do not dramatically change the underlying structures of power and interest within a specific international organization.

  See, e.g., Emmanuel Adler and Richard Haas, “Conclusion: Epistemic Communities, World Order, and the Creation of a Reflective Research Program,” International Organization 46/​1 (1992): 367–​90. 54  Matt Andrews, Lant Pritchett, and Michael Woolcock, “Escaping Capability Traps through Problem Driven Iterative Adaption (PDIA),” World Development 51 (2013): 234–​5. 55   e.g., Matt Andrews, The Limits of Institutional Reform in Development Changing Rules for Realistic Solutions (Cambridge: Cambridge University Press, 2013). See also Douglass North, John J. Wallis, and Barry Weingast, Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History (Cambridge: Cambridge University Press, 2009). 56  Hiro Katsumata, “ASEAN and Human Rights:  Resisting Western Pressure or Emulating the West?,” The Pacific Review 22/​5 (2009): 619–​37. 57   Mercado Común Sudamericano. 58   Tobias Lenz, “Spurred Emulation: The EU and Regional Integration in MERCOSUR and SADC,” West European Politics 35/​1 (2012): 155–​73. 53

 

conclusion   1125

Conclusion This chapter has aimed to examine the importance of legitimacy for international organizations, and the practices they deploy to generate and sustain legitimacy vis-​ à-​vis different audiences. The discussion has highlighted four points. First, international organizations seek legitimacy not only for compliance from their members, but also from external actors to generate material support or recognition of their authority. The latter is particularly important for international organizations in the Global South, whose membership does not include the leading economic, military, and political powers. As the growth of regional organizations is particularly pronounced in these parts of the world, it is important to recognize this direction of legitimation efforts, and its implications. Second, most international organizations are not homogenous, unitary actors, and do not necessarily engage in legitimation ‘as one’. Instead, legitimation efforts are mostly advanced by member states, sometimes collectively, and sometimes individually or by small groups. This suggests that these efforts not only seek to strengthen the legitimacy of an organization vis-​à-​vis different audiences, but also to use the platform that an international organization offers to promote a particular vision of international order (including of the respective organization within it). Third, organizational reforms, which initially appear to most directly respond to internal legitimacy challenges, can often be an attempt at legitimation in response to external pressures. As a result, such efforts are likely to prioritize form over function and engage in ‘isomorphic mimicry’, with organizational changes not fundamentally challenging the underlying political structures and dynamics, but instead performed to signal to important and powerful external audiences that the organizations are deserving of continued material and political support. Finally, and arguably most important, legitimacy relationships and legitimation practices by international organizations are inextricably linked to the wider social and material international structures of power. These structures shape who legitimation efforts are addressed to; they affect the resources and practices that organizations can deploy towards generating and sustaining legitimacy; and they shape the social order, the normative reference points, against which legitimacy judgements are made by different audiences. An international order that is characterized by value pluralism and only a shallow normative consensus, and where political and economic power (despite some diffusion) remain concentrated in a small number of states, means both that the political space within which international organizations and their members can pursue legitimacy is relatively constrained and that their legitimacy is less a question of degree and more one of perspective and audience.

 

Chapter 53

PARTICIPATION Klaus Dingwerth Patrizia Nanz

Participation has become a powerful principle underpinning current attempts to improve the legitimacy and effectiveness of international organizations. In general in political science, the term participation refers to all voluntary activities by citizens intended to influence either directly or indirectly political choices at various levels of the political system.1 The democratic ideal behind the principle of participation is a process of will-​formation, which assures that the authorization to exercise power arises from collective decisions by citizens over whom that power is exercised.2 In this sense, practices of participation generate legitimacy (see Chapter 52 of this volume). In modern government a variety of forms of political participation have been established. Most countries have developed some kind of electoral democracy. It formally secures that the concerns of citizens feed into decision-​making by means of aggregation of individual interests through political parties, corporations, and parliaments. Formal participation is mainly reduced to voting in more or less frequent political elections and, occasionally, in referenda. In addition, there are 1   Samuel Barnes and Max Kaase, Political Action: Mass Participation in Five Western Democracies (Beverly Hills and London: Sage, 1979). 2   Jens Steffek and Patrizia Nanz, “Emergent Patterns of Civil Society Participation in Global and European Governance,” in Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit?, ed. J. Steffek, C. Kissling, and P. Nanz (Houndmills, Basingstoke: Palgrave Macmillan, 2008), 1–​29.

 

participation   1127 informal forms of participation, as, for example, through civic engagement (citizen juries, town hall meetings, online forums, etc.) and through active involvement in social movements and civil society organizations. By addressing problems through public deliberation, the democratic ideal of participation is based on certain preconditions, notably access to information and exposure to a range of alternative solutions to policy problems. As indicated, social movements and civil society organizations are crucial for the self-​organization of active citizens, and even more so in global governance where citizens’ possibilities to formally participate are non-​existent. In global governance, no actor can claim to have been directly elected by voters. Given that a parliamentarization of international politics is not in sight, political deliberation in expert committees has been regarded as an alternative avenue.3 However, any deliberative understanding of democratic rule-​making relies on certain participatory conditions: it must ensure that the concerns of affected citizens are voiced and channelled into the decision-​making process. In international organizations this is done mainly indirectly, through transnational non​governmental organizations (NGOs).4 Here participation refers to different stakeholder groups: the members, the supporters, and the beneficiaries of a civil society organization, project, or policy process. In global governance participation is often embraced as a way to address the challenge of democratic legitimacy of political choices. Yet the claims made by international relations scholars are usually rather modest.5 The participation of NGOs is viewed as one element of democratization among others—​necessary but not sufficient on its own. In fact, there are a number of slightly different claims. First, dialogue with NGOs opens up international organizations to more view-​points without having to add seats or further representatives to the negotiation table and thus increases political plurality.6 Second, non-​governmental groups’ participation is forwarded as a means to enhance transparency and to expose decision-​makers to public scrutiny.7 Third, by adding alternative views and critical perspectives, 3   Christian Joerges and Jürgen Neyer, “From Intergovernmental Bargaining to Deliberative Political Processes: The Constitutionalisation of Comitology,” European Law Journal 3/​3 (1997): 273–​99. 4   Steve Charnovitz, “The Emergence of Democratic Participation in Global Governance (Paris, 1919),” Indiana Journal of Global Legal Studies 10 (2003): 45–​77; see also Chapter 33 of this volume. 5   Jens Steffek, Claudia Kissling, and Patrizia Nanz (eds.), Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit? (Houndmills, Basingstoke: Palgrave Macmillan, 2008); Magdalena Bexell, Jonas Tallberg, and Anders Uhlin, “Democracy in Global Governance: The Promises and Pitfalls of Transnational Actors,” Global Governance 16 (2010): 81–​101. 6   Alison Van Rooy, The Global Legitimacy Game: Civil Society, Globalization, and Protest (Houndmills, Basingstoke: Palgrave Macmillan, 2004). 7   Jan Aart Scholte, “Civil Society and Democratically Accountable Global Governance,” Government and Opposition 39/​2 (2004): 211–​33; Jan Aart Scholte (ed.), Building Global Democracy? Civil Society and Accountable Global Governance (Cambridge: Cambridge University Press, 2011); see also Chapter 55 of this volume.

 

1128   participation participation is advocated to inform and enrich political debates on global governance. In this sense, NGOs act as a ‘transmission belt’ between specialized discourses within international organizations and transnational public spheres.8 There is no doubt that many international organizations today herald participation, at least ‘officially’ in their self-​descriptions. For example, the World Trade Organization (WTO) says that NGOs are a ‘valuable resource (that) can contribute to the accuracy and richness of the public debate’.9 And the World Bank welcomes the participation of NGOs since: outreach efforts allow the Bank to improve the quality of its policies and projects by listening to the views of civil society on a variety of development issues. By tapping the knowledge of specialized civil society organizations and giving voice to the poor by consulting with civil society organizations whose membership comprises poor people, the Bank can have a richer and more complete basis on which to base its decisions. This outreach also helps promote transparency, accountability and public understanding of the Bank’s work.10

At the same time, the only broad-​based participation which includes citizens has been fostered in the field of global environmental law by the Aarhus Convention of the United Nations (UN): The Convention on Access to Information, Public Participation in Decision-​ Making and Access to Justice in Environmental Matters, negotiated at Aarhus/​Denmark in 1998,11 results from Principle 10 of the 1992 Rio Declaration on Environment and Development. Principle 10 states that ‘Environmental issues are best handled with the participation of all concerned citizens’ and demands that at the national level, ‘each individual shall have appropriate access to information concerning the environment that is held by public authorities … and the opportunity to participate in decision-​making processes’.12 The European Union’s (EU) constitutional treaty Title IV includes Article I 47 on ‘participatory democracy’. This article would connect citizen and civil society participation and the EU’s democratic governance, as well as oblige all EU institutions to be transparent and open to consultation, similar to the Aarhus Convention. In the following sections, we focus on citizen participation in international organizations more generally and on the special case of citizen participation in the EU. Our focus on citizen participation builds on the understanding of

 Patrizia Nanz and Jens Steffek, “Global Governance, Participation, and the Public Sphere,” Government and Opposition 39/​2 (2004): 314–​35. 9  WTO, Guidelines for Arrangements on Relations with Non-​Governmental Organizations, Decision adopted by the General Council on 18 July 1996, para. IV, Doc. WT/​L/​162, 23 July 1996, http://​www.wto. org/​english/​forums_​e/​ngo_​e/​guide_​e.htm. 10   The World Bank, Outreach to Civil Society, http://​go.worldbank.org/​NIU7BU8520. 11  See http://​www.unece.org/​env/​pp/​treatytext.htm. 12   UN Doc. A/​Conf.151/​26 (vol. 1, 1992). 8

 

patterns of participation   1129 participation as a principle of governance in democratic theory. At the same time, the role of civil society is, of course, not the only ‘participation question’ for international organizations. For example, the role of observer states (or entities), the quality of participation of secretariat officials in decision-​making, and the different ways in which states may participate in the work of international institutions—​ from deliberation, to voting, to implementation, to dispute settlement—​are other issues where principles of participation have developed over time and inform the operations of international organizations.13 Our overview and discussion of the ‘participation question’ thus remains incomplete in the sense that it tells a story neither of all the actors that have come to participate in international organizations, nor of all the forms of participation that may exist in international organizations. Instead, our focus on participation as a governance principle of democratic theory foregrounds a decidedly normative question:  to what extent have the means and forms of civil society participation come to provide appropriate links between international organizations and the societies on whose behalf they exert governance capacity?

Patterns of Participation in International Organizations Non-​governmental participation in global governance has a long history,14 but has become increasingly institutionalized in the decades since the end of World War II.15 In the following, we summarize and reflect upon the major patterns of participation for international organizations. The following section then deals with the special case of EU governance in which participatory rights are most thoroughly enshrined at the international level.

13   e.g., Robert W. Cox and Harold K. Jacobson (eds.), The Anatomy of Influence: Decision-​Making in International Organizations (New Haven:  Yale University Press, 1974); Bob Reinalda and Bertjan Verbeek (eds.), Decision-​Making within International Organizations (London: Routledge, 2006); Bob Reinalda, Routledge History of International Organizations (London: Routledge, 2009). 14  Steve Charnovitz, “Two Centuries of Participation:  NGOs and International Governance,” Michigan Journal of International Law 18/​2 (1997): 183–​286; Charnovitz, “The Emergence of Democratic Participation in Global Governance (Paris, 1919).” 15   Jonas Tallberg et  al., The Opening Up of International Organizations:  Transnational Access in Global Governance (Cambridge: Cambridge University Press, 2013); Jonas Tallberg et al., “Explaining the Transnational Design of International Organizations,” International Organization 68/​4 (2014): 741–​74.

 

1130   participation

Forms of Participation Precursors to Participation The conventional narrative suggests that non-​state participation in international organizations is a fairly recent phenomenon the beginning of which can be dated back to the inclusion of Article 71 in the UN Charter in 1945. In fact, however, non-​state participation has a longer historical record.16 While the International Telecommunications Union (ITU) and some of the other ‘international public unions’ established in the second half of the nineteenth century allowed or fostered the participation of transnational professional associations (Murphy 1994), the International Labour Organization (ILO) institutionalized access as well as voting rights for employers’ organizations and trade unions in its 1919 constitution. Moreover, the Peace Conference in Versailles held in the same year included a variety of non-​state actors, including labour, Jewish organizations, women’s organizations, and the American Red Cross.17 Charnovitz summarizes the record of the conference in relation to this principle as follows: The official rules for the Paris Conference provided that the secretariat would compile a list of petitions from private groups and individuals and distribute it to the government delegations. On at least one topic, the governments requested technical assistance from NGOs. The Anti-​Slavery and Aborigines’ Protection Society was asked to come to Paris to provide assistance on the Treaty’s provisions regarding mandates. Nevertheless, in many other ways, the governments made it hard for NGOs to influence the proceedings. Little transparency existed in the day-​to-​day deliberations of the governments. All of the working sessions were closed to the public.18

Comparing this relatively broad participation with contemporary participatory arrangements in international organizations, Charnovitz interprets 1919 as the ‘founding moment’ of participation as a governance principle in global governance (Charnovitz 2003).

Major Trends since WWII The most comprehensive survey to date is a study of fifty randomly selected international organizations by Jonas Tallberg and colleagues.19 The survey shows that   Charnovitz, “Two Centuries of Participation”; and “The Emergence of Democratic Participation in Global Governance (Paris, 1919).” 17   Charnovitz, “The Emergence of Democratic Participation in Global Governance (Paris, 1919).” 18   Ibid., 62. 19   Tallberg et al., The Opening Up of International Organizations; and “Explaining the Transnational Design of International Organizations”; see also Claudia Kissling, “The Evolution of CSOs’ Legal Status in International Governance and Its Relevance for the Legitimacy of International Organizations,” in Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit?, ed. J. Steffek, C. Kissling, and P. Nanz (Houndmills, Basingstoke: Palgrave Macmillan, 2007), 30–​52; and Chapter 55 of this volume. 16

 

patterns of participation   1131 formal access to international organizations has gradually increased since 1950, followed by a steep rise since 1990. Change stems from two sources, namely from the creation of new international organization bodies that, on average, are more open than the existing ones, and from changes in the access rules of existing ones. Yet there is considerable variation among international organizations in different policy fields, suggesting that some areas—​like finance or security—​remain more closed despite a general trend towards openness. Moreover, international organizations commonly combine some bodies in which NGO access is facilitated with other bodies where such access is either severely restricted or entirely precluded. In general, bodies involved in monitoring and enforcement are more open to NGO participation while decision-​making bodies are least open.20 By and large, these results confirm the general assumption in the literature that participation of non-​state actors in international organizations has increased and been institutionalized since the 1990s. Yet they also demonstrate, once more, that non-​state participation is far from new. In fact, most organizations established after WWII had some participatory instruments at the time of their creation.21 Finally, it reveals significant variation in the legal status assigned as well as in the ways in which actors who are not themselves members of international organizations may participate in the latter. So which instruments of participation exist and how does participation work in practice? Institutionalized arrangements for participation include, for example, speaking rights at intra-​organizational meetings; consultations about policy decisions through hearings, surveys, or discussion events; and conflict resolution procedures through juries, review panels, or more formalized dispute settlement procedures. In general, the following instruments can be distinguished: • Observer status: most international organizations grant non-​state actors the right to participate in the meeting of at least some, though usually not all, of their decision-​making bodies as observers. Some organizations, for instance the Organization for Security and Co-​operation in Europe (OSCE), allow access to all interested parties.22 Others, like most UN organizations, require formal registration with the organization and tie such registration to the fulfilment of specific criteria or allow individual or a specified share of its members to veto the participation of particular actors.23 The classical example on which many international   Tallberg et al., “Explaining the Transnational Design of International Organizations.”   Kissling, “The Evolution of CSOs’ Legal Status in International Governance and Its Relevance for the Legitimacy of International Organizations.” 22   Peter Mayer, “Civil Society Participation in International Security Organizations: The Cases of NATO and the OSCE,” in Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit?, ed. J. Steffek, C. Kissling, and P. Nanz (Houndmills, Basingstoke:  Palgrave Macmillan, 2008), 116–​39. 23  Kal Raustiala, “States, NGOs, and International Environmental Institutions,” International Studies Quarterly 41/​4 (1997): 719–​40; Kissling, “The Evolution of CSOs’ Legal Status in International Governance and Its Relevance for the Legitimacy of International Organizations.” 20 21

 

1132   participation organizations build in their own regulations are the UN Economic and Social Council (ECOSOC) regulations that distinguish between the categories of general, special, and roster status. While general consultative status is limited ‘for large international NGOs whose area of work covers most of the issues on the agenda of ECOSOC and its subsidiary bodies’ and with a large geographical reach, special consultative status is granted to organizations ‘which have a special competence in, and are concerned specifically with, only a few of the fields of activity covered by the ECOSOC’. Finally, the roster lists NGOs ‘that ECOSOC or the UN Secretary-​General considers can make “occasional and useful contributions to the work of the Council or its subsidiary bodies” ’.24 In 1946, forty-​one NGOs were given consultative status in ECOSOC; shortly after the Cold War that number had risen to over 700 NGOs, and another two decades later, NGOs with observer status at ECOSOC number over 3,400. In relation to the specific rights granted, ‘observer status’ with international organizations frequently—​but not necessarily—​includes the right to make statements at the meetings of international organizations, as for instance in the UN Human Rights Council where NGOs regularly provide their own information and perspectives on the reports of UN special representatives for specific human rights as well as on the human rights record of individual countries. • Consultations with civil society: consultations with ‘stakeholders’ have become what some authors have termed a ‘sine qua non of contemporary global governance’25 or a part of the management philosophy of international organizations.26 Since another chapter in this handbook deals with this issue in greater depth (see Chapter 33 of this volume), suffice it to say that in particular the large and highly visible international organizations commonly provide for regular and at least minimally formalized consultations with NGOs and other stakeholders. This includes the annual Public Forum held by the WTO, the Civil Society Policy Forum jointly held by the International Monetary Fund (IMF) and the World Bank in parallel with their annual and spring meetings or the UN Development Programme’s (UNDP) Civil Society Advisory Committee. • Conflict resolution procedures: some international organizations, notably those engaged in development projects, peacekeeping, or other functions with strong and direct impacts ‘on the ground’ provide for means through which affected communities can register their grievances. For instance, the International Finance Corporation (IFC) and the Multilateral Investment Guarantee Agency (MIGA)—​ the two private sector lending arms of the World Bank Group—​have established a  See http://​esango.un.org/​paperless/​Web?page=static&content=intro.  Jan Aart Scholte, “Conclusion,” in Building Global Democracy? Civil Society and Accountable Global Governance, ed. Jan Aart Scholte (Cambridge: Cambridge University Press, 2011), 306–​42, 315. 26   Veijo Heiskanen, “Introduction,” in The Legitimacy of International Organizations, ed. Jean-​Marc Coicaud and Veijo Heiskanen (Tokyo: United Nations University Press, 2001), 1–​43, 11. 24 25

 

patterns of participation   1133 Compliance Advisor Ombudsman to ‘address the concerns of individuals or communities affected by IFC/​MIGA projects’.27 While these mechanisms primarily serve to enhance the accountability of international organizations (see Chapter 54 of this volume), they at the same time expand the ways in which non-​state actors can make their voices heard. In addition, international organizations occasionally create temporary arrangements outside the confines of their own organization to address lasting disputes through participatory means. An example is the creation of the World Commission on Dams, meant to end the lasting controversy over large dams and their financing through development agencies. The Commission was jointly set by the World Bank and the International Union for the Conservation of Nature, but operated independently from the latter. It included broad stakeholder participation, and its recommendations informed the revisions of dam-​related policies of several development agencies, a process that was assisted by an organizational unit at the UN Environment Programme (UNEP) set up for this purpose.28 • Access to international courts: beyond these conflict resolution procedures, legal dispute settlement also provides for—​limited, but by and large expanding—​ avenues for the participation of transnational actors as parties to a dispute, as experts called in by a court or as amici curiae.29 Again, the precise regulations vary across international courts. In the International Criminal Court, for instance, the Independent Prosecutor may decide to initiate an investigation upon receiving information from any source, including non-​state actors.30 Similar provisions apply in the International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda.31 In some cases, like the International Tribunal for the Law of the Sea, regional human rights courts, or the court-​like procedures under the International Centre for Settlement of Investment Disputes, individuals or other non-​state actors can also become parties to a legal dispute.32  See http://​www.cao-​ombudsman.org/​about/​whoweare/​index.html.   Jennifer Brinkerhoff, “Global Public Policy, Partnership and the World Commission on Dams,” Public Administration Review 62/​3 (2002): 324–​36; Klaus Dingwerth, The New Transnationalism: Transnational Governance and its Democratic Legitimacy (Houndmills, Basingstoke: Palgrave Macmillan, 2007); see generally Kenneth W. Abbott et al. (eds.), International Organizations as Orchestrators (Cambridge: Cambridge University Press, 2014). 29  Dinah Shelton, “Nongovernmental Organizations in International Judicial Proceedings,” American Journal of International Law 88/​4 (1994):  611–​42; Tullio Treves et  al. (eds.), Civil Society, International Courts and Compliance Bodies (The Hague: Asser Press, 2005); Saratoon Santivasa, “The NGOs’ Participation in the Proceedings of the International Court of Justice,” Journal of East Asia & International Law 2 (2012): 377–​406. 30   Allison Marston Danner, “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court,” American Journal of International Law 97/​3 (2003): 510–​52. 31   Santivasa, “The NGOs’ Participation in the Proceedings of the International Court of Justice,” 381. 32   Kissling, “The Evolution of CSOs’ Legal Status in International Governance and Its Relevance for the Legitimacy of International Organizations”; Santivasa, “The NGOs’ Participation in the Proceedings of the International Court of Justice.” 27 28

 

1134   participation Finally, international courts have, by and large, increasingly interpreted the legal provisions that would allow for the acceptance of amicus curiae briefs in permissive ways, thereby allowing legal views beyond those held by their member state governments to inform their decisions.33 For the European Court of Human Rights, for instance, one observer notes that ‘the Court regularly and extensively accepts and relies on documents provided by NGOs and the text of judgment generally refers to NGOs’ interventions, as well’.34 • Participation in project implementation: in addition, some international organizations collaborate closely with non-​state actors in the implementation of their activities. This holds for development agencies like UNDP, but also for other organizations like the UN High Commissioner for Refugees or the World Health Organization. This kind of ‘participatory implementation’ does not allow non-​state actors to formulate the policies of international organizations themselves. Yet, to the extent that the policies are either formulated in a way that leaves room for interpretation or that weak monitoring permits flexibility, it gives non-​state actors a further channel to influence the ways in which international organizations act on the ground. In contrast to ‘implementation organizations’ like UNDP or the World Bank, ‘programme organizations’ like the WTO however lack a strong implementation dimension.35 As a result, they do not offer this particular channel. • Parliamentary assemblies: finally, some international organizations also have parliamentary assemblies. In virtually all cases except the European Parliament, the members of these assemblies are not directly elected by the citizens, but instead are drawn from or elected by the national parliaments of member states. This holds, for instance, for the African Union, the Council of Europe, the Economic Community of West African States, the OSCE, and for NATO. The main functions of the assemblies are to advise the organization and to further partnership and coordination among national parliaments as well as between the international organization and national parliaments. Both types of relations are helpful as they provide a ‘sounding board’ for proposals developed in or by international organizations as well as an ‘early warning’ instrument where a risk of non-​acceptance or non-​ ratification of policy proposals may loom. At the same time, the assemblies provide an additional means for citizens to make this particular ‘sounding board’ sound in a way they deem appropriate. How can we account for the patterns of participation? While some international organizations invite the participation of a broad range of non-​state actors in many areas of their activities, others remain almost entirely closed. For instance, the Bank   Shelton, “Nongovernmental Organizations in International Judicial Proceedings.”   Santivasa, “The NGOs’ Participation in the Proceedings of the International Court of Justice,” 387. 35  Volker Rittberger, Bernhard Zangl, and Andreas Kruck, International Organization, 2nd ed. (Houndmills, Basingstoke: Palgrave Macmillan, 2012). 33

34

 

patterns of participation   1135 for International Settlements is commonly characterized as not including any meaningful participation beyond heads of central banks and finance ministries.36 And despite some reforms that have been undertaken since its inception in 1995, the WTO still allows for much less participation than most other international organizations, with access to all bodies except the biennial ministerial conferences closed to non-​ state actors.37 How can we make sense of this observation? The dominant approach to answering this question points to a functional explanation. On this view, international organizations open up if they are in need of specific resources which other actors command. Such resources can include knowledge and information, but also credibility with audiences that are relevant to an international organization. The precise shape of the demand and supply curves of such resources, these authors argue, determine how much participation a given international organization will grant to those beyond its state-​based membership.38 Participation has thus increased largely in response to cost–​benefit calculations of international organizations, because—​and only where—​the services which non-​state actors provide are valued by the international organization for strategic reasons. If this account were complete, it would essentially mean that participation has become an important governance resource for many international organizations, but not a governance principle for international organizations on the whole. For some organizations, notably large and highly visible organizations like the UN, the World Bank, the IMF, or the WTO, a high level of public contestation may have led to the establishment of participatory elements.39 Beyond these organizations, a more general acceptance of participation as a governance principle cannot, however, be observed.40 While this rationalist explanation seems plausible in the light of the immense variation of participation in international organizations, it is less easy to reconcile with the observation that many international organizations talk as if a principle of participation existed. At the very least, this latter observation suggests that those who speak on behalf of international organizations assume that a significant part 36   Kissling, “The Evolution of CSOs’ Legal Status in International Governance and Its Relevance for the Legitimacy of International Organizations.” 37   Peter Van den Bossche, “NGO Involvement in the WTO: A Comparative Perspective,” Journal of International Economic Law 11/​4 (2008): 717–​49. 38   Raustiala, “States, NGOs, and International Environmental Institutions”; Mayer, “Civil Society Participation in International Security Organizations”; Jens Steffek, “Explaining Cooperation between IGOs and NGOs: Push Factors, Pull Factors, and the Policy Cycle,” Review of International Studies 39/​ 4 (2013): 993–​1013; Tallberg et al., The Opening Up of International Organizations. 39   Robert O’Brien et al., Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (Cambridge: Cambridge University Press, 2000); Michael Zürn, “The Politicization of World Politics and Its Effects:  Eight Propositions,” European Political Science Review, online 11 December 2012; Michael Zürn, Martin Binder, and Matthias Ecker-​Ehrhardt, “International Authority and its Politicization,” International Theory 4/​1 (2012): 69–​106. 40   Tallberg et al., The Opening Up of International Organizations.

 

1136   participation of their target audiences believes a certain level of participation to be appropriate for an international organization. This also renders plausible the observation made by—​but hardly explained in terms of—​rationalist approaches according to which international organizations with mostly democratic member states offer more means for participation than organizations with a lower share of democratically governed member states. As we know, words and deeds do not always match in the social world. What we observe in relation to international organizations may therefore be a typical phenomenon that sociologists observe for modern organizations more generally, namely the decoupling of talk, decision, and action that is necessary to satisfy inconsistent demands from organizational constituencies.41 Seen in this way, international organizations are well aware of the strength that participation commands as a governance principle in contemporary societies. This awareness explains part of the pattern in as much as some participatory arrangements must be seen as more or less direct responses to pressures for more participation.42 Moreover, it also ensures that international organizations take the costs and benefits of denying participation into account. In sum, the notion of cost–​benefit calculations that occur within a given social environment in which international organizations—​as any organization—​are embedded thus seems a more accurate predictor of participatory arrangements in international organizations than a simple demand-​and-​supply model.43

Functions of Participation If we look at participation as a principle rather than a strategy, what function does participation in international organizations serve? Evidently, a first function of NGO participation is to enhance the number of view-​points present in international governance and to thereby promote ‘discursive representation’.44 In ‘two-​ level games’ such as international negotiations, governments have an incentive to represent the interests of their domestic ‘winning coalition’, but not necessarily of all communities within their territories.45 As a result, there is no guarantee that all major interests will be voiced in a purely intergovernmental forum. As a result, 41   Nils Brunsson, The Organization of Hypocrisy: Talk, Decisions, and Actions in Organizations (New York: Wiley Brunsson, 1989); Catherine Weaver, Hypocrisy Trap: The World Bank and the Poverty of Reform (Princeton, NJ: Princeton University Press, 2008). 42   O’Brien et al., Contesting Global Governance. 43   See also Alexandru Grigorescu, Democratic Intergovernmental Organizations? Normative Pressures and Decision-​Making Rules (Cambridge: Cambridge University Press, 2015). 44   John Dryzek and Simon Niemeyer, “Discursive Representation,” American Political Science Review 102/​4 (2008): 481–​93; see also John Dryzek, Deliberative Global Politics: Discourse and Democracy in a Divided World (Cambridge: Polity Press, 2006). 45   Andrew Moravcsik, “Taking Preferences Seriously:  A  Liberal Theory of International Politics,” International Organization 51/​4 (1997): 513–​53; Robert D. Putnam, “Diplomacy and Domestic Games: The Logic of Two-​Level Games,” International Organization 42/​3 (1988): 427–​60.

 

patterns of participation   1137 minorities are at a particular risk of being excluded, and transnational NGOs play an important part in representing the voices of minorities and other underrepresented groups. A case in point is the participation of indigenous communities which, in many UN organizations, have been recognized as non-​state constituencies in their own right.46 Second and related, even where governments might be willing to reflect the views of all domestic constituencies, they might not know the interests of such communities—​and communities might in fact not have worked out their positions—​on all issues under negotiation within an international organization. As a result, NGOs that regularly participate in international organizations can function as important intermediaries between organizations and the broader public.47 Where they do so, their participation renders international organizations more transparent. Participation of voluntary associations thus allows citizens to know more exactly the course and content of international regulations that formulated within international organizations (see Chapter 55 of this volume). As a result, it provides an important ‘transmission belt’ in the delegation chain that links international decision-​makers with the citizens in whose names governments act in international organizations.48 Third, the participation of non-​state actors in international organizations can advance the quality of the deliberations on which decisions of international organizations build.49 In a more direct way, this happens, for instance, when NGOs expose the thin empirical basis of arguments made by individual governments in international negotiations; when they provide expertise on specific aspects of a policy issue that other actors lack; when they take note of and challenge organizational hypocrisy; or when they evaluate international organizations in light of widely shared values such as justice or democracy.50 Indirectly, participation contributes to the quality of deliberation as it inserts additional perspectives into the public discourse and thereby allows citizens of member states to take the legitimate interests of other constituencies into account when evaluating policy proposals and formulating expectations in relation to the positions of their own governments. All these functions can, of course, also be fulfilled by states in a more or less purely intergovernmental system.

 M. J. Peterson, “How the Indigenous Got Seats at the UN Table,” Review of International Organizations 5/​2 (2010): 197–​225. 47   Maria Paola Ferretti, “Participatory Strategies in the Regulation of GMO Products in the EU,” in Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit?, ed. J. Steffek, C. Kissling, and P. Nanz (Houndmills, Basingstoke: Palgrave Macmillan, 2007), 166–​84. 48   Nanz and Steffek, “Global Governance, Participation, and the Public Sphere.” 49   Nicole Deitelhoff, “The Discursive Process of Legalization. Charting Islands of Persuasion in the ICC Case,” International Organization 63/​1 (2009): 33–​66. 50   Margaret Keck and Kathryn Sikkink, Activist beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press, 1998); Weaver, Hypocrisy Trap. 46

 

1138   participation Yet the contributions of non-​state actors have a significant potential to further promote fulfilment of these democratic functions.

Fault Lines of Participation Most observers share the view that participation in international organizations is desirable. Yet many have reservations in relation to the arrangements for participation that prevail in contemporary international organizations. Such reservations are linked to at least two ‘fault lines’ of participation. First, participation in international organizations is highly selective. Thus, while access may formally be granted to a broad range of non-​state actors, a huge asymmetry can be found between well-​organized and well-​funded NGOs from the North and those from the South.51 Piewitt, for instance, shows that NGOs present at WTO meetings predominantly come from North America and Europe, but that the geographical distribution also depends on the venue of the WTO Ministerial Conferences.52 Asian NGOs thus had a significant presence at the 1996 Singapore meeting and the 2005 Hong Kong conference. Given that many global international organizations have their headquarters and hold most of their meetings in places like New York, Geneva, Vienna, or Washington—​with UNEP and UN Habitat, both located in Nairobi, serving as major exceptions—​and given, moreover, that the costs for a permanent bureau in these cities are usually prohibitive, this poses severe limits on the capacities of Southern associations to participate meaningfully in international organizations. Some international organizations offer funds as well as training to assist non-​ state actors from the South in their efforts to participate. Yet even if we leave the question of co-​optation aside, such funds cannot do away with the fact that organizations from the South often do not have the same capacities as their Northern counterparts. Besides funds, Northern organizations can commonly rely on dense communication networks which link them to other organizations and facilitate receiving a wealth of information about the planned activities of international organizations and their political implications. Major players such as the World Wide Fund for Nature on environmental issues, Oxfam International on development issues, Amnesty International and Human Rights Watch on human rights issues, and Transparency International on anti-​corruption policies thus form important network nodes. Even though many of these organizations have their own

51   Chad Bown and Bernard Hoekman, “WTO Dispute Settlement and the Missing Developing Country Cases: Engaging the Private Sector,” Journal of International Economic Law 8/​4 (2005): 861–​90. 52   Martina Piewitt, “Interest Representation at the WTO:  Interest Groups’ Persistence in Inside Lobbying,” PhD Dissertation, Universität Bremen (2010), 118–​21.

 

patterns of participation   1139 branches in the South, the umbrella organizations—​the hubs in a hubs-​and-​spikes model—​are almost exclusively located in Europe or North America. Moreover, international organizations are selective in the sense that those who participate in them must generally speak the ‘language’ used in the organization, which usually involves the acceptance of a number of basic assumptions on which the organization operates. In the IMF, for instance, this has made engagement with local civil society organizations in Africa particularly challenging as many of the organizations have a very different perspective on the issues under discussion than IMF staff.53 Second, the transparency and responsiveness of NGOs themselves has increasingly come under scrutiny. In fact, they have been accused of being insufficiently transparent, accountable, and representative as well as of being often co-​opted through financial and organizational dependencies by international organizations.54 First, research has shown that Northern NGOs that claim to represent the interests of Southern constituencies do so very selectively so that Southern voices that wish to link up to the power of the large Northern NGOs need to fit their concerns to the agenda of the latter.55 Moreover, the claim to ‘represent’ the interests of a constituency does not necessarily mean that an NGO has actually talked to, let alone been charged with representing, that constituency. Examples include women’s rights groups speaking on behalf of sex workers at various UN Women’s Conferences56 and the campaign of the International Rivers Network against a World Bank-​financed dam which built on the alleged opposition of ‘local communities’ that, at least for the journalist investigating the case, was difficult to identify.57 Second, presence at international meetings may become so important for an NGO, either politically or financially, that its contributions will reflect rather than challenge conventional accounts favoured by the international organization itself. In such cases, lack of independence means that NGOs would no longer be able to exercise the critical function assigned to them in deliberative democratic theory. At a more general level, both challenges point to the problem of interpreting civil society organizations simply as a force for emancipation. As Ian Clark has put it, we   Jan Aart Scholte, “More Inclusive Global Governance? The IMF and Civil Society in Africa,” Global Governance 18/​2 (2012): 185–​206. 54   Vivien Collingwood, “Non-​Governmental Organisations, Power and Legitimacy in International Society,” Review of International Studies 32 (2006):  439–​54; Jens Steffek and Kristina Hahn (eds.), Evaluating Transnational NGOs:  Legitimacy, Accountability, Representation (Basingstoke:  Palgrave Macmillan, 2010). 55  Clifford Bob, The Marketing of Rebellion:  Insurgents, Media, and International Activism (Cambridge: Cambridge University Press, 2005). 56  Kristina Hahn and Anna Holzscheiter, “The Ambivalence of Advocacy:  Representation and Contestation in Global NGO Advocacy for Child Workers and Sex Workers,” Global Society 27/​4 (2013): 497–​520. 57  Sebastian Mallaby, “NGOs:  Fighting Poverty, Hurting the Poor,” Foreign Policy (September/​ October 2004): 50–​8. 53

 

1140   participation should see them ‘not as part of the resistance movement (as much Western liberal folklore would have it), but instead as the shock troops of Empire, and hence as very much an integral part of the fabric of governance itself ’.58 This view is echoed in publications that see the shift towards ‘global governance’ as primarily a Western liberal project that reinforces rather than challenges the ways in which the international order is organized.59 Taken together, the observations in this subsection point to the importance of the politics of participation in global governance:60 as many international organizations are facing public challenges, one way of dealing with such challenges has become to give more room to the principle of participation in their own governance. Yet as they have redesigned their instruments for participation, questions such as which NGOs shall be included or consulted, and who may design the rules and procedures of participation, have become more prominent sites of power struggles in international organizations.

The Special Case of European Governance: The Participation of Citizens As a direct response to the political crisis in 2005, when the Constitutional Treaty was rejected in the French and Dutch referenda, the EU has promoted several participatory plans (Plan D, ‘Debate Europe’, etc.) which go beyond the consultation of NGOs and aim at increasing citizens’ information and involvement in Europe. This has led to the appearance of a large variety of innovative consultative experiments at different geographical levels (national, cross-​border, and pan-​European), including virtual and face-​to-​face communication, deliberative consultation, and polling, such as European Citizens’ Consultations, EuroPolis, Ideal-​EU, and Your Voice in Europe. What these experiments of public participation share is the idea of exploring in a highly qualitative way the priorities and preferences of European citizens, (re-​)connecting them with the rather elite-​driven political sphere in

  Ian Clark, “Legitimacy in a Global Order,” Review of International Studies 29/​1 (2003): 75–​95, 78.   Jörg Friedrichs, “Global Governance as Liberal Hegemony,” in Advances in Global Governance, ed. Jim Whitman (Houndmills, Basingstoke: Palgrave Macmillan, 2009), 105–​22. 60  Ngaire Woods, “Multilateralism and Building Stronger International Institutions,” in Global Accountabilities:  Participation, Pluralism, and Public Ethics, ed. A. Ebrahim and E. Weisband (Cambridge: Cambridge University Press, 2007), 27–​44, 38. 58

59

 

the special case of european governance    1141 Brussels, and, more ambitiously, including lay citizens in the EU decision-​making process.

EU’s Legitimacy Deficit and the Promises of Participatory Democracy Political and legal theorists indicated the deficiency in the EU’s democratic credentials many years before the political crisis in 2005.61 From a normative point of view the legitimacy deficit results from the discrepancy between the pervasive effects of the regulative power of the EU and the weak authorization of this power through the citizens of the member states who are specifically affected by those regulations. From an empirical point of view, there is a widespread perception of a lack of popular support for Union institutions and a lack of a European (political) identity.62 In order to address the problem of legitimacy, the communication strategy of the European Commission has actively advocated participatory democracy spanning from the White Paper on Governance (EC 2001) to the White Paper on a European Communication Policy (EC 2006). A diverse but highly fragmented field of experimenting with transnational deliberative citizens’ involvement projects (DCIP) emerged. In this regard the European case is unique. Today, neither in number nor in geographic scope is there another example of a comparable group of transnational DCIPs.63 The European Citizens’ Consultation is one of the main projects financed by the Commission, a consultation grounded in a consultative method inspired by the 21st Century Town Meetings combining web-​debates open to all EU citizens, moderated face-​to-​face debates with a random sample of citizens, the usage of e-​voting technologies for gathering citizens’ opinions and proposals, as well as the intervention of facilitators, experts, and an editorial team for the elaboration of common recommendations. For the 2009 edition the topic of the consultation was: ‘What can the EU do to shape our economic and social future in a globalized world?’ With almost 150,000 visitors to the online platform and over 1,600 randomly selected citizens participating in twenty-​seven face-​to-​face national consultations, the European Citizens’ Consultation is arguably the broadest and most complex pan-​European consultation ever realized. Differently from this Consultation, the deliberative opinion poll EuroPolis convened at Brussels a sample of 348 citizens 61   See, e.g., Joseph Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ and Other Essays (Cambridge: Cambridge University Press, 1999). 62  Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres (Ithaca: Cornell University Press, 2010). 63   Pepper Culpepper and Archon Fung, “Do All Bridges Collapse? Possibilities for Democracy in the European Union,” Politische Vierteljahresschrift 48/​4 (2007): 730–​9, 736.

 

1142   participation from twenty-​seven member states to discuss and express their opinions on immigration and climate change, but on a predefined questionnaire before, during, and after a balanced and informative discussion rather than on agreed recommendations. In proximity to the European parliamentary elections in 2009 EuroPolis was specifically designed to explore the effects on public opinion and voting behavior of a pan-​European debate. Another example of a DCIP is the Ideal-​EU set up by Poitou-​Charentes, Tuscany, and Cataluña regional governments, partly financed by the European Commission, to foster public discussions among European citizens—​ especially younger people, aged between 14 and 30—​on the issue of climate change. The selection of the participants was voluntary rather than random. The electronic town meeting in autumn 2008 involved approximately 150 young citizens from each region, which was doubled-​up with the dedicated interactive website for online preliminary discussions. This device aimed at producing an informed public opinion and elaborate recommendations that would be transmitted to the Temporary Committee on Climate Change of the European Parliament. However, the only consultation procedure that involved lay citizens to be institutionalized and to have a visible impact on decision-​making to date is Your Voice in Europe. From November 2009 to January 2010 the European Commission ran this consultation in order to define the procedure and the conditions required for the Citizens’ Initiative that came into force with the Lisbon Treaty and that allows 1 million citizens who sign a petition to call the Commission to propose a legal act on a specific issue.

Empirical Findings and Challenges of Transnational Citizens Consultations For EU institutions, and in particular the Commission, these participatory experiments are clearly meant to be a remedy for the democratic or legitimacy deficit of the EU. However, introducing democratic innovations to the transnational level is a big challenge. Citizens’ conferences that allow for face-​to-​face deliberation between hundreds of citizens from various countries with different languages are expensive and complex to organize. While the national events needed a budget of about €100,000, the EU had to spend around ten times more for transnational DCIPs. This simple fact is certainly not the only one that explains why the EU was, after 2006, more hesitant to initiate such citizens’ conferences in the offline realm and has shifted its focus more to internet-​based discussion forums. After 2009 there is evidence of a lack of commitment on the part of European decision-​makers to embed the initial wave of innovation in decision-​making and no further systematic programmes of investment in such experiments are in view. The second step could have been a systematic politics of European citizen participation, for example by establishing a future council institutionalizing the ‘best’ DCIPs on far-​reaching

 

the special case of european governance    1143 issues (e.g. European energy policy, data protection) in decentralized citizen consultations on local, regional, national, and supranational levels.64 Instead, the EU’s project of citizen participation has been replaced by a direct democratic tool. With the emergence of the European Citizens’ Initiative, the brief phase of deliberative experimentation is probably over.65 The Citizens’ Initiative does not aim at the same participatory objectives as the DCIPs. The first is a more valid instrument to gather the wishes of organized groups that have sufficient financial and human resources to gather 1 million signatures (in just twelve months), while the latter are more adapted to reach European lay citizens and to promote a cross-​border or pan-​ European discursive space. The most important DCIPs have been empirically analysed and their impact critically evaluated.66 The citizens involved generally expressed satisfaction with their functioning and reported gaining knowledge about the EU and the topics discussed. Thus these new instruments have a positive civic potential on EU citizenship and may ameliorate the social legitimacy of the EU. However, there are important shortcomings concerning the design and implementation of the DCIPs as well as their impact on the EU political process. First of all, the consultations have not been inclusive enough; that is, they did not succeed in mobilizing citizens who would not spontaneously participate to be part of the DCIPs (often highly educated and more pro-​European people). Second, the transnational and multilingual nature of debates presented several limits. If no translation is provided, there is a danger that the discussions will be dominated by the native English-​speakers (or highly educated participants), while discussions that are translated slow down, limit the spontaneity, and narrow the discussions to certain combination of languages (see EuroPolis). Overall, a national-​based debate, where the propositions of other countries are discussed, and a synthesis of the national outcomes is elaborated, is probably the most adapted option for promoting transnational citizens’ debates. Finally, the most important shortcoming of all European citizens consultations so far was that its external impact on the larger public sphere (media, opinion-​leaders) and on political decision-​making was symbolic at best. Thus these consultations risk being perceived purely as an exercise in marketing rather than as a truly legitimizing device of European governance.

 Claus Leggewie and Patrizia Nanz, “Neue Formen demokratischer Teilhabe  –​am Beispiel der Zukunftsräte,” Transit. Europäische Revue 44 (2013):  72–​85 (English translation:  “The Future Council: New Forms of Democratic Participation,” in Eurozine.) 65  Graham Smith, “Designing Democratic Innovations at the European Level:  Lessons from the Experiments,” in Is Europe Listening to Us? Successes and Failures of EU Citizen Consultations, ed. R. Kies and P. Nanz (Farnham: Ashgate Publishing, 2013), 201–​16, 215. 66   Raphael Kies and Patrizia Nanz (eds.), Is Europe Listening to Us? Successes and Failures of EU Citizen Consultations, ed. R. Kies and P. Nanz (Farnham: Ashgate Publishing, 2013). 64

 

1144   participation

Conclusions: Democratic Principle, Marketing Tool, or Both? Where do the patterns we describe leave us in terms of participation as a democratic principle? As the authority of international organizations has increased, have these organizations found ways to adequately link their decision-​making to those on whose behalf they govern? Or stated differently: do the ways in which the principle of participation has been institutionalized in international organizations allow for the possibility—​or even plausibility—​of ‘governance of the people, by the people, for the people’? Evidence suggests that the greater inclusion of transnational civil society organizations does enhance the plurality of views that enter international decision-​ making processes—​or at least the discursive processes in which decision-​making is embedded. Together with the enhanced skills and technological means available to civil society,67 the opening up of international organizations thus gives a broader range of affected communities a chance to voice their interests on climate change, on the rules that should guide world trade, and on a host of other issues.68 At the same time, a key challenge remains: to be heard in the decision-​making process, interests need to be framed in terms that resonate within a given institutional environment. In international organizations, this usually means that claims have to be framed in terms of the key norms and values for which an organization stands, and that they need to engage with those discourses that dominate in these organizations. And while institutionalized access to international organizations may offer some space for the views of marginalized groups—​for instance in terms of the representation of indigenous rights—​it is unlikely to empower many, let alone all, communities that are marginalized at the domestic level. In contrast, the opening up of international organizations means that political struggles over who has a right to represent whom are themselves transferred to the international realm.69 Needless to say, the difference in power that different groups have within transnational civil society is not going to disappear simply because the UN, the World Bank, or the EU gives ‘civil society’ a platform to say what it wants. Normatively speaking, taking the democratic principle of participation seriously means that international organizations would need to take power differences within civil society into account and provide space for marginalized groups so that their

  James N. Rosenau, Distant Proximities: Dynamics beyond Globalization (Princeton, NJ: Princeton University Press, 2003). 68  Dryzek, Deliberative Global Politics; O’Brien et al., Contesting Global Governance; Scholte, Building Global Democracy? 69  Bob, The Marketing of Rebellion; Hahn and Holzscheiter, “The Ambivalence of Advocacy.” 67

 

conclusions   1145 views may also inform public deliberations within and outside the organizations. At the global level, this problem is particularly relevant since the social and economic preconditions for meaningful participation in political decision-​ making differ vastly among affected communities. In such a context, enhancing the opportunities for participation is of little help unless complementary measures exist to enhance the participatory capacities of groups that are otherwise at risk of being excluded from the political process.70 Within the EU, things look somewhat different as inequality is somewhat less pronounced and as the ‘democratic minimum’ that allows citizens to make use of participatory opportunities is guaranteed for a much broader range of citizens. In such a context, institutionalizing the right forms of participation can do more if done properly. As we suggest above, DCIPs are a promising step in that direction. Yet the set-​backs these instruments face in EU governance illustrate that, while the importance of participatory principles is now widely acknowledged in political communication—​not many dare to publicly argue against participation—​ moving closer to realizing these principles in practice implies the need to overcome many hurdles. Seen in this way, the politics of participation have become a central feature of contemporary international organizations. They also constitute a feature of international political life that deserves much closer academic scrutiny.

  Klaus Dingwerth, “Global Democracy and the Democratic Minimum: Why a Procedural Account Alone is Flawed,” European Journal of International Relations 20/​4 (2014): 1024–​48. 70

 

Chapter 54

ACCOUNTABILITY Mathias Koenig-​Archibugi

Do international organizations (IOs) suffer from a deficit of accountability? Many people think so, but that is hardly surprising. After all, as Jonathan Koppell has noted wryly, ‘[n]‌o one will ever be criticised for excessive emphasis on accountability’.1 In relation to international organizations, the term ‘accountability’ has the rare distinction of being appealing both to analysts with a managerialist interest in organizational performance and to critical scholars bent on uncovering the deep power structures of world politics. Pollitt and Hupe place accountability among what they call ‘magic concepts’:2 it has a very broad meaning, it is difficult to be against it, it suggests consensus in an otherwise highly divided field, and it is fashionable in academic, policy-​making, and funding circles. It is therefore tempting to approach the topic of accountability and IOs by considering not the thing itself but discourses of accountability, and the interests and power they serve. Such discourses may then be interpreted as, for instance, a strategy of legitimization aimed at stabilizing control and domination in a turbulent environment, or as a manifestation of ‘governmentality’.3 However, this chapter is based on the assumption that accountability is a genuinely useful analytical tool that can help scholars capture certain relationships of   Jonathan G. S. Koppell, World Rule: Accountability, Legitimacy, and the Design of Global Governance (Chicago: University of Chicago Press, 2010), 293. 2   Christopher Pollitt and Peter Hupe, “Talking About Government: The Role of Magic Concepts,” Public Management Review 13/​5 (2011): 641–​58. 3  Edward Weisband and Alnoor Ebrahim, “Forging Global Accountabilities,” in Global Accountabilities:  Participation, Pluralism, and Public Ethics, ed. A. Ebrahim and E. Weisband (Cambridge: Cambridge University Press, 2007). 1

 

perspectives on accountability   1147 communication and power better than other concepts. In other words, if done properly, conceptualizing certain social interactions as accountability relationships may illuminate, rather than obfuscate, their core features, dynamics, and implications. The conceptual aspects of accountability are less vague and contested than sometimes believed. To be sure, the most influential analytical frameworks and typologies are not identical and it is worthwhile discussing their respective merits and potential for synthesis. However, a key point of this chapter is that the research questions deserving most intense theoretical and empirical attention are, first, who should be accountable to whom and, second, to what extent they actually are. The chapter outlines some approaches to answering these questions, highlights what I would consider to be the most promising one, and sketches the contours of a possible solution to a major problem that plagues that approach.

Perspectives on Accountability The potential contribution of the concept of accountability to the study of IOs has been enhanced by some compatible attempts at defining accountability in an analytically useful way. Since international organizations are international and organizations, the academic disciplines that are most interested in them are international relations, public administration studies, and public law. In recent years, there has been a remarkable degree of convergence in the basic conceptualization of accountability among accounts that have been influential in their respective fields.4 In a relatively recent but already influential article, Allen Buchanan and Robert Keohane suggest that accountability includes three elements: first, standards that those who are held accountable are expected to meet; second, information available to accountability holders, who can then apply the standards in question to the

4   See, e.g., Barbara S. Romzek and Melvin J. Dubnick, “Accountability in the Public Sector: Lessons from the Challenger Tragedy,” Public Administration Review 47/​3 (1987): 227–​38; Richard Mulgan, Holding Power to Account: Accountability in Modern Democracies (Basingstoke: Palgrave Macmillan, 2003); Mark Bovens, “Analysing and Assessing Accountability: A Conceptual Framework,” European Law Journal 13/​4 (2007): 447–​68; Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” American Political Science Review 99/​1 (2005): 29–​43; Robert O. Keohane, “Global Governance and Democratic Accountability,” in Taming Globalization: Frontiers of Governance, ed. D. Held and M. Koenig-​Archibugi (Cambridge: Polity, 2003); Jennifer Rubenstein, “Accountability in an Unequal World,” Journal of Politics 69/​3 (2007): 616–​32; Allen Buchanan and Robert O. Keohane, “The Legitimacy of Global Governance Institutions,” Ethics & International Affairs 20/​4 (2006): 405–​37; see also Mathias Koenig-​Archibugi, “Accountability in Transnational Relations: How Distinctive Is It?,” West European Politics 33/​5 (2010): 1142–​64.

 

1148   accountability performance of those who are held to account; and third, the ability of these accountability holders to impose sanctions—​to attach costs to the failure to meet the standards.5

In a similar vein, Mark Bovens writes that ‘Accountability is a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences.’6 Using an element from Buchanan and Keohane’s conceptualization, we can add to Bovens’s definition that the justification of the conduct needs to occur with reference to standards that both the actor and the members of the forum are aware of and (ideally) recognize as legitimate. Accountability is mainly an ex post mechanism of control, but prior common knowledge of the conditions of its exercise is crucial for the kind of effect it has on behaviour. Indeed, the fact that standards of judgement are known to both power-​wielder and accountability-​ holder in advance is one of the features that distinguishes accountability from unpredictable and arbitrary punishment. There is also a relatively high level of agreement at a lower level of conceptual abstraction, namely with respect to the identification and classification of different forms or types of accountability mechanisms. For instance, from the perspective of public administration Romzek and Dubnick identified ‘bureaucratic’, ‘legal’, ‘professional’, and ‘political’ accountability.7 From the perspective of global politics, Grant and Keohane list seven mechanisms of accountability: ‘hierarchical’, ‘supervisory’, ‘fiscal’, ‘legal’, ‘market’, ‘peer’, and ‘public reputational’.8 Bovens has developed one of the most sophisticated classifications of accountability forms, which is based on four dimensions: depending on the nature of the forum, accountability can be political, legal, administrative, professional, or social; depending on the nature of the actor, accountability can be corporate, hierarchical, collective, or individual; depending on the nature of the conduct, accountability can be financial, procedural, or for products; and depending on the nature of the obligation, accountability can be vertical, horizontal, or ‘diagonal’, namely indirectly linked to a hierarchical relationship.9 The definitions and typologies proposed by the authors cited and by others do not coincide perfectly, but they have enough in common to suggest that research on IO accountability need not be hindered by conceptual incommensurability. It is encouraging that, on the whole, the debate on specific forms of accountability   Buchanan and Keohane, “The Legitimacy of Global Governance Institutions,” 426.   Bovens, “Analysing and Assessing Accountability,” 450—​emphasis removed. 7   Romzek and Dubnick, “Accountability in the Public Sector.” 8   Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” American Political Science Review 99/​1 (2005): 29–​43. 9   Bovens, “Analysing and Assessing Accountability,” 455, notes that his classification of forums is not limitative and indeed there are good reasons for regarding “the market”—​that is, consumers and investors—​as a forum of accountability, as do Grant and Keohane (“Accountability and Abuses of Power in World Politics”). 5

6

 

perspectives on accountability   1149 fruitfully revolves around substantive rather than conceptual disagreements. A few examples must suffice. Legal scholars disagree on how, and indeed whether, IOs and their staffs should be subject to legal accountability for their operations and specifically for their involvement in peacekeeping operations and post-​conflict administration.10 A  debate concerns the effectiveness of administrative accountability mechanisms such as the World Bank Inspection Panel.11 An emerging literature in political science analyses the political accountability of IO bureaucracies to member states through the lens of principal–​agent theory.12 One of the most important fields of research in global governance examines whether, when, and how civil society organizations can function as channels of accountability between global power-​holders and those who are subject to global policies.13 An important debate concerns the question of whether multiplying the actors to whom (and forums in which) IOs owe accountability improves or hinders their effectiveness in eliciting compliance and/​or solving the problems that motivated their creation.14 Jonathan Koppell has made an important recent contribution to the debate by applying a theoretical framework to twenty-​five governmental and non-​ governmental global governance organizations.15 His main thesis is that these organizations struggle to balance two conflicting imperatives, and that this dilemma puts a stable solution of the problem of accountability out of reach. On the one hand, their perceived normative legitimacy depends on their conformity to governance norms imported from their democratic member states:  the structure and decision-​making of IOs must be perceived as based on clear and impartial rules, equal representation and participation, and the achievement of goals that 10   See, e.g., Frederick Rawski, “To Waive or Not to Waive:  Immunity and Accountability in UN Peacekeeping Operations,” Connecticut Journal of International Law 18/​1 (2002–​3): 103–​32; and Eric De Brabandere, “Immunity of International Organizations in Post-​Conflict International Administrations,” International Organizations Law Review 7/​1 (2010): 79–​119. 11   See, e.g., Dana Clark, Jonathan A. Fox, and Kay Treakle, Demanding Accountability: Civil Society Claims and the World Bank Inspection Panel (Lanham, MA: Rowman & Littlefield Publishers, 2003); and Thomas N. Hale, “‘Info-​Courts’ and the Accountability of International Organizations: Evidence from the World Bank Inspection Panel,” paper read at 4th Global Administrative Law Seminar, Viterbo, Italy, 13–​14 June 2008, http://​www.iilj.org/​GAL/​documents/​Hale.pdf. 12  See, e.g., Daniel L. Nielson and Michael J. Tierney, “Delegation to International Organizations: Agency Theory and World Bank Environmental Reform,” International Organization 57/​2 (2003):  241–​76; and Darren G. Hawkins et  al. (eds.), Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006). 13  See Jan Aart Scholte (ed.), Building Global Democracy? Civil Society and Accountable Global Governance (Cambridge: Cambridge University Press, 2011); Jens Steffek, Claudia Kissling, and Patrizia Nanz (eds.), Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit? (Basingstoke: Palgrave Macmillan, 2007); Jonas Tallberg and Anders Uhlin, “Civil Society and Global Democracy: An Assessment,” in Global Democracy: Normative and Empirical Perspectives, ed. D. Archibugi, M. Koenig-​Archibugi, and R. Marchetti (Cambridge: Cambridge University Press, 2011). 14   David Held and Mathias Koenig-​Archibugi (eds.), Global Governance and Public Accountability (Oxford: Blackwell, 2005). 15  Koppell, World Rule.

 

1150   accountability are equally valued by all members. Koppell links these desiderata to a dimension of accountability that he calls ‘responsibility’. On the other hand, the pragmatic authority of IOs—​understood as the extent to which the rules created by the IOs affect the actual behaviour of those to whom they are addressed—​depends on the satisfaction of the vital interests of ‘vital’ members, namely those whose market position or other sources of power gives them a credible option to stay out of, or leave, the organization. Koppell notes that the satisfaction of the preferences of those key members is also in the interest of other members, because rules that fail to be adopted by the former bring no or limited benefits to everyone else. For Koppell, the need to satisfy the demands of powerful members compels IOs to emphasize a dimension of accountability that he calls ‘responsiveness’. While in some contexts legitimacy and authority reinforce one another, he argues that the specificities of global governance organizations commonly create a tension between the demands of normative legitimacy and pragmatic authority, and hence between accountability as responsibility and accountability as responsiveness. This tension is reflected in the way organizations are structured, in the way they create rules, and in the way they promote adherence to those rules. Koppell’s theoretical and empirical analysis significantly advances the debate on IO accountability. However, two of his analytical moves are not quite persuasive. The first concerns the posited symmetry between the legitimacy–​authority conflict and the responsibility–​responsiveness conflict. In so far as the responsibility dimension of accountability is conceived as being constrained by laws and rules, as Koppell does, in most cases it may be plausible to identify it with equality and impartiality (although occasionally laws formalize inequality, as the United Nations (UN) Charter provisions on the UN Security Council do). But in so far as the responsiveness dimension of accountability is conceived as attention to the demands of the constituencies being served, there is no logical link between this dimension and the unequal treatment of different constituencies. In other words, responsiveness can be either impartial or biased, and it seems problematic to conflate the question ‘accountable for what?’ (attention to demands) with the question ‘accountable to whom?’ (the ‘vital’ members). Koppell’s overall analysis confirms the view that the latter question is the crucial source of tensions in global governance. The second aspect of Koppell’s account that raises questions is his conceptualization of normative legitimacy. It is said to entail a commitment of the ‘one state, one vote’ rule and other design features aimed at promoting equal influence among IO members. Koppell refers to them as ‘democratic principles’ and attributes their influence to the governance norms prevailing in democratic member states. However, as he himself notes, equal representation for geographic constituencies of unequal size is often considered an undemocratic element in existing democracies. When it exists, most notably in federal states, it is often tolerated in the name of principles other than democracy. Moreover, the governance norms prevalent in democratic member states assume that the constituent units are themselves democratically

 

participation and delegation   1151 representative, which is not the case with regard to many member states of IOs. The non-​democratic nature of some members can be used to challenge their right to an equal influence on the IOs. Hence, the normative legitimacy of the ‘one state, one vote’ and similar rules does not seem to be rooted in democratic domestic norms, but rather in the norm of the sovereign equality of states, which is meant to confer rights irrespective of size and domestic institutions. But the uneasy coexistence of democracy norms and sovereign equality norms as foundations for normative legitimacy opens the possibility that tensions between alternative legitimacy principles can be as severe as the tension between legitimacy and authority that Koppell emphasizes. That tension highlights the crucial role of the question ‘accountable to whom?’ This question is the focus of the remainder of this chapter.

Participation and Delegation as Bases for Accountability A good starting point to consider the ‘accountable to whom?’ question is the distinction between two ‘basic models’ of accountability made by Grant and Keohane: the participation model and the delegation model. The authors note that the two models ‘differ fundamentally in their answer to the question: “Who is entitled to hold the powerful accountable?” In the participation model, the performance of power-​wielders is evaluated by those who are affected by their actions. In the delegation model, by contrast, performance is evaluated by those entrusting them with powers’.16 As noted earlier, sovereign equality of states is sometimes considered a normatively desirable and important feature of world politics. A preference for the delegation model of accountability can be seen as a reflection of the value of sovereign equality, since IOs are often seen as having authority on certain matters because and in so far as it has been delegated to them by states. Judgements on the roots and severity of the ‘accountability deficit’ in global governance vary greatly depending on whether the delegation or the participation model is employed.17 Grant and Keohane note that within democratic states the same mechanisms of accountability, such as elections, can be justified both in terms of the participation and the delegation models, with no conflict between them. By contrast, in global politics there is ‘a fundamental tension between claims derived   Grant and Keohane, “Accountability and Abuses of Power in World Politics,” 31.   Miles Kahler, “Defining Accountability Up: The Global Economic Multilaterals,” Government and Opposition 39/​2 (2004): 132–​58. 16 17

 

1152   accountability from delegation models and claims derived from participation models of accountability.’18 This tension partly emerges because the delegation model can accommodate major structural inequalities of power: Grant and Keohane refer to the example of the World Bank and the International Monetary Fund (IMF) being particularly accountable to their largest shareholder—​a state of affairs that is more justifiable from the perspective of the delegation model, or at least some versions of it, than from the perspective of the participation model. The distinction between participation and delegation is a fruitful way to approach the question of which systems of accountability raise the normative legitimacy of IOs, and it can inspire several research agendas. One research agenda would examine the attitudes of various categories of people (policy-​makers, elites, ordinary citizens, etc.) and ascertain who makes legitimacy judgements on the basis of a participation frame and who makes them in accordance with a delegation frame. Within this agenda, analysts can identify abstract criteria that help structure surveys or interview questionnaires, but whether and how those criteria are applied by respondents is ultimately an empirical matter. A different research agenda would start by providing a philosophical justification for one of the two models in the context of global politics, then identify what legitimate distribution of opportunities for holding power-​holders accountable that model would entail, and only then move onto the empirical level and examine how various existing IOs fare with respect to those criteria.19 The remainder of this chapter contributes to the latter research agenda and focuses specifically on the challenge of operationalizing the participation model for the assessment of the quality of accountability of actual IOs. There are three reasons for focusing theoretical and empirical efforts in this direction. First, and most subjectively, the participation model is closest to the value orientation of the present author, which is inspired by cosmopolitan theory.20 Second, the obstacles to the application of accountability mechanisms based on the participation model at the global level, notably the absence of a ‘global public’ emphasized by Grant and Keohane, are certainly real but probably not as damaging as those authors maintain.21 Third, the participation model is an increasingly important influence on the attitudes of international organization staff, policy-​makers, civil society organizations, and citizens. I  have no hard data to support this conjecture, but circumstantial   Grant and Keohane, “Accountability and Abuses of Power in World Politics,” 41.  Thomas D. Zweifel, International Organizations and Democracy:  Accountability, Politics, and Power (Boulder, CO: Lynne Rienner, 2006). 20   David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995). 21   For a justification of this claim see Robert E. Goodin, “Global Democracy: In the Beginning,” International Theory 2/​2 (2010): 175–​209; and Mathias Koenig-​Archibugi, “Is Global Democracy Possible?,” European Journal of International Relations 17/​3 (2011): 519–​42. 18

19

 

a way forward for assessing accountability    1153 evidence seems to point towards a trend. Thérien and Bélanger Dumontier show how the notion of global democracy and various policy implications attached to it rose to prominence in both the discourse and the policies of the UN Secretariat during the 1990s and 2000s.22 UN Secretary-​General Boutros-​Ghali noted in 1995 that, ‘A few years ago, no one ever spoke of making the United System more democratic. Today, the question is on every agenda.’23 The UN General Assembly passed several resolutions (by majority vote) proclaiming ‘the right to equitable participation of all, without any discrimination, in domestic and global decision-​making’.24 Other developments are less explicit but still important. Grant and Keohane note that: the World Bank (2000) acknowledges the importance of ‘empowerment’ of poor people in order to increase the ‘accountability and responsiveness’ of public sectors to them. The language of empowerment suggests a participatory model of accountability, the logic of which could easily be extended to imply more empowerment within the Bank itself for the people who are affected by its policies, whether they are represented through state leaders or NGOs.

Finally, attempts to determine the level of ‘democracy’ of countries are usually based on criteria determined by researchers rather than on what ‘public opinion’ or political actors think about the democratic quality of institutions and political processes,25 and a similar method seems legitimate for the analysis of the participatory quality of accountability in IOs.

A Way Forward for Assessing Accountability to Affected Interests Using the participation model to assess the quality of accountability of a given IO encounters an obvious problem:  ‘having the right to participate in politics as an affected party is ambiguous at the global level’.26 The difficulty of identifying who

22  Jean-​Philippe Thérien and Madeleine Bélanger Dumontier, “The United Nations and Global Democracy From Discourse to Deeds,” Cooperation and Conflict 44/​4 (2009): 355–​77. See also Klaus Dingwerth et  al., “Speaking Democracy:  Why International Organizations Adopt a Democratic Rhetoric,” Paper for presentation at ECPR Joint Sessions, Warsaw, 29 March–​2 April 2015. 23   Cited by Thérien and Bélanger Dumontier, “The United Nations and Global Democracy From Discourse to Deeds,” 360. 24   Promotion of a Democratic and Equitable International Order, UN General Assembly, Res. A/​RES/​61/​160. 25   Gerardo L. Munck and Jay Verkuilen, “Conceptualizing and Measuring Democracy Evaluating Alternative Indices,” Comparative Political Studies 35/​1 (2002): 5–​34. 26   Grant and Keohane, “Accountability and Abuses of Power in World Politics,” 33.

 

1154   accountability is affected by the decisions of a power-​wielder, or affected in a way that justifies a participatory entitlement, is a recurring theme in the literature on the so-​called ‘all-​ affected principle’. Recent discussions of the principle owe much to the influence of Robert Dahl, who expressed it as, ‘Everyone who is affected by the decisions of a government should have the right to participate in that government’ and opined that, for all its problems, it ‘is very likely the best general principle of inclusion that you are likely to find’.27 The all-​affected principle can be specified in many ways, which tend to cluster into two broad approaches. The more restrictive approach to the notion of affectedness equates it to being a target of laws that create obligations for individuals and that can be coercively enforced on them. The idea that individuals subject to such laws should have the opportunity to participate in their making is more accurately referred to as the ‘all-​subjected principle’ or ‘subject-​to-​the-​law principle’.28 Arguably the all-​ subjected principle is relevant to some IOs. The clearest case is probably the UN Security Council, whose resolutions adopted under the authority of the UN Charter can legally require member states to adopt laws and regulations that impinge on the rights and obligations of people within their jurisdiction. For instance, the Security Council requires states to freeze the financial assets of people suspected to have links with terrorism, with no guarantee of due process. An element of legal accountability emerged gradually, as a targeted individual obtained from the European Court of Justice a ruling against European Union (EU) and UK measures based on the Security Council’s decision.29 However, the liability aspect of accountability is limited to encountering legal obstacles to the implementation of preferred policies. Other cases of law-​making by IOs would trigger participatory entitlement under the all-​ subjected principle. However, the all-​subjected principle seems too restrictive a basis for assessing the accountability of IOs. Most instances of international law become binding only after states have ratified and/​or transposed them, and so it is not clear whether accountability of IOs is necessary beyond the accountability of individual member states. Even more importantly, IOs create policies and rules that do not qualify as laws but which are widely seen as giving rise to accountability claims: the decisions by the World Bank and the IMF on their conditional lending policies and the agreements they conclude with governments are prominent examples.

  Robert A. Dahl, After the Revolution?: Authority in a Good Society (New Haven and London: Yale University Press, 1970), 64. For critical discussions of the all-​affected principle see Hans Agné, “A Dogma of Democratic Theory and Globalization: Why Politics Need Not Include Everyone It Affects,” European Journal of International Relations 12/​ 3 (2006):  433–​ 58; Ludvig Beckman, “Democratic Inclusion, Law, and Causes,” Ratio Juris 21/​3 (2008): 348–​64; Sofia Näsström, “The Challenge of the All-​ Affected Principle,” Political Studies 59/​1 (2011): 116–​34; Johan Karlsson Schaffer, “The Boundaries of Transnational Democracy: Alternatives to the All-​Affected Principle,” Review of International Studies 38/​2 (2012): 321–​42. 28   Karlsson Schaffer, “The Boundaries of Transnational Democracy.” 29   Toby Vogel, “Top EU Court Clears Saudi Terror Suspect,” The European Voice, 18 July 2013. 27

 

a way forward for assessing accountability    1155 It seems therefore that the application of the participation model to IOs needs to be based on an understanding of affectedness that is broader than being subject to law and that includes being causally affected by decisions and policies. Goodin is a vocal defender of the principle, but he has also demonstrated its expansionary tendencies. He shows that the most coherent and cogent interpretation of the principle is that a say should be given to anyone who might possibly (or probably) be affected by any possible decision arising out of any possible agenda, and not just those who are actually affected by the course of action actually decided upon. He also notes that the logical implication of this interpretation may well be that virtually everyone in the world should be entitled to vote on any proposal or any proposal for proposals.30 The expansionary implications of the all-​affected principle have led some authors to question its appropriateness for assessing accountability relationships. For instance, Keohane points out that:  ‘Merely being affected cannot be sufficient to create a valid claim. If it were, virtually nothing could ever be done, since there would be so many requirements for consultation, and even veto points.’31 The goal of using the principle to assess accountability deficits in IOs would be unattainable if the yardstick became impossibly demanding. The rest of this section presents a solution to this predicament. If we follow Goodin and interpret the principle as mandating that a say should be given to anyone who might probably be affected by any possible decision arising out of any possible agenda, then the content of decisions cannot be used to differentiate between persons or groups entitled to participation and those who are not. This is because the content of a decision will depend on who is included and thus it cannot help determining who is to be included. But the amount of power wielded by decision-​makers matters, because the more powerful an actor is, the more likely it is to have a significant impact on the lives of a broader set of people. In short, more power requires accountability to a wider circle of people.32 But what does this mean for IOs? Broadly speaking, policy-​making by or through IOs entails (a)  the framing of policy problems and the setting of policy agendas, (b) the creation or selection of the IO or other polity meant to address that policy problem, (c) the development and choice of policies made within that IO, and (d) the implementation of the policies by the agents of the IO. The key point for our purposes is that, in different ways, decisions made in relation of one of these dimensions have the effect of limiting the power that decision-​makers can exercise in relation to other dimensions. Limits on 30  Robert E. Goodin, “Enfranchising All Affected Interests, and its Alternatives,” Philosophy & Public Affairs 35/​1 (2007): 40–​68. 31   Keohane, “Global Governance and Democratic Accountability,” 141. 32   For a fuller discussion of this theoretical point see Mathias Koenig-​Archibugi, “Fuzzy Citizenship in Global Society,” Journal of Political Philosophy 20/​4 (2012): 456–​80, where he also explores its implications for states’ obligations to offer participatory rights to outsiders.

 

1156   accountability power (in the form of material resources, legal mandate, etc.) restrict the effective range of options that actors can choose from. Three sets of constraints are especially relevant. (1) Decisions made with regard to policy implementation are constrained by the choice of policy instruments made within the IO. For instance, if policy-​makers decide to promote certain behavioural changes by changing laws rather than allocating material resources, those in charge of implementation will have to devote scarce resources to monitoring and enforcement activities rather than offer conditional transfers and services to the targets of the interventions. (2) Decisions made with regard to policy choice are constrained by decisions about the features of the IO within which those choices are made. For instance, if an IO has not explicitly been endowed with the authority to create binding international law, normally this option will not be on the agenda of policy-​ makers working within that IO. Similarly, if the ‘constitution’ of the IO requires unanimity among all members for major policy decisions, then this limits de facto the range of policies that can realistically be chosen during the ‘regular’ policy-​ making process. (3) Decisions with regard to the nature of the policy problem place significant constraints on all other dimensions of policy, and specifically on the creation or selection of the relevant IO. This focus on power and constraints allows us to develop an approach to specifying accountability entitlements that preserves the intuitively appealing aspects of the all-​affected principle without succumbing to the counterintuitive implication that virtually everyone in the world should be equally able to hold any person involved in an IO accountable for any aspect of their work. The approach is based on the following propositions: • The process of framing policy problems determines the definition of global priorities and thus the allocation of global efforts and resources among a wide variety of possible uses. Global priority-​setting presumably affects virtually everyone in the world, hence the all-​affected principle mandates an accountability regime that is as inclusive as possible. However, problem-​framing and prioritization tend to be diffuse processes and this hinders the identification of power-​holders and the creation of institutionalized mechanisms of accountability. • The process of creating and selecting IOs is influenced by the way that policy problems have been framed, but decision-​makers still face a wide menu for choice in relation to the design of those IOs, and specifically in relation to the depth and scope of their authority. Like priority-​setting, determining which kinds of IOs should be authorized and empowered to address which kinds of issues is a question that affects virtually everyone in the world, hence the all-​affected principle would require an accountability regime that is as inclusive as possible. Moreover, IO selection and design is not as diffuse a process as problem-​framing, and hence it should be feasible to identify power-​holders and imagine how institutionalized mechanisms of accountability for IO selection and design could work.

 

an illustration of the approach    1157 • Prior IO design creates procedural and substantive constraints on the range of policies that can be chosen by policy-​makers. These constraints typically restrict the set of people who will probably be affected by the policies decided within the IO. One reason for this is that the IO may be expected to address only a limited number of policy issues, which are likely to have a significant impact only on certain communities but not on others. Another reason is that the IO may be under tight constraints with regard to its ability to obtain and allocate resources, which in turn limits its ability to affect the interests of many people. The narrower the range of policies that an IO can effectively adopt (because of financial and/​or legal constraints), the smaller the circle of those who have a valid claim to hold it accountable. • The prior choice of policies limits the courses of action of decision-​makers who are responsible for implementing the policies of the IO. For instance, those decision-​makers may only control a small amount of resources and have little discretion on how to use it, for instance in relation to the services to be provided to a well-​defined group, such as people living with HIV/​AIDS in a certain area. This example shows that IO policy-​implementers typically affect, and hence should be accountable to, fewer people than IO policy-​makers. The selection and design of IOs plays a special role in overall assessments of accountability. On the one hand, power in problem-​framing is often too diffuse to allow an ex ante identification of the main power-​wielders; and, on the other hand, policy-​making within IOs is generally heavily constrained by prior decisions made with regard to IO design. For instance, decisions taken within the World Health Organization (WHO) may be much less consequential than decisions about the WHO taken by governments. Focusing on accountability for the selection and design of IOs also has the advantage of attracting the attention on the behaviour of the most powerful actors in global politics—​usually the governments of large industrial countries. There is little doubt that their power within IOs is important, but their ability to determine the power of IOs is usually even more consequential. This orientation is especially useful if we consider that criticisms of IO accountability often target bureaucrats, who are often relatively powerless and/​or constrained.

An Illustration of the Approach: Global Health Policy To show how the framework outlined in the previous section can be used to assess specific IOs, this section sketches its application to the domain of IOs addressing

 

1158   accountability global health issues, with special attention to the WHO and a sui generis IO, the Global Fund to Fight AIDS, Tuberculosis, and Malaria (Global Fund). The aim of this section is to provide a concrete illustration of the questions to be asked in empirical research, rather than comprehensive and definitive answers. We need to ask two questions for each of the four dimensions highlighted above (agenda setting, design, policy-​making, and implementation). First, which actors wield significant power in relation to that specific dimension? Second, to what extent and how are those actors accountable to the people who are most affected by their decisions? We consider the four dimensions in turn.

The Framing of Policy Problems and the Setting of Policy Agendas The context in which health-​oriented IOs have operated in the past twenty years has been shaped by some powerful new frames. Three of them deserve special mention: the ‘emerging diseases frame’, the ‘AIDS exceptionalism frame’, and the ‘securitization’ frame. The founding moment of the ‘emerging diseases’ frame can be traced back to a conference co-​sponsored by the National Institutes of Health and Rockefeller University in May 1989. The conference addressed ‘emerging viruses’, a concept introduced by the conference chair Stephen S.  Morse to encompass new pathogens such as HIV, Ebola, hantaviruses, as well as antimicrobial-​resistant strains of familiar organisms.33 What King calls an ‘emerging diseases worldview’ came to dominate American understandings of international health over the next decade. The world-​view was articulated and diffused most effectively by the Institute of Medicine (IoM) of the National Academy of Science, notably through two reports published in 1992 and 1997 respectively. The 1992 IoM report (titled Emerging Infections: Microbial Threats to Health in the United States) presented an extensive discussion of the factors leading to the emergence and re-​emergence of infectious diseases, dividing them into six categories:  human demographics and behaviour, technology and industry, economic development and land use, international travel and commerce, microbial adaptation and change, and breakdown of public health measures. Among the measures recommended by that report were the establishment of an effective global surveillance network on emerging infectious diseases, with four components: a mechanism for detecting new or unusual diseases; laboratories capable of identifying and characterizing infectious agents; an information system to analyse and disseminate data; and a response mechanism for providing

  Nicholas B. King, “Security, Disease, Commerce: Ideologies of Postcolonial Global Health,” Social Studies of Science 32/​5–​6 (2002): 763–​89. 33

 

an illustration of the approach    1159 feedback to reporting agencies and for mobilizing investigative and control efforts of local and international agencies. The IoM reports were a particularly influential part of a broader movement that has been described as a shift toward a ‘paradigm of global health’ on the part of US public health policy-​makers.34 In the mid-​1990s, the National Intelligence Council, the Centers for Disease Control and Prevention (CDC), and the National Science and Technology Council produced reports expressing similar positions as the IoM. In 1995 the CDC launched the journal Emerging Infectious Diseases, and the following year thirty-​six medical journals in twenty-​one countries agreed to publish special issues or articles on emerging and re-​emerging infectious diseases.35 While this movement was complex and different actors emphasized different aspects of the emergent disease paradigm, it shared a common ideational core: a number of factors, some of which connected with globalization, are creating an epidemiologically borderless world that threatens the vital interests of the United States and other developed countries. Since physical cordons sanitaires are largely ineffective in dealing with the new challenge, developed countries should promote and support the creating of a global surveillance system that can provide what King calls ‘informational cordons’—​that is, mechanisms able to detect possible risks as soon as they emerge anywhere in the world and to contain outbreaks before they spread globally. The second frame is what is sometimes referred to as ‘AIDS exceptionalism’.36 It posits that AIDS represents an exceptional global threat demanding an exceptional global response. In the words of the Joint UN Programme on HIV/​AIDS (UNAIDS): The AIDS pandemic is as serious a threat to humanity’s prospects for progress and stability as global warming or nuclear proliferation. It is exceptional in its scale, complexity and the consequences across generations, in severity, longevity and its impact. It can only be defeated with sustained attention and the kind of ‘anything it takes’ resolve that Member States apply to preventing global financial meltdowns or wars.37

UN Secretary-​General Kofi Annan also stressed the exceptionality of the disease: ‘AIDS is a new type of global emergency—​an unprecedented threat to human development requiring sustained action and commitment over the long term.’38  Supinda Bunyavanich and Ruth B. Walkup, “US Public Health Leaders Shift Toward a New Paradigm of Global Health,” American Journal of Public Health 91/​10 (2001): 1556–​8. 35   King, “Security, Disease, Commerce: Ideologies of Postcolonial Global Health.” 36  Julia H. Smith and Alan Whiteside, “The History of AIDS Exceptionalism,” Journal of the International AIDS Society 13/​47 (2010): 1–​8; Alex de Waal, “Between Exceptionalism and Revisionism: Children and Global AIDS Policies,” IDS Bulletin 39/​5 (2008): 19–​26. 37  UNAIDS, AIDS Epidemic Update (Geneva:  UNAIDS, 2006), cited by de Waal, “Between Exceptionalism and Revisionism.” 38  Kofi Annan, “Preface,” in 2004 Report on the global AIDS epidemic, ed. UNAIDS (Geneva: UNAIDS, 2004). 34

 

1160   accountability A third, and related frame, is securitization—​that is, the process by which a policy problem is transformed into a security threat.39 In the late 1990s, sectors of the US security policy communities came to accept and propagate the argument that infectious diseases represent a threat to American security interests. Foreign policy think-​tanks published reports on the security/​global health nexus—​for instance, the Council on Foreign Relations and the Milbank Memorial Fund published a report on Why Health Is Important to US Foreign Policy in 2001. Probably the most consequential expression of the new interest in infectious disease among security experts and policy-​makers was the declassified intelligence estimate on The Global Infectious Disease Threat and Its Implications for the United States produced by the National Intelligence Council in 2000, which reviewed a number of developments and scenarios and concluded that: New and reemerging infectious diseases will pose a rising global health threat and will complicate US and global security over the next 20 years. These diseases will endanger US citizens at home and abroad, threaten US armed forces deployed overseas, and exacerbate social and political instability in key countries and regions in which the United States has significant interests.

The process of securitization extended beyond the United States. In January 2000 the UN Security Council devoted a session exclusively to the threat to Africa from HIV/​ AIDS. Following 9/​11, Canada, the European Commission, France, Germany, Italy, Japan, Mexico, the United Kingdom, and the United States launched a Global Health Security Initiative, which linked the threat of international biological, chemical, and radio-​nuclear terrorism to the goal of strengthening public health preparedness. These developments, which decisively shaped the agenda of institutional reform and innovation in the 1990s and 2000s, illustrate very well the difficulty of assessing accountability for how policy problems are framed. Promoters of the frames included epidemiologists and other scientists from some of the world’s most authoritative health research and policy institutions, notably the CDC and WHO. These scientists commanded global reputations and often extensive funding for biomedical research on infectious diseases. They gained a number of allies, notably among military planners, makers of foreign policy, and the media. News corporations are interested in highlighting the emergence of novel, mysterious, and dangerous diseases. Journalistic accounts such as Richard Preston’s The Hot Zone (1994) and Laurie Garrett’s The Coming Plague (1994) helped create what Tomes calls a ‘germ panic’ among the American public.40 These individuals and 39   Barry Buzan, Ole Wæver, and Jaap De Wilde, Security: A New Framework for Analysis (Boulder, CO: Lynne Rienner Publishers, 1998); Sara E. Davies, “Securitizing Infectious Disease,” International Affairs 84/​2 (2008): 295–​313; Stefan Elbe, “Should HIV/​AIDS Be Securitized? The Ethical Dilemmas of Linking HIV/​AIDS and Security,” International Studies Quarterly 50/​1 (2006): 119–​44. 40   Nancy Tomes, “The Making of a Germ Panic, Then and Now,” American Journal of Public Health 90/​2 (2000): 191.

 

an illustration of the approach    1161 organizations arguably exercised what Barnett and Duvall call ‘productive power’, which ‘concerns discourse, the social processes and the systems of knowledge through which meaning is produced, fixed, lived, experienced, and transformed’.41 But the diffuse nature of such processes inevitably implies fragmented accountability, if any. To the extent that the frames were promoted by medical experts, a key mechanism of accountability was reputational: assertions that could not be supported by the standards of argument and evidence generally accepted by the scientific community risked being discredited.42 Boards of institutions such as the IoM and editorial boards of peer-​reviewed scientific journals exercised a controlling role. In the case of governmental institutions such as the CDC, loss of scientific reputation may lead to funding cuts and political interventions. It is notable that these mechanisms of accountability operated mainly within a country (the United States). However, WHO staff was also heavily involved in promoting the frames, which involved them in the accountability relationships that are typical of established IOs (see ‘The Development and Choice of Policies and Policy Instruments’ later in this chapter). It is also important to note that attempts to exercise productive power can fail because of ‘checks and balances’ (rather than accountability) mechanisms. In particular, the securitization frame has been contested. An example of this opposition is the Intergovernmental Meeting (IGM) on Pandemic Influenza Preparedness, which was convened in November 2007 to address a crisis in the vaccine sharing arrangement managed by the WHO. The crisis was triggered by the Indonesian government’s decision in early 2007 to stop sharing influenza virus samples with the WHO and its request that vaccines developed from Indonesian samples would be sold to Indonesia at discounted prices. In a tense IGM, the EU delegates attempted to include a reference to ‘global health security’ in the official statement of the meeting, as well as a reference to ‘international regulations’—​namely the newly revised International Health Regulations (IHR). But several representatives from developing countries rejected the inclusion of global health security in the statement, which was dropped after lengthy discussions. One of the opponents was the representative of Brazil, who declared that Brazil ‘was not committed to working under the security concept’.43

 Michael Barnett and Raymond Duvall, “Power in Global Governance,” in Power in Global Governance, ed. M. Barnett and R. Duvall (Cambridge: Cambridge University Press, 2005), 20. 42   Even staunch critics of conventional approaches such as Paul Farmer conceded that “The research and action programs elaborated in response to the perceived emergence of new infections have, by and large, been sound”: Paul Farmer, Infections and Inequalities: The Modern Plagues (Berkeley: University of California Press, 2001), 39. His criticism was more directed at the previous lack of official concern with the devastation produced by diseases such as TB in poorer countries, with powerlessness translating in invisibility (47–​8). 43   Sangeeta Shashikant, “WHO Meeting on Avian Flu Virus Ends with Draft Documents,” TWN Info Service on Health Issues Nov. 07/​04 (28 November 2007). 41

 

1162   accountability

The Selection and/​or Design of IOs The framing of the policy problem constrained the range of institutional solutions that policy-​makers were prepared to consider. The focus on emerging diseases and the exceptional threat posed by HIV/​AIDS resulted in some organizational changes in the WHO as well as the creation of new organizations, most importantly the Global Fund. With regard to the former, institutional change developed in three areas. First, the WHO responded to the increasing attention paid to emerging diseases in the 1990s by channelling resources and priorities in that direction. It stressed the importance of emerging diseases in its strategic plans and created a new Division of Emerging and Other Communicable Diseases Surveillance and Control in 1995 (later changed with different names and structures). Second, the WHO increased its collaboration with other actors to build up a system of global surveillance, which relies on a variety of governmental and non-​governmental sources to identify potential public health emergencies of international concern. Third, the WHO member states adopted revised International Health Regulations in 2005, which requires them to provide comprehensive information to the WHO about ‘all diseases and health events that may constitute a public health emergency of international concern’, and to build capacities to manage the cross-​border spread of infectious agents. In the early 2000s, the governments of industrial countries also agreed to a major increase in the funding for AIDS, malaria, and tuberculosis in the developing world, but decided to channel it through new organizations, and specifically the Global Fund, rather than the WHO or the UN system. In relation to both the reform of the WHO structures to address infectious diseases and on the creation and design of the Global Fund, the governments of Western countries were clearly the most powerful actors. While the revision process of the IHR was driven by WHO staff, the content of the revised regulations reflected the bargaining power of the Western government delegates. For instance, during the negotiations the delegates of developing countries requested an international transfer of resources to build the national surveillance capabilities mandated by the revised IHR, but no provisions to this effect were included in the final agreement.44 Similarly, the creation and design of the Global Fund reflects the preferences of the largest donors. Three decisions were of fundamental importance. First, large donors wanted to create a financial instrument that would specifically channel resources towards malaria, tuberculosis, and especially HIV/​AIDS, rather than fund other types of interventions, such as the strengthening of primary health care services. Second, they wanted the new financial mechanisms to have no connection to the UN and the WHO. Perceived shortcomings of the WHO’s Global Programme on  Mary Whelan, Negotiating the International Health Regulations, Global Health Programme Working Paper No. 1 (Geneva: Graduate Institute, 2008). 44

 

an illustration of the approach    1163 AIDS (created in 1986) had already led to the establishment of UNAIDS in 1996. The UN General Assembly held a ‘Special Session on AIDS’ in June 2001, in which a number of institutional options for the new financing were discussed, but especially the United States, the European Commission, and Japan rejected the option of letting either the WHO or UNAIDS manage the funds.45 Third, the main donor governments wanted to avoid a classical intergovernmental model, and as a result the Global Fund was constituted as a non-​profit foundation under the Swiss Civil Code and given an unusual governance structure.46 The board of the Global Fund consists of ‘representatives’ of donors, developing countries, civil society, and the private sector, all with voting rights. These decisions were controversial, and ‘It was far from inevitable that NGOs, foundations and the private sector would be given unprecedented voting rights on the Global Fund Board.’47 Several governments had expressed strong reservations when the UN Economic and Social Council approved the inclusion of NGOs as non-​voting members within the UNAIDS Programme Coordinating Board seven years before the establishment of the Global Fund. Some developing countries—​ notably South Africa—​objected to a strong presence of NGOs on the governing body of the Global Fund, but NGOs from developing and developed countries succeeded in presenting themselves as legitimate representatives of people affected by diseases and donor governments supported their demands.48 But the very decision to create a special fund for AIDS and other two diseases was not the preferred outcome for some governments, especially if it came with restrictions on how the funds had to be used. With regard to the policy of funding antiretroviral therapy, UNAIDS Director Peter Piot reported that at the 2001 UN General Assembly Special Session on AIDS: all donors except for France, all African countries, all Asian countries, were totally opposed of mentioning the word antiretroviral therapy and to have a target or a goal on treatment for people living with HIV and so in that declaration of commitment that came out of it you see only some very vague type of view and compromised language.49

45   Amy Barnes and Garrett Wallace Brown, “The Global Fund to Fight AIDS, Tuberculosis and Malaria: Expertise, Accountability and the Depoliticisation of Global Health Governance,” in Global Health Partnerships and Private Foundations: New Frontiers in Health and Health Governance, ed. O. Williams and S. Rushton (Basingstoke: Palgrave Macmillan, 2011). 46  Anna Triponel, “Global Fund to Fight Aids, Tuberculosis and Malaria:  A  New Legal and Conceptual Framework for Providing International Development Aid,” North Carolina Journal of International Law & Commercial Regulation 35 (2009): 173–​232. 47   James Sherry, Sangeeta Mookherji, and Leo Ryan, The Five-​Year Evaluation of the Global Fund to Fight AIDS, Tuberculosis, and Malaria: Synthesis of Study Areas 1, 2 and 3 (Macro International, 2009). 48   Sonja Bartsch, “Southern Actors in Global Public-​Private Partnerships: The Case of the Global Fund,” in Health for Some: The Political Economy of Global Health Governance, ed. S. McLean, P. Fourie, and S. Brown (Basingstoke: Palgrave Macmillan, 2009), 134. 49   Peter Piot, AIDS: Exceptionalism Revisited: Lecture at the London School of Economics and Political Science, 15 May 2008 (Geneva: UNAIDS, 2008), 1.

 

1164   accountability The actors with most influence on the selection and design of IOs in global health were those with the ability to provide substantial funding and with stronger capabilities to contain the domestic spread of diseases with unilateral measures: the governments of rich Western states. These are accountable to voters in their respective states, but generally not to people elsewhere. From the perspective of the all-​affected principle, this dimension of policy-​making suffers from a substantial deficit of accountability. Could it be argued that the publics of Western countries exercise a form of ‘surrogate accountability’ on behalf of the publics of poorer countries, with the former punishing their own governments for decisions that the latter would have disapproved?50 In other words, would decisions on institutional design have been the same if Western governments had been accountable to non-​Western populations? There are reasons to believe that they would not have been. There is some evidence to suggest that AIDS is not the top priority for citizens in the regions most affected by AIDS. The most thorough study has been conducted by Dionne et al.51 Their analysis is based on a range of methods and sources: the cross-​national Afrobarometer survey, panels of the longitudinal survey in rural Malawi covered approximately 4,000 respondents, a survey of 122 village headmen, semi-​structured interviews, and logs of conversations. These sources consistently showed a weak demand for AIDS resources compared to the demand for resources for other issues, specifically for health and development more generally. In most countries, respondents thought that additional resources should be devoted to other problems rather than AIDS. On average, the demand for AIDS services is not stronger in countries with higher HIV prevalence, nor is it significantly stronger among people who have lost a relative or close friend to AIDS. A  panel survey in rural Malawi showed that AIDS ranked as the lowest priority on average, and that even HIV-​positive respondents, who are most likely to benefit from the new resources for antiretroviral therapy, expressed preferences for clean water, agricultural development, and health services over additional AIDS services in their area. More generally, a study of twenty-​ seven countries by Esser and Keating Bench finds only a weak statistical correlation between, on the one hand, what beneficiaries in Africa, Latin America, and the poorer parts of Asia consider the most severe causes of ill-​health and, on the other hand, the uses to which donors allocate pledged official development assistance for health.52 This provides indirect evidence for the conclusion that it matters who can hold global health policy-​makers accountable.

  Rubenstein, “Accountability in an Unequal World.”   Kim Yi Dionne, Patrick Gerland, and Susan Watkins, “AIDS Exceptionalism: Another Constituency Heard From,” AIDS and Behavior 17/​3 (2013): 825–​31. 52   Daniel E. Esser and Kara Keating Bench, “Does Global Health Funding Respond to Recipients’ Needs? Comparing Public and Private Donors’ Allocations in 2005–​2007,” World Development 39/​8 (2011): 1271–​80. 50 51

 

an illustration of the approach    1165

The Development and Choice of Policies and Policy Instruments The way in which health IOs are designed—​notably their mandate, funding modalities, and decision-​making procedures—​significantly constrain the choices of decision-​ makers within a given institutional context and therefore the set of people who are most likely to be significantly affected by their decisions. Because of the prior decision to focus the Global Fund on three diseases, its decisions are highly relevant to people living with those diseases or most at risk of contracting them, but less so to people whose main concerns are, for instance, respiratory illnesses. Sridhar and Batniji remark that ‘Even those who point to the inclusive board of the Global Fund or its country-​coordinating mechanism must acknowledge that the priorities of the Global Fund, namely HIV/​AIDS, tuberculosis, and malaria, were included in the organisation’s mandate.’53 The mandate of the WHO is much wider, but it shares the accountability deficits that plague traditional intergovernmental organizations. WHO staff are accountable to the Director-General, who is accountable to the members of the Executive Board and the World Health Assembly, who in turn are accountable to the governments of the member states that appointed them. In line with the intergovernmental model, governments are the only channel of accountability to affected communities, which creates two major sources of accountability gaps: governments may themselves lack democratic accountability to their populations, especially the most vulnerable people; and financial and other inequalities between governments influence the content of policies in ways that do not reflect patterns of affectedness. To what extent can the unusual governance structure help the Global Fund avoid such sources of accountability problems? Within the constraints set by its mandate and funding arrangements, the Board of the Global Fund (and to a lesser extent its Secretariat) retains significant room for manoeuvre with regard to policy choices. It exercises significant power by accepting or rejecting specific grant applications, but also through more general decisions, such as the balance of funding between the three diseases; the balance between treatment, prevention, care, and health system strengthening; the types of treatment regimes to be supported; whether and how to accept in-​kind donations; which entities can apply for funding; and other important aspects that can have a deep impact on the health of a large number of people. A Technical Review Panel (TRP) considers and assesses each grant proposal and its judgements have great influence on the final decision because the Board cannot review every proposal in detail—​it accepts the recommendations of the TRP in 90 per cent of cases.54 But since the Board has the ultimate authority on grant decisions (and the composition of the TRP), it deserves most attention. 53  Devi Sridhar and Rajaie Batniji, “Misfinancing Global Health:  A  Case for Transparency in Disbursements and Decision Making,” The Lancet 372/​9644 (2008): 1185–​91, 1190. 54   Barnes and Brown, “The Global Fund to Fight AIDS, Tuberculosis and Malaria.”

 

1166   accountability The twenty voting members of the Board include seven representatives from developing countries (one from each of the six WHO regions and one additional representative from Africa), eight representatives from donors; and five representatives from civil society and the private sector. When decision by consensus is not possible, decisions require a two-​thirds majority of those present of both:  (a)  the group encompassing the eight donor seats, one private sector seat, and one private foundation seat; and (b) the group encompassing the seven developing country seats, the two NGO seats, and the representative of an NGO who is a person living with HIV/​AIDS or from a community living with tuberculosis or malaria. This allows various coalitions, and not only donors, to block decisions. On many issues, however, a deadlock is more damaging to recipient governments and civil society representatives than to donor governments and the private sector. The governance structure of the Global Fund shows that the participation model of accountability has relevance not only for external observers but also for some policy-​makers. The Framework Document that provided the constitutional foundations for the Global Fund stated that it ‘should be a multisectoral partnership between governments, civil society, the private sector and affected communities’.55 Having interviewed several Board members and policy-​makers closely associated with the Global Fund, Amy Barnes and Garrett Brown found that: not a single participant believed that the Global Fund should only be accountable to one sector or group. All interviewees, without being able to clearly delineate a percentage or hierarchy, suggested that both shareholders and stakeholders had a legitimate right to demand a certain level of answerability from the Global Fund as an organisation.56

Board members are called ‘representatives’ of ‘constituencies’. But to whom are they accountable? Formally, individual members of the Board are accountable to the Board as a whole, since the latter can remove Board members and select new members. Removal would be most likely if a member no longer has the confidence of his or her constituency. The accountability relationship between Board member and constituency varies in strength. It is strongest in the case of donor and recipient governments that have their own representatives on the Board. Governments with no national on the Board have less opportunity to sanction the representative of their constituency. Similar imbalances arise in relation to NGO representatives. First, Bartsch notes that there is a bias with regard to disease focus: ‘Board members tend to represent NGOs from the area of HIV/​AIDS, and organizations from the areas of tuberculosis and malaria are often absent from the wider NGO Board

55   Cited by Garrett Wallace Brown, “Multisectoralism, Participation, and Stakeholder Effectiveness: Increasing the Role of Nonstate Actors in the Global Fund to Fight AIDS, Tuberculosis, and Malaria,” Global Governance: A Review of Multilateralism and International Organizations 15/​2 (2009): 169–​77, 170. 56   Barnes and Brown, “The Global Fund to Fight AIDS, Tuberculosis and Malaria,” 69.

 

an illustration of the approach    1167 delegations.’57 Second, as Bartsch notes, there is little transparency in the selection process for NGO representatives.58 Effective accountability to people living with HIV/​AIDS or from a community living with tuberculosis or malaria is particularly weak. Finally, in relation to the accountability of the Board as a whole to the various constituencies, there is a widespread perception of highly unequal accountability relationships: ‘In almost every case, stakeholders criticised the Global Fund for being too focused on and interested in remaining accountable to donor nations. Indeed the perception of donor favouritism was echoed by almost every interviewee who was not part of the Global Fund Secretariat or member of a donor country.’59 On some decisions, the medical and scientific community could be seen as exercising a form of ‘surrogate accountability’ on behalf of the most affected people, through their ability to affect the reputation and credibility of Global Fund decision-​ makers. A prominent example occurred in 2004, when a group of malaria researchers accused the Global Fund of ‘medical malpractice’, because it financed the use of chloroquine and sulfadoxine-​pyrimethamine, which were said to be generally ineffective, while it should have financed highly effective artemisinin-​based combination treatments (ACTs).60 The Global Fund and the WHO issued defensive statements, but the challenge seems to have had a major effect: Four months after the Lancet piece appeared, the Global Fund held a closed-​door meeting in Geneva. Afterwards, the organisation’s senior officials declared that African countries should retrospectively adjust all malaria grants awarded to specify ACTs. Global Fund officials estimated that the cost of this policy change would be more than a US$1 billion over five years.61

Policy Implementation The role of health IOs in implementing their own policies can vary greatly. At one extreme, they may merely adopt a set of rules or standards and have no influence over whoever decides to implement them in a particular geographical or sectoral context. At the other extreme, the core staff of the IO takes responsibility for implementing the policies ‘on the ground’, for instance through field missions that perform surveillance tasks in areas affected by disease outbreaks. Between those two extremes, there are various degrees of involvement and control, and implementing actors can be seen at least partially as ‘agents’ of the IOs. Such agents may be

58   Bartsch, “Southern Actors in Global Public-​Private Partnerships,” 135.   Ibid., 140.   Barnes and Brown, “The Global Fund to Fight AIDS, Tuberculosis and Malaria,” 69. 60   Gavin Yamey, “Researchers Accuse WHO and Global Fund of Malpractice,” BMJ: British Medical Journal 328/​7433 (2004): 183. 61  IRIN, Killer Number One: The Fight against Malaria (Nairobi: IRIN, 2006), 13. 57

59

 

1168   accountability formally employed by the IOs or critically depend on IO funds and other resources for their activities. Within the various constraints set by the IO’s policies, the choices made by implementing agents can deeply affect the lives of intended beneficiaries. An extreme case occurs when the agents decide to misappropriate funds and provide no services at all. So an important question is: to what extent are implementing agents accountable to those who are most directly affected by their decisions? The latter can exercise accountability as citizens or as consumers of health services provided by the agents. In practice, citizenship accountability is usually exercised through participatory institutions and mechanisms embedded in national and local governments, and therefore the question of the accountability of IO agents largely coincides with the extent and quality of general political accountability in a country, district, or municipality. With regard to health-​provider accountability to consumers, the question we need to ask is to what extent IO-​supported services formally incorporate accountability mechanisms and, if so, how well they work in practice. Unfortunately there is relatively little research on health-​provider accountability to consumers, and even less research that singles out IO-​supported programmes and projects.62 Some IOs have endorsed the norm of health-​provider accountability to users.63 The World Bank has attracted much attention (and criticism) for promoting market mechanisms as a means to increase user accountability in the health sector, but it has also studied and applied mechanisms based on community participation. For instance, in a controlled experiment in India, World Bank researchers used meetings, posters, and hand-​outs to inform poor villagers about the right to access government services and complaint mechanisms, and found that informed communities experienced improvements in mobilization and better health services compared to control communities.64 But existing research does not tell us how common accountability mechanisms are in IO-​sponsored initiatives, or whether the participation of IOs in the design and financing of health programmes and projects leads to the incorporation of more accountability mechanisms than there are in comparable initiatives with no IO involvement. Even when the introduction of community participation mechanisms in IO-​supported programmes and projects 62  David Berlan and Jeremy Shiffman, “Holding Health Providers in Developing Countries Accountable to Consumers: A Synthesis of Relevant Scholarship,” Health Policy and Planning 27/​4 (2012): 271–​80; Sassy Molyneux et al., “Community Accountability at Peripheral Health Facilities: A Review of the Empirical Literature and Development of a Conceptual Framework,” Health Policy and Planning 27/​7 (2012): 541–​54. 63   Sanjay Agarwal, Rasmus Heltberg, and M. Diachok, Scaling-​up Social Accountability in World Bank Operations (Washington, DC: World Bank, 2009); WHO, Keeping Promises, Measuring Results: Commission on Information and Accountability for Women’s and Children’s Health (Geneva:  World Health Organization, 2011). 64  Priyanka Pandey et  al., “Informing Resource-​Poor Populations and the Delivery of Entitled Health and Social Services in Rural India:  A  Cluster Randomized Controlled Trial,” Journal of the American Medical Association 298/​16 (2007): 1867–​75.

 

conclusions   1169 is documented, researchers find that their actual impact is limited, as in a study of eighteen World Bank-​supported health sector reform projects.65 It should be noted that, for all the support given to consumer/​user/​community accountability in the documents of some IOs, the emphasis is still very much on upward accountability to donors. This priority is expressed formally in the 2001 Framework Document of the Global Fund. The section entitled ‘Defining accountability’ states that: Grantees need to be: a) accountable to government, private sector and foundation donors (for the use of funds, achievement of results); b) responsive to developing countries (to help them fight the three diseases in their countries); c) responsive to the needs of those infected and directly affected by the three diseases.66

As Barnes and Brown note, the choice of words is revealing: grantees are formally required to be accountable to donors, but merely responsive to developing countries and those infected and directly affected by the three diseases.67

Conclusions This chapter argues that the research questions deserving most intense theoretical and empirical attention in relation to IO accountability are, first, who should be accountable to whom and, second, to what extent they actually are. The most persuasive answer to the first question remains some version of the principle that everyone who is affected by a political decision should be able to influence that decision. Even under conditions of global interconnectedness, this does not mean that everyone should have a say on any decisions taken anywhere else: decision-​makers should be accountable to specific constituencies in proportion to the power they wield over those constituencies. It is hoped that the approach outlined in this chapter, and the illustrative analysis of global health policy here, will be useful to others who aim to answer the second question through empirical research that is sensitive to the complex and multifaceted ways in which power is exercised in global governance.

65   Ranjani K. Murthy and Barbara Klugman, “Service Accountability and Community Participation in the Context of Health Sector Reforms in Asia:  Implications for Sexual and Reproductive Health Services,” Health Policy and Planning 19/​Supp. 1 (2004): i78–​i86. 66   Global Fund, Framework Document of the Global Fund (2001), http://​www.theglobalfund.org/​ documents/​core/​framework/​Core_​GlobalFund_​Framework_​en/​. 67   Barnes and Brown, “The Global Fund to Fight AIDS, Tuberculosis and Malaria.”

 

Chapter 55

TRANSPARENCY Jonas Tallberg

Over the past two decades especially, international organizations (IOs) have become increasingly transparent and open to nonstate actors. Following the end of the Cold War, a growing number of IOs have adopted public information policies and rules of access that permit nonstate actors to participate in policymaking. While the World Bank was one of the first IOs to adopt a public information policy in the early 1990s, many IOs have followed suit. It has therefore become commonplace to speak of a general trend toward greater IO transparency. Likewise, the opening up of IOs to nonstate actors nowadays spans all areas of global governance. IOs with an historical record of limited access, such as the World Trade Organization (WTO) gradually have begun to open up, while IOs that already had a tradition of inclusiveness, such as the United Nations (UN), have become even more open. At the same time, differences remain, as IOs are considerably more transparent and open in some issue areas and policy functions than in others. How can this development be explained? What are the principal patterns in IO transparency and openness? How do transparency and openness impact the accountability, effectiveness, and legitimacy of IOs? These are questions that are gaining increasing attention in scholarship on IOs, and the purpose of this chapter is to provide an overview of this emerging field of research. In this chapter, we use the term transparency to denote public access to information about IO activities and policies, and the term openness to refer to nonstate actor access to IO policymaking. Access is distinct from nonstate actor participation, covered in another chapter of this volume (Chapter 53). While access consists of the institutional mechanisms whereby nonstate actors may take part in the policy process of an IO, participation

 

theoretical approaches to transparency and openness    1171 denotes nonstate actors’ presence and activities in these institutional venues. In addition, this chapter complements chapters in this handbook devoted to civil-​ society relations (Chapter  33), private sector relations (Chapter  34), legitimacy (Chapter 52), and accountability (Chapter 54). The central arguments of this chapter are fourfold. First, research on transparency and openness has largely developed in response to real-​world developments in global governance. As IOs have undergone a revolution in transparency and openness, scholars have sought to understand the origins of this transformation and its implications. Second, multiple theoretical approaches to the study of transparency and openness have evolved in parallel. A particular feature of the evolving theoretical agenda is the exploration of transparency and openness through both positive and normative perspectives. Third, the empirical study is comparatively stronger in uncovering the sources of growing transparency and openness, than in systematically assessing their effects. Fourth and finally, this is a field where over time we have witnessed a methodological development from extensive reliance on qualitative case studies to quantitative large-​N research. The chapter is structured in two substantive parts. I begin by introducing and exemplifying the three most prominent theoretical approaches in the study of transparency and openness:  rational choice institutionalism, sociological institutionalism or constructivism, and normative democratic theory. I then show how existing scholarship, drawing on these approaches, has explored transparency and openness empirically in three domains: the sources, patterns, and consequences of transparency.

Theoretical Approaches to Transparency and Openness The study of transparency and openness in IOs is dominated by three theoretical approaches: rational choice institutionalism, sociological institutionalism, and normative democratic theory.

Rational Choice Institutionalism The analytical bedrock of rational choice institutionalism is the proposition that institutions are created and designed to address shortcomings in the market or the

 

1172   transparency political system as a means of producing collectively desirable outcomes.1 In the study of international cooperation, this explanation has been deployed to account for, inter alia, the demand for international institutions,2 the delegation of authority to IOs,3 and the design of international institutions.4 Contributions in the rational institutionalist tradition direct our attention to the benefits and costs of transparency and openness in IOs. In this logic, transparency and openness are dimensions of the institutional design of IOs on which states make deliberate and informed choices, based on cost–​benefit calculations. On the benefits side, a growing number of scholars emphasize the functional advantages to IOs of opening up to nonstate actors, such as gaining valuable expertise. On the cost side, contributions typically highlight sovereignty costs, administrative costs, and posturing costs as constraints on, or negative consequences of, growing transparency and openness. Related, several contributions in recent years have drawn on rationalist resource-​exchange theory, as developed in sociology, to make a very similar argument about the sources and dynamics of IO openness. The resource-​exchange model suggests that organizations often are unable to internally generate all the resources they require, and therefore enter into exchanges with other organizations to secure these resources.5 According to research in the rational institutionalist tradition, we can find functional benefits of nonstate access in three of the four principal phases of the policy process: policy formulation, implementation, and monitoring and enforcement. By contrast, it is more difficult to identify a corresponding functional advantage in the decision-​making phase of international cooperation.6 1   Oliver E. Williamson, Markets and Hierarchies: Analysis and Antitrust Implications (New York: Free Press, 1975); Barry R. Weingast and William J. Marshall, “The Industrial Organization of Congress; or, Why Legislatures, Like Firms, Are Not Organized as Markets,” Journal of Political Economy 96/​1 (1988): 132–​63. 2   Robert O. Keohane, After Hegemony:  Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984); Lisa L. Martin, “Interests, Power, and Multilateralism,” International Organization 46/​4 (1992): 765–​92. 3  Jonas Tallberg, “Delegation to Supranational Institutions: Why, How, and with What Consequences?,” West European Politics 25/1 (2002): 23–46; Mark Pollack, The Engines of European Integration: Delegation, Agency, and Agenda-​Setting in the EU (Oxford: Oxford University Press, 2003); Darren G. Hawkins et al. (eds.), Delegation and Agency in International Organizations (Cambridge: Cambridge University Press, 2006). 4  Kenneth W. Abbott and Duncan Snidal, “Hard and Soft Law in International Governance,” International Organization 54/​3 (2000): 421–​56; Barbara Koremenos, Charles Lipson, and Duncan Snidal, “The Rational Design of International Institutions,” International Organization 55/​4 (2001): 761–​99. 5  Sol Levine and Paul E. White, “Exchange as a Conceptual Framework for the Study of Interorganizational Relationships,” Administrative Science Quarterly 55/​4 (1961): 581–​601; Jeffrey Pfeffer and Gerald R. Salancik, The External Control of Organizations:  A  Resource Dependence Perspective (New York: Harper & Row, 1978). 6   Kal Raustiala, “States, NGOs, and International Environmental Institutions,” International Studies Quarterly 39/4 (2013): 993–1013; Jens Steffek, “Explaining Cooperation between IGOs and NGOs: Push Factors, Pull Factors, and the Policy Cycle,” Review of International Studies, online 11 December 2012.

 

theoretical approaches to transparency and openness    1173 First, states and IO bureaucracies may favor access for nonstate actors because of the policy expertise these actors can contribute. While some problems in global governance are quite straightforward, others are characterized by significant uncertainty, both as regards the policy options available and the effects of alternative policy choices. Opening up to nonstate actors that specialize in gathering, analyzing, and offering policy expertise may in these cases be an attractive option, especially since this information generally is provided for free, allowing states and IO bureaucracies to move research costs off-​budget. A prominent example is the involvement of scientific experts and nongovernmental organizations (NGOs) in the development of global environmental policy.7 Second, IOs may open up to nonstate actors in the implementation phase, to elicit their help in the execution of programs and delivery of services in the field. While some forms of international cooperation, such as the adoption of regulatory standards, entail no or limited IO involvement in implementation, other forms of cooperation, such as programmatic activities in the field, require implementation on the ground for which IOs may not be optimally adapted or equipped. Outsourcing implementation to nonstate actors, with local knowledge and capacity to reach the target population, may in these cases hold the promise of greater policy and resource efficiency.8 A  relevant example is the engagement of humanitarian NGOs in the delivery of multilateral aid to populations in crisis-​stricken areas.9 Third, IOs may offer access to nonstate actors in order to gain their help in monitoring and enforcing compliance. While some IOs are active in policy areas characterized by coordination problems with limited defection incentives, many international agreements require costly domestic adjustments that present states with noncompliance incentives.10 In these cases, relying on nonstate actors as “fire alarms,” monitoring state compliance from below, may constitute an effective and cost-​efficient alternative to oversight by IOs themselves.11 As concerned advocates and defenders of international regimes, NGOs tend to both devote considerable resources to the monitoring of state commitments and have an interest in supplying 7   Raustiala, “States, NGOs, and International Environmental Institutions”; Michele M. Betsill and Elisabeth Corell, NGO Diplomacy: The Influence of Nongovernmental Organizations in International Environmental Negotiations (Cambridge, MA: MIT Press, 2008). 8   Jens Steffek, “Explaining Patterns of Transnational Participation:  The Role of Policy Fields,” in Transnational Actors in Global Governance:  Patterns, Explanations, and Implications, ed. Christer Jönsson and Jonas Tallberg (Basingstoke: Palgrave, 2010), 67–​87, 82. 9  Alexander Cooley and James Ron, “The NGO Scramble:  Organizational Insecurity and the Political Economy of Transnational Action,” International Security 27/​1 (2002): 5–​39; Kim D. Reimann, “A View from the Top: International Politics, Norms and the Worldwide Growth of NGOs,” International Studies Quarterly 50/​1 (2006): 45–​68. 10   George W. Downs, David M. Rocke, and Peter N. Barsoom, “Is the Good News about Compliance Good News about Cooperation?,” International Organization 50/​3 (1996): 379–​406. 11   Matthew D. McCubbins and Thomas Schwartz, “Congressional Oversight Overlooked: Police Patrols versus Fire Alarms,” American Journal of Political Science 28/​1 (1984): 165–​79.

 

1174   transparency this information.12 An important example is the role of human rights NGOs in collecting information on violations and in helping victims to lodge complaints with international human rights bodies.13 Yet openness does not only come with benefits. A number of contributions in this tradition have emphasized how different kinds of costs limit IO transparency and openness. These costs are assumed to feature as drawbacks in any net assessment of pros and cons. Alternatively, these costs are conceptualized as negative effects that may arise from IOs expanding transparency and openness. Existing literature primarily highlights three different forms of costs: sovereignty costs, organizational costs, and posturing costs. Sovereignty costs are understood here as the reduction in state control associated with transparency and openness. While governments in a closed setting have a virtual monopoly on the information collected and generated by IOs, they surrender some or much of that control when introducing and expanding transparency.14 Likewise, access to nonstate actors will involve restrictions in states’ behavioral autonomy. Tallberg et  al. hypothesize that such concerns with sovereignty vary across policy functions and issue areas, influencing patterns of openness along these dimensions.15 First, the sovereignty costs of openness should be particularly high in decision-​making, where states adopt binding international rules, followed by monitoring and enforcement, where states are held to their commitments and may face sanctions. Nonstate access to implementation should be associated with relatively lower sovereignty costs, while access to policy formulation probably impinges least on state sovereignty. Second, allowing nonstate access to policymaking should be perceived by states as more threatening in some issue areas than in others, for historical, cultural, and functional reasons. The costs should be highest when issues touch on elements of Westphalian sovereignty, notably, territory and relations between the state and its citizens. Examples of such issue areas are international security, internal security, foreign policy, human rights, and asylum and immigration. Organizational costs consist of the concrete, material costs to IOs of expanding transparency and openness. Access to information and policymaking is not only a question of formal provisions in a treaty, but involves setting up procedures and

12   Ronald B. Mitchell, “Sources of Transparency:  Information Systems in International Regimes,” International Studies Quarterly 42/​1 (1998): 109–​30. 13   Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press, 2009). 14   Robert O. Keohane, “Global Governance and Democratic Accountability,” ed. Taming Globalization: Frontiers of Governance, ed. David Held and Mathias Koenig-​Archibugi (Cambridge: Polity Press, 2003), 130–​59, 142; Alexandru Grigorescu, “Transparency of Intergovernmental Organizations: The Roles of Member States, International Bureaucracies and Nongovernmental Organizations,” International Studies Quarterly 51/​3 (2007): 625–​48, 629–​30. 15   Jonas Tallberg et al., The Opening Up of International Organizations: Transnational Access in Global Governance (Cambridge: Cambridge University Press, 2013).

 

theoretical approaches to transparency and openness    1175 arrangements that require the IO to divert scarce resources from its core activities. Developing and implementing public information policies in IOs oftentimes necessitates the creation of information departments. While the advent of the Internet has reduced the effort of disseminating information, assessing what documents can be made public and making them available still demands resources. Hence, as Grigorescu emphasizes, “generating and disseminating information is costly both financially and in terms of the time that many officials will spend on public queries.”16 Likewise, if IOs are not to grant access to nonstate actors indiscriminately, access requires the organization and operation of some form of accreditation procedures. These can range from IO secretariats vetting applications for accreditation, to IOs convening intergovernmental negotiations that decide on accreditation. Once nonstate actors are on the inside of IOs, their involvement requires meeting facilities that permit them to be present, and IO personnel or offices that can manage relations with nonstate actors, distribute meeting documents, and administer written contributions from civil society actors. Given the organizational costs of transparency and openness, it is a common hypothesis in the literature that IOs with large budgets are more likely to offer access to policymaking and documentation.17 Finally, posturing costs refers to the negative consequences of transparency on state behavior and negotiated outcomes in IOs.18 IOs are forums for interstate bargaining, which regularly involves concessions and compromises in order to arrive at agreements. For several reasons, states may not wish such activities to take place in the open. To be seen as backing down may hurt the government politically. Secrecy allows all governments to claim victory at the end of the day, or alternatively, to blame other states for unpopular decisions. While there may be functional advantages to nonstate access in other phases of the policy process, openness is often seen as a disadvantage at the stage of decision-​making. As Raustiala notes: “When governments desire secrecy to air possible compromises, or are at the stage of logrolling once positions have solidified, they may find NGO participation undesirable or not useful.”19 The most influential contribution on the negative implications of moving from secrecy to transparency is probably Stasavage, who highlights the greater likelihood of posturing. In this context, posturing refers to “the incentive for representatives to adopt uncompromising positions during negotiations, to demonstrate to their constituents that they are effective or committed bargainers.”20 The problem   Grigorescu, “Transparency of Intergovernmental Organizations,” 634.   e.g., ibid.; Andrea Liese, “Explaining Varying Degrees of Openness in the Food and Agriculture Organization of the United Nations (FAO),” in Transnational Actors in Global Governance: Patterns, Explanations, and Implications, ed. Christer Jönsson and Jonas Tallberg (Basingstoke: Palgrave, 2010), 88–​109; Tallberg et al., The Opening Up of International Organizations. 18  David Stasavage, “Open-​Door or Closed-​Door? Transparency in Domestic and International Bargaining,” International Organization 58/​4 (2004): 667–​704. 19   Raustiala, “States, NGOs, and International Environmental Institutions,” 733. 20   Stasavage, “Open-​Door or Closed-​Door?,” 673. 16 17

 

1176   transparency with posturing is that tough and uncompromising positions of all parties are likely to produce negotiation breakdown. For this reason, open-​door bargaining is likely to encourage behavior contrary to the collective advantage of states.

Sociological Institutionalism Sociological institutionalism (and related work in the constructivist tradition) offers an alternative theoretical perspective on transparency and openness in IOs. Rather than focusing on benefits and costs, this approach privileges the emergence and spread of norms of transparency and inclusiveness in global governance. This perspective is grounded in the constructivist notion that institutions reflect ideas and norms about what constitute appropriate and legitimate modes of governance. In this view, institutional design is a process where low priority is given to concerns of efficiency, compared to concerns of legitimacy. Norms define what institutional structures are appropriate in a given social community. Actors adapt to these institutional norms, either because they have internalized the norm as the “right thing to do,” or because they have learned what is expected of them.21 The spread of norms about appropriate institutions gives rise to isomorphism, or the homogenization of institutional models across functional domains.22 According to contributions in this tradition, recent decades have witnessed the emergence of a new norm about what constitutes legitimate global governance. While indirect representation through member governments was previously sufficient to legitimate IOs in democratic terms, the growing political authority of IOs requires that decisions are made in the open and that civil society becomes more directly involved in policymaking. This argument comes in a “thick” and a “thin” constructivist version. In the first version, member states and IO bureaucracies have introduced and expanded transparency and openness because they have become socialized into believing in the normative appropriateness of this model.23 Slightly simplified, the

21  Jeffrey T. Checkel, “International Institutions and Socialization in Europe:  Introduction and Framework,” International Organization 59/​4 (2005):  801–​26, 804–​5; James G. March and Johan P. Olsen, Rediscovering Institutions:  The Organizational Basis of Politics (New  York:  Free Press, 1989); John W. Meyer and Brian Rowan, “Institutionalized Organizations:  Formal Structure as Myth and Ceremony,” American Journal of Sociology 83/​2 (1977): 340–​63. 22   Paul J. DiMaggio and Walter W. Powell, “The Iron Cage Revisited:  Institutional Isomorphism and Collective Rationality in Organizational Fields,” in The New Institutionalism in Organizational Analysis, ed. Walter W. Powell and Paul J. DiMaggio (Chicago: University of Chicago Press, 1991). 23   Alastair Iain Johnston, “Treating International Institutions as Social Environments,” International Studies Quarterly 45 (2001): 487–​515; Checkel, “International Institutions and Socialization in Europe”; Ryan Goodman and Derek Jinks, Socializing States: Promoting Human Rights through International Law (Oxford: Oxford University Press, 2013).

 

theoretical approaches to transparency and openness    1177 literature highlights two alternative sources of norm socialization. First, it may result from the emergence of a new openness discourse in a set of influential IOs, and its subsequent spread to the broader population of organizations.24 This discourse is likely to have originated in the organizational context of the UN and the European Union (EU), which were at the forefront among IOs in acknowledging democratic deficits and in conceptualizing NGOs as legitimate civil society representatives. Given the dominant position of the UN and the EU in global and regional governance, the discourse emerging from these organizations is hypothesized to have influenced how other IOs conceive of the normative appropriateness of their governing structures. In this process, activists, academics, and policymakers alike may have functioned as norm entrepreneurs, criticizing intergovernmental representation, diagnosing democratic deficits, offering institutional remedies, and exchanging reform experiences. A second, alternative source of norm socialization is democracy at the domestic level. According to this argument, the development of a norm of transparent and inclusive governance reflects the presence and influence of democratic states within international organizations.25 Deriving standards of appropriate institutional design from domestic political systems that allow for and encourage openness in public life, democracies work to expand access and transparency in global governance. By applying a consistent set of procedural standards to all levels of political organization, democracies thus generate processes of normative spillover from the national to the global level. According to this argument, the trend toward growing openness in IOs reflects a normative consensus on pluralist democracy in many dominating states in global governance, as well as the emergence of new democracies over past decades, following transitions from authoritarian rule in many countries. In the “thin” constructivist version of the argument, the shift toward openness and transparency in global governance does not reflect socialization of policymakers into a new norm, as much as adaptation to it for purposes of legitimation. To be perceived as legitimate is often central to whether IOs can exercise authority and command compliance.26 A loss in the perceived legitimacy of an IO can negatively affect its capacity to garner political support for an ambitious policy agenda, reduce the ability of government leaders to secure the popular support needed to ratify new treaties, and hurt the chances of effective implementation of international rules 24  Steve Charnovitz, “Two Centuries of Participation:  NGOs and International Governance,” Michigan Journal of International Law 18 (1997): 183–​286; Sabine Saurugger, “The Social Construction of the Participatory Turn:  The Emergence of a Norm in the European Union,” European Journal of Political Research 49/​4 (2010): 471–​95. 25  Grigorescu, “Transparency of Intergovernmental Organizations,” 632–​3; Jonas Tallberg et  al., “Explaining the Transnational Design of International Organizations,” International Organization 68/​4 (2014): 741–​74. 26   Ian Hurd, “Legitimacy and Authority in International Politics,” International Organization 53/​2 (1999): 379–​408.

 

1178   transparency and requirements in the member states. At a more operational level, opposition can damage the IO and its activities by disrupting decision-​making, jeopardizing the completion of programs on the ground, and hurting funding from member governments. When IOs are challenged by societal actors, IO policymakers may offer access to documents and policymaking in order to strengthen legitimacy in relation to the external environment. Challenges against IOs encompass public criticism, NGO campaigns, and street protests. Such challenges were particularly prominent in the late 1990s and early 2000s, giving rise to a specific literature on the new transnational activism.27 Prominent targets during this period were the WTO, the International Monetary Fund (IMF), the World Bank, the G7, and the EU, which were criticized by NGOs and social movements for pursuing a neoliberal agenda of economic globalization and for their opaque decision-​making procedures. In its more general formulation, this argument is conformant with recent research that speaks of IO openness as a consequence of “politicization” in global governance, defined as “growing public awareness of international institutions and increased public mobilization of competing political preferences regarding institutions’ policies and procedures.”28 According to this argument, the growing authority of IOs has made them the objects of growing societal contestation. One of the expected effects of such growing politicization is expansion in nonstate actor access. As Zürn hypothesizes:  “International institutions that are politicized respond by giving greater access to transnational non-​state actors as a move to increase legitimacy.”29

Normative Democratic Theory Normative democratic theory offers a third approach to the study of transparency and openness. Unlike rational choice and sociological institutionalism, which share a positive approach, democratic theory addresses the normative aspects of transparency and openness in IOs. Normative democratic theory is not a unified approach, but consists of several different strands of theory, often described as alternative models of democracy, which offer competing prescriptions for how the ideal democracy should be designed.

 Joe Bandy and Jackie Smith (eds.), Coalitions across Borders:  Transnational Protest and the Neoliberal Order (Lanham, MD: Rowman & Littlefield, 2005); Donatella Della Porta and Sidney Tarrow (eds.), Transnational Protest and Global Activism (Lanham, MD: Rowman & Littlefield, 2005); Sidney Tarrow, The New Transnational Activism (Cambridge: Cambridge University Press, 2005). 28   Michael Zürn, Martin Binder, and Matthias Ecker-​Ehrhardt, “International Authority and Its Politicization,” International Theory 4/​1 (2012): 69–​106, 71. 29   Michael Zürn, “The Politicization of World Politics and Its Effects: Eight Propositions,” European Political Science Review 6/​1 (2014): 47–​7 1, 61. 27

 

theoretical approaches to transparency and openness    1179 The normative question of whether IOs suffer from democratic deficits, and if so what might be done about it, has generated extensive interest over the past decade and a half. The scholarly debate today features three main positions. According to the first position, democracy at the global level will be impossible to achieve, because of the absence of a global demos.30 While states may engage in processes of institutional reform, there is little they can do to create a truly transnational demos—​a sense of common identity that permits citizens of different national communities to engage in the kind of political discourse that is essential to democratic governance. Proponents of a second position in the debate question the diagnosis of a democratic deficit in global governance, and thus claim that there are few reasons to engage in democratizing reforms.31 If international organizations are compared to how established democracies actually work, rather than to ideal models of democracy, the verdict is more positive and the need for democratizing reforms less imperative, according to this argument. Advocates of a final position recognize the presence of a democratic deficit, and consider it both desirable and possible to democratize IOs.32 This perspective spans a rich variety of views concerning the specific mechanisms through which international organizations can become more democratic. However, expanding the transparency and openness of IOs features prominently in most of the proposals. In this view, transparency is necessary for any form of accountability in IOs (see Chapter 54 of this volume), while access for nonstate actors can expand the participation of civil society in global governance (see Chapter 53 of this volume). Advocates of transparency as a normative virtue typically emphasize its importance for the possibility of holding power wielders accountable. Unless information about

30   Robert Dahl, “Can International Organizations Be Democratic? A Skeptic’s View,” in Democracy’s Edges, ed. Ian Shapiro and Casiano Jacker-​Córdon (Cambridge: Cambridge University Press, 1999), 19–​36; Fritz Scharpf, Governing in Europe: Effective and Democratic? (Oxford: Oxford University Press, 1999). 31   Giandomenico Majone, “Europe’s ‘Democratic Deficit’:  The Question of Standards,” European Law Journal 4/​1 (1998): 5–​28; Andrew Moravcsik, “Is there a ‘Democratic Deficit’ in World Politics? A Framework for Analysis,” Government and Opposition 39/​2 (2004): 336–​63; Miles Kahler, “Defining Accountability Up: The Global Economic Multilaterals,” in Global Governance and Public Accountability, ed. David Held and Mathias Koenig-​Archibugi (London: Blackwell, 2005), 8–​34. 32  e.g., David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Cambridge University Press, 1995); Michael Zürn, “Democratic Governance Beyond the Nation-​ State: The EU and other International Institutions,” European Journal of International Relations 6/​2 (2000): 183–​221; Jens Steffek, Claudia Kissling, and Patrizia Nanz (eds.), Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit? (Basingstoke: Palgrave Macmillan, 2008); Daniele Archibugi, Mathias Koenig-​Archibugi, and Raffaele Marchetti (eds.), Global Democracy: Normative and Empirical Perspectives (Cambridge: Cambridge University Press, 2011); Ian Johnstone, The Power of Deliberation: International Law, Politics and Organizations (Oxford: Oxford University Press, 2011); Jan Aart Scholte, “Conclusion,” in Building Global Democracy? Civil Society and Accountable Global Governance, ed. Jan Aart Scholte (Cambridge: Cambridge University Press, 2011), 306–​42.

 

1180   transparency an organization’s deliberations, decisions, and actions is available, it is impossible to determine if state representatives and IO officials are acting in the public interest. In this vein, Grant and Keohane stress that “availability of information is crucial for all forms of accountability,” while Scholte highlights that “transparency is a sine qua non of accountability.”33 This is an idea with a long pedigree. As an early advocate, Bentham argued that “publicity” in parliament would “constrain members of the assembly to perform their duty” and that it would “secure the confidence of the people, and their assent to the measures of the legislature.”34 While many scholars thus consider transparency normatively desirable because of its positive consequences on accountability, they differ on the extent and scope of this effect. For Florini, the implications go well beyond facilitating accountability: “Transparency provides the basis for a highly democratic, albeit non-​electoral, system of transnational governance based on the growing strength of global civil society.”35 For others, the positive effect of transparency is contingent on the availability of standards against which the behavior of power wielders can be assessed, and the presence of sanctions if power wielders do not comply with those standards.36 Likewise, IO openness to civil society actors is seen by several scholars as holding the promise of a democratization of global governance. In recent years, a number of theorists have advanced models of what is varyingly referred to as global stakeholder democracy, transnational democracy, and democratic polycentrism. In this vein, Macdonald argues that “we should embrace the prospect of a ‘pluralist’ liberal democratic order in global politics, composed of multiple agents of public power held to account by their overlapping ‘stakeholder’ communities.”37 In a similar way, Scholte submits that “civil society associations … offer significant possibilities to increase democratic accountability in global regulatory arrangements,”38 while Steffek and Nanz suggest that “[o]‌rganized civil society … has the potential to function as a ‘transmission belt’ between a global citizenry and the institutions of global governance.”39

  Ruth W. Grant and Robert O. Keohane, “Accountability and Abuses of Power in World Politics,” American Political Science Review 99/​1 (2005): 29–​43, 39; Jan Aart Scholte, “Introduction,” in Building Global Democracy? Civil Society and Accountable Global Governance, ed. Jan Aart Scholte (Cambridge: Cambridge University Press, 2011), 16. 34  Jeremy Bentham, Political Tactics, ed. Michael James, Cyprian Blamires, and Catherine Pease-​ Watkin (Oxford: Clarendon Press, 1999 [1816]), quoted in Stasavage, “Open-​Door or Closed-​Door?,” 672. 35   Ann Florini, “The End of Secrecy,” Foreign Policy 111 (1998): 50–​63, 63. See also Ann Florini, The Coming Democracy: New Rules for Running a New World (Washington, DC: Island Press, 2003). 36   e.g., Grant and Keohane, “Accountability and Abuses of Power in World Politics,” 39–​40. 37   Terry Macdonald, Global Stakeholder Democracy: Power and Representation Beyond Liberal States (Oxford: Oxford University Press, 2008), 13. 38   Jan Aart Scholte, “Civil Society and Democratically Accountable Global Governance,” in Global Governance and Public Accountability, ed. David Held and Mathias Koenig-​Archibugi (London: Blackwell, 2005), 88–​9. 39   Jens Steffek and Patrizia Nanz, “Emergent Patterns of Civil Society Participation in Global and European Governance,” in Civil Society Participation in European and Global Governance: A Cure for 33

 

theoretical approaches to transparency and openness    1181 The model of global stakeholder democracy places particular emphasis on the importance of IO openness and transparency for the normative ideals of participation and accountability. Participation as an ideal specifies that all people significantly affected by a decision should have equal possibility to participate in its making.40 Accountability as an ideal stipulates that some actors should have the right to hold other actors to a set of standards, to assess whether they have fulfilled their responsibilities in the light of these standards, and to impose sanctions if they find that these responsibilities have not been met.41 According to the model of global stakeholder democracy, IO openness to civil society can help both to expand participation, by bringing on board civil society organizations representing a broad array of societal interests, and to strengthen the external accountability of IOs vis-​ à-​vis stakeholders, next to traditional mechanisms of internal accountability within IOs. Recently, a number of contributions have evaluated the empirical viability of global stakeholder democracy in view of existing patterns of civil society involvement in global governance.42 The notion that IO openness to civil society can help to democratize global governance is not limited to the academic debate. For instance, former UN Secretary-​ General Boutros Boutros-​Ghali characterized NGOs as “a basic form of popular representation in the present-​day world,” arguing that “their participation in international organizations is, in a way, a guarantee of the political legitimacy of those international organizations.”43 The Cardoso Report, the most recent document outlining the relationship between the UN and civil society, stated categorically that “the growing participation and influence of nonstate actors is enhancing democracy and reshaping multilateralism.”44

the Democratic Deficit?, ed. Jens Steffek, Claudia Kissling, and Patrizia Nanz (Basingstoke:  Palgrave Macmillan, 2008), 1–​29, 3. 40   Robert Dahl, After the Revolution: Authority in Good Society (New Haven: Yale University Press, 1970). See Johnstone, The Power of Deliberation for a synthesis of literature on how this ideal may be realized through deliberative democracy in international organizations. 41   Grant and Keohane, “Accountability and Abuses of Power in World Politics.” 42   Magdalena Bexell, Jonas Tallberg, and Anders Uhlin, “Democracy in Global Governance: The Promises and Pitfalls of Transnational Actors,” Global Governance 16/​1 (2010): 81–​101; Jonas Tallberg and Anders Uhlin, “Transnational Actors and Global Democracy: An Assessment,” in Global Democracy: Normative and Empirical Perspectives, ed. Daniele Archibugi, Mathias Koenig-​Archibugi, and Raffaele Marchetti (Cambridge: Cambridge University Press, 2011); Hans Agné, Lisa Dellmuth, and Jonas Tallberg, “Does Stakeholder Involvement Foster Legitimacy in International Organizations? An Empirical Assessment of a Normative Theory,” Review of International Organizations 10 (2015): 465–88. 43   Quoted in Norbert Götz, “Reframing NGOs:  The Identity of an International Relations Non-​ Starter,” European Journal of International Relations 14/​2 (2008): 231–​58, 244. 44   Quoted in Paul Wapner, “Civil Society,” in The Oxford Handbook on the United Nations, ed. Thomas G. Weiss and Sam Daws (Oxford and New  York:  Oxford University Press, 2007), 254–​63, 257.

 

1182   transparency

The Empirical Study of Transparency and Openness Shifting from theoretical approaches to the empirical study of transparency and openness, existing research has explored three aspects to varying extents: the patterns, sources, and consequences of transparency and openness.

Patterns in Transparency and Openness A prominent ambition of much research on the transparency and openness of IOs has been to descriptively map the changing nature of global governance in this regard. In political science scholarship, mapping forms and levels of transparency and openness in a historical perspective has been a necessary first step on the road toward explaining this development, while in legal scholarship, mapping and describing transparency and openness provisions has contributed to understanding the changing nature of international law.45 Existing research highlights variation across a number of dimensions. Perhaps the most common finding is evidence of an increase in IO transparency and openness over time. It has become very common over the past two decades to claim that global governance is becoming increasingly transparent and inclusive. In a first generation of contributions, this observation was primarily based on evidence from individual IOs, such as the EU, the WTO, the World Bank, and the UN.46 Recently however, this claim has been subject to more systematic, large-​N assessments,

45  See, e.g, Anna Karin Lindblom, Non-​ Governmental Organizations in International Law (Cambridge: Cambridge University Press, 2005); Sergey Ripinsky and Peter Van den Bossche, NGO Involvement in International Organizations (London: British Institute of International and Comparative Law, 2007). 46   See, e.g., Tony Bunyan, Secrecy and Openness in the EU (London: Kogan Page, 1999); Saurugger, “The Social Construction of the Participatory Turn”; Lori Udall, “The World Bank and Public Accountability: Has Anything Changed?,” in The Struggle for Accountability: The World Bank, NGOs, and Grassroots Movements, ed. Jonathan A. Fox and L. David Brown (Cambridge, MA: MIT Press, 1998); Robert O’Brien et al., Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (Cambridge: Cambridge University Press, 2000); Thomas G. Weiss and Leon Gordenker (eds.), NGOs, the UN, and Global Governance (Boulder, CO: Lynne Rienner, 1996); Peter Willetts, “From ‘Consultative Arrangements’ to ‘Partnership’: The Changing Status of NGOs in Diplomacy at the UN,” Global Governance 6/​2 (2000): 191–​212; Steve Charnovitz, “Opening the WTO to Nongovernmental Interests,” Fordham International Law Journal 24/1–2 (2000): 173–216; Jens Steffek and Ulrike Ehling, “Civil Society Participation at the Margins: The Case of the WTO,” in Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit?, ed. Jens Steffek, Claudia Kissling, and Patrizia Nanz (Basingstoke: Palgrave Macmillan, 2008), 95–​115.

 

the empirical study of transparency and openness    1183 which have corroborated the earlier picture of a transformation in the institutional design of IOs. Based on a comprehensive quantitative mapping of formal nonstate access since 1950 to fifty IOs, including 298 IO bodies (e.g., secretariats, courts, committees), Tallberg et  al. find that the opening up of IOs is mostly recent, very broad, and shows no sign of ending.47 While the share of IO bodies with some level of openness was at 20 percent in 1950, this doubled to about 40 percent in 1990, and then almost doubled again over the next twenty years, to 70 percent in 2010. At the level of IOs, they find that almost all organizations today offer formal access in some form. And if measurement of access is expanded to include informal procedures and practices, then hardly any IO or IO body remains closed to nonstate actors. The leaders in this historical development have been a set of large Western or global IOs—​the UN, the Council of Europe, the Organization of American States, and the Organisation for Economic Co-​operation and Development—​for which nonstate access was an institutional feature of some significance already in the decades after World War II. Yet, for a large population of IOs, extensive nonstate access is a more recent phenomenon, with 1990 as the central turning point. Tallberg et al. conclude that the opening up of IOs over the past two decades has been broad and comprehensive, pervading all issue areas, all policy functions, all forms of IO bodies, and all world regions. Exploring an important subset of this development, Alter similarly finds that growing private access to international courts and tribunals is a distinct trend, with nearly all new courts created since 1990 offering direct mechanisms for individuals, NGOs, or firms.48 Green finds a similar pattern when assessing delegation to private actors in about 150 multilateral environmental treaties over the past century.49 The proportion of policy functions delegated by states to private actors has grown remarkably over the past quarter-​century in this domain, and particularly since the early 1990s. This is a pattern that holds true for both delegation through treaties and delegation through decisions subsequently taken to implement these treaties. Existing research on access to documentation in IOs points to a pattern of expansion as well.50 During the post-​World War II period and up until the late 1980s, the transparency policies of IOs were predominantly based on the presumption that

  Tallberg et al., The Opening Up of International Organizations.   Karen Alter, “Private Litigants and the New International Courts,” Comparative Political Studies 39/​1 (2006): 1–​27. 49  Jessica F. Green, “Private Authority on the Rise: A Century of Delegation in Multilateral Environmental Agreements,” in Transnational Actors in Global Governance: Patterns, Explanations, and Implications, ed. Christer Jönsson and Jonas Tallberg (Basingstoke: Palgrave, 2010), 155–​76. 50   Grigorescu, “Transparency of Intergovernmental Organizations”; and “International Organizations and their Bureaucratic Oversight Mechanisms: The Democratic Deficit, Accountability and Transparency,” in Routledge Handbook of International Organization, ed. Bob Reinalda (London: Routledge, 2013). 47

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1184   transparency information should be kept secret and public access should be an exception. Yet, from around 1990, it became increasingly common for IOs to adopt public information policies. The World Bank was the first major IO to adopt such a policy in 1993, and its move was soon followed by the regional development banks.51 In the late 1990s, the IMF began to promote transparency as well—​not only on the part of member governments, but also on the part of the IO itself.52 Following the pattern among development banks, the UN Development Programme became the first major agency to adopt a comprehensive public information policy in 1997. Several other agencies soon followed. At the regional level, the EU surrendered its traditional culture of secrecy in 2001, when adopting Regulation 1049/​2001 on public access to information, and access to both documentation and deliberations has subsequently continued to expand. Existing research further documents differences in openness across issue areas, but similar comparative assessments do not exist for transparency. Steffek presents findings from a cross-​issue area comparison of civil society access to more than thirty IOs (on IO relations with civil society, see also Chapter 33 of this volume).53 The results point to significant variation between policy fields. There is a high level of nonstate involvement in environmental policy institutions and processes, such as the UN Environmental Programme and the UN Framework Convention on Climate Change, both of which offer particularly good access for civil society organizations (CSOs) to official negotiation and decision meetings, including speaking rights. Another policy area with extensive civil-​society access is human rights, where institutions such as the Council of Europe and the Human Rights Council of the UN both operate well-​developed consultative arrangements and rely on private actors to monitor state compliance. By contrast, Steffek finds that security is a policy area at the other end of the spectrum, with the North Atlantic Treaty Organization (NATO), for example, remaining closed to civil society in most respects. Likewise, in the field of finance, the IMF has been very reluctant to open up to societal actors, even if it engages in certain policy dialogue with them, and the Bank of International Settlements (BIS) remains highly inaccessible as well. While not based on comparable measurements, case studies of individual IOs active in different policy domains tend to reinforce the picture from these studies.54 51   Udall, “The World Bank and Public Accountability”; Paul J. Nelson, “Transparency Mechanisms in the Multilateral Development Banks,” World Development 19 (2001): 1835–​47. 52   O’Brien et al., Contesting Global Governance, ch. 5; Jan Aart Scholte and Albrecht Schnabel (eds.), Civil Society and Global Finance (London: Routledge, 2002). 53  Steffek, “Explaining Patterns of Transnational Participation”; and “Explaining Cooperation between IGOs and NGOs.” 54   See, e.g., Raustiala, “States, NGOs, and International Environmental Institutions”; O’Brien et al., Contesting Global Governance; Reimann, “A View from the Top”; Darren Hawkins, “Protecting Democracy in Europe and the Americas,” International Organization 62/​3 (2008): 373–​403; Peter Mayer, “Civil Society Participation in International Security Organizations: The Cases of NATO and the OSCE,” in Civil Society Participation in European and Global Governance: A Cure for the Democratic

 

the empirical study of transparency and openness    1185 Expanding from comparative case studies to a large-​N mapping of access in fifty IOs, Tallberg et al. corroborate the existence of distinct patterns across issue areas.55 They find that, in 2010, IO bodies in the field of human rights were by far the most open. Multi-​issue bodies were the second most open category, followed by development and trade. The lowest levels of openness could be found in finance and security. All issue areas have followed the same clear trend of an increase in openness over time, most notably after 1990. At a closer look, three additional patterns in the temporal development are observed. First, IO bodies in human rights and development, as well as multi-​issue bodies, have been pioneers of nonstate access. Second, early differences in access have proven highly resilient over time, as IO bodies in some fields consistently have been the most open (human rights) or the most closed (security, finance). Third, unlike the overall trend of a steep increase from 1990 onwards, access in some fields, such as environmental politics and commodity regulation, grew in a more linear way. Other issue areas, such as trade and security, have experienced a late and rather abrupt opening up. Existing research further points to variation across policy functions. Again, this pertains primarily to access for nonstate actors, since access to information tends to be regulated in IO-​wide public information policies. Multiple contributions conclude that IOs tend to be more open to nonstate actors at the stages of policy formulation, implementation, and monitoring/​enforcement, than at the stage of decision-​making.56 In this vein, it has been established that IO bodies involved in the monitoring and enforcement of member state compliance have been by far the most open category from 1950 to 2010.57 The second most open category in 2010, and during the first two decades of the observation period, was implementation bodies. Between 1970 and 1990, however, organizational bodies involved in policy formulation were more accessible than implementation bodies. Finally, the least open policy function in international cooperation has consistently been decision-​ making. Yet, even in this category, we see a strong increase in the level of nonstate actor access between 1990 and 2010. Focusing specifically on delegation to private actors in multilateral envirmental treaties, Green finds this to be particularly common in policy formulation and implementation, and less common in decision-​ making and enforcement.58 Deficit?, ed. Jens Steffek, Claudia Kissling, and Patrizia Nanz (Basingstoke: Palgrave Macmillan, 2008), 116–​39; Christer Jönsson and Jonas Tallberg (eds.), Transnational Actors in Global Governance: Patterns, Explanations, and Implications (Basingstoke: Palgrave, 2010).   Tallberg et al., The Opening Up of International Organizations.   Raustiala, “States, NGOs, and International Environmental Institutions”; Thomas Risse, “Trans­ national Actors and World Politics,” in Handbook of International Relations, ed. Walter Carlsnaes, Thomas Risse, and Beth A. Simmons, 2nd ed. (London: Sage, 2012). 57   Tallberg et al., The Opening Up of International Organizations. 58   Green, “Private Authority on the Rise.” 55

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1186   transparency

Sources of Transparency and Openness Next to descriptively mapping developments in transparency and openness, existing literature has increasingly explored the sources of these patterns. Accounts have primarily centered on three sets of factors, informed by rational choice and sociological institutionalism. To begin with, a number of contributions have demonstrated the explanatory power of functional benefits. In an early article on the topic, Raustiala concludes that states gain rather than lose in authority as a product of NGO access to international environmental institutions:  “Rather than undermining state sovereignty, active NGO participation enhances the abilities of states to regulate globally. The empirical pattern of NGO participation has been structured across time and functional areas to reap these gains.”59 Observing a development over time in the design of international environmental regimes toward greater TNA access, Raustiala explains this shift with the move in the 1980s and 1990s toward the negotiation of environmental issues—​ozone depletion, transboundary air pollution, hazardous wastes, climate change, and biodiversity—​that were more complex and demanding than those of the earlier resource regimes. In a more recent contribution on global environmental governance, Green assesses the extent to which the pattern of delegation to private actors in environmental treaties over the past century matches the expectations of rationalist theories.60 As multilateral environmental agreements have become more complex, Green argues, we have witnessed an increasing interest in engaging private actors, mainly because of the policy expertise they can contribute. This demand for expertise influences the pattern of delegation across policy functions as well, with private actor involvement being particularly common in policy formulation and implementation. By contrast, states are reluctant to engage private actors in the decision-​making and enforcement phases of cooperation, which involve higher sovereignty costs and fewer functional benefits from private actor participation. Relatedly, a number of contributions explain patterns in IO openness, drawing on rationalist resource-​exchange theory. In this vein, Steffek finds that IOs demand varying levels and kinds of resources from CSOs, depending on the characteristics of the issue area they are active in, while CSOs in return are offered much desired access to policymaking.61 Focusing on the Food and Agriculture Organization, Liese finds that the wish to access resources constitutes the organization’s principal motive for openness vis-​à-​vis non-​state actors.62 In a similar way, Mayer accounts for

  Raustiala, “States, NGOs, and International Environmental Institutions,” 719.   Green, “Private Authority on the Rise.” 61   Steffek, “Explaining Patterns of Transnational Participation.” 62   Liese, “Explaining Varying Degrees of Openness in the Food and Agriculture Organization of the United Nations (FAO).” 59

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the empirical study of transparency and openness    1187 variation across security IOs by highlighting distinct differences in their respective demands for the resources that CSOs can contribute.63 A  final illustration is the work of Bouwen, who explains the varying access of business interests to the principal institutions of the EU through a demand-​and-​supply theory of access.64 Another set of empirical contributions on the sources of openness explore the emergence and spread of an openness norm in global governance. Several works focus on the UN, emphasizing Article 71 of the UN Charter as the original source of this development and “a benchmark for other U.N. agencies.”65 Others highlight how the norm of openness spread and became consolidated in the UN system through the large UN conferences of the 1980s and 1990s.66 According to the general argument, this norm defines open and inclusive governance mechanisms as the new, appropriate standard in the UN. As Brühl and Rosert note: [W]‌hereas before, arguments were needed to justify the involvement of non-​governmental actors in governance processes, now we face a reversal, so the pressure is there to justify the exclusion of non-​state actors from governance processes, that is, to explain why the new norm of appropriate governance does not apply to the concrete case.67

The EU presents another organizational context where scholars have identified the emergence, diffusion, and consolidation of a new norm of democratic governance. Saurugger submits that the mid-​1990s witnessed the establishment of a hegemonic discourse in the EU, prescribing openness to civil society.68 According to Saurugger, “[t]‌he participatory turn at the EU level [reflects] a polity norm understood as a normative idea about a legitimate political order.”69 This norm is closely linked to the concept of participatory democracy as a solution to the EU’s democratic deficit. According to this argument, the norm first emerged as an idea to regulate interest group access, was subsequently reinforced through an influential “white paper” on European governance by the European Commission, and was eventually codified in the EU’s 2009 Lisbon Treaty. Others highlight the role of domestic democratic norms. Addressing the issue of why transparency mechanisms vary across IOs, Grigorescu establishes that socialization of government and IO officials into domestic democratic norms makes them more   Mayer, “Civil Society Participation in International Security Organizations.”   Pieter Bouwen, “Corporate Lobbying in the European Union: The Logic of Access,” Journal of European Public Policy 9/​3 (2002): 365–​90. 65   Charnovitz, “Two Centuries of Participation,” 253; see also Weiss and Gordenker, NGOs, the UN, and Global Governance; Willetts, “From ‘Consultative Arrangements’ to ‘Partnership’.” 66   Elisabeth Jay Friedman, Kathryn Hochstetler, and Ann Marie Clark, Sovereignty, Democracy, and Global Civil Society: State–​Society Relations at UN World Conferences (Albany, NY: SUNY Press, 2005); Reimann, “A View from the Top,” 60. 67   Tanja Brühl and Elvira Rosert, “Another Quiet Revolution? New Governance Forms and the Norm of Participation in the United Nations System,” paper prepared for the 2nd Conference on the Political Economy of International Organizations, Geneva, January 29–​31, 2009, 26. 68 69   Saurugger, “The Social Construction of the Participatory Turn.”   Ibid., 472. 63

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1188   transparency likely to support public information policies.70 Other contributions highlight the development and spread of an increasingly strong norm of transparency at the domestic level, following the third wave of democratization.71 Moving from a “thick” to a “thin” constructivist analysis, a range of works find that growing transparency and openness stems from purposeful attempts to legitimize IOs in response to criticism. In this vein, O’Brien et al. argue that public opposition was the principal reason why the IMF, the World Bank, and WTO began to open up: “Under increased pressure from some elements of civil society for transparency and accountability the institutions have in the 1990s embarked upon a strategy of incremental reform. The intent is to extend and universalize existing multilateralism while blunting opposition through coopting hostile groups.”72 Summarizing evidence from more than thirty IOs, Kissling and Steffek reach a similar conclusion, highlighting an “increasing willingness of international organizations to turn to CSO participation in order to confront the external criticism of their perceived missing legitimacy.”73 In a variant on this theme, Grigorescu suggests that the move toward transparency during the last two decades may reflect a response among IOs to scandals that have raised public concerns about IO management.74 In the UN, the oil-​ for-​food scandal exposed the IO to claims of corruption and mismanagement. Likewise, in the EU, the entire Commission had to resign in 1999 because of corruption charges. In both cases, the IO subsequently moved to expand transparency through various measures. The EU, for instance, adopted a new public information policy in 2001 that significantly expanded the public’s access to EU documents. Generally, the introduction of public information policies and internal oversight mechanisms in IOs is claimed to send signals of “truthfulness,” intended to boost public confidence in the institutions. As Grigorescu summarizes: Many IOs faced with such embarrassing publicity quickly adopted oversight policies and institutions to regain their lost legitimacy. Moreover, civil society representatives who had been lobbying member-​state governments and the IOs themselves for such institutional changes, learned to use the windows of opportunity immediately following such scandals to push for meaningful change.75

  Grigorescu, “Transparency of Intergovernmental Organizations.”  Nelson, “Transparency Mechanisms in the Multilateral Development Banks”; Ann Florini, “Increasing Transparency in Government,” International Journal on World Peace 19/​3 (2002): 3–​34. 72   O’Brien et al., Contesting Global Governance, 4. 73  Claudia Kissling and Jens Steffek, “CSOs and the Democratization of International Governance:  Prospects and Problems,” in Civil Society Participation in European and Global Governance: A Cure for the Democratic Deficit?, ed. Jens Steffek, Claudia Kissling, and Patrizia Nanz (Basingstoke: Palgrave Macmillan, 2008), 210–​11. 74   Grigorescu, “Transparency of Intergovernmental Organizations.” 75   Grigorescu, “International Organizations and their Bureaucratic Oversight Mechanisms,” 15. 70 71

 

the empirical study of transparency and openness    1189 Moving beyond the rationalist-​constructivist divide, Tallberg et  al. establish that variation in nonstate access within and across IOs mainly is explained by a combination of three factors: demand for the resources and services of nonstate actors, domestic democratic standards in the membership of IOs, and state concerns with national sovereignty.76 In their account, the principal drivers of greater openness in global governance have been functional demands for resources that enable IOs to address governance problems more efficiently and effectively, and domestic democracy among the member states of IOs. Sovereignty costs associated with reductions in state control have been the principal constraint on access, also contributing to distinct patterns of variation across policy functions and issue areas. According to Tallberg et  al., the central transformative event in the historical development of TNA access was the end of the Cold War, which led to growing functional demands for nonstate actor involvement in international cooperation and strengthened democracy as a principle of governance.

Effects of Transparency and Openness The effects of transparency and openness are generally a less explored area. Simplifying slightly, existing research suggests that we may observe effects in three different areas: accountability, efficiency, and perceived legitimacy. First, normative democratic theory creates a strong expectation that the introduction and expansion of transparency in IOs should increase the capacity to hold power wielders accountable for actions and decisions. Yet, with few exceptions, this theoretically well-​grounded expectation has remained empirically untested. As Bauhr and Grimes put it:  “[O]‌ur understanding of this link remains more anchored in normative conviction and assumptions about human behavior rather than empirical investigation.”77 While growing transparency by nature enhances the information available about the behavior of power wielders, and thus should improve the prospects for accountability, there is very little research on whether and how decision-​makers behave differently under varying levels of transparency. A notable exception is the work by Naurin, who explores the impact of secrecy and transparency in the EU on political actors.78 Focusing on the behavior of business lobbyists, Naurin tests whether publicity has a civilizing effect by forcing actors 76   Tallberg et al., The Opening Up of International Organizations; and “Explaining the Transnational Design of International Organizations.” 77   Monika Bauhr and Marcia Grimes, “Indignation or Resignation: The Implications of Transparency for Societal Accountability,” Governance 27/​2 (2014): 291–​320, 292. 78   Daniel Naurin, Deliberation Behind Closed Doors:  Transparency and Lobbying in the European Union (Colchester:  ECPR Press, 2007); and “Backstage Behaviour? Lobbyists in Public and Private Settings in Sweden and the European Union,” Comparative Politics 39/​2 (2007): 209–​28.

 

1190   transparency to shift from market-​style bargaining to public argument. Based on interviews with lobbyists in the EU (closed system) and Sweden (open system), Naurin concludes that the positive force of transparency appears overrated. Another contribution that touches on the implications of transparency is a recent volume edited by Scholte, with evidence on accountability arrangements in thirteen different global regulatory arrangements.79 While concluding that global governance has become considerably more transparent as a result of more ambitious public information policies and practices of information dissemination, Scholte questions whether this growing openness indeed is effective. Whereas CSOs have been instrumental in pushing IOs toward greater transparency, “[m]‌any civil society activists have apparently seen information disclosure per se as the goal, neglecting to look more carefully at the conditions of those releases, as well as whom these conditions benefit or disadvantage.”80 Echoing this critique, Grigorescu emphasizes that “in the absence of a culture of transparency, even the most progressive rules on access to information have not been effective in achieving transparency in IOs in the past.”81 Second, existing research offers a number of contributions that explicitly or implicitly address the implications of transparency and openness for the efficiency and effectiveness of IOs, while seldom engaging in systematic assessments of theoretical propositions. Relevant scholarship addresses the consequences of both public access to documentation and nonstate access to policymaking. One line of research suggests that transparency—​in IOs themselves and as a goal of IO policy—​ should reduce corruption and wasteful management of resources. This argument builds on the notion that transparency improves the prospects of accountability, which in turn should prevent corruption and waste by politicians and officials. While this expectation underpins the rapid spread of oversight mechanisms within IOs, in the shape of auditing, inspection, evaluation, and investigation functions, there is little research on whether and how these mechanisms really influence the effectiveness of IOs.82 Another line of empirical research focuses on the negative effects of transparency for bargaining, by giving negotiating parties incentives to engage in posturing. Stasavage illustrates his theoretical argument on this point through evidence from the EU’s Council of Ministers, as well as the eighteenth-​century move to open-​door deliberations in many national parliaments.83 This effect is also explored in the literature on international bargaining, which typically notes that informal, closed-​door, or back-​channel negotiations have the functional advantage of allowing the parties

 Jan Aart Scholte (ed.), Building Global Democracy? Civil Society and Accountable Global Governance (Cambridge: Cambridge University Press, 2011). 80   Scholte, “Conclusion,” 315. 81   Grigorescu, “International Organizations and their Bureaucratic Oversight Mechanisms,” 19. 82 83   Ibid., 17–​19.   Stasavage, “Open-​Door or Closed-​Door?” 79

 

the empirical study of transparency and openness    1191 to test positions, make concessions, and strike compromises without the constraining effect of the public eye.84 Similarly, there are contrasting assessments on the consequences of openness to nonstate actors for the effectiveness of IOs. Research in the rational functionalist tradition normally assumes a positive relationship, emphasizing how benefits of nonstate actor involvement drive IOs toward increasingly open designs. When exploring this relationship empirically, research frequently highlights how IOs open up to nonstate actors in order to close governance gaps, and how the introduction of access produces processes of rational learning, where positive experiences within one IO lead to a further expansion of openness within that IO and to a diffusion of openness to other IOs.85 In contrast to these accounts, a varied set of contributions instead document adverse consequences of IO openness to nonstate actors. In this vein, Cooley and Ron show that market pressures can increase the likelihood of dysfunctional and opportunistic behavior by international relief organizations,86 while Golub, and Rasmussen and Toshkov, find that the decision-​making speed in the EU slows down following greater involvement of nonstate actors.87 Third, a topic of growing empirical interest is the effects of transparency and openness on the perceived legitimacy of IOs (see also Chapter 52 of this volume). While transparency and openness often are conceptualized as a source of normative legitimacy for IOs, they may also affect their social legitimacy, understood as the acceptance of and support for IOs within a given audience. While this is a topic that has received scant attention so far beyond the EU context, researchers are beginning to explore the sources of social legitimacy in the broader setting as well. In this literature, transparency and openness are normally viewed as components of input-​ oriented legitimation, whereby IOs generate societal acceptance and support as a result of procedures that offer societal access to documentation and policymaking.88 Empirical contributions typically have explored whether citizens primarily form opinions about IOs based on their democratic qualities, or based on the benefits they produce for states and societies (output-​oriented legitimation), or both.89 84   e.g., Anthony Wanis-​St. John, Back-​Channel Negotiation: Secrecy in the Middle East Peace Process (Syracuse, NY: Syracuse University Press, 2011). 85  e.g., Raustiala, “States, NGOs, and International Environmental Institutions”; Tallberg et  al., “Explaining the Transnational Design of International Organizations.” 86   Cooley and Ron, “The NGO Scramble.” 87   Jonathan Golub, “In the Shadow of the Vote? Decision Making in the European Community,” International Organization 53/​4 (1999):  733–​64; Anne Rasmussen and Dimiter Toshkov, “The Effect of Stakeholder Involvement on Legislative Duration: Consultation of External Actors and Legislative Duration in the European Union,” European Union Politics 14/​3 (2013): 366–​87. 88  Scharpf, Governing in Europe. 89   Matthias Ecker-​Ehrhardt and Bernhard Wessels, “Input-​oder Output-​Politisierung internationaler Organisationen? Der kritische Blick der Bürger auf Demokratie und Leistung,” in Die Politisierung der Weltpolitik, ed. Michael Zürn and Matthias Ecker-​Ehrhardt (Berlin: Suhrkamp Verlag, 2013), 36–​ 60; Lisa Dellmuth and Jonas Tallberg, “The Social Legitimacy of International Organizations: Interest

 

1192   transparency

Conclusion International organizations have become increasingly transparent and open over recent decades, making documents on IO activities and policies available to the public, and offering nonstate actors access to IO policymaking. In response, scholars have devoted increasing attention to transparency and openness as a central dimension of the institutional design of IOs, whose sources, patterns, and consequences are essential to understand and explain. By way of conclusion, I identify three areas where existing scholarship on transparency and openness currently is limited and there is a particular potential for promising research. First, while existing scholarship is strong in its coverage of formal provisions in IOs, it is less developed in its appreciation of the informal side of transparency and openness. There is much to suggest that formal rules and informal practices are related in complex ways. The formal introduction of public information policies in IOs may matter little if there is not an informal culture of transparency as well. Conversely, where formal provisions for openness are lacking, informal customs and practices of nonstate inclusion may compensate for this absence. It may also be that informal transparency and openness function as precursors to formal institutionalization. Second, existing scholarship offers scope for more systematic comparative research of both qualitative and quantitative nature. There is a tendency in earlier case-​study work to focus primarily on the most well-​known and prominent IOs in world politics, with an underappreciation of general trends in the population of IOs as a result. Moving toward well-​developed comparative designs is therefore essential. In this context, scholars are well-​advised to not only explore variation across IOs, but also variation within IOs, which often is just as extensive and intriguing. In addition, within-​IO comparisons offer the advantage of holding organizational contexts constant, enabling researchers to more easily isolate causal effects. Third, the effects of transparency and openness in global governance so far remain empirically underexplored. As this review has demonstrated, existing scholarship is rich in hypothesized consequences, but poor in systematic assessments of the effects of varying levels of transparency and openness on factors such as accountability, effectiveness, and social legitimacy. While by no means easy, this is a natural next step, if we are to properly understand the implications of transparency and openness in global governance.

Representation, Institutional Performance and Confidence Extrapolation in the United Nations,” Review of International Studies 41/​3 (2015): 451–​75.

Appendix: Primary Instruments

Treaties and Other International Agreements Stockholm Convention on Persistent Organic Pollutants, International Legal Materials 40/​3 (May, 2001): 531. Antarctic Treaty, December 1, 1959, 12 UST 794, 402 UNTS 71. Protocol on Environmental Protection to the Antarctic Treaty, International Legal Materials 30/​6 (November, 1991): 1455–​86. Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, May 12, 2011, TIAS No. 13-​119, International Legal Materials 50/​6 (November, 2011): 1119–​30. Boundary Waters Treaty of 1909, January 11, 1909, United States–​Great Britain, 36 Stat. 2448, T.S. No. 548. Canada-​Mexico-​United States: North American Agreement on Environmental Cooperation, International Legal Materials 32/​6 (November, 1993): 1480–​98. Canada-​Mexico-​United States: North American Free Trade Agreement, International Legal Materials 32/​2 (March, 1993): 289–​456. Canada-​Mexico-​United States: North American Free Trade Agreement, International Legal Materials 32/​3 (May, 1993): 605–​799. Cartagena Protocol on Biosafety to the Convention on Biological Diversity, International Legal Materials 39/​5 (September, 2000): 1027–​46. Convention on the Conservation of Migratory Species of Wild Animals, International Legal Materials 19/​1 (January, 1980): 11–​32. Convention on Access to Information, Public Participation in Decision-​Making and Access to Justice in Environmental Matters, International Legal Materials 38/​3 (May, 1999): 517–​33. International Convention for the Regulation of Whaling, December 2, 1946, 161 UNTS 72. International Convention on Trade in Certain Species of Wildlife: Convention on International Trade in Endangered Species of Wild Fauna and Flora, International Legal Materials 12/​5 (September, 1973): 1085–​104. Convention on Biological Diversity, International Legal Materials 31/​4 (July, 1992): 818–​41. United Nations Framework Convention on Climate Change, 1771 UNTS164, International Legal Materials 31/​4 (July, 1992): 849–​73. Kyoto Protocol to the Framework Convention on Climate Change, International Legal Materials 37/​1 (January, 1998): 22–​43.

1194   appendix: primary instruments Basel Convention on the Control of Transboundary Movements of Hazardous Wastes, International Legal Materials 28/​3 (May, 1989): 649–​86. Convention on Environmental Impact Assessment in a Transboundary Context, International Legal Materials 30/​3 (May, 1991): 800–​19. Convention on Long-​Range Transboundary Air Pollution, International Legal Materials 18/​6 (November, 1979): 1442–​55. Convention on the Protection and Use of Transboundary Watercourses and International Lakes, International Legal Materials 31/​6 (November, 1992): 1312–​29. Convention on the Transboundary Effects of Industrial Accidents, International Legal Materials 31/​6 (November, 1992): 1330–​62. Convention to Combat Desertification in those Countries Experiencing Serious Drought and/​or Desertification, Particularly in Africa, International Legal Materials 33/​5 (September, 1994): 1328–​82. Vienna Convention for the Protection of the Ozone Layer, International Legal Materials 26/​6 (November, 1987): 1516–​40. Montreal Protocol on Substances that Deplete the Ozone Layer, International Legal Materials 26/​6 (November, 1987): 1541–​61. Protocol to the 1979 Convention on Long-​Range Transboundary Air Pollution Concerning the Control of Emissions of Nitrogen Oxides Or their Transboundary Fluxes, International Legal Materials 28/​1 (January, 1989): 212–​230. Protocol to the 1979 Convention on Long-​Range Transboundary Air Pollution on Further Reduction of Sulphur Emissions, International Legal Materials 33/​6 (November, 1994): 1540–​55. Protocols to the 1979 Convention on Long-​Range Transboundary Air Pollution, International Legal Materials 27/​3 (May, 1988): 698–​7 11. Protocol to the Convention on Long-​Range Transboundary Air Pollution on Persistent Organic Pollutants, International Legal Materials 37/​3 (May, 1998): 505–​29. Protocol to the 1979 Convention on Long-​Range Transboundary Air Pollution Concerning the Control of Emissions of Volatile Organic Compounds Or their Transboundary Fluxes, International Legal Materials 31/​3 (May, 1992): 568–​611.

Statements and Declarations Conference on Security and Co-​operation in Europe: Final Act, International Legal Materials 14/​5 (September, 1975): 1292–​1325. Rio Declaration on Environment and Development, International Legal Materials 31/​4 (July, 1992): 874–​80. Stockholm Declaration on the Human Environment, International Legal Materials 11/​6 (November, 1972): 1416–​69. Canada-​Denmark-​Finland-​Iceland-​Norway-​Russian Federation-​Sweden-​United States: Joint Communiqué and Declaration on the Establishment of the Arctic Council. International Legal Materials 35/​6 (November, 1996): 1382–​90.

appendix: primary instruments   1195

Guidelines and Principles London Guidelines for the Exchange of Information on Chemicals in International Trade, UN Doc. UNEP/​WG.155/​L.1 Annex I  (June 17, 1987), amended, UN Doc. UNEP/​PIC/​ WG.2/​4 app. (May 25, 1989), Environmental Policy and Law 19 (1989): 125–​6. Goals and Principles of Environmental Impact Assessment, UN Doc. UNEP/​WG.152/​4 Annex (June, 1987). Environmental Policy and Law 17 (1987): 36–​7.

World Bank Operational Directives and Resolutions World Bank, Operational Policy No. 4.01: Environmental Assessment (October, 1991). World Bank, Operational Directive No. 4.30: Involuntary Resettlement (June, 1990). World Bank, Operational Directive No. 4.20: Indigenous Peoples (September, 1991). International Bank for Reconstruction and Development, Resolution No. 93-​10; International Development Association Res. No. 93-​6 (September 22, 1993) (creating Inspection Panel).

World Trade Organization Agreements and Dispute Settlement Reports WTO Agreement on the Application of Sanitary and Phytosanitary Measures, April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493. WTO, European Communities:  Measures Affecting the Approval and Marketing of Biotech Products—​Reports of the Panel (September 29, 2006) WT/​DS291/​R, WT/​DS292/​R, WT/​ DS293/​R. WTO, European Communities: Measures Concerning Meat and Meat Products—​Report of the Appellate Body (January 16, 1998) WT/​DS26/​AB/​R, WT/​DS48/​AB/​R. WTO, United States:  Continued Suspension of Obligations in the EC-​Hormones Dispute—​ Report of the Appellate Body (October 16, 2008) WT/​DS320/​AB/​R. WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—​Report of the Appellate Body (October 12, 1998) WT/​DS58/​AB/​R.

OECD Decisions and Recommendations OECD, Recommendation on the Assessment of Projects with Significant Impact on the Environment, Doc. C(79)116. OECD, Recommendation for Strengthening International Cooperation on Environmental Protection in Frontier Regions, Doc. C(78)77.

1196   appendix: primary instruments OECD, Recommendation on Implementation of a Regime of Equal Right of Access and Non-​Discrimination in Relation to Transfrontier Pollution, Doc. C(77)28. OECD, Recommendation on Equal Right of Access in Relation to Transfrontier Pollution, Doc. C(76)55. OECD, Recommendation on Principles Concerning Transfrontier Pollution, Doc. C(74)224. OECD, Recommendation on the Implementation of the Polluter-​Pays Principle, Doc. C(74)223. OECD, Recommendation on the Analysis of the Environmental Consequences of Significant Public and Private Projects, Doc. C(74)216. OECD, Recommendation on Guiding Principles Concerning International Economic Aspects of Environmental Policies (“1972 Polluter-​Pays Recommendation”), Doc. C(72)128. OECD, Recommendation on Integrated Pollution Prevention and Control (January 31, 1991), Doc. C(90)164. OECD, Decision-​Recommendation on Transfrontier Movements of Hazardous Wastes, Doc. C(88)90. OECD, Recommendation on Information Exchange Related to Export of Banned or Severely Restricted Chemicals, Doc. C(84)37. OECD, Decision on the Minimum Pre-​ Marketing Set of Data in the Assessment of Chemicals, Doc. C(82)196. OECD. Decision on the Mutual Acceptance of Data in the Assessment of Chemicals, Doc. C(81)30. OECD, Decision-​Recommendation Concerning Provision of Information to the Public and Public Participation in Decision-​Making Processes Related to the Prevention of, and Response to, Accidents Involving Hazardous Substances, Doc. C(88)85. OECD, Decision on the Exchange of Information Concerning Accidents Capable of Causing Transfrontier Damage, Doc. C(88)84. OECD, Recommendation on the Exchange of Confidential Data on Chemicals, Doc. C(83)97. OECD, Recommendation on the Protection of Proprietary Rights to Data Submitted in Notifications of New Chemicals, Doc. C(83)96. OECD, Guidelines for Multinational Enterprises, 2011 Edition, 2011.

Other International Instruments Instrument Establishing the Global Environment Facility, International Legal Materials 33/​5 (September, 1994): 1273–​308.

 

Index

References such as “178–​9” indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-​topics or only the most significant discussions of the topic are listed. Because the entire work is about “international organizations,” the use of this term (and certain others which occur constantly throughout the book) as an entry point has been minimized. Information will be found under the corresponding detailed topics. Aarhus Convention  48–​9, 1128 Abbott, Kenneth W.  576 absolute immunity  55, 1051, 1055–​6, 1058–​60, 1066 de facto  1048, 1058 abstentions 136, 990 abuses  38, 184, 258–​9, 280, 432, 566, 623, 633, 996 human rights  226, 311, 528, 748 ACABQ (Advisory Committee on Administrative and Budgetary Questions) 693, 915 ACC (Administrative Committee on Coordination)  693–​4 access to a court/​tribunal, right of  55, 1066–​7, 1102 access to information/​transparency  49 access to judicial review  513, 1011 access to justice in environmental matters  429, 1128 and jurisdictional immunity  1060–​8 accountability  41–​2, 44–​7, 49–​50, 54–​6, 58–​9, 70–​3, 129–​30, 1146–​7 1, 1179–​ 81, 1188–​90 channels of  1149, 1165 deficits  44, 1146, 1151, 1155, 1164–​5 definition 1147, 1169 democratic  46, 57, 727, 729, 1165, 1180

and effectiveness  58–​9 forums 46, 56 gaps  56, 59, 1165 global health policy  1157–​69 holders  1147–​8 of international organizations  33, 41–​58, 73, 130, 683, 1133, 1154 judicial  46, 49, 286, 1006 legal  56, 1006, 1149, 1154 mechanisms  50, 59, 71–​3, 164, 1025, 1148–​9, 1151–​2, 1156, 1161, 1168 participation and delegation as bases for  1151–​3 political  1022, 1148–​9 relationships  1147, 1155, 1161, 1166–​7 surrogate 1164, 1167 way forward for assessing  1153–​7 accreditation  51, 715–​16, 974, 1175 Acharya, A. 12 acquiescence  39, 527, 577, 1038 activists  179, 308, 866, 1122, 1177 ad hoc bodies  882–​6 ad hoc committees  767, 898, 1087 ad hoc tribunals  659, 1009 adaptability  78, 458, 679, 684–​5 ADB, see Asian Development Bank

 

1198   index adjudicative bodies  881–​902 ad hoc  890 effectiveness 902 Adler, E.  11–​12 administered protectionism  350, 352 Administrative Committee on Coordination, see ACC administrative decisions  81, 1083, 1091, 1099 administrative governance  153–​4, 157–​61, 164–​5, 167–​9 administrative instructions  1074, 1080–​1, 1097 administrative issuances  1074, 1076, 1080–​2 administrative law  44, 99, 179, 462, 1082–​4, 1096 administrative review  1086, 1091, 1101 administrative support  661, 886, 892, 899–​900 Administrative Tribunal of the International Labour Organization, see ILOAT administrative tribunals  660, 1061, 1063–​4, 1067, 1071, 1074, 1086–​8, 1090, 1094, 1096–​1103 admission of new members  145, 763, 768, 965, 968–​9 ADR (Alternative Dispute Resolution) 662 Advisory Committee on Administrative and Budgetary Questions (ACABQ) 693, 915 advisory committees  541, 549, 693, 763, 915, 1091, 1101 advisory opinions  251, 654–​5, 819, 897, 949, 956–​9, 964–​5, 1017–​18, 1087–​8, 1091 advocacy  313, 346, 449–​50, 680, 713, 750, 877–​8, 880, 1122 AfCHPR (African Court of Human and Peoples’ Rights)  283–​4

AfDB, see African Development Bank affected communities  724, 1132, 1144–​5, 1165–​6 affectedness  1154–​5, 1165 affirmative votes  817, 973 Afghanistan  124–​5, 209, 216, 219, 319, 324, 330, 532, 534, 642 Africa  273, 283, 317–​18, 328, 330, 337, 529, 531, 533, 656 African Charter on Human and Peoples’ Rights  259, 273, 283, 513 African Court of Human and Peoples’ Rights, see AfCHPR African Development Bank (AfDB)  412, 450, 699, 888, 1090 African states  42, 123, 230, 273, 283, 785, 966, 1024, 1117 African Union (AU)  51, 282–​4, 504, 513, 519–​20, 809–​10, 824, 965–​8, 980–​1, 1013 Peace and Security Council  980–​1 agency relationships  997–​8, 1004 agency slippage  399, 928 agenda-​setting  258, 357, 666, 668, 672, 677, 738, 765 aggression  193, 293, 570–​1, 605, 626, 628, 636, 639, 648 agriculture  108, 112, 355–​6, 386, 389, 411–​12, 416, 418, 452, 463 AIDS  450, 703, 724, 992, 996, 1159–​60, 1162–​4 Algeria 891 all-​affected principle  1154–​6, 1164 alliances  14, 19, 91, 463, 468, 539, 548, 623, 626, 967 defensive 149, 640 all-​subjected principle  1154 Alter, K.  20, 1183 Alternative Dispute Resolution (ADR) 662 alternative means, reasonable  1063–​6

 

index   1199 alternative remedies  633, 1061, 1063–​4, 1066–​7 Alvarez, J. E.  70, 575, 578 American Convention on Human Rights  270–​1, 273–​4, 513, 587–​8, 601, 887 amici curiae  360, 601, 901, 1133–​4 Amnesty International  258, 505, 713 analytical reports  666, 674–​5, 677 anarchy  208, 622, 641 Andean Community  513, 529, 657, 889, 948, 1012 Andean Tribunal of Justice  657, 661 Angola  199, 216, 526, 534 Annan, Kofi  125, 738, 834, 836, 851, 861, 868, 871, 878–​9 annual budgets  313–​14, 328, 780, 783, 797 Antarctic Treaty  440 anthropological approaches  924–​5, 935 anti-​corruption  727, 730, 745–​6, 752 anti-​dumping duties  350, 352 apartheid  241, 262–​4, 273, 586, 604, 655, 976 appellate bodies  37, 254, 355, 357, 361–​2, 432, 460, 888, 892, 895 appointments  454–​5, 823–​5, 827–​9, 831–​2, 855–​6, 899, 1074–​6, 1079–​80, 1096–​7, 1099 executive heads  823–​30 Arab League  118, 249, 777, 824, 828, 833, 965, 1066 arbitral proceedings  51, 182, 883, 1044 arbitral tribunals  68, 185, 441, 658, 882, 884, 890, 899 arbitration  180–​2, 185, 624, 628, 634, 646, 650, 652–​3, 658–​60, 662 international  180–​1, 183, 652–​3, 884, 886, 898 investor-​state  183–​5 arbitrators  180, 182, 652, 658, 884, 897–​9

archives  109, 112, 936, 1051 Arctic Council  434, 443–​4 armed attack  219, 631–​2, 635–​7, 639, 946 armed conflict  201, 251, 293–​5, 299, 303, 305, 311, 324, 648, 655 armed forces  197, 306, 317–​18, 606, 637, 648, 656, 765, 1039–​40, 1115 arms control  238, 724, 766, 778 arms embargos  604, 607, 638, 1017 arrears  906–​7, 976–​7 ASEAN (Association of Southeast Asian Nations)  12–​13, 29, 172, 372, 504, 513, 824, 827, 829, 832 Asia  13, 15, 214, 328, 330, 333, 421–​2, 428, 877, 879 Asian Development Bank (ADB)  412, 465, 699, 825, 828–​9 assemblies of states parties  759, 778–​81 assessed contributions  465, 904–​6, 908–​9, 913–​14, 916, 918, 1023 asset freezes  603, 607, 609, 612, 614, 617, 981 assets  43, 175, 317, 448, 617, 742–​3, 993–​4, 1041 assistance democracy  510, 512, 515, 517, 529 development  221, 408, 419, 463, 469, 707, 834 humanitarian  295, 310, 335, 455, 839 association, freedom of  488, 513, 661 Association of Southeast Asian Nations, see ASEAN asylum  252, 324–​5, 327, 330–​2, 336, 340, 1174 asylum seekers  323, 329–​31, 340, 342, 345 atrocity crimes  271, 283–​6, 288–​9, 293, 296–​8, 301–​2, 864, 868, 879 commission of  283, 300–​301

 

1200   index attribution of conduct  1030–​2 of responsibility  1029–​33 atypical employment  474, 480 AU, see African Union Australia  223, 228, 261, 338, 386, 769, 879, 991 authority delegated  10, 157, 164, 772, 928, 1081 moral  329–​30, 492, 751, 936 regulatory  172–​3, 432, 659 autonomous actors  68, 814, 927 autonomous regulatory power  152–​3, 157, 165–​6, 169 autonomy  10, 12, 67–​7 1, 321–​2, 378, 388, 390, 399–​400, 949, 951–​2 degree of  68, 329, 814, 1121 Balkans  285–​6, 318, 328, 337, 877 Ban Ki-​moon  743, 827 banks, regional development  406, 412–​13, 420–​1, 431, 450, 700, 807, 939, 1184 bargaining power  394–​5, 397–​8, 403–​4, 1162 Barnett, M. N.  12, 21, 71, 844, 848–​9, 923, 927–​9, 931, 933–​4, 936 BCBS (Basel Committee on Banking Supervision)  73, 179, 365, 370, 372 Belgium  109–​10 beliefs  98, 505, 652–​3, 734, 923, 926, 935, 937, 1109–​10, 1114 belligerents  196, 305, 312, 318, 320–​1 Benvenisti, E. 80 Berlin Wall  478–​9, 730, 736 best practices  130, 466, 615–​16, 840, 856, 1007 bilateral agreements  13, 139, 234, 340, 443 bilateral investment treaties  440, 587, 592, 661, 952

Bill and Melinda Gates Foundation  416, 418, 422, 451, 466 binding decisions  145, 433, 567, 569, 652, 882, 884, 967, 1089 binding effect  819, 862, 894, 1018 binding obligations  428, 443–​4, 470, 571, 576 biodiversity  82, 427–​8, 436, 439–​40, 667, 745, 862, 1186 biological weapons  233–​5, 242, 244, 246 Biological Weapons Convention (BWC)  233–​4, 239, 244 Blokker, N. M.  36, 572, 574–​5, 577 borders  94, 97–​8, 100, 196–​8, 323–​6, 332–​3, 511–​12, 827, 829, 836 Bosnia and Herzegovina  195, 199, 203, 216, 286, 295, 517, 638, 837, 1016–​17 bottom, race to the  475–​6, 480–​2, 486 Bowler, S.  794–​6 Brahimi Report  198–​9, 201, 837, 868–​9 Brazil  31, 121–​2, 126, 201, 204, 417, 423, 551, 555, 1161 breach of an international obligation  1034–​6 Bretton Woods  407, 409–​11, 413, 419 Conference  405, 409–​10 institutions  38, 57, 84, 349, 382, 406, 411, 479, 522, 718 and UN  407–​15 BRICS  366, 406, 828, 861 Brundtland Commission  866–​7, 871, 875, 877 Buchanan, A.  1109, 1147 budgetary decisions  907–​8, 913, 1009 budgetary powers  57, 782–​3, 786–​7, 796, 800 budgets  288, 291, 315, 317, 465–​6, 761–​3, 774–​5, 797, 900, 903–​19 annual  313–​14, 328, 780, 783, 797 peacekeeping  201, 904, 906, 908 regular  288, 338, 904–​6, 917 Bulgaria 647

 

index   1201 bureaucracies  71, 198, 844–​6, 848, 852, 856, 858, 1118, 1173, 1176 bureaucratic cultures  380–​1, 923–​4, 928–​9, 931, 933, 939 bureaucratic powers  23, 840, 843–​5, 847, 852–​3, 856, 858 bureaucrats  14, 21–​2, 24, 321, 848 business community  120, 731, 739–​40 BWC, see Biological Weapons Convention Cambodia  198, 200, 289–​90, 294, 297, 517, 527, 602 ECCC (Extraordinary Chambers in the Courts of Cambodia)  283, 288–​90, 294, 296–​8 government  289–​90, 294, 297 Canada  111, 223, 242, 259, 261, 297, 337, 434, 441, 877–​9 Canberra Commission  866, 873, 877, 879 capacity legal  141, 985–​6, 988, 990, 992–​4, 996, 998, 1000, 1002, 1004 military  194, 837, 1118 operational  209, 731–​2, 752, 990 capacity-​building  464, 482, 510, 666, 668, 677, 700 capital  126, 158, 386, 394, 423, 474–​5, 768, 807, 932 capitalism  126, 307, 478–​9, 721–​2, 724 global  114, 125, 127, 721 Cardoso Report  58, 737, 1181 Caribbean Community  657, 770, 1013–​14 Caribbean Court of Justice (CCJ) 657, 1013 Cartagena Protocol  270, 439, 778 Castaneda, J.  122 CCJ, see Caribbean Court of Justice CDC (Centers for Disease Control and Prevention)  1159–​61

CEC (Commission for Environmental Cooperation) 441 Central Commission for the Navigation of the Rhine  3, 91 centralization  9, 63, 397, 404, 665, 695, 792, 939 Centers for Disease Control and Prevention (CDC)  1159–​61 CFSP (Common Foreign Security Policy)  613, 615, 618 Charnovitz, S.  485, 1130 Charter bodies  255, 257, 259, 261, 263, 265, 280, 882 chemical weapons  68, 233–​5, 239, 296, 648, 780, 803, 820, 1089 Chemical Weapons Convention (CWC)  233–​4, 239, 244, 248, 296, 820 chemicals 81, 428 Chicago Convention  572, 659, 818, 824 Chief Executives Board for Coordination 694, 1075 child labor  253, 307, 745 children  117, 201, 252, 257, 298, 308, 313, 315, 767, 772 China  38–​9, 83, 86, 105–​6, 116, 121–​2, 201–​2, 227–​9, 969, 974 churches  308, 495–​7 CIS (Commonwealth of Independent States)  513, 519–​20, 1120 CITES, see Convention on International Trade in Endangered Species citizen associations  714, 719, 723–​4 citizen participation  1128, 1140, 1143 citizenship  337, 345, 610, 1143 civil society  551–​3, 712–​29, 737, 740–​3, 875–​7, 1122–​3, 1144, 1166, 1181, 1184 activities  91, 714–​15, 720–​1 actors  712–​13, 715–​17, 719–​20, 727, 846, 854, 860, 1175, 1180 associations  712, 715–​21, 724–​6, 728–​9, 1180

 

1202   index civil society (Cont.) definition  713–​15 engagement  713, 721–​2, 737, 749 global 781, 1180 and global governance  713, 723–​7 groups  552, 713, 715–​20, 724, 727–​9 international  65, 93, 98, 112 interventions  713, 721, 727 involvement in global governance  715–​22, 725, 727, 1181 and legitimacy in global governance  713, 726–​8 participation  125, 716, 1128–​9, 1179 relations  721–​2, 728–​9, 737 representatives  451, 545, 717, 741–​2, 772, 1166, 1188 theories of civil society and global governance  720, 720–​3 civil society organizations (CSOs) 50–​1, 451, 668, 670, 716, 718, 737, 1127–​8, 1184, 1186–​7 civil wars  195–​7, 200, 202, 206, 209, 296, 298, 310, 526, 528 civilian populations  202–​3, 293–​4, 607, 1034 civilian protection  199–​202, 306, 335 civilians  193, 196, 199–​202, 204, 305–​6, 318, 320, 526, 528, 872 CJEU (Court of Justice of the European Union)  10, 34–​5, 44, 46, 73, 161, 166, 788–​9, 1010–​12, 1021–​2 Clark, Ian  1139 Claude, I.L.  759, 761 climate change  68, 84, 420–​1, 434–​5, 437, 503, 719, 721, 867, 1142 cluster approach  335, 342–​3 coalitions  81, 195, 258, 279, 633, 639, 702, 768–​70, 799, 813 co-​decision procedure  789–​90 codes of conduct  487, 665, 735, 747, 1007, 1093

codification  52, 574–​5, 682 coercion  94, 630, 726, 1039–​40, 1110 coercive interventions  528, 532 coherence  39, 78, 122, 448–​50, 467, 469–​7 1, 493, 737, 742, 750 COIL, see Continent of International Law Cold War  114–​16, 118–​21, 194–​7, 202, 245–​6, 309–​12, 317, 333, 604–​5, 769–​7 1 collective security  623, 626, 628–​9, 631–​3, 635–​7, 641–​2, 842, 869 mechanism  627, 635–​6 COMESA, see Common Market for Eastern and Southern Africa commerce  107, 181, 227, 351, 547–​8, 713, 734, 760, 1158 commission diplomacy  859, 863 Commission for Environmental Cooperation (CEC)  441 Commission on Status of Women  116 Commission on Sustainable Development (CSD)  120, 427–​8 commitments, credible  16, 26, 68 commodities  317, 319, 486–​7, 604, 606, 614, 948 common external tariffs  347, 363, 386, 705 Common Foreign Security Policy, see CFSP common goals  696, 949, 952 common interests  7, 77, 126, 368, 623, 635, 637, 643, 952, 960 Common Market for Eastern and Southern Africa (COMESA)  889, 948, 1013 common markets  172, 386, 391, 396–​7, 400, 719, 889, 945, 948, 1013 Commonwealth of Independent States (CIS)  513, 519–​20, 1120

 

index   1203 Commonwealth Secretariat  717, 845, 847 communication technologies  100, 420, 537, 687, 744 communications  97, 110, 139, 263–​4, 266–​7, 271, 535–​55, 565, 842, 844 companies  182, 319, 541, 546, 549, 554, 719, 730–​1, 744, 818 compensation  361, 658, 779–​80, 883, 895, 1028–​9, 1046, 1085, 1088, 1099 competences  704–​5, 821, 845, 956, 1011–​12, 1017–​18, 1021, 1041, 1089, 1097–​8 competition  17, 68, 70, 78, 340, 408, 414, 418, 911, 919 complaints  55, 72, 254, 264, 267, 477, 587–​8, 659, 661, 1097 complex emergencies  317, 320, 468 compliance  25–​6, 238, 259–​60, 358–​9, 576, 582–​3, 599–​601, 665, 1031–​2, 1110–​11 monitoring  271, 479, 585–​7, 593, 599 comprehensive sanctions  604, 606, 616–​17, 619, 621 Comprehensive Test Ban Treaty, see CTBT compromises  258, 299, 357, 368, 454, 501, 679, 811, 1175, 1191 concessions, tariff  348–​50 Conference of San Francisco  111 Conference on Security and Cooperation in Europe, see CSCE conferral of powers  997–​9, 1001, 1003, 1005 confidence intervals  593–​4, 596–​7 confidentiality  182, 239, 674 conflict management  191–​2, 195, 849 conflict prevention  194, 512, 534, 854 conflict resolution  192, 650, 837–​8, 853, 856, 1086, 1090, 1121

conflicts  78–​9, 196–​7, 199–​202, 205–​6, 208, 268, 336–​8, 500–​501, 642, 649–​51 Congo  95, 195, 202–​3, 226, 324, 642, 715, 765, 832, 930 consensus  257–​8, 353–​4, 356–​7, 359–​61, 402, 445, 573–​5, 682, 816–​18, 915 international  340, 642, 766 consent  194, 197, 200, 300, 306, 576–​8, 634, 637, 965, 968 consistency  75, 358, 528, 611, 898, 923, 1098 consolidation  158, 322, 868, 1113, 1187 constituent instruments  34, 149–​50, 816, 943–​61, 1055, 1069, 1071, 1074, 1076–​9, 1083–​5 constitutional development  953–​60 content  945–​7 parties  947–​8 special characteristics of constitutions  948–​53 constituent treaties  142, 572, 579, 646, 945, 958, 986, 988, 997, 1010 constitution for Europe  34, 797, 944 constitutional law  43, 45, 570, 1019 constitutional legitimacy  155, 157, 164–​5, 169–​70 constitutionalism  34–​5, 37, 43–​4, 58, 114, 153, 162, 168, 945 constitutionalization  34, 37, 153, 169, 186 constitutions  34–​5, 147–​8, 452–​4, 459, 563, 824, 943–​50, 952–​61, 970, 1017–​19; see also constituent instruments special characteristics  948, 948–​53 constitutive treaties  388, 426, 574, 945, 962–​3, 988, 1016–​18, 1021, 1023, 1036 constraints, financial  331, 855, 907

 

1204   index constructivism  64, 138–​9, 385, 390, 392, 397, 401, 403–​4, 721, 1171 constructivist approaches  3, 11, 163, 722 constructivists  32, 64, 69, 138, 720–​2 social  843–​4, 848, 852 consultative status  120, 712, 979, 1132 consumers  178, 186, 394, 488–​9, 547, 718, 734, 1168 Contact Group on Piracy off the Coast of Somalia (CGPCS)  229–​30 contestability  473, 476, 480, 485–​6 debate  476, 478–​81 Continent of International Law (COIL) 581, 584 contractual relationships  181, 399, 464, 1073 contributions assessed  465, 904–​6, 908–​9, 913–​14, 916, 918, 1023 financial  316, 450–​1, 906, 976 troop  199, 202, 204 voluntary  331, 338, 465, 904, 910–​14, 918–​19 control  156–​7, 164, 321–​2, 457–​8, 548, 590, 622–​3, 917–​18, 1033, 1038–​40 direct  998–​9 effective  1003–​4, 1031–​3 Convention on Biological Diversity  82, 439, 667 Convention on International Trade in Endangered Species (CITES)  81, 779–​80 Convention on Long-​Range Transboundary Air Pollution, see LRTAP convergence  157, 275, 466, 544, 552, 554, 576, 862, 1147 cooperation  5–​7, 138–​40, 187–​8, 213–​14, 331–​2, 338–​9, 364, 434–​5, 581–​2, 856–​7 development  450, 465, 468

economic  120, 372, 385–​6, 425, 433 functional 36, 625 intellectual  106–​7, 109, 112, 763, 844 interinstitutional  367, 374, 376, 379–​80, 382–​3 inter-​secretariat  857–​8 problems  8, 63, 152, 166, 589, 591–​2 technical  106, 140, 851 core functions  191–​2, 336, 666, 686, 848 corporate social responsibility (CSR)  125, 717, 720, 740 corporations  564, 744, 748, 882, 885, 1126 corruption  186, 217, 225, 699, 724, 731, 907, 917, 1188, 1190 costs  62, 188, 364, 395–​7, 399–​400, 481–​2, 914, 1135–​6, 1172, 1174 transaction  10, 16, 138, 163, 181–​2, 364, 392, 395–​6, 535, 699 Côte d’Ivoire  195, 202, 649, 1112 Council of Europe  57, 271–​2, 461, 777, 784, 887–​8, 898, 1050, 1052, 1183–​4 countercultures  925–​6 countermeasures  1036–​7 counter-​narcotics  213–​17 counter-​piracy  227–​30 counterterrorism  113, 211–​31, 312, 559 transgovernmental networks built on hegemonic foundations  218–​24 Counter-​Terrorism Committee  219 Court of Justice of the European Union, see CJEU credentials 767, 975 credibility  488–​9, 619, 621, 628, 635, 639, 674, 870, 872, 877 credible commitments  16, 26, 68 creditors  175, 1037, 1046 crimes  119, 261, 286, 289, 293–​4, 296, 298–​9, 886, 889, 895 criminal justice  219, 282–​302, 1084 international  282, 284, 288, 298, 302

 

index   1205 international organizations and creation of international and hybrid criminal tribunals  284–​92 structural and substantive law comparison of tribunals  292–​301 criminal law, international  250, 289, 293, 301, 886, 896 criminal tribunals, international and hybrid  284–​92 critical histories  114, 122–​9 Croatia  110, 286, 970 CSCE (Conference on Security and Cooperation in Europe)  285, 428, 950 CSD (Commission on Sustainable Development)  120, 427–​8 CSOs, see civil society organizations CSR, see corporate social responsibility CTBT (Comprehensive Test Ban Treaty)  234, 243, 245, 589 Cuba  265, 514, 529, 770, 880, 980 cultural resources  931–​4 cultures  3, 13, 184, 776, 778, 920, 922, 924–​6, 928–​9, 931–​9 bureaucratic  380–​1, 923–​4, 928–​9, 931, 933, 939 organizational  321, 367, 376, 380–​2, 920–​39 currency unions  94, 391–​2, 400 CUs, see customs unions customary international law  293, 295–​6, 575, 577, 995–​6, 1008, 1011, 1017, 1020, 1053 customary law  39, 52, 55, 325, 440, 573–​6, 630, 1053, 1058 customs  320, 391, 560, 573–​4, 705, 886, 1050 customs unions (CUs)  347–​8, 362–​3, 386, 391, 397 CWC, see Chemical Weapons Convention cybersecurity  554–​5

Dahl, Robert  165, 1154 Darfur  649, 709–​10, 872 DARIO (Draft Articles on the Responsibility of International Organizations)  52, 945, 1007, 1027–​8, 1030–​1, 1035, 1037–​8, 1040, 1045 data, raw  665–​6, 673–​4 data collection  371–​2, 581, 673 DCIPs (deliberative citizens’ involvement projects)  1141–​3, 1145 DDA (Doha Development Agenda) 355, 357 de St Pierre, Abbé  623–​4 deadlock  202, 438, 1166 death penalty  258, 274, 285, 296–​7, 887 decision-​making procedures  402, 443, 445, 551, 565, 812, 817, 821, 1165, 1178 decisions on which organizations to join  16–​20 decolonization process  84, 117, 127 defamation of religions  850 defections  28, 364, 482, 582, 591, 793 deficit, deliberative  217, 220 deficits, accountability  44, 1146, 1151, 1155, 1164–​5 deformalization  133, 136, 140, 144, 149 delegated authority  10, 157, 164, 772, 928, 1081 delegated monitoring  583, 592, 595, 597, 599 delegated powers  18, 156, 170, 215, 817–​18, 821, 1003–​4 delegation  69–​70, 161–​4, 376–​7, 379, 388–​9, 396–​7, 783–​6, 1151–​2, 1183, 1185–​6 model  72, 1151–​2 of powers  813, 998, 1004 supranational  155, 162–​3, 167, 404

 

1206   index delegations, national party  790–​1, 793 deliberative citizens’ involvement projects, see DCIPs deliberative deficit  217, 220 delisting  54, 221, 610 demand for international organizations  4–​8 democracy  19, 56, 59, 167–​8, 509–​16, 525–​8, 533–​4, 727, 778, 1177–​9 assistance  510, 512, 515, 517, 529 domestic  67, 129, 1189 liberal  330, 402–​3, 532 norms  516, 525, 530, 534, 1151 participatory  1128, 1141, 1187 promotion  508–​34, 778 impact of operational activities on international law  529–​33 operational activities  516–​29 roots  511–​16 right to  509, 513–​14, 530, 532–​4 democratic accountability  46, 57, 727, 729, 1165, 1180 democratic deficit  74–​5, 114, 129, 801, 1120, 1177, 1179, 1181, 1187 democratic governance  409, 508–​11, 514, 517, 522–​3, 525, 533–​4, 1128, 1179, 1187 democratic institutions  516, 525 democratic legitimacy  402, 727, 1127 democratic norms  509, 516, 521, 527, 531 democratic peacebuilding  516, 525–​6 Democratic People’s Republic of Korea, see DPRK democratic principles  513, 515, 521, 529, 1144, 1150 democratic reforms  8, 26 Democratic Republic of the Congo, see DRC democratic states  18, 129, 769, 1151, 1177 democratic theory, normative  1171, 1178, 1189

democratization  26–​7, 57, 124, 159, 169, 510–​11, 514–​16, 521, 524–​6, 533 Denmark  110, 434, 586 Department of Peacekeeping Operations, see DPKO dependence  156, 215, 339, 693, 960 derived responsibility  707–​8 design, of monitoring provisions 583–​4, 589, 591, 593, 595, 597, 599, 602 design of international organizations  8–​15, 387, 602, 1172 Deutsche Kongress-​Zentrale (DKZ) 109 developed countries  350, 411–​12, 436, 480, 871, 1159, 1163 developing countries  383, 406–​12, 414–​16, 419–​20, 436, 736, 989–​90, 1138–​9, 1161–​3, 1169 developing states  79, 81–​2, 86, 225, 356, 482, 768 developing world  125, 127, 129, 406, 408, 413–​14, 416–​17, 419, 422, 1121–​2 development  405–​24 economic  397, 408, 449, 470, 481, 744–​5, 769, 864, 867, 1158 international  117, 316, 417, 424, 1023, 1124 nontraditional actors  415–​19 social  461, 716, 862 transitions  419–​22 UN and Bretton Woods  407–​15 development agencies  338, 466, 477, 522, 534, 1133–​4 development agenda  124, 411, 480, 522–​4, 911 development aid  15, 524, 771 development assistance  221, 408, 419, 463, 469, 707, 834 official  27, 449, 735, 867

 

index   1207 development banks  27, 432, 1057, 1184 regional  406, 412, 420–​1, 431, 450, 700, 939, 1184 development cooperation  450, 465, 468 development organizations  346, 413, 423–​4, 523, 531 developmental approach  510, 517, 522, 534 dictatorships  19, 66, 417, 622, 636 differentiation  96, 112, 387–​90, 397, 402, 493, 749 diplomacy  96, 105, 208, 652–​3, 840, 860–​1 commission 859, 863 multilateral  647, 845, 850, 860–​1 direct control  998–​9 direct elections  782, 786–​8, 800 disappearances, forced  274, 887 disarmament  197, 232–​48, 299, 638, 763, 844, 876, 879 discretion  177, 376–​9, 382, 399–​400, 655, 907, 916, 927, 994, 1093 discrimination  184, 256, 261, 267, 274, 324, 350, 385–​6, 1153 racial  253, 257, 261, 264, 266 diseases  81, 96, 451–​3, 457–​8, 583, 586, 992–​3, 1158–​60, 1162–​5, 1169 displaced people  324, 328, 332–​3, 338, 344–​6 displaced persons  323, 327, 345 displacement forced  324–​5, 341 protracted  336, 338, 344 dispute resolution  10, 64, 181–​2, 647, 884, 1010, 1012, 1016, 1095 dispute settlement  353, 355, 357–​60, 432, 634, 644–​62, 1061, 1063, 1065, 1067 activities  645, 651, 662 based on application of legal principles  651–​62

not based on application of legal principles  646–​51 procedures  626, 651, 661 system  78, 352, 363, 890 Dispute Settlement Body, see DSB dispute settlement mechanisms  29, 37, 350–​1, 441, 626, 662, 1061, 1066 Dispute Settlement Understanding, see DSU disputes  359–​60, 634–​5, 644–​54, 657–​62, 881–​5, 888–​92, 1016, 1061–​2, 1069–​72, 1086–​8 dissemination of information  664–​5, 675–​6, 682–​3, 1190 diversity, biological, see biodiversity division of labor  203, 322, 373, 376, 382, 475, 695 DKZ (Deutsche Kongress-​Zentrale)  109 DNS (domain name system)  540–​1, 546, 548–​9 Doha Development Agenda (DDA) 355, 357 domain name system, see DNS domestic courts, see national courts domestic jurisdiction  37, 249, 518, 608, 645, 837, 840, 888, 1113 dominance  123, 412–​13, 479, 576, 722, 730, 877 donor governments  322, 522, 992, 1163, 1166 donor states  221, 331, 337–​9 donors  230, 317, 319–​20, 339, 408, 910–​11, 919, 1163–​4, 1166, 1169 Downs, G.W.  80, 177 DPKO (Department of Peacekeeping Operations)  193, 197, 199, 201, 203–​4, 206, 521, 869 DPRK (Democratic People’s Republic of Korea)  239, 241, 248

 

1208   index Draft Articles on the Responsibility of International Organizations, see DARIO DRC (Democratic Republic of the Congo)  202–​3, 207–​8, 216, 337, 617, 930, 1039 drug trafficking  216, 229 DSB (Dispute Settlement Body)  355–​6, 360, 422, 658, 888 DSU (Dispute Settlement Understanding)  360–​1, 657–​8 duplication  82, 366–​7, 694 durable solutions  327, 330, 336–​7, 345 Early Warning Exercise, see EWE Earth Summit  427, 436 East African Community  222, 1013 East Timor  121, 123, 195, 283, 808, 877, 1009 Eastern Europe  120, 144, 402, 431, 769, 827–​8 EBRD (European Bank for Reconstruction and Development)  699, 825, 828–​9, 967 EC, see European Community ECCC (Extraordinary Chambers in the Courts of Cambodia)  283, 288–​90, 294, 296–​8 ECE (Economic Commission for Europe)  116, 428–​9, 438, 440, 444 ECHR (European Convention on Human Rights)  44, 258, 275, 887–​8, 1014–​15, 1041, 1046, 1062–​3, 1065, 1067 ECJ (European Court of Justice), see CJEU Economic and Monetary Union (EMU) 392 Economic and Social Council, see ECOSOC Economic Commission for Europe, see ECE

Economic Community of West African States, see ECOWAS economic cooperation  120, 372, 385–​6, 425, 433 economic crisis  400, 406, 408, 413, 415, 422 economic development  397, 408, 449, 470, 481, 744–​5, 769, 864, 867, 1158 economic freedoms  386–​7, 481 economic governance, global  407, 423, 682, 725 economic growth  27, 87, 176, 183, 407, 433, 484, 486, 744, 925 economic integration  362, 385–​6, 390–​2, 395, 400, 403–​4, 747, 1124 regional, see regional economic integration economic integration organizations, regional  388, 967, 973, 1010 economic organizations, regional  29, 384–​5, 387–​90, 392, 397, 400, 403–​4 economic relations and integration  279, 384–​404, 606, 920 regional economic integration  385–​90 economic rights  117, 332, 510 economic sanctions  603, 614, 833 economic theories  390–​2 economic-​rationalist model  181–​3, 185 economics  21–​2, 60, 308, 414, 417, 583–​4, 586–​8, 593, 595, 599 economy, global  84, 174, 378, 479, 816 ECOSOC (Economic and Social Council)  51, 116, 262–​4, 427–​8, 693–​5, 764–​5, 808–​9, 973, 979, 1132 ECOWAS (Economic Community of West African States)  29, 195, 199, 206, 299, 528, 641, 1012, 1112, 1117 ECtHR, see European Court of Human Rights

 

index   1209 education  60, 275, 325, 327, 501, 506, 744, 752, 776, 778 EEA (European Economic Area)  386, 389, 945, 1012 effective control  1003–​4, 1031–​3 effectiveness  59–​60, 213, 617–​19, 621, 679, 681, 695, 697, 870, 1149 and accountability  58–​9 of international organizations  33–​41, 470 and legitimacy  86, 617–​19, 621 efficacy  4, 31–​2, 192, 203, 205, 207–​8, 366, 445, 464, 489 peace operations  205–​8 Egypt  95, 100, 219, 243, 261, 523, 533, 1035 Eighteen Nation Committee on Disarmament, see ENCD election monitoring  30, 517–​21, 529–​31, 534, 914 elections direct  782, 786–​8, 800 fair  516, 521, 531–​2, 930 national  519, 787, 792 presidential 520, 527 electoral assistance  197, 509, 517–​18, 521–​4, 531, 533–​4 electoral processes  514, 517, 520–​1, 524, 531 embedded liberalism  478, 735 emergencies  263, 276, 308–​9, 315–​16, 455, 468, 633, 760, 765, 767 complex  317, 320, 468 humanitarian  310, 333, 468, 637, 639 emerging economies  39, 86, 121, 406, 414, 469 emerging powers  85, 122, 126, 201, 415, 423 empirical evidence  97, 481–​2, 723, 848, 851, 856 empirical research  926, 1158, 1169, 1190 empirical studies  3, 15, 20, 261, 938, 1171 of transparency and openness  1182–​91

employers  57, 474, 477, 479–​80, 577, 734, 810, 812, 824, 887 employment atypical 474, 480 contracts  474, 888, 1077 disputes  39, 1057, 1064, 1066, 1077, 1085–​7, 1090–​2, 1097, 1102 relations  1080, 1084, 1091–​2, 1096 relationships  1069–​70, 1072, 1078, 1081–​3, 1097 empowerment  36, 744, 782–​3, 786, 799–​800, 1153 legislative  788–​9, 791, 793, 795 EMU (Economic and Monetary Union) 392 ENCD (Eighteen Nation Committee on Disarmament) 237 endogenous growth of private governance  180–​6 enforcement  259–​60, 279–​80, 302, 460–​1, 481–​2, 527–​8, 635–​7, 665, 667, 1185 measures  529, 977, 1051, 1066 mechanisms  26, 54, 247, 636, 699 peace  192, 194–​6, 200–​201, 203, 209 powers  152, 280, 568, 643 problems  63, 393, 395–​6, 591–​3 environment  120, 425–​46, 583–​4, 586–​7, 595, 656–​7, 700, 741–​2, 745–​6, 924 bilateral and regional agreements  440–​2 cooperative programs of existing organizations  435–​6 external  368, 684, 806, 920, 922, 929, 934, 1178 freestanding multilateral environmental regimes  436–​40 institutional  328, 401, 925, 1144 international environmental institutional and regulatory toolbox  442–​5 non-​UN organizations  433–​4 United Nations System  426–​9

 

1210   index environmental governance  120, 426, 429, 436, 438 global  24, 172, 427, 445, 1186 environmental impact assessments  428–​9, 433, 443 environmental law  51, 442, 885 international  48, 428, 440 environmental policies  429, 848 environmental protection  87, 658–​9, 700, 733, 752, 773, 839, 864, 871 EP (European Parliament)  161, 169–​70, 777, 782–​3, 786–​801, 812, 815, 1002–​3, 1011, 1014 epistemic communities  69, 95, 97, 184, 542, 548, 772, 933 equal representation  758, 1149–​50 equality  254–​5, 257, 259, 261, 510, 513, 761, 764, 905, 915 gender  129, 727, 745, 814, 827, 829 sovereign  618, 620, 758, 823, 1151 erga omnes obligations  627, 1043 Eritrea  330, 650, 652, 885, 890–​1 ESA, see European Space Agency ESM (European Stability Mechanism) 945 Ethiopia  204, 219, 237, 628, 646, 650, 652, 656, 885, 891 EUCST (European Union Civil Service Tribunal)  1092, 1094–​5, 1098, 1100 Eurocentrism 97 EUROCONTROL 1064 European Bank for Reconstruction and Development, see EBRD European Central Bank  166, 382, 389, 421, 808, 1011, 1123 European Commission for the Control of the Danube  91 European Community (EC)  34, 316, 362, 591, 704–​5, 789, 967, 1003, 1010, 1141; see also European Union

European Convention on Human Rights, see ECHR European Council  23, 611–​12, 615, 620, 811–​12, 825, 944, 968, 1002, 1011 European Court of Human Rights (ECtHR)  37, 55, 275–​6, 884, 887–​90, 897–​9, 1014–​15, 1032–​3, 1041–​2, 1066–​7 European Court of Justice, see CJEU European Economic Area, see EEA European Investment Bank  807–​8, 967 European legal integration  153–​4, 161, 164, 170 European Parliament, see EP European public law  157, 161, 164, 168 European Space Agency (ESA)  1041, 1066, 1102 European Stability Mechanism (ESM) 945 European states  160, 221–​2, 224, 226, 330, 612, 758, 769, 1112, 1115 European Union (EU)  151–​7, 384–​90, 611–​21, 704–​7, 796–​801, 808–​15, 965–​8, 1010–​12, 1140–​5, 1187–​91 CFSP (Common Foreign Security Policy)  613, 615, 618 CJEU (Court of Justice of the European Union)  10, 34–​5, 44, 46, 73, 161, 166, 788–​9, 1010–​12, 1021–​2 Economic and Monetary Union (EMU) 392 EP (European Parliament)  161, 169–​70, 777, 782–​3, 786–​801, 812, 815, 1002–​3, 1011, 1014 European Council  23, 611–​12, 615, 620, 811–​12, 825, 944, 968, 1002, 1011 governance  160–​2, 166, 170, 1140–​3, 1187 MEPs (Members of the European Parliament)  787, 790, 792, 794–​6, 799, 1002

 

index   1211 participation in international organizations  704–​7 sanctions  611–​16 TFEU  613, 945, 947, 1011, 1077, 1098 Treaty on European Union  161, 613–​14, 944–​5, 947, 1010 European Union Civil Service Tribunal, see EUCST European University Institute  149, 1066 Eurozone  372, 389, 591 crisis  85, 165–​70 evidence, empirical  97, 481–​2, 723, 848, 851, 856 EWE (Early Warning Exercise)  371, 373–​6 executive boards and councils  802–​21 executive directors  426–​7, 431, 803, 805, 812, 829 executive heads  315, 822–​38, 841 appointment  823–​30 functions  830–​4 independence  835–​8 executive powers  818–​21, 1050 expenditures  226, 903–​4, 907, 915–​16, 918, 1030 expenses  176, 185, 760–​1, 905–​6, 910, 914–​17, 949, 956, 1020–​1, 1023 expert panels  199, 521, 609, 658 expertise  97, 244, 259, 267, 291–​2, 329–​30, 482, 488–​9, 728, 899 technical  173, 179, 182, 377, 546, 692, 759, 803, 843–​4, 856 experts, independent  256, 265–​6, 280, 459, 503, 1093 exports  428, 433, 604, 906 expulsion  317, 768, 962–​3, 979, 981–​2, 984 external actors  591, 594, 596, 1030–​1, 1121, 1123, 1125 external environment  368, 684, 806, 920, 922, 929, 934, 1178 externalities  25, 46, 173, 351, 393, 396, 400

extradition  139, 218, 225 Extraordinary Chambers in the Courts of Cambodia, see ECCC facilitators  353, 648, 847, 1141 fact-​finding  648–​51, 831 fair elections  516, 521, 531–​2, 930 fair trade  119, 725, 727 fair trial  230, 1062, 1065, 1067 FAO (Food and Agriculture Organization)  79, 81, 112, 416–​17, 459–​60, 670, 697–​8, 705, 773–​4, 948 Fascist internationalism  108–​11 FATF (Financial Action Task Force)  136–​7, 217, 224, 372 FCCC, see Framework Convention on Climate Change FCTC, see Framework Convention on Tobacco Control FDI, see foreign direct investment Federal Republic of Yugoslavia, see FRY feminists  113, 127, 720, 723 finance  450–​1, 464, 466, 471, 763, 766, 821–​2, 914, 917, 1184–​5 international, see international finance Financial Action Task Force, see FATF financial constraints  331, 855, 907 financial contributions  316, 450–​1, 906, 976 financial crime  216–​17 financial crises  38, 382, 415, 420–​1, 465, 684, 744–​5 financial crisis, global  85, 121, 124, 176, 375, 382, 1111 financial governance, global  366–​7, 369, 376, 383 financial institutions  141, 217, 422, 614, 699 financial markets  367, 371, 381 financial resources  173, 180, 278, 343, 419, 421, 550, 590, 687–​8, 818

 

1212   index financial stability  366, 369, 372–​3, 379, 406 global  369–​70, 375, 382 Financial Stability Board, see FSB Financial Stability Forum, see FSF financial support  107, 178, 188, 204, 280, 466, 542, 872, 1124 financing  316–​18, 451, 455, 467, 470, 698, 740, 780, 903–​19, 946–​7 health  465–​7 innovative  466–​7 Finnemore, M.  11, 21, 71, 582, 844, 848–​9, 927–​9, 933–​4 fire alarms  598, 600–​601, 1173 fisheries  386, 657–​8, 705, 718 flexibility  8–​9, 12, 63–​4, 439, 445, 449, 693, 696, 907, 946 food  79, 112, 116, 147, 184, 336, 338, 452, 459–​60, 773–​4 Food and Agriculture Organization, see FAO food security  451, 641, 727 force  124–​5, 232–​3, 317–​18, 456–​8, 623–​4, 626–​7, 629–​35, 824, 868–​9, 991 monopoly of  622, 625, 630, 636 use of, see use of force forced disappearances  274, 887 forced migration  106, 323–​6 changing trends in  341–​2 forcible humanitarian action  632–​3, 638–​9 foreign aid  27, 31, 418 foreign direct investment (FDI)  29, 420, 592, 731 foreign policy  65, 93, 142, 279, 306, 318, 552, 704, 847, 1160 Foreign Sovereign Immunities Act (FSIA) 1056, 1059 formal intergovernmental organizations  133–​51 legal personality  140–​3

powers  147–​9 traditional elements  143–​7 formal monitoring provisions  583–​4, 593, 596–​9 formal powers  783, 788–​9, 800, 832 formal procedures  134, 823, 825, 1044–​5 formalization  8, 133, 136, 138, 140, 144, 149–​50, 201 former Yugoslavia  77, 119, 124–​5, 285–​6, 288, 333–​4, 886, 889, 1031, 1041 forum shopping  19–​20, 76, 79, 84, 358 founding documents  34, 38–​9, 48, 55, 68, 148, 513, 548, 1010; see also constituent instruments fragile states  324, 525 fragmentation institutional  61, 76, 78–​9, 456 political  366–​73, 382–​3 Framework Convention on Climate Change (FCCC)  82, 436–​8, 973, 1184 Framework Convention on Tobacco Control (FCTC)  456–​7, 707, 775 framework conventions  437, 439, 443, 457, 667, 707, 775 France  204, 213, 218–​19, 223, 236–​7, 242, 286, 289, 1160, 1163 fraud  226, 543, 699, 714, 799, 993 free trade  386–​7, 391, 394, 397 areas 362 freedom  253, 505, 510, 512–​13, 529, 532, 623, 776, 884, 887 of association  488, 513, 661 economic  386–​7, 481 fundamental freedoms  222, 255, 261–​3, 272, 588, 887 of religion  505 freestanding multilateral environmental regimes  429, 436–​7, 439 free-​trade areas, see FTAs friendly relations  148, 255, 261, 570, 647

 

index   1213 FRY (Federal Republic of Yugoslavia)  970–​1, 1016 FSB (Financial Stability Board)  367, 370–​83, 1007 FSF (Financial Stability Forum) 366, 373 FSIA (Foreign Sovereign Immunities Act) 1056, 1059 FTAs (free-​trade areas)  347–​8, 363, 386, 394 full-​time parliamentarians  782, 786–​7 functional cooperation  36, 625 functional immunity  1048, 1051, 1055–​6, 1058 functional organizations  116–​17, 352, 759 functionalism  5, 11, 35–​7, 42, 44–​5, 63, 139 functions  35–​6, 147–​8, 347–​9, 369–​72, 557–​688, 762–​5, 808, 830–​1, 846–​50, 1030–​1 core  191–​2, 336, 666, 686, 848 executive heads  830–​4 governance  172, 366, 382, 452 judicial  63, 148, 1015, 1096 policy  1170, 1174, 1183, 1185–​6, 1189 political  830–​3, 851 primary  317, 582, 850, 892 secretariats  842–​4, 846–​9 fundamental freedoms  222, 255, 261–​3, 272, 588, 887 fundamental human rights  117, 304, 323, 1020, 1025 fundamental rights  221, 260, 270, 453, 814, 1010, 1041–​2, 1102 funding  338–​9, 436, 467, 471, 908, 910–​13, 917–​19, 1023–​4, 1160–​2, 1164–​5 fundraising  315, 731, 749 GA, see UNGA GATT (General Agreement on Tariffs and Trade)  6, 85–​6, 347, 349–​50, 353–​4, 357–​9, 409, 411, 705, 967; see also WTO

GAVI (Global Alliance for Vaccines and Immunization)  125, 418, 451, 464, 467, 910 GCTF (Global Counterterrorism Forum) 218, 224 GEF (Global Environment Facility)  82, 120, 436–​8, 440, 700, 773, 807 gender  128, 159, 292, 305, 682, 714, 722–​5, 736, 932 equality  129, 727, 745, 814, 827, 829 General Agreement on Tariffs and Trade, see GATT General Assembly (GA), see UNGA general international law  140, 630, 639, 952, 1017, 1021, 1034 general jurisdiction  268, 885–​6 general principles  51, 559–​60, 567, 570, 573, 579, 1059, 1064, 1070, 1072 general principles of law  637, 893, 1011, 1072, 1082–​4 general rules  47, 78, 194, 324, 749, 813, 949, 954, 1035, 1038 Geneva Conventions  94, 295, 307–​8, 314, 651, 886, 995 genocide  202, 257, 261, 280, 293–​4, 868, 886–​7, 889, 921, 929 crime of  293, 308, 1016 geographical distribution  898, 1096, 1138 geographical spillovers  400, 403 Georgia  633, 649–​50 Germany  23, 86, 101, 109–​10, 223, 405, 543, 647, 654, 1041 courts  1041, 1064, 1102 GFATM, see Global Fund to Fight AIDS, Tuberculosis and Malaria Global Alliance for Vaccines and Immunization, see GAVI global capitalism  114, 125, 127, 721 global civil society  781, 1180 Global Compact  487, 730, 734, 738–​49, 751–​2, 871

 

1214   index Global Counterterrorism Forum, see GCTF global economic governance  407, 423, 682, 725 global economy  84, 174, 378, 479, 816 Global Environment Facility, see GEF global environmental governance  24, 172, 427, 445, 1186 global financial crisis  85, 121, 124, 176, 375, 382, 1111 global financial governance  366–​7, 369, 376, 383 global financial stability  369–​70, 375, 382 global financial system  367, 370, 372–​4, 421 Global Fund to Fight AIDS, Tuberculosis and Malaria (GFATM)  125, 451, 464–​5, 467, 715, 717, 992–​6, 1158, 1162–​3, 1165–​7 global governance  100, 112, 712–​29, 863–​6, 1127–​30, 1149–​51, 1169–​7 1, 1176–​82, 1189–​90, 1192 agencies  724, 728–​9 and civil society  713, 723, 723–​7 contemporary  72, 713, 717, 720, 726, 728, 1132 institutions  715, 718, 727, 729, 1180 global health  447–​51, 455, 465–​8, 470–​1, 919, 1164 accountability  1157–​69 governance  125, 447–​9, 451 and international organizations  448–​52 global liberalization of telecommunications  536–​9 global markets  180, 182–​3, 217, 451 Global Network Initiative (GNI) 544 Global North  124, 130, 204, 331, 339, 717, 727 global order  87, 138, 248, 861, 1121

global politics  13, 720, 727, 1148, 1151–​2, 1157, 1180 global private governance  179–​80 global refugee regime  327, 330–​1, 339 global regulation  173, 179, 186, 715, 719, 721–​4, 726–​8 global regulatory processes  712–​13, 724, 728 Global South  122, 124–​5, 328, 331, 338, 406, 415, 1123, 1125 global value chains  83, 733, 744 Global Water Partnership  40, 701–​2 globalization  92, 470, 475–​6, 486–​7, 489, 564, 845–​6, 849, 855, 857–​8 GNI (Global Network Initiative)  544 good faith  608, 619–​20, 833, 959, 976 governance  160–​2, 172–​4, 449, 472–​ 4, 513, 522–​4, 559–​61, 563–​4, 730–​1, 1140–​1 administrative  153–​4, 157–​61, 164–​5, 167–​9 arrangements  45, 179, 382, 467, 773 democratic  409, 508–​11, 514, 517, 522–​3, 525, 533–​4, 1128, 1179, 1187 environmental  120, 426, 429, 436, 438 European Union  160–​2, 166, 170, 1140–​3, 1187 functions  172, 366, 382, 452 global  100, 112, 712–​29, 863–​6, 1127–​30, 1149–​51, 1169–​7 1, 1176–​82, 1189–​90, 1192 health  448–​9 hybrid  174, 179, 186–​7 international  69, 95, 171, 435, 447, 473, 639, 1136 internet  536, 539, 544–​6, 550–​5 models  450, 549, 804, 807 norms  769, 1149–​50 principles  618, 1105–​92 private  173–​4, 178, 186, 753 private transnational  171–​88

 

index   1215 structures  181–​2, 436, 472, 1163, 1166 supranational  160, 163–​4, 168 transnational, see transnational governance government representatives  360, 453, 806, 811, 824, 987 governmental authority  999–​1000, 1002 Greece  95, 308, 366, 591, 647 gridlock  6, 85–​6 Grigorescu, A.  1175, 1187–​8, 1190 growth, economic  27, 87, 176, 183, 407, 433, 484, 486, 744, 925 Guinea-​Bissau  525 Haftel, Y. Z.  387–​90, 397 Hague Conferences  96, 646, 652, 758, 760–​1, 764, 767–​8, 948 Hague Conventions  233, 646, 650, 652–​3, 662 Haiti  71, 208, 216, 527–​8, 531, 1061 hard law  530, 567, 572, 576–​7, 579 hard obligations  565, 572–​3 harmonization  78, 348, 350–​1, 363, 386, 392, 428, 434, 460–​1, 700–​701 hazardous wastes  428, 433, 1186 headquarters agreements  55, 142–​3, 149, 993, 1052–​3, 1056 health  417–​18, 447–​7 1, 474, 561, 775–​6, 844, 847, 1158, 1160, 1164–​5; see also WHO care  462, 501, 714 coordination and coherence  467–​70 financing  465–​7 global, see global health governance  448–​9 global  125, 447–​9, 451 international organizations and global health governance  448–​52 normative functions  455–​62 public  40, 81, 432, 434, 452–​3, 456, 458, 460, 1158, 1162

services  125, 465, 1164, 1168 technical collaboration  463–​4 Health Assembly, see World Health Assembly hegemonic criminal law  213–​17 hegemonic stability theory  13, 16, 62, 393 hegemons  6, 15, 219, 224 hegemony  6–​7, 13, 126, 722 Hegemony Stability Theory, see HST Held, David  125 heterogeneity  8, 18, 380, 397, 937 hierarchies  77–​8, 171, 186, 205, 268, 548, 714, 841, 1076, 1120 High Commissioner for Human Rights  223, 251, 267, 341 High Commissioner for Refugees  40, 116, 308, 324, 521 High-​Level Committee on Management (HLCM)  694 High-​Level Panel on Threats  864, 868 high-​level panels  666, 859–​80 historical institutionalism  398–​9 history 1865–​1945  91–​112 1945–​present  113–​30 HIV/​AIDS  267, 719, 767, 996, 1157, 1159, 1162, 1165–​7 HLCM (High-​Level Committee on Management) 694 Holy See  497–​8, 768, 978 Honduras  528, 649, 974–​5 Hong Kong  144, 354, 964 host countries/​states  325, 327, 331, 333, 337–​8, 344, 352, 1069, 1078, 1085 HRRP (Human Rights Review Panel) 53, 1044 HST (Hegemony Stability Theory)  6–​7, 62 Human Development Reports  407, 522, 667, 674 human influenza  695–​6, 703

 

1216   index human resources  230, 831, 1075, 1143 human rights  47–​8, 222–​3, 249–​81, 310–​11, 512–​13, 586–​8, 618–​20, 745–​8, 886–​8, 1184–​5 agreements  267, 583, 588, 590, 592–​3, 600, 602 bodies  251, 253–​4, 260, 264, 1062 fundamental  117, 304, 323, 1020, 1025 law  249–​51, 254, 268, 275, 279, 461, 566, 651, 879, 899 norms  26, 47, 277, 283, 330, 721, 925 obligations 266, 1002 organizations and activities prior to UN  251–​5 other global organizations  267–​9 policy  279, 847, 850, 854 regional organizations  269–​78 respect for  26, 220, 255, 311, 513, 753, 1039 treaties  26, 66, 255, 266, 269–​7 1, 277, 311, 341, 500, 503 in UN Charter and Charter bodies  255–​67 violations  260, 263–​4, 271–​2, 278–​80, 336, 342, 344, 505, 520, 607 human rights abuses  226, 311, 528, 748 Human Rights Commission  39, 79, 256, 259, 263, 265, 333, 514, 747–​8, 1123 Human Rights Committee  276, 513, 568 Human Rights Council  39, 222–​3, 256, 259, 265, 449, 461, 651, 724, 747–​8 Human Rights Review Panel (HRRP) 53, 1044 humanitarian action  193, 303–​22, 639, 656 coordination  321–​2 definitions  304–​6 forcible  632–​3, 638–​9 three historical periods  306–​12 by whom  312–​21 humanitarian agencies  308, 314, 333 humanitarian aid  197, 309, 339, 910

humanitarian assistance  295, 310, 335, 455, 839 humanitarian crises  528, 872, 1122 humanitarian emergencies  310, 333, 468, 637, 639 humanitarian intervention  28, 306, 311, 318, 716, 724–​5, 834, 878, 921 humanitarian organizations  303, 305, 309, 312, 319 humanitarianism  304–​8, 312, 318–​19, 340 Hungary  110, 254, 586, 765 hybrid criminal tribunals  284–​302 hybrid governance  174, 179, 186–​7 IAEA (International Atomic Energy Agency)  116, 234, 238–​41, 245, 458, 565, 598–​9, 773–​4, 824, 829–​30 IAIS (International Association of Insurance Supervisors)  370, 372 IANA contract  541, 545, 549 IASB (International Accounting Standards Board)  175–​6, 178–​9, 372 IASC, see Inter-​Agency Standing Committee IBRD (International Bank for Reconstruction and Development)  117, 410–​12, 414, 973, 1057 ICA (international commercial arbitration)  180–​6 ICANN (Internet Corporation for Assigned Names and Numbers)  541–​2, 545–​6, 548–​53, 555, 715–​18 ICAO (International Civil Aviation Organization)  565, 572, 659, 706, 774, 808–​11, 824, 906, 1016, 1021 ICC (International Criminal Court)  42, 119, 283, 285–​6, 291–​2, 297–​8, 779–​80, 889–​91, 900–​902, 1024

 

index   1217 Rome Statute  286, 292–​6, 298, 300, 568, 779–​80, 890–​1, 899–​900, 1024 ICCPR (International Covenant on Civil and Political Rights)  117, 251, 257–​8, 266, 275–​6, 297, 512–​13, 529, 531, 1062 ICISS (International Commission on Intervention and State Sovereignty)  312, 318, 864, 866–​9, 872–​3, 875–​7, 879 ICJ (International Court of Justice)  634, 653–​4, 888–​90, 892–​900, 951–​2, 956–​9, 964–​5, 986, 1015–​18, 1020–​2 ICPC (International Criminal Police Commission) 213, 215 ICRC (International Committee of the Red Cross)  94, 292, 304–​5, 307–​8, 311–​12, 314, 322, 335–​6, 505, 995 ICSID (International Centre for Settlement of Investment Disputes)  117, 124, 412, 441, 660–​1, 884, 890, 895–​7, 899–​900, 1133 ICTR (International Criminal Tribunal for Rwanda)  282–​3, 288, 887, 889–​90, 892, 898, 901–​2, 1133 ICTY (International Criminal Tribunal for the former Yugoslavia)  43, 77, 282–​3, 286–​9, 293–​4, 886, 889–​90, 892, 901–​2, 995–​6 IDA (International Development Association)  410, 412, 465 ideologies  97, 126, 474, 535, 842, 924, 926, 937 IDPs (internally displaced persons)  315, 323–​46, 878 challenges and emerging issues  342–​4 evolution of international institutional framework  332–​6 and refugees compared  325–​6 towards a more effective response  344–​6

IDRC (International Development Research Centre)  416–​17 IEC (International Electro-​Technical Commission)  174–​5, 177–​8, 188 IEOs (international economic organizations)  18, 114, 122, 126, 128 IETF (Internet Engineering Task Force)  540, 542, 546, 548 IFA (international financial architecture)  365–​9, 372, 381–​3 IFAD (International Fund for Agricultural Development)  774, 1091, 1097 IFC (International Finance Corporation)  117, 410, 412, 1132 IFIs (international financial institutions)  123–​4, 129, 365, 370, 372, 408–​9, 414–​17, 421, 825, 830 IGF (Internet Governance Forum)  545, 551–​3 IHL, see international humanitarian law IHR, see International Health Regulations Ikenberry, G.J.  6, 80, 126 ILC (International Law Commission)  707–​8, 710, 808, 945, 951, 986, 1027–​8, 1030–​3, 1036, 1039–​42 ILO (International Labour Organization)  81–​2, 253, 474, 476–​88, 660–​1, 697, 734, 773–​4, 824, 1087–​8 Conventions  479, 481–​2, 489, 661 Governing Body  661, 811, 816–​17 ILOAT (Administrative Tribunal of the International Labour Organization)  1064, 1074–​5, 1078, 1087–​91, 1094, 1097, 1099, 1101 IMF (International Monetary Fund)  70–​2, 365–​7, 370–​1, 373–​83, 411–​15, 420–​1, 666–​8, 825–​8, 847–​8, 932 staff  22, 374–​8, 381, 816, 848, 936, 1139

 

1218   index IMFAT (International Monetary Fund Administrative Tribunal)  1094, 1099, 1101 immunities, see privileges and immunities immunity absolute, see absolute immunity functional  1048, 1051, 1055–​6, 1058 jurisdictional  37, 54–​5, 1051–​2, 1055–​6, 1058–​60, 1062, 1065, 1086 state  656, 1055–​6, 1059 IMO, see International Maritime Organization impact assessments, environmental 428–​9, 433, 443 impartiality  194, 197, 200, 260, 304–​5, 533, 680, 753, 844, 868 implied powers  68, 139, 148–​9, 250, 831–​3, 1019 imports  83, 154, 216, 348, 350, 352, 391, 432, 571, 590 impunity 225, 301 incentives  349, 352–​3, 395–​6, 471, 479–​80, 583, 591–​7, 600, 602, 1110 to defect  395–​6, 583, 591–​7 independence  22, 252, 304–​5, 692–​3, 771, 835–​8, 918, 994, 996, 1053–​4 executive heads  835–​8 institutional 388, 814 political  627, 630–​1, 842 independent experts  256, 265–​6, 280, 459, 503, 1093 India  86, 105–​6, 121–​2, 124, 126, 228–​9, 242–​3, 245–​6, 261, 422–​3 indigenous peoples  267, 274, 434, 573, 670, 686, 714, 722, 724–​6 Indonesia  982–​3, 1161 industrialization  97, 158, 1027 industrialized world  127, 339, 406, 408, 410, 415, 422 infectious diseases  447, 470, 849, 869, 1158, 1160, 1162

influenza, human  695–​6, 703 informal arrangements  136, 236, 242–​3 informal monitoring  596–​9 informal review mechanisms  1022–​4 informality  134, 136, 147, 480, 482 information  16–​18, 48–​50, 97–​8, 369–​7 1, 581–​3, 589–​91, 597–​9, 601–​2, 663–​88, 1173–​4 collection  369–​70, 582–​3, 599, 601, 664 dissemination  664–​5, 675–​6, 682–​3, 1190 exchange  370, 373, 536, 780 gathering, analysis and dissemination  369, 664, 666, 668–​75, 678, 680, 682, 684, 686, 688 management  664–​5, 679, 682–​3 production  664, 666, 674–​5, 680, 683, 686, 688 providers  596, 600, 602 public  664, 666, 668–​9, 678, 716 services  536, 538–​9, 555 Information Society  543, 546, 550 INGOs (international non-​ governmental organizations)  309, 312–​13, 322, 462, 490, 504–​5, 741, 988 Inspection Panel  53, 431–​2, 677, 1022, 1149 inspections  28, 53, 238, 240, 245, 598–​600, 917, 1190 institutional architecture  407, 424, 430, 467, 534, 693 institutional arrangements  13, 244, 292, 647, 691, 700, 779, 1111 institutional changes  13–​14, 154, 160, 163, 169, 732, 737, 741, 744, 1123 institutional design  9, 12, 134, 138, 384–​5, 388, 392, 395, 402, 1176–​7 institutional fragmentation  61, 76, 78–​9, 456

 

index   1219 institutional frameworks  92, 94, 111, 273, 335, 346, 368, 1030, 1036, 1119 institutional independence  388, 814 institutional law  575–​6, 1037 institutional lawmaking  561, 575–​6, 578, 580 institutional leadership  731, 733, 738, 743, 749 institutional reforms  69, 399, 531, 724, 742, 855, 1108, 1122, 1124, 1160 institutional structures  86, 137, 273, 364, 444–​5, 802–​3, 851, 857, 946, 952 institutionalism historical  398–​9 rationalist  393, 395, 397 sociological  401, 1171, 1176, 1178, 1186 institutionalization  8, 60, 63, 85, 113, 136, 150, 310, 398, 950 of internet governance  546–​55 integration economic  362, 385–​6, 390–​2, 395, 400, 403–​4, 747, 1124 and economic relations  384, 386, 388, 390, 392, 394, 396, 398, 400, 402 European legal  153–​4, 161, 164, 170 process  5, 156, 162, 165, 398, 400–​403 regional  384, 387, 389–​90, 392–​3, 397, 401–​3 regional economic  384–​5, 387–​92, 397, 402–​4 integrity  59, 181, 339, 518, 526, 534, 829, 831, 953, 1077 territorial  273, 626–​7, 630–​1 intellectual cooperation  106–​7, 109, 112, 763, 844 intellectual leadership  421, 738–​9 intellectual property rights  66, 79, 119, 135, 449, 807 intentions  142–​3, 148, 150, 435, 453, 563, 566, 578, 635, 728

Inter-​Agency Standing Committee (IASC)  335, 341, 468 Inter-​American Commission on Human Rights  270–​1, 601, 888 Inter-​American Court of Human Rights  276, 283, 887, 895, 897 interdependence  32, 87, 169, 393–​4, 397, 734, 866, 960 Inter-​Governmental Maritime Consultative Organization  1017, 1021, 1089 intergovernmental organizations, formal  133–​51 Intergovernmental Panel on Climate Change, see IPCC intergovernmental proceedings  545, 551–​2, 652 intergovernmentalism  22–​3, 385, 390, 392–​3, 395, 397–​8, 403–​4 liberal  392–​3, 397 interinstitutional cooperation  367, 374, 376, 379–​80, 382–​3 internal displacement, see IDPs internal justice systems  1086–​7, 1089, 1091–​4, 1102 history  1087, 1089, 1091, 1093 internal review, mechanisms  1009–​10, 1012, 1014, 1025 internal rules  145, 1009, 1023, 1071, 1083 internally displaced persons, see IDPs International Accounting Standards Board, see IASB international administrative tribunals  887–​8, 901, 1070–​8, 1080–​1103 history  1086–​94 institutional components  1094–​1101 international and hybrid criminal tribunals  284–​92 structural and substantive law comparison  292–​301

 

1220   index international arbitration  180–​1, 183, 652–​3, 884, 886, 898 International Association of Insurance Supervisors (IAIS)  370, 372 International Atomic Energy Agency, see IAEA International Bank for Reconstruction and Development, see IBRD International Centre for Settlement of Investment Disputes, see ICSID International Chamber of Commerce  107, 181, 734 International Civil Aviation Organization, see ICAO international civil servants  103, 105, 108, 258, 838, 842, 1074, 1076, 1078–​80, 1083 international civil service  502, 840–​1, 1069–​78, 1080–​6, 1095–​6 law  1069–​84 international civil society  65, 93, 98, 112 international commercial arbitration, see ICA International Commission on Intervention and State Sovereignty, see ICISS International Committee of the Red Cross, see ICRC international consensus  340, 642, 766 International Convention for the Prevention of Pollution from Ships 430 International Court of Justice, see ICJ International Covenant on Civil and Political Rights, see ICCPR International Criminal Court, see ICC international criminal justice  282, 284, 288, 298, 302 international criminal law  250, 289, 293, 301, 886, 896 International Criminal Police Commission (ICPC)  213, 215

International Criminal Tribunal for Rwanda, see ICTR International Criminal Tribunal for the former Yugoslavia, see ICTY international criminal tribunals  43, 77, 282–​92, 300, 563, 813, 886, 896, 901, 917 international development  117, 316, 417, 424, 1023, 1124 International Development Association, see IDA International Development Research Centre, see IDRC international economic organizations, see IEOs International Electro-​Technical Commission, see IEC international environmental law  48, 428, 440 International Federation of Red Cross and Red Crescent Societies  768 international finance  365–​83 political fragmentation  367–​73 sharing responsibilities  373–​6 sources of interinstitutional conflict  376–​81 International Finance Corporation, see IFC international financial architecture, see IFA international financial institutions, see IFIs International Fund for Agricultural Development, see IFAD international governance  69, 95, 171, 435, 447, 473, 639, 1136 International Health Regulations (IHR)  457–​8, 469, 572, 775, 1161–​2 international humanitarian law (IHL)  250–​1, 312, 314, 318, 887, 889, 1031, 1034, 1039–​40, 1043–​4

 

index   1221 international institutional law  34, 579, 815, 941–​1103 International Labour Conference  661, 1087–​8, 1094 International Labour Organization, see ILO international law  33–​61, 140–​3, 361–​3, 566–​7, 573, 575–​9, 899–​902, 1000–​1002, 1027–​9, 1071–​2 International Law Commission, see ILC international lawyers  60, 71, 75–​6, 78, 99, 139–​40, 143, 497, 576, 578–​9 international legal order  76, 559–​60, 562–​3, 573, 577, 580, 814, 1026–​8, 1035, 1070–​1 International Maritime Organization (IMO)  81, 429–​30, 565, 706, 773–​4, 905, 1089 International Monetary Fund, see IMF International Monetary Fund Administrative Tribunal, see IMFAT international non-​governmental organizations, see INGOs international norms  460, 499, 1113–​14, 1124 international obligations  1020, 1023, 1026, 1028–​9, 1031, 1033–​5, 1037, 1040–​1, 1043–​4, 1046 International Office of Epizootics (IOE) 698 International Organization for Migration (IOM)  325, 335, 341, 345, 697, 910, 1158–​9, 1161 International Organization for Standardization, see ISO International Organization of Securities Commissions, see IOSCO International Organizations Immunities Act, see IOIA

international peace and security  37–​8, 604–​5, 618–​19, 629, 634–​5, 637–​42, 647–​8, 843–​4, 849–​51, 853–​4 International Plant Protection Convention (IPPC)  352, 435 international political economy (IPE) 17, 29 international protection  249, 253, 325, 330–​2, 344 international responsibility  52, 707, 710–​11, 1019, 1028–​9, 1034, 1036–​7, 1041, 1043, 1045 International Standardization Organization, see ISO international standards  53, 98, 174–​6, 291, 293, 329, 339, 352, 572, 665 International Telecommunication Regulations, see ITRs International Telecommunication Union, see ITU International Telegraph Union  405, 535, 758, 828, 841 international terrorism  607, 767, 877, 1008–​9 International Tin Council, see ITC international trade law  175, 350, 653, 734, 886 International Trade Organization, see ITO International Tribunal for the Law of the Sea, see ITLOS International Union of Official Travel Organizations, see IUOTO internationalism  97–​101, 103, 107–​10, 112 liberal  109, 111–​12, 121–​2 internationalization  99, 109, 213, 475, 758 internationally guaranteed rights 265, 267 Internet  535–​55, 675, 724, 745, 1175 Internet Corporation for Assigned Names and Numbers, see ICANN

 

1222   index Internet Engineering Task Force, see IETF Internet Governance Forum, see IGF Internet Protocol, see IP Internet Service Providers (ISPs)  541–​4, 555 Internet Society, see ISOC Internet technical community  463, 540, 542–​3, 546, 548–​51, 555 Inter-​Parliamentary Union  58, 768 Interpol  144, 213, 824, 829–​30, 931 interpositional peacekeeping  196–​7 interpretation  359, 460–​1, 479–​80, 576, 657–​9, 893, 895, 950–​1, 954–​60, 1011 inter-​secretariat capacity-​building  855 inter-​secretariat cooperation  857–​8 interventions, coercive  528, 532 investment  396, 399–​400, 411, 415, 417, 592, 739, 741, 744, 749 foreign direct investment (FDI)  29, 420, 592, 731 investment treaties, bilateral  440, 587, 592, 661, 952 investors  175, 178, 653, 660–​1 investor-​state arbitration  183–​5 inviolability  960, 1049, 1051–​2 IOE (International Office of Epizootics) 698 IOIA (International Organizations Immunities Act)  1056–​7, 1059–​60 IOM, see International Organization for Migration IOSCO (International Organization of Securities Commissions)  172, 179, 365, 370, 372 IP (Internet Protocol)  536, 538, 540–​2, 546–​9 IPCC (Intergovernmental Panel on Climate Change)  77, 435, 666–​7, 675 IPE, see international political economy

IPPC (International Plant Protection Convention) 352, 435 Iran  228–​9, 241, 243, 245–​8, 554, 770, 884–​5, 889–​91, 896, 901 Iran–​US Claims Tribunal  884, 889–​91, 896, 901 Iraq  123, 125, 243, 246, 319, 616, 642, 833–​4, 836, 1033 ISO (International Standardization Organization)  174–​5, 177–​8, 188, 460, 462, 487, 670, 717 ISOC (Internet Society)  540, 542, 548, 550, 552 isomorphic mimicry  1108, 1122, 1124–​5 ISPs, see Internet Service Providers Israel  223, 243, 246, 428, 769, 850, 865, 981, 991, 1033 Italy  109–​10, 242, 276, 791, 798, 842, 869, 991, 1059, 1066 ITC (International Tin Council)  1026, 1028, 1037–​8, 1046, 1053 ITLOS (International Tribunal for the Law of the Sea)  658, 884, 888–​90, 897–​900, 1089, 1133 ITO (International Trade Organization)  117, 347, 349, 361, 405, 409, 483 ITRs (International Telecommunication Regulations)  538, 553–​4 ITU (International Telecommunication Union)  536–​8, 544, 548, 550, 552–​4, 758–​60, 774–​5, 808, 824, 828 IUOTO (International Union of Official Travel Organizations)  987–​91 Japan  66, 85–​6, 108, 110, 228–​9, 377, 386, 537–​8, 1160, 1163 Joint Inspection Unit  668, 694–​5, 917 Joint Vienna Institute  144, 948 journalists  105, 207, 309, 873, 1139 judicial functions  63, 148, 1015, 1096

 

index   1223 judicial mechanisms  760, 1021, 1025, 1090 judicial protection  53, 611, 619, 1022 judicial review  43, 151, 619–​20, 639, 819, 1006, 1010–​12, 1014–​19, 1022, 1025 access to  513, 1011 grounds for  1018–​20 jurisdiction  286–​7, 289, 298, 653–​4, 656–​8, 883–​9, 1013–​15, 1058–​61, 1087–​92, 1097–​8 domestic  37, 249, 518, 608, 645, 837, 840, 888, 1113 general  268, 885–​6 of national courts  660, 1054, 1063, 1068 personal  299–​300, 882, 900, 1097 specialized  283, 887–​9 subject matter  291, 293, 882, 885–​6 jurisdictional immunity  37, 54–​5, 1051–​2, 1055–​6, 1058–​9, 1062, 1065, 1086 and access to justice  1060–​8 grant  1064–​5 in practice  1057–​60 scope  1055–​7 jus cogens  263, 269, 630, 952 justice  47–​8, 52–​4, 283, 653–​4, 889, 1010, 1012–​13, 1077, 1092–​4, 1102–​3 right of access to  55, 1062–​3, 1066–​8, 1102 Kant, Immanuel  125, 624–​5 Keohane, R. O.  7, 13, 28, 72, 78, 121–​2, 129, 1147, 1151–​3, 1155 knowledge  67, 663, 666, 677, 683, 750–​1, 827, 991, 995, 1001 generation  666, 668, 672, 674 Koppell, J.  1146, 1149–​51 Kosovo  53, 121, 123, 311, 318, 517, 831, 834, 1112, 1117 Kratochwil, F. 21 Kyoto Protocol  77, 435, 665

labor  472–​89 child  253, 307, 745 debate in interstate organizations other than ILO  483–​6 division of  203, 322, 373, 376, 382, 475, 695 forced 253 ILO (International Labour Organization)  81–​2, 253, 474, 476–​88, 660–​1, 697, 734, 773–​4, 824, 1087–​8 law  472, 475–​6, 478, 486–​7, 893, 901 market in labor rights  486–​9 markets  473, 475, 480, 486 rights  43, 473, 482, 484, 486–​8 standards  472, 476–​7, 480, 482–​6, 488–​9, 602 as subject matter for international organizations  473–​6 language  255, 261, 294, 528–​9, 831, 834, 924, 932, 1139, 1142–​3 Latin America  116, 213, 297, 318, 389, 413, 417, 422, 428, 431 Lauterpacht, E.  954, 957 law of nations  566, 1072, 1084 Law of the Sea (LOS)  81, 118, 658, 766, 769, 773, 885–​6, 888, 899, 907 lawmaking  52, 56–​7, 67, 70, 257, 559–​80 competences 43, 569 inadequacies of traditional sources of international law  564–​7 by organizations  560, 567–​73 organizations as lawmakers  560–​4 soft 566, 579 leadership  6, 114, 122, 259, 322, 680, 733, 743, 793, 827–​8 institutional  731, 733, 738, 743, 749 intellectual  421, 738–​9 League of Arab States  519, 529, 778, 824, 965

 

1224   index League of Nations  93, 101–​4, 106, 108–​13, 253–​5, 262, 452, 760–​4, 1070–​1, 1087 Assembly  763–​4, 767, 1087 Council  626, 628, 762 Covenant  626–​8, 631, 646, 653, 692, 761, 763, 841 as organization against war  626–​8 Secretariat  106, 841, 844, 1087 Lebanon  43, 95, 216, 252, 291, 649, 835 legal authority  43, 238, 284, 286–​8, 302 legal bases  43, 162, 236, 240, 284, 605, 613, 615, 815, 959 legal capacity  141, 985–​1005, 1038, 1049 legal consequences  251, 655, 1007, 1020–​1, 1025 legal forum  1009–​18 legal framework  110, 343, 563, 613, 618, 620, 688, 708, 945, 962 legal obligations  119, 283, 378–​9, 430, 572, 576–​7, 608, 620, 1008, 1014 legal orders  45–​6, 80, 565, 575, 1003, 1008, 1019, 1025, 1031 legal personality  140–​3, 147, 150, 559–​60, 807–​8, 946, 950–​1, 985–​6, 993, 1049 formal intergovernmental organizations  140–​3 international  137, 139–​44, 560–​2, 808, 948, 951, 986–​97, 1007, 1053, 1055 separate  808, 1037–​8 legal persons  141, 143, 575, 614, 950–​1, 1006, 1009, 1011–​12 legal process  887, 993–​4, 1051–​2, 1054, 1056, 1059, 1067, 1084, 1102 legal status  114, 255, 450, 960, 971, 1073, 1131 legal systems  75, 78, 291, 297, 577, 580, 998, 1000, 1002, 1012 legal validity  1014–​15, 1021, 1071

legality  72, 130, 231, 276, 527, 579, 655, 813, 819, 833–​4 of decisions  1006–​25 legalization  12, 388, 390, 397, 400, 573, 577 legibus solutus 43, 1020 legislative empowerment  788–​9, 791, 793, 795 legislative powers  119, 774, 782–​3, 786, 788, 800, 817–​19 legitimacy  73–​5, 154–​7, 168–​70, 402, 520–​2, 618–​20, 679–​80, 686, 726–​7, 1107–​26 claims  1113–​17, 1119–​22 constitutional  155, 157, 164–​5, 169–​70 crisis 41, 129 deficit  1141–​2 democratic  402, 727, 1127 and effectiveness  86, 617–​19, 621 gaps 726, 1117 judgements  1109, 1115, 1120, 1125, 1152 normative  74–​5, 731–​2, 1109, 1150–​2, 1191 output  135, 1109, 1121, 1123 social  59, 1143, 1191–​2 legitimation  156, 160–​1, 164–​5, 167–​8, 187, 722, 1108, 1111, 1115–​25 collective 765 efforts  1107–​8, 1116–​17, 1121–​2, 1125 practices  1108, 1118–​20, 1125 purpose  1116, 1122, 1177 letters of appointment  1073, 1079–​80 lex specialis 251, 1028 liberal democracies  330, 402–​3, 532 liberal intergovernmentalism  392–​3, 397 liberal internationalism  109, 111–​12, 121–​2 liberalism, embedded  478, 735 liberalization  66, 354, 356, 536–​8, 542, 736, 921 telecommunications  536–​9

 

index   1225 trade  66, 83–​4, 353, 394, 484–​5, 747 Libya  243, 246, 312, 525, 527, 529, 532–​3, 568–​9, 871–​2, 1016 linkages  77, 84, 294, 455, 842, 1032 Lisbon Treaty  783, 797, 799, 945, 1142, 1187 local communities  332, 343, 526, 1139 Lockerbie  230, 640, 1016 logistics  187–​8, 309, 317, 319, 521, 1039 LOS, see Law of the Sea low-​income countries  468–​9, 502, 683, 724 loyalty  321, 563, 793–​4 LRTAP (Convention on Long-​ Range Transboundary Air Pollution)  429, 438, 440, 443 mainstream international organization scholarship, see MIOS maintenance of international peace and security  38, 134, 148, 194, 635–​6, 638, 642, 808, 813, 815 Majone, G.  154, 162, 167 malaria  81, 125, 416, 450, 715, 987, 992–​3, 996, 1162, 1165–​7 Malawi 649, 719 Malaysia 228, 982 MAP (Mutual Assessment Program)  371, 382, 966–​7 marginal effects  594, 596–​7 marginalized groups  106, 125, 729, 1144 market-​led changes  730, 748, 751–​2 markets  364, 472–​4, 476, 486–​9, 537–​8, 721, 731, 733, 875, 878 financial  367, 371, 381 global  180, 182–​3, 217, 451 labor  473, 475, 480, 486 MARPOL  430–​1, 439, 443 Marrakesh Agreement Establishing the World Trade Organization, see WTO Charter

Mattli, W.  393, 396–​7 Maupain, F.  477, 479, 488 MDBs, see multilateral development banks MDGs (Millennium Development Goals)  409, 423, 463–​4, 523–​4, 531, 667, 673, 702, 740, 834 mediation  46, 644, 646, 649–​50, 658, 662, 853–​4, 856–​7, 1091 Mediation Support Unit, see MSU mediators  648, 650, 891 medical products  451, 459, 461–​2 Members of the European Parliament, see MEPs membership  963–​70 obligations  966, 976–​7, 991 MEPs (Members of the European Parliament)  787, 790, 792, 794–​6, 799, 1002 Meunier, S. 20 Mexico  86, 237, 287, 328, 362, 416, 441, 740, 760, 1160 Middle East  323, 330, 337, 343, 529, 533, 540, 543, 765, 769–​70 middle-​income countries  449, 463–​5 migration, forced  106, 323–​6 military action  149, 203, 241, 246, 710, 1112 military capacity  194, 837, 1118 military forces  195, 309, 317, 528, 603, 626, 864, 868 military interventions  191–​2, 306, 318, 871, 1112, 1117 Millennium Declaration  523, 740 Millennium Development Goals, see MDGs Millennium Forum  772 minorities  253–​4, 256, 290, 358, 524, 818, 966, 1067, 1137 MIOS (mainstream international organization scholarship)  114, 116, 118, 120

 

1226   index Missile Technology Control Regime, see MTCR mission expansion  842, 847–​53, 928 Mitrany, David  692, 849 Monaco 104, 212 monitoring  8, 254, 326–​7, 369, 382, 585–​8, 597–​8, 666–​7, 672–​4, 1172–​4 compliance  271, 479, 585–​7, 593, 599 delegated  583, 592, 595, 597, 599 election  30, 517–​21, 529–​31, 534, 914 informal  596–​9 processes  581–​602 provisions design  583–​4, 589, 591, 593, 595, 597, 599, 602 formal  583–​4, 593, 596–​9 of sanctions  605, 613, 615 monopoly of force  622, 625, 630, 636 Montenegro  967, 970–​2, 1016 Montreal Protocol  438–​9, 443, 445 MONUC (UN Mission in the Democratic Republic of the Congo)  1039–​40 MONUSCO (UN Organization Stabilization Mission in the Democratic Republic of the Congo) 203 moral authority  329–​30, 492, 751, 936 Mozambique 198, 200 MSU (Mediation Support Unit)  856–​7 MTCR (Missile Technology Control Regime)  235, 242, 247 multidimensional peace operations  197–​8 multilateral development banks (MDBs)  431, 714, 716 multilateral diplomacy  647, 845, 850, 860–​1 multilateral environmental agreements  143, 431, 444, 457, 1186

multilateral environmental regimes, freestanding  429, 436–​7, 439 Multilateral Investment Guarantee Agency (MIGA)  117, 412, 1132 multilateral treaties  34, 94, 260, 428, 430, 433, 658, 948–​9, 983, 1058 multilateralism  38, 227, 738, 918 multinational forces  192, 528, 1033 Mutual Assessment Program, see MAP mutual recognition  348, 351–​2, 363, 489, 699 NAAEC (North American Agreement on Environmental Cooperation)  441–​2 NAFTA (North American Free Trade Agreement)  23, 66, 120, 172, 362–​3, 441, 600, 890 Namibia  198, 200, 519, 957, 976, 1015 Nanz, P.  1180 nation states  46, 92, 97, 448–​9, 686 national authorities  287, 326, 371, 379, 521 national courts  54–​5, 182–​3, 185, 287, 289–​90, 325, 327, 1011–​12, 1058–​61, 1063–​6 jurisdiction  660, 1054, 1063, 1068 national delegations  58, 791, 800 national elections  519, 787, 792 national governments  23, 393, 403, 548, 551, 666, 673–​4, 678, 683–​4, 686–​7 national oversight mechanisms  156, 164–​5 national parliaments  56–​8, 161, 768, 786, 795, 798, 800–​801, 861, 968, 1134 national parties  787, 790, 792–​3, 795–​6 national party delegations  790–​1, 793 national policies  433, 625, 627–​8, 634, 682 National Science Foundation (NSF) 541, 547

 

index   1227 national security  279, 552, 554–​5, 634, 869, 920 national sovereignty, see state sovereignty national treatment  350–​1 nationality  252, 262, 270, 831, 835, 898–​9, 994, 1070, 1074, 1085 nation-​building  91–​2, 94 nation-​states  157–​8, 161, 164–​5, 473, 475, 477, 498, 553–​4, 564, 992 NATO (North Atlantic Treaty Organization)  12–​14, 118, 149, 195, 513, 777, 803, 825, 946, 1108 natural disasters  303, 317, 345, 420, 680, 848 natural persons  42, 46–​7, 53 natural resources  117, 146–​7, 226, 570 negative votes  578, 816, 965, 982 NEPAD (New Partnership for Africa’s Development)  523, 529, 531 Netherlands  109–​10, 223, 230, 758, 886, 944, 1032, 1067 networks  87, 92–​3, 112, 139, 223, 226, 230, 462, 543, 545–​6 transnational  104, 365, 860 neutrality  203, 304–​5, 844, 868 New International Economic Order (NIEO)  117, 735, 740, 769, 1113 New Partnership for Africa’s Development, see NEPAD New Zealand  223, 228, 769 NGOs (nongovernmental organizations)  23–​4, 49–​52, 313–​ 17, 587–​8, 601, 712–​24, 1127–​8, 1132, 1137–​40, 1163 International, see INGOs participation  51–​2, 1127–​8, 1131, 1136, 1175, 1186 religious  494–​5, 497–​8 Nicaragua  304, 518, 880, 896 NIEO, see New International Economic Order

Nigeria  201, 204, 237, 523, 641, 836, 1112 non-​compliance  25, 215, 217, 239, 359, 396–​7, 598, 600–​602, 1023–​5, 1112 non-​discrimination  29, 254–​5, 257, 261, 505, 738; see also discrimination non-​interference  514, 1117 non-​intervention  570–​1, 624, 1117 non-​plenary organs  802–​3, 805, 809, 821, 953 non-​proliferation  232–​48, 873, 876 Non-​Proliferation Treaty, see NPT nongovernmental organizations, see NGOs nonstate access  1170, 1172, 1174–​5, 1178, 1183, 1185, 1189–​90, 1192 nonstate actors  235, 244–​7, 551–​2, 701, 1130–​1, 1133–​5, 1137–​8, 1170–​5, 1185–​7, 1191 nontariff barriers  174–​5, 347–​8, 350, 352, 364 nontraditional actors  415–​19 normative agenda  126, 329, 346 normative democratic theory  1171, 1178, 1189 normative frameworks  334, 457, 508, 511, 515, 1027, 1035 normative legitimacy  74–​5, 731–​2, 1109, 1150–​2, 1191 norms democratic  509, 516, 521, 527, 531 new  82, 665, 766, 833, 866, 921, 1176–​7, 1187 North American Agreement on Environmental Cooperation, see NAAEC North American Free Trade Agreement, see NAFTA North Atlantic Treaty  945–​6 North Atlantic Treaty Organization, see NATO North Korea  243, 245–​6, 770, 777 Norway  223, 434, 877, 1012

 

1228   index NPT (Non-​Proliferation Treaty) 234–​45, 248, 665, 873 NSF (National Science Foundation) 541, 547 NSG (Nuclear Suppliers Group)  235, 242, 247 NSS (Nuclear Security Summit) 235, 247 nuclear disarmament  234, 873 nuclear materials  239–​40, 242 nuclear non-​proliferation, see non-​proliferation Nuclear Security Summit (NSS)  235, 247 Nuclear Suppliers Group, see NSG nuclear weapons  28, 232–​9, 241–​6, 248, 599, 655, 766, 864, 866, 959 proliferation  235–​6, 238, 242, 247; see also non-​proliferation use of  234, 245, 251, 296, 308, 1018 OAS (Organization of American States)  269–​7 1, 513, 528, 650, 778, 824, 829–​30, 832, 975, 980 Charter 270, 778 OAU (Organization of African Unity)  118, 273, 328, 649–​50, 777, 864–​5, 1117, 1122 obligations  44, 358–​62, 572–​4, 576–​9, 626–​8, 962–​4, 976–​7, 998, 1000–​ 1001, 1038–​41 binding  428, 443–​4, 470, 571, 576 hard  565, 572–​3 international  1020, 1023, 1026, 1028–​9, 1031, 1033–​5, 1037, 1040–​1, 1043–​4, 1046 of membership  966, 976–​7, 991 treaty  238, 278, 445, 572–​3, 578, 589, 1001–​2, 1062 observer status  700–​701, 706, 768, 969, 978–​9, 1131–​2 observers  178–​9, 312, 314, 519, 521, 706, 767–​8, 963, 967, 977–​9

OCAs (optimal currency areas)  391 Occupied Palestinian Territory  251, 651, 655, 1018 OCHA (Office for the Coordination of Humanitarian Affairs)  314–​15, 325, 468, 697 ODA (Official Development Assistance)  27, 449, 735, 867, 870, 1164 ODIHR (Office for Democratic Institutions and Human Rights) 519, 1113 OECD (Organisation for Economic Co-​operation and Development)  64, 217, 418–​19, 433, 544, 666–​8, 673–​5, 747–​8, 807, 824 Office for Democratic Institutions and Human Rights (ODIHR)  519, 1113 Office for the Coordination of Humanitarian Affairs, see OCHA Office of Legal Affairs (OLA)  571, 974–​5, 979 Official Development Assistance, see ODA OIC (Organisation of Islamic Cooperation)  498, 824, 832, 840, 849–​57 OLA, see Office of Legal Affairs Ombudsperson  54, 221, 610, 1022 omissions  4, 37, 46, 129, 382, 491, 1000, 1004, 1029, 1033 ONUC, see UN Operation in the Congo OPCW (Organisation for the Prohibition of Chemical Weapons)  234, 239, 248, 759, 779–​80, 803, 809–​10 OPEC (Organization of the Petroleum Exporting Countries)  147, 987 openness  173, 414, 752–​3, 856, 921, 932, 1123, 1131, 1170–​87, 1189–​92; see also transparency

 

index   1229 operation of international organizations  20–​4, 60 operational activities  509–​10, 516–​17, 519, 521, 523, 525, 527, 529, 533–​4, 695 democracy promotion  516–​29 impact on international law  529–​33 operational capacity  209, 731–​2, 752, 990 opinio juris  567, 570, 574–​7, 580 opinions, advisory  251, 654–​5, 819, 897, 949, 956–​9, 964–​5, 1017–​18, 1087–​8, 1091 optimal currency areas (OCAs)  391 Organisation for Economic Co-​operation and Development, see OECD Organisation for the Prohibition of Chemical Weapons, see OPCW Organisation of Islamic Cooperation, see OIC Organization for Security and Co-​operation in Europe, see OSCE Organization of African Unity, see OAU Organization of American States, see OAS Organization of the Petroleum Exporting Countries, see OPEC organizational changes  121, 173, 931, 1123–​5, 1162 organizational culture  321, 367, 376, 380–​2, 920–​39 organizational reforms  776, 1116, 1119, 1123–​5 organizational structures  347–​8, 351, 353, 363, 370, 377, 379, 381, 428, 777 organized crime  216, 224–​6, 849, 858, 869 OSCE (Organization for Security and Co-​operation in Europe)  12, 38, 136, 222, 513, 519–​20, 777, 1113, 1120, 1131

Ottoman Empire  95, 100, 211 outcomes  24–​32, 60, 62, 394–​6, 419, 472–​4, 531–​2, 880, 920–​1,  1109 substantive  394, 396, 510, 1124 outer space  237, 571, 574, 766–​7 output legitimacy  135, 1109, 1121, 1123 oversight  156–​7, 161–​3, 167, 186–​7, 198, 545, 550, 831, 882, 891 national mechanisms  156, 164–​5 Oxfam  308, 313, 713 pacific settlement of disputes  193–​4, 196, 198, 628, 634, 646, 662 pacta sunt servanda 567 PAHO (Pan American Health Organization)  267, 454–​5, 776, 1090 Pakistan  196, 204, 228, 243–​6, 333, 529, 653, 873, 1021 Palestine  768, 776, 850, 872, 969–​70, 978, 984, 1023 Pan American Health Organization, see PAHO Panama 252, 649 pandemics  458, 695, 702, 862 parliamentarians  320, 768, 772, 782, 786 direct elections and full-​time  782, 786–​7 parliamentary assemblies  56–​7, 777, 898, 1134 parliamentary bodies  782–​6, 788, 790, 794–​6, 798–​801 parliaments  56–​8, 144, 149, 158, 161, 726, 728, 782–​801, 1126, 1134 national  56–​8, 161, 768, 786, 795, 798, 800–​801, 861, 968, 1134 supranational  784, 786, 796–​8 Partial Test Ban Treaty (PTBT)  234, 236–​7 partial transfer of powers  998–​1001, 1003

 

1230   index participation  1126–​45 model  72, 1151–​3, 1155, 1166 patterns of  1129, 1131, 1133–​5, 1137, 1139 principle  1126, 1129, 1135, 1140, 1144 participatory democracy  1128, 1141, 1187 partnerships  82, 172, 187–​8, 468–​70, 670, 700–​703, 708, 711, 749, 751–​2 public–​private  40, 87, 120, 125, 450, 455, 468, 691, 701, 703 PBC (Peacebuilding Commission)  341, 344, 870, 1123 PCA (Permanent Court of Arbitration)  146, 646, 650, 652–​3, 658, 661, 884–​6, 892, 900 PCIJ (Permanent Court of International Justice)  254, 573, 628, 645, 652–​4, 659, 762 peace  192–​3, 197, 205–​6, 511–​12, 569, 636, 641–​2, 648, 853–​4, 859–​61; see also maintenance of international peace and security international  635, 638, 641–​2, 652, 709, 765, 808, 832, 849–​50, 977 Peace and Security Council  980–​1 peace enforcement  192, 194–​6, 200–​ 201, 203, 209 peace operations  191–​210, 225, 310, 517, 525, 527, 837, 843, 864, 868; see also peacekeeping civilian protection, peace enforcement and R2P  200–​203 definitions  192–​5 efficacy  205–​8 evolving mandates  195–​6 interpositional peacekeeping  196–​7 mission composition  203–​5 success, failure, and Brahimi Report  198–​200 peacebuilding  191, 193–​4, 207, 216, 340, 344–​5, 525, 527, 533–​4, 849 culture 207 democratic  516, 525–​6

Peacebuilding Commission, see PBC peaceful settlement  119, 647–​8, 662 peacekeepers  195–​7, 199, 202, 204–​9, 279, 288, 299–​300, 822, 831, 929 peacekeeping activities  673, 1060–​1, 1121 budgets  201, 904, 906, 908 forces  562, 845, 1031, 1063 interpositional  196–​7 missions  194–​6, 202, 206, 280, 295, 871, 914 operations  118, 199, 201, 204, 343, 869, 917, 1028, 1031, 1044 traditional  194, 203, 844, 848 Permanent Court of Arbitration, see PCA Permanent Court of International Justice, see PCIJ persecution  85, 252–​3, 294, 323, 327, 342 persistent organic pollutants  81, 428, 439 personal jurisdiction  299–​300, 882, 900, 1097 personality, see legal personality petitions  254, 260, 263, 266, 432, 597–​8, 601, 1130, 1142 Pevehouse, J.C.W.  8, 17–​19, 387, 397 philanthropic foundations  449, 451, 465–​6 philanthropy 415 PIR (Public Interest Registry)  550 piracy  86, 136, 227–​31, 563; see also counter-​piracy maritime 227, 229 Somali  228–​9 plenary bodies  436, 764, 773–​4, 778, 804, 823–​4, 905, 908, 913–​16, 918 plenary organs  145, 570, 777–​8, 803–​4, 807, 812, 908, 916 Pol Pot Regime  289, 294 Poland  110, 478, 647, 654

 

index   1231 police  192, 204, 213, 636, 994 policing  209, 212–​13, 484, 714 policing networks, transgovernmental  211–​13, 223 policy dilemmas  61, 76–​87 policy formulation  416, 1172, 1174, 1185–​6 policy functions  1170, 1174, 1183, 1185–​6, 1189 policy-​makers  179, 618, 1152, 1156–​7, 1160, 1162, 1166 policymaking  41, 547–​8, 552, 581, 684, 1170, 1174–​6, 1178, 1186, 1190–​2 political accountability  1022, 1148–​9 political crises  93, 528–​9, 1140–​1 political decisions  45–​6, 823, 830, 832, 1169 political fragmentation  366–​73, 382–​3 political groups  788, 790–​4, 796, 800 political independence  627, 630–​1, 842 political organs  43, 280, 619, 665, 837, 1087 political participation, right to  512, 529–​32 political power  71, 94, 527, 618, 922, 1125 political pressures  86, 158, 256, 260, 400, 501, 549 political processes  230, 257, 385, 392, 525, 838, 924, 1143, 1145, 1153 political rights  101, 116, 251, 257, 262, 272, 297, 341, 481, 510 political space  50, 714, 1120–​1, 1125 political support  349, 353, 736, 739, 747, 1108, 1122, 1125, 1177 politicians  178, 307, 787, 800, 861, 1107, 1190 politicization  259, 510, 776, 1178 politics  133–​4, 186, 212, 303, 305, 491, 616–​19, 714, 768, 821 domestic  7–​8, 15, 17, 25, 66, 849, 914 and rule of law  616–​21

pollutants, persistent organic  81, 428, 439 pollution  184, 430, 585–​6, 590, 658, 741, 848 Population Fund  450, 697, 1083 posturing  1175–​6, 1190 poverty  84, 405, 412, 415, 419, 421, 471, 724, 869, 877 powerful states  62, 79–​80, 199, 202, 204, 219, 599, 1114, 1117–​18, 1121 powers  70–​1, 141–​2, 147–​50, 782–​4, 800–​801, 812–​16, 985–​1006, 1019–​21, 1108–​11, 1113–​14 autonomous regulatory power  152–​3, 157, 165–​6, 169 bureaucratic  23, 840, 843–​5, 847, 852–​3, 856, 858 conferral  997–​1004 decision-​making  826, 1025, 1094 delegated  18, 156, 170, 215, 817–​18, 821, 1003–​4 delegation of  813, 998, 1004 enforcement  152, 280, 568, 643 executive  818–​21, 1050 formal  783, 788–​9, 800, 832 formal intergovernmental organizations  147–​9 implied  68, 139, 148–​9, 250, 831–​3, 1019 legislative  119, 774, 782–​3, 786, 788, 800, 817–​19 substantive  610, 782–​3, 786, 800 transferred  999–​1002 veto  38, 86, 116, 789, 826, 953 power-​wielders  1148, 1151, 1154, 1157 PPPs, see public–​private partnerships predictability  468, 911–​13, 984 preferences, state  6, 66, 394, 397–​8, 403–​4 preferential trade agreements  77, 387, 397 presidential elections  520, 527

 

1232   index prevention  223, 237, 257, 274, 281, 430, 452, 457, 585, 590 PRI (Principles for Responsible Investment)  742–​3 primary responsibility  38, 373, 605, 613, 636, 638, 647, 775, 808, 815 principal–​agent theory  399, 1149 Principles for Responsible Investment, see PRI prisoner’s dilemma  349, 353, 364, 593 privacy  182, 223, 485, 687 private actors  125, 447, 542, 549, 551, 599–​602, 711, 920, 1183–​6 private governance  173–​4, 178, 186 endogenous growth  180–​6 global  179–​80 private initiatives  94, 487, 772 private law  40, 44, 108, 566, 808, 988 private parties  64, 153, 185, 431, 442, 652–​3, 660–​2, 884, 1060–​1, 1066 private sector  120, 543–​6, 551, 671, 673, 687, 730–​53, 1163, 1166, 1169 actors  173, 177, 544–​5, 752 contextual factors shaping UN–​private sector relations  732–​3 economic developments  744–​6 engagement  731–​2, 741, 743, 747, 749–​51 institutional developments  742–​3 outlook  748–​53 political developments  746–​8 relationships  731–​3, 735, 737–​42, 744, 746, 748, 750, 752–​3 UN–​private sector relations 1945–​2000  733–​7 UN–​private sector relations 2000–​present  738–​42 private transnational governance  171–​88 endogenous growth  180–​6 privatization  40, 172, 176, 179, 186, 280, 537, 541, 546, 549

of regulation  176–​7 of transnational governance  173–​80 privileges and immunities  55–​6, 831, 835, 992–​6, 1009, 1041, 1048–​68, 1078, 1085, 1102–​3 justification  1053–​5 legal bases  1052–​3 past and present typical content  1049–​52 scope of jurisdictional immunity  1055–​7 procedural requirements  437, 1011, 1020–​1 procedural rules  180, 602, 652, 1015 procedures decision-​making  402, 443, 445, 551, 565, 812, 817, 821, 1165, 1178 formal  134, 823, 825, 1044–​5 pro-​democracy actors  510, 520, 523 proliferation of nuclear weapons  235–​6, 238, 242, 247 Proliferation Security Initiative (PSI) 235, 243 proportionality norm  795 protectionism  66, 349, 351, 353, 485 administered 350, 352 protracted displacement  336, 338, 344 pseudo-​democracies  509, 520 PSI (Proliferation Security Initiative) 235, 243 PTBT (Partial Test Ban Treaty)  234, 236–​7 public access  1170, 1184, 1190 public debates  790, 860–​1, 1128 public health  40, 81, 432, 434, 452–​3, 456, 458, 460, 1158, 1162 public information  664, 666, 668–​9, 678, 716 policies  1170, 1184–​5, 1188, 1192 Public Interest Registry (PIR)  550 public law  163, 679, 1147 European  157, 161, 164, 168

 

index   1233 public participation  429, 440–​1, 1128 public policy  185–​6, 551–​2 public sphere  491, 506, 1128, 1143 publicity  322, 762, 1180, 1188–​9 public–​private governance  753 public–​private partnerships (PPPs)  40, 87, 120, 125, 450, 455, 468, 555, 691, 701–​3 al-​Qaeda  201, 219, 244, 610–​11, 617 sanctions regime  610–​11 quasi-​judicial bodies  889–​91, 893, 895, 897 quotas  38, 124, 348, 383, 724, 909 R2P (Responsibility to Protect)  200–​202, 279–​80, 306, 333, 834, 862, 867–​9, 871, 876–​80, 1122 race  159, 176, 255, 261–​2, 270, 305, 327, 714, 722, 725 race to the bottom  475–​6, 480–​2, 486 racial discrimination  253, 257, 261, 264, 266 racial policies  261–​2 racism  264, 273, 502, 769 rational design  8–​9, 11–​12, 63 rationalist institutionalism  393, 395, 397 rational-​legal authority  840, 845, 856, 1118 Raustiala, K.  80, 581, 1175, 1186 raw data  665–​6, 673–​4 RDBs, see regional development banks realism  3, 61–​2, 137–​8, 367, 376, 382, 720, 723, 848, 857 reasonable alternative means  1063–​6 reciprocity  28–​9, 357, 602 reconciliation  157, 165, 169–​70, 492, 504 recorded votes  770, 791–​2 red-​card principle  528, 532–​3 redress  46, 264, 269, 281, 1064–​5 reforms  38–​9, 124, 127–​8, 383, 770–​2, 786–​90, 797, 931, 1092–​3, 1123–​4 democratic 8, 26

institutional  69, 399, 531, 724, 742, 855, 1108, 1122, 1124, 1160 organizational  776, 1116, 1119, 1123–​5 structural  87, 848, 852–​3 refugee crises  85, 323–​4, 330 refugee law  329–​30, 1039 refugee regime  326–​7, 340 complex  340–​1 refugees  82, 117, 307–​8, 315, 323–​46, 521, 848, 921, 1134 failure of durable solutions and rise of protracted displacement  336–​8 and IDPs (internally displaced persons) compared  325–​6 normative agenda of UNHCR (UN High Commissioner for Refugees)  329–​31 political and financial constraints on UNHCR (UN High Commissioner for Refugees)  331–​2 protection  315, 329, 333, 339, 346 towards a more effective response  344–​6 UNHCR (UN High Commissioner for Refugees) and evolution of refugee regime  326–​9 regime change  241, 336, 537 regime shifting  79, 84 regime theory  4, 6–​7, 20, 536 regional courts  283, 656, 887 regional development banks (RDBs)  406, 412–​13, 420–​1, 431, 450, 700, 807, 939, 1184 regional economic integration  384–​92, 397, 402–​4 economic theory  390–​2 organizations  388, 967, 973, 1010 regional economic organizations  29, 384–​5, 387–​90, 392, 397, 400, 403–​4 regional institutions  269, 448, 719, 1090 regional integration  384, 387, 389–​90, 392–​3, 397, 401–​3

 

1234   index regional integration agreements, see RIAs Regional Internet Registries, see RIRs regional organizations  120, 273, 282, 284–​5, 384–​6, 389, 401–​3, 639–​40, 649, 709–​10, 777–​8 human rights  269–​78 and use of force  640–​1 regional systems  269, 271, 274, 278 Registrars  290–​1, 541, 543, 779, 900, 1016, 1100 registries  541, 549, 844, 886, 899, 1089, 1093, 1100 regulation global  173, 179, 186, 715, 719, 721–​4, 726–​8 privatization  176–​7 regulators  365, 370, 372, 462, 537 regulatory authority  172–​3, 432, 659 regulatory power  155, 157, 159–​62, 164–​5, 168, 170, 657, 820 autonomous  152–​3, 157, 165–​6, 169 regulatory processes, global  712–​13, 724, 728 reintegration  101, 129, 197, 299, 336 relations with other international organizations  691–​7 11 relationships, accountability  1147, 1155, 1161, 1166–​7 religion  13, 159, 253, 255, 261, 305, 327, 453, 490–​507, 763 freedom of 505 and international organizations  499–​506 religious international organizations  494–​9 resurgence  491–​4 religiosity  492–​4, 497, 500 religious freedom  490 religious international organizations  495, 497, 499 religious NGOs  494–​5, 497–​8 religious organizations  492, 494–​7, 502

religious traditions  493–​4, 498–​9, 501 remedies  276, 747–​8, 895, 1020–​2, 1024–​5, 1061, 1063, 1066, 1068, 1099–​1100 alternative  633, 1061, 1063–​4, 1066–​7 remits  361, 414, 416, 468, 842, 848, 861, 863 remittances 415, 419 repatriation  128, 315, 328, 336, 338 report allocation  794–​6 Reports on the Observance of Standards and Codes (ROSCs) 371, 374 representation  962–​84 equal  758, 1149–​50 representativeness  86, 480, 874, 1112 representatives civil society  451, 545, 717, 741–​2, 772, 1166, 1188 government  360, 453, 806, 811, 824, 987 requests for comments (RFCs)  540 research  9–​10, 15, 23–​5, 27–​8, 30–​1, 795–​6, 857–​8, 933–​4, 1168–​72, 1189–​92 resettlement  128, 308, 315, 336, 338 resistance norms  164, 167 resource trafficking  226–​7, 229 resources cultural  931–​4 financial  173, 180, 278, 343, 419, 421, 550, 590, 687–​8, 818 human  230, 831, 1075, 1143 natural  117, 146–​7, 226, 570 scarce  120, 155, 1156, 1175 responsibility  1026–​47 attribution  1029–​33 breach of international obligation  1034–​6 circumstances precluding wrongfulness  1036–​7 content of  1029, 1045–​7 corporate 744, 748

 

index   1235 corporate social  125, 717, 740 derived  707–​8 implementation issues  1043–​5 international  52, 707, 710–​11, 1019, 1028–​9, 1034, 1036–​7, 1041, 1043, 1045 interplay with responsibility of member states  1037–​42 primary  38, 373, 605, 613, 636, 638, 647, 775, 808, 815 to protect, see R2P regimes of  1026, 1028, 1035–​6, 1042 secondary 1001, 1003 shared  372, 374, 708 state  71, 77, 708, 885, 997, 999–​1005, 1027, 1029, 1036, 1039 responsiveness  510, 929, 931, 1139, 1150, 1153 restrictive measures  611–​16 review administrative  1086, 1091, 1101 judicial, see judicial review mechanisms  1008–​9, 1012–​14, 1025 informal  1022–​4 internal  1009–​10, 1012, 1014, 1025 RFCs (requests for comments)  540 RIAs (regional integration agreements)  362–​3 right of access to justice/​court/​ tribunal  55, 1062–​3, 1066–​8, 1102 right of self-​defence  627, 635–​6, 639 right to democracy  509, 513–​14, 530, 532–​4 right to political participation  512, 529–​32 rights of membership  972–​6, 979–​80 Rio Declaration  427, 1128 Rio+10 Conference  120 RIRs (Regional Internet Registries)  540–​2, 545–​6, 549, 552–​3 roll-​call votes  760, 770, 791, 793

Romania 254 Rome Statute  286, 292–​6, 298, 300, 568, 779–​80, 890–​1, 899–​900, 1024 ROSCs (Reports on the Observance of Standards and Codes)  371, 374 Ruggie, J.G.  21, 747–​8 rule creation  75, 372, 382 rule of law  47, 271, 512–​13, 529, 532, 603, 613, 615, 1010–​11, 1084 and politics  616–​21 rulemaking  18, 152, 157, 173, 176, 178, 187–​8, 372, 436, 440 rules of procedure  39, 779, 789, 812, 816, 884, 890, 900, 968–​9, 975 substantive  130, 946–​7 Russia  38, 217, 219, 228, 428, 434, 518, 520, 1113, 1120–​1 Rwanda  199–​200, 311, 314–​15, 834, 837, 877, 887, 889, 921, 924 SADC, see Southern African Development Community safeguards  175, 187, 234, 239–​40, 506, 512, 627, 1012, 1014, 1042–​3 SALT I and II  234 sanctions  69, 72, 241, 577, 603–​21, 832–​3, 906–​7, 980–​2, 1024, 1180–​1 application  605, 612, 615, 984 comprehensive  604, 606, 616–​17, 619, 621 economic  603, 614, 833 EU  611–​16 implementation  608–​9, 616, 620, 832 international organization  603–​4, 616, 621 measures  606–​7, 611–​12, 617 monitoring  605, 613, 615 politics and rule of law  616–​21 regimes  118, 241, 569, 604–​5, 607, 609–​10, 612, 614, 620 smart  617–​19 systems  611–​13, 615–​16, 618–​19, 621

 

1236   index sanctions (Cont.) targeted  43, 54, 227, 528, 607, 609, 615, 617, 621 UN  604–​11 sanctions committees  54, 227, 608–​10, 615 Sanctions Focal Point  609–​10, 619 Sanctions Formation  613, 615–​16 Sanitary and Phytosanitary Measures Agreement (SPS)  171, 350, 352, 432 Sarfaty, Galit  925, 931, 933 Save the Children Fund (SCF)  505–​6 scarce resources  120, 155, 1156, 1175 SCF, see Save the Children Fund Schermers, H. G.  47, 570, 572, 574–​5, 577–​8, 806 SCO (Shanghai Cooperation Organization)  222, 777, 1114, 1123 SCSL (Special Court for Sierra Leone)  282–​3, 288–​91, 294, 298–​300, 910 SDGs, see Sustainable Development Goals secondary responsibility  1001, 1003 secretariat-​replication  855–​7 secretariats  101–​2, 104–​6, 354, 356–​7, 378–​9, 427–​8, 442, 839–​58, 899–​900, 1075–​7 competences  844–​5 functions  842–​4, 846–​9 powers  844–​6 rise  840–​2 services  267, 291, 430, 438 security collective  623, 626, 628–​9, 631–​3, 635–​7, 641–​2, 842, 869 food  451, 641, 727 national  279, 552, 554–​5, 634, 869, 920 Security Council, see UN Security Council

SEEA (System of Environmental-​ Economic Accounting)  667, 670 self-​defence  219, 625, 631–​3, 635–​7, 876, 1117 right of  627, 635–​6, 639 self-​determination  105, 253, 255, 261, 273, 529, 570–​1, 769, 771 self-​interest  74, 185, 481–​2, 487, 848 self-​monitoring  594–​6 separate legal personality  808, 1037–​8 Serbia and Montenegro  970–​1, 1016 services, trade in  64, 348, 355, 537, 706 SFRY (Socialist Federal Republic of Yugoslavia)  970–​1 Shanghai Cooperation Organization (SCO)  222, 777, 1114, 1123 shared responsibility  372, 374, 708 shared values  734, 738, 1137 side-​effects of international organization action  30 Sierra Leone  195, 200, 283, 288–​90, 296, 298–​300, 527–​8, 531, 697 Singapore  228, 483, 824 smart sanctions  617–​19 SNOs, see supranational organizations social constructivists  843–​4, 848, 852 social development  461, 716, 862 social justice  481, 623, 876 social legitimacy  59, 1143, 1191–​2 social movements  307, 713, 715, 720, 723, 726, 728, 1127, 1178 Socialist Federal Republic of Yugoslavia, see SFRY socialization  12, 330, 404, 1109, 1177, 1187 societal rules  714–​15, 725 sociological approaches  12, 99, 924, 933, 935 sociological institutionalism  401, 1171, 1176, 1178, 1186 sociology  21, 99, 923, 1172

 

index   1237 soft law  50, 224, 250, 455, 459, 477, 514, 567, 576–​8, 766 Somalia  195, 198–​9, 216, 227, 229–​30, 295, 311, 314, 324, 854 South Africa  118, 121, 201, 204, 241, 261–​4, 767, 769, 975–​6, 982 South Sudan  324, 343, 526, 652, 972 Southern Africa  264, 273, 328, 948 Southern African Development Community (SADC)  641, 948, 1013, 1124 Southern Rhodesia  118, 264, 604, 976 sovereign equality  618, 620, 758, 823, 1151 sovereign states  36, 95, 100, 497, 600, 841, 900, 967, 1049 sovereignty  143, 211, 227, 229, 231, 508, 518–​19, 589, 591, 624–​5 costs  19, 1174, 1186, 1189 state  36, 70, 96, 156, 311–​12, 318, 326, 333, 1186, 1189 Soviet Union  86, 107, 115–​16, 120, 236–​8, 262, 271, 421, 492, 769; see also Russia Spain 110, 214 Special Court for Sierra Leone, see SCSL Special Envoys  853, 855 Special Tribunal for Lebanon, see STL specialized agencies  267, 407–​8, 426–​7, 429, 773–​7, 847–​9, 966–​7, 978, 981–​3, 1088–​9 Specialized Agencies Convention  1052, 1056, 1067 specialized courts  181, 268, 1010, 1092 specialized institutions  693, 698, 711 specialized jurisdiction  283, 887–​9 spillovers  5, 36, 400, 849, 851 Srebrenica  37, 55, 199–​200, 333, 1032, 1067

SSBs (standard-​setting bodies)  178, 370, 372, 374 stability  66, 75, 92, 126, 175–​6, 367, 371, 373, 622, 625 staff  314–​15, 377–​8, 806, 810, 841–​2, 1075–​7, 1079, 1081, 1086, 1088–​9 regulations  992, 1009, 1074, 1076, 1078–​80 rules  1078–​80, 1091, 1097 stagnation  38, 384, 389, 771 stakeholder groups  546, 548, 551, 1127 stakeholders  45–​6, 459, 462, 546, 670, 672, 695, 701–​2, 1132, 1166–​7 standardization  98, 107, 144, 174, 177–​8, 460, 490, 670 standards  174–​6, 351–​2, 374–​5, 431–​2, 455, 458–​9, 461–​2, 571–​2, 1147–​8, 1180–​1 IETF 540 labor  472, 476–​7, 480, 482–​6, 488–​9, 602 non-​binding  458 product 174 standard-​setting bodies, see SSBs Stasavage, D.  1175, 1190 state behavior  20, 25, 28–​9, 31, 65, 329, 590, 602, 1175 state immunity  656, 1055–​6, 1059 state interests  14, 21, 64, 68, 70, 138, 192, 312, 346, 582 state parties  244, 271, 278, 458, 590, 839, 842, 891, 898, 900 state power  18, 23, 66, 393, 625 state preferences  6, 66, 394, 397–​8, 403–​4 state representatives  265, 586, 843, 1051, 1180 state responsibility  71, 77, 708, 885, 997, 999–​1005, 1027, 1029, 1036, 1039 state sovereignty  36, 70, 96, 156, 311–​12, 318, 326, 333, 1186, 1189

 

1238   index stateless persons  117, 328, 345 statistics  83, 95, 205, 665–​6, 669–​70, 672, 676, 680 Statute of ITLOS  897 Steffek, J.  1180, 1184, 1186, 1188 STL (Special Tribunal for Lebanon)  43, 283, 291, 293, 296, 910 Stockholm Conference  426–​7, 715 strong states  6, 16, 213–​14 structural factors  368, 619–​20 structural reforms  87, 848, 852–​3 subcultures  925–​6, 932, 937 subject matter jurisdiction  291, 293, 882, 885–​6 subsidiary bodies  287, 289, 291, 437, 648, 693, 975, 977–​8, 980, 1132 subsidiary organs  250, 288, 608, 764, 808, 812–​13, 892, 1009, 1088 substantive powers  610, 782–​3, 786, 800 substantive rules  130, 946–​7 succession of states  970–​2 Sudan  208, 219, 649, 652, 880, 972 summits  551, 668, 671, 680, 712, 716, 719, 859, 862, 869–​70 supervisors  365, 370, 372, 375, 379 support administrative  661, 886, 892, 899–​900 technical  174, 455, 464, 471 supranational delegation  155, 162–​3, 167, 404 supranational governance  160, 163–​4, 168 supranational organizations (SNOs)  152–​70, 396, 399–​400 supranational parliaments  784, 786, 796–​8 supranationalism  155, 385, 390, 392, 397–​400, 403–​4 surrogate accountability  1164, 1167 surveillance  358, 369, 371–​4

suspension  278, 359, 528–​9, 768, 962–​3, 975, 979–​82, 984 Sustainable Development Goals (SDGs)  524, 531, 721, 834 Sweden  143, 223, 237, 316, 434, 586, 647, 1190 Switzerland  44, 101, 111, 316, 386, 703, 978, 991–​3, 995, 1038 law  40, 987, 990, 992, 995 Syria  68, 202, 233, 241, 312, 323–​4, 330, 333, 872, 880 System of Environmental-​Economic Accounting (SEEA)  667, 670 Taliban  216, 219, 610–​11, 617 targeted sanctions  43, 54, 227, 528, 607, 609, 615, 617, 621 tariff concessions  348–​50 tariff reductions  87, 348–​9, 411 tariffs  347–​50, 354, 357, 386, 485, 705 common external  347, 363, 386, 705 taxation  350–​1, 456, 994, 1054 TBT, see Technical Barriers to Trade Agreement TCC (transnational capitalist class)  126 technical agencies  571–​2, 574, 764 technical assistance  28, 82, 225, 316, 408, 470–​1, 477, 482, 517, 521–​2 Technical Barriers to Trade Agreement (TBT)  171, 175, 350, 352, 355, 460 technical committees  174, 177–​8, 717 technical community, Internet  463, 540, 542–​3, 546, 548–​51, 555 technical cooperation  106, 140, 851 technical expertise  173, 179, 182, 377, 546, 692, 759, 803, 843–​4, 856 technical organizations  108, 111, 539, 763, 830, 1008, 1010 Technical Review Panel (TRP)  1165 technical support  174, 455, 464, 471 technology  242, 535, 539, 546, 684–​5, 731, 736, 745, 749, 753

 

index   1239 telecommunications  94, 107, 536–​8, 554, 623, 759, 847 global liberalization  536–​9 Ten Nation Committee on Disarmament (TNDC)  236–​7 territorial integrity  273, 626–​7, 630–​1 terrorism  214, 218–​21, 223, 473–​4, 565, 568–​9, 632, 639, 862, 868–​9 international  607, 767, 877, 1008–​9 TEU, see Treaty on European Union TFEU (Treaty on the Functioning of the European Union)  613, 945, 947, 1011, 1077, 1098 Thailand 228, 649 theoretical approaches  61, 113, 720, 815, 1171, 1173, 1175, 1177, 1179, 1181–​2 Third World  113, 125–​6, 310 Third World Approaches to International Law, see TWAIL thoroughgoing internationalism  101–​8 threats  227–​8, 244–​5, 310–​11, 568–​9, 607, 626, 630, 765, 868–​9, 1159–​60 to the peace  568–​9 Timor-​Leste  283, 831, 835 TNDC (Ten Nation Committee on Disarmament)  236–​7 tobacco, products  457, 775 Togo 824, 864 tourism  987–​90 trade  28–​9, 83–​4, 214, 347–​64, 391, 409–​11, 432–​3, 460, 481–​3, 719; see also WTO associations  172, 449, 543, 717 disputes  119, 544, 597–​8, 600 functions of international law of trade and functions of international organizations for trade  348–​53 liberalization  66, 83–​4, 353, 394, 484–​5, 747 negotiations  353, 358, 538, 555 policy  29, 358, 363, 411, 597, 704 in services  64, 348, 355, 537, 706

trade unions  96, 108, 715, 718, 739, 1130 trade-​offs  77, 258, 596, 806 traditional peacekeeping  194, 203, 844, 848 transaction costs  10, 16, 138, 163, 181–​2, 364, 392, 395–​6, 535, 699 transfer of powers, partial  998–​1001, 1003 transferred powers  999–​1002 transgovernmental policing networks  211–​13, 223 transgovernmentalism 218, 227 transitions  8, 203, 245, 407, 419–​22, 436, 642, 870, 930, 1177 transmission belts  510–​11, 516, 533, 1128, 1137, 1180 transnational capitalist class, see TCC transnational corporations  125, 128, 449, 735, 747 transnational crime  211–​31 transnational governance  555, 1180 transnational networks  104, 365, 860 transnational organized crime 224–​6 transparency  48–​50, 173, 175, 178–​9, 678–​9, 683, 685, 790, 1127–​8, 1170–​92 effects  1189–​91 empirical study  1182–​91 patterns  1182–​5 sources  1186–​9 theoretical approaches  1171–​82 treaty obligations  238, 278, 445, 572–​3, 578, 589, 1001–​2, 1062 Treaty on European Union (TEU)  161, 613–​14, 944–​5, 947, 1010 Treaty on the Functioning of the European Union, see TFEU tribunals  283–​8, 295–​9, 301–​2, 656–​8, 882–​4, 887–​9, 897–​900, 1082–​3, 1087–​95, 1099–​1101 TRIPS Agreement  66, 79, 460 troop contributions  199, 202, 204

 

1240   index troop-​contributing countries  198, 204, 209 TRP (Technical Review Panel)  1165 trustees  167, 178–​9, 436 Trusteeship Council  764–​5, 808, 869 tuberculosis  451, 910, 987, 992, 996, 1162, 1165–​7 Turkey  223, 228, 428, 498, 741, 760, 769 TWAIL (Third World Approaches to International Law)  123–​5 typologies  194, 385, 425, 451, 922, 1147–​8 UDHR (Universal Declaration of Human Rights)  117, 123, 257, 269–​70, 274, 308, 500, 509, 512, 567 ultra vires acts  1023, 1033 UN and Bretton Woods  407–​15 Charter  255–​7, 259–​63, 286–​8, 604–​6, 631–​2, 634–​6, 654–​5, 763–​5, 1017, 1067 Chapter VI  194, 196, 198, 200, 205, 634, 647, 861 DPKO (Department of Peacekeeping Operations)  193, 197, 199, 201, 203–​4, 206, 521, 869 ECE (Economic Commission for Europe)  116, 428–​9, 438, 440, 444 and environment  426–​9 Human Rights Commission  39, 79, 256, 259, 263, 265, 333, 514, 747–​8, 1123 sanctions  604–​11 legal basis  605 monitoring 608 scope  605–​6 specialized agencies, see specialized agencies as system of collective security  628–​38 UN–​private sector relations 1945–​2000  733–​7

UN–​private sector relations 2000–​present  738–​42 UN Administrative Tribunal, see UNAdT UN Appeals Tribunal, see UNAT UN Children’s Fund, see UNICEF UN Commission on International Trade Law (UNCITRAL)  441, 653, 734 UN Commission on Transnational Corporations (UNCTC) 735–​6 UN Compensation Commission, see UNCC UN Conference on Environment and Development (UNCED)  120, 427, 700 UN Conference on Trade and Development, see UNCTAD UN Convention on the Law of the Sea (UNCLOS)  81, 888, 890 UN Development Programme, see UNDP UN Dispute Tribunal, see UNDT UN Educational, Scientific and Cultural Organization, see UNESCO UN Environment Programme, see UNEP UN General Assembly, see UNGA UN High Commissioner for Refugees, see UNHCR UN Joint Inspection Unit  668, 694–​5, 917 UN Joint Staff Pension Fund (UNJSPF) 1075, 1089 UN Mission in Kosovo, see UNMIK UN Mission in the Democratic Republic of the Congo, see MONUC UN Office on Drugs and Crime, see UNODC UN Ombudsperson for al-​Qaeda Sanctions 609

 

index   1241 UN Operation in the Congo (ONUC)  195, 637, 907, 1026, 1034, 1044, 1046 UN Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO)  203 UN Population Fund  450, 697, 1083 UN Relief and Rehabilitation Administration, see UNRRA UN Security Council (UNSC) 192–​200, 215–​21, 226–​30, 285–​9, 604–​13, 633–​42, 763–​8, 963–​5, 968–​7 1, 979–​82 and non-​proliferation regime  241 UN Security Council, Resolutions  118, 128, 241, 243–​4, 1016–​17, 1032–​3, 1041 UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza (UNCAPAHI)  696–​7, 702 UN Truce Supervision Organization  195–​6 UNAdT (UN Administrative Tribunal)  1073, 1077, 1088–​9, 1093–​4 unanimity  38, 145, 356, 388, 396, 570, 620, 628, 762, 798 UNAT (UN Appeals Tribunal)  39, 660, 888, 1082, 1090, 1093–​6, 1098, 1101 UN/​Cambodia Agreement  290, 294 UNCAPAHI, see UN System and Partners’ Consolidated Action Plan for Avian and Human Influenza UNCC (UN Compensation Commission)  885, 889, 896, 898, 901 UNCED, see UN Conference on Environment and Development uncertainty  9, 12, 77, 394, 396, 399, 582–​3, 589–​94, 596–​7, 602 effect  591, 594, 596

uncertainty about behavior  583, 589–​94, 596–​7, 602 uncertainty behavior  593, 595, 599 UNCITRAL (UN Commission on International Trade Law)  441, 653, 734 UNCLOS, see UN Convention on the Law of the Sea unconstitutional changes  528–​9, 974, 980 UNCTAD (UN Conference on Trade and Development)  82, 117, 124, 411, 706, 743 UNCTC (UN Commission on Transnational Corporations)  735–​6 UNDP (UN Development Programme)  82, 316–​17, 501–​2, 521–​3, 697–​8, 700–​701, 773, 910–​11, 1132, 1134 UNDT (UN Dispute Tribunal)  888, 1081, 1083, 1093–​6, 1098–​9, 1101 UNEP (UN Environment Programme)  81–​2, 84, 425–​8, 434–​6, 700–​701, 706, 716, 757–​8, 773–​4, 1133 UNESCO (UN Educational, Scientific and Cultural Organization)  11, 112, 116, 267, 501–​2, 565, 572, 706, 773–​7, 809 Constitution  809, 816, 973, 981–​2, 1078 UNGA (UN General Assembly) 260–​2, 514–​15, 638–​9, 653–​5, 762–​ 72, 823–​6, 963–​5, 968–​84, 989–​90, 1088–​91 UNHCR (UN High Commissioner for Refugees)  40, 71, 82, 85, 116, 308, 314–​15, 324–​5, 327–​46, 422 dependence on funding and cooperation from states  338–​40 and evolution of refugee regime  326–​9

 

1242   index UNHCR (UN High Commissioner for Refugees) (Cont.) normative agenda  329–​31 political and financial constraints  331–​2 UNICEF (United Nations Children’s Fund)  308, 314–​15, 324, 409, 422, 450, 464, 697, 751, 909–​11 unintended consequences  25, 30, 398–​9, 522 United Kingdom  86, 111, 204, 218–​19, 223, 242, 275, 377, 776, 1002–​3 United Nations Administrative Tribunal 1085, 1088 United States  80, 213–​20, 223–​4, 234–​8, 537–​8, 549–​52, 554–​5, 769–​7 1, 907–​8, 1158–​61 Congress  117, 216, 718, 794 courts  1056–​7, 1059 Foreign Sovereign Immunities Act (FSIA) 1056, 1059 government  214, 417, 541, 545, 548–​50, 552 IOIA (International Organizations Immunities Act)  1056–​7, 1059–​60 Nuclear Non-​Proliferation Act  235 Universal Declaration of Human Rights, see UDHR universal membership  17, 354, 427, 751, 757, 861–​2, 962 Universal Postal Union, see UPU universal values  511–​12, 514–​15, 533, 731, 746 universality  57, 260, 266, 304, 453, 515, 624, 628–​9, 680–​1, 760 UNJSPF (UN Joint Staff Pension Fund) 1075, 1089 UNMIK (UN Mission in Kosovo)  53, 1031, 1040, 1044, 1046 UNODC (UN Office on Drugs and Crime)  215–​16, 225, 230

UNRRA (UN Relief and Rehabilitation Administration) 110, 308 UNSC, see UN Security Council UNWTO, see World Tourism Organization UPU (Universal Postal Union)  94, 100, 116, 565, 646, 655, 758–​60, 764, 774–​5, 803 Uruguay Round  353–​4, 411, 432 US, see United States use of force  17–​18, 527–​8, 603, 605, 622–​43, 813, 815, 1109, 1112, 1117 hierarchies in relation to  638–​40 League of Nations as organization against war  626–​8 regional organizations and arrangements  640–​1 United Nations Organization as system of collective security  628–​38 vaccines 418, 1161 validity, legal  1014–​15, 1021, 1071 value chains, global  83, 733, 744 values shared  734, 738, 1137 universal  511–​12, 514–​15, 533, 731, 746 Venezuela  661, 784–​5, 880 verification  51, 238–​40, 489, 517–​18, 521, 747 vertical funds  406, 418 vested interests  188, 305, 368, 449, 845 veto  124, 134, 396, 609, 613, 619, 638, 642, 765, 791 power  38, 86, 116, 789, 826, 953 Vienna Convention on the Law of Treaties  48, 78, 361–​2, 766, 945, 952, 958 Vienna Convention on the Protection of the Ozone Layer  438

 

index   1243 violence  30, 207, 295, 316, 320, 526–​7, 622–​3, 629, 642, 868–​9 volonté distincte  144–​5, 561, 575, 951 voluntary associations  396, 622, 1137 voluntary contributions  331, 338, 465, 904, 910–​14, 918–​19 vote, right to  812, 972–​3, 977 voters  18, 177, 530, 777, 1127, 1164 votes affirmative 817, 973 negative  578, 816, 965, 982 recorded  770, 791–​2 roll-​call  760, 770, 791, 793 voting  764, 768, 791, 793, 816–​17, 826, 977, 980, 1126, 1129 procedures  136, 610, 816 rights  906, 908, 1130, 1163 weighted  764, 907, 973 Walters. F.P.  762–​3 war  102–​3, 110–​11, 191–​3, 208, 210, 304–​7, 623–​8, 641–​2, 760, 868–​70 civil  195–​7, 200, 202, 206, 209, 296, 298, 310, 526, 528 war crimes  253, 292–​3, 295–​6, 298, 868, 886 war zones  303, 312–​14, 318–​20 warring parties  192, 194–​5, 203 Washington Consensus  409, 414, 479, 522 Water Supply and Sanitation Collaborative Council (WSSCC) 702 WB, see World Bank WBAT (World Bank Administrative Tribunal)  1073, 1078, 1094, 1096, 1101 WCIT (World Conference on International Telecommunications)  552–​4 weapons  43, 232–​3, 235, 237–​8, 242–​3, 305, 563, 581, 607, 617

biological  233–​5, 242, 244, 246 chemical  68, 233–​5, 239, 296, 648, 780, 803, 820, 1089 of mass destruction (WMDs)  43, 232–​3, 242, 244, 247, 581, 607, 632, 869, 1008 Weaver, C.  920, 931–​3 Weber, Max  840, 845 weighted voting  764, 907, 973 Wendt, Alexander  125, 130 WEO (World Economic Outlook)  370, 378, 674 Western European Union (WEU) 1065 WHA, see World Health Assembly whaling 440 WHO (World Health Organization)  81–​2, 448–​50, 452–​60, 462–​6, 468–​7 1, 501, 773–​6, 1088–​90, 1157–​8, 1160–​3 WIPO (World Intellectual Property Organization)  66, 135, 146, 452, 544, 548–​9, 565, 661, 774, 909 withdrawal  108, 236, 776, 929, 962–​3, 982–​3, 1007, 1024–​5 witnesses  655, 894, 1047, 1101 WMDs, see weapons of mass destruction WOAH (World Organization for Animal Health)  352 women  96, 101, 105, 108, 116–​17, 127–​9, 252, 257, 262, 503 World Bank (WB)  82, 117, 412–​14, 420–​1, 436, 522–​3, 666–​8, 673–​5, 677–​8, 699–​701 Inspection Panel  53, 431–​2, 677, 1022, 1149 World Bank Administrative Tribunal, see WBAT World Bank Group  410, 412, 414, 699, 884, 1132

 

1244   index World Conference on International Telecommunications, see WCIT World Development Indicators  667, 675, 681 World Economic Forum  451, 719, 724 World Economic Outlook (WEO)  370, 378, 674 World Health Assembly (WHA)  453–​4, 456–​9, 465, 571, 773, 775–​6, 810, 913, 1165 World Health Organization, see WHO World Intellectual Property Organization, see WIPO world legislature  219 World Organization for Animal Health (WOAH) 352 world politics  3–​32, 137–​8, 720–​2, 725, 767–​8, 840, 843–​4, 920, 1146, 1151 world state  114, 125, 130, 564, 636 World Summit on the Information Society, see WSIS World Tourism Organization (UNWTO)  774, 987, 989–​91 World Trade Organization, see WTO World War I  93, 108, 214, 306, 625–​6, 646, 652–​3, 761 World War II  92, 94, 100–​101, 103, 106, 108–​9, 111–​12, 293–​4, 308, 405 World Water Council  701 world’s fairs  93, 98, 100, 108 wrongful acts  52, 708, 710, 895, 999–​1004, 1026, 1028–​9, 1033, 1038–​40, 1047

wrongfulness 1029, 1036 WSIS (World Summit on the Information Society)  545–​6, 550–​3 WSSCC (Water Supply and Sanitation Collaborative Council)  702 WTO (World Trade Organization) 37–​8, 81–​6, 119, 347–​8, 350–​9, 460, 482–​6, 537, 716–​19, 991 agreements  37, 350, 357, 359–​60, 432, 888 Charter  353–​4, 356, 359, 967 dispute settlement system  358–​9, 362, 998 DSB (Dispute Settlement Body) 355–​6, 360, 422, 658, 888 DSU (Dispute Settlement Understanding)  360–​1, 657–​8 and labor  483–​6 law  350, 359–​62, 564, 658, 1019 Sanitary and Phytosanitary Measures Agreement (SPS)  171, 350, 352, 432 structure  353–​62 Technical Barriers to Trade Agreement (TBT)  171, 175, 350, 352, 355, 460 TRIPS Agreement  66, 79, 460 Yugoslavia  254, 970–​1 former  77, 119, 124–​5, 285–​6, 288, 333–​4, 886, 889, 1031, 1041 Zimbabwe  520, 529, 531