International Organisations and the Dream of Universality

As you may already know, IG-IO will convene an Agora on the topic of International Organisations and the Dream of Universality at the 14th Annual Conference of the European Society of International Law. This will be Agora 9 on Friday 14th September 2018 from 13:30 to 15:00. This post describes the Agora and provides the abstracts of the presentations.

Justification

The IG-IO believes that in the theme of the ESIL 2018 Conference, “International Law and Universality”, International Organisations clearly emerge as important objects of study. For a long time the world has put its faith in International Organisations as promoters of universality, as mechanisms of overcoming the perceived weaknesses and arbitrariness of a system of law founded on sovereign states and informed by individual state interests. To different degrees and in different manners, International Organisations have assumed these roles and advanced policies and practices accordingly. However, in the last decades, International Organisations have felt the impact of what may be described as the exhaustion of this worldview.

In reality, International Organisations have always been affected by counteracting narratives at work in the international sphere. On the one hand, with successive attempts at creating a universal, general and overarching International Organisation, from the League of Nations in the wake of the First World War to the United Nations at the end of the Second, the ‘move to institutions’ has often been interpreted as a move towards a genuinely universal international law. Coupled with the idea that organisations, whose power and authority are allocated along functional lines rather than on the basis of territorial sovereignty, are not as susceptible to the political snares and conflicts of interest that traditionally hamper legal relations between states, this inspired the view of International Organisations as an antidote to clashing state interests and the parochialism in international law. For their part, International Organisations have embraced this universalist role and advanced this world-view.

However, on the other hand, in the past twenty years the neutral, redemptory image of International Organisations has lost much of its persuasive power. Stories of misconduct in UN military operations and self-enrichment by UN staff have brought about a disenchantment and sobering of expectations. Besides, the incursions by International Organisations into sensitive areas such as finance, environment and migration, combined with the political and institutional-legal authority that enables International Organisations to make States adopt policies and practices deemed undemocratic or simply detached from the realities of their domestic constituencies – all this adds up to long-felt misgivings about the manifestation of International Organisations as a Western-hegemonic project. In many spaces, including within academia, this leads to critical views of the move from territory to function as a basis for power and authority with aspirations for universal scope and validity in international affairs.

Insights Expected From the Discussion

In this framework, the Panel will discuss whether it is appropriate to look at the reasons and goals that motivated the move towards institutions as part of a dream of universality. The Panel will explore the theoretical and practical importance of such a dream and consider whether it affects the development of the law and practice of International Organisations; will investigate the limits of this dream, and consider if it is reaching a point of saturation or exhaustion. Contributions look at global and regional institutions operating in different fields both in the past and in the present. Against the background of the contributions, the Chair will encourage Panellists and the audience to scrutinise the role played by International Organisations in protecting universal interests, such as global commons, human rights – and to contrast the discourse, policies and practices of such protection with the reality of those affected. Finally, contributors will explore the reasons given by, and the surrounding discourse of, States and non-State Actors in resisting or simply rejecting the role of International Organisations. The panel aims at motivating all who attend to think of new possibilities and alternatives – if indeed universality has been a dream that motivated the move towards International Organisations and much of their practices, and if this move is nearing exhaustion, what is there on the horizon to replace it.

Description of the Panel

The Panel is organised in two parts, namely, four presentations of 10 minutes each totalling 40 minutes, followed by a 50-minute open discussion with the audience. During the discussion, the Chair will encourage debate along the lines discussed above. The composition of the Panel is as follows:

Chair – Catherine Brölmann

Catherine Brölmann is an Associate Professor of International Law at the University of Amsterdam. She has done extensive research into issues of international lawmaking and legal aspects of international organizations, both in academic publications (e.g. in the monograph “The Institutional Veil in Public International Law,”  Hart 2007) and in international and national legal practice (she is also a member of the Advisory Committee for Public International Law of the Dutch Government). She is one of the editors-in-chief of Oxford International Organizations (OXIO-OUP).

Panellist – Nigel D. White

Nigel White is currently Chair in Public International Law and Head of School at the University of Nottingham. He is also Co-Director of the Nottingham International Law and Security Centre (http://www.nottingham.ac.uk/nilsc/index.aspx) with Professor Mary Footer. His research interests span the fields of United Nations Law, Collective Security Law, Peacekeeping Law, and Post-Conflict Law, with a particular focus on the international legal aspects of international organisations. He is the author of numerous published works across these areas, including The UN System: Toward International Justice (Lynne Rienner, 2002), and The Law of International Organisations (Manchester University Press, 3rd ed. 2017). Nigel White is a Member of the European Society of International Law.

Panellist – Guy Fiti Sinclair

Guy Fiti Sinclair is a Senior Lecturer at Victoria University of Wellington Law School. His principal area of research and teaching is public international law, with a focus on international organisations law, the history and theory of international law, and international economic law. Dr Sinclair is the author of To Reform the World: International Organizations and the Making of Modern States (Oxford University Press, 2017). He is the Associate Editor of the European Journal of International Law, an Associate Director of the New Zealand Centre for Public Law, and a member of the Editorial Board of Oxford International Organizations (OXIO).

Panellist – Scarlett McArdle

Scarlett McArdle completed her PhD at the University of Sheffield in 2014. Her thesis critiques the ability of the emerging principles of international responsibility to adequately address the international actions of the European Union. From 2013 to 2017, Scarlett worked as a Lecturer at Birmingham City University before taking up a post as Senior Lecturer at the University of Lincoln.

Panellist – Lorenzo Gasbarri

Lorenzo is research associate for the project “Human Rights Beyond Borders” funded by the European Research Council and led by Dr Ralph Wilde. He is also junior editor (theme developer on international institutional law) of the Oxford database for the law of international organizations. He earned a PhD at the University of Milan, a master of laws at the Graduate Institute of International and Development Studies, a bachelor and a master in law and a bachelor in literature at the University of Florence. He was postdoctoral researcher at the University of Helsinki (project “Towards a Credible Ethics for Global Governance”, funded by the Academy of Finland and led by Prof. Jan Klabbers) and visiting fellow at the centre of excellence iCourts (University of Copenhagen) and at the Max Planck Institute for Comparative Public Law and International Law. His research covers the law of international organizations, human rights and legal argumentation.

Titles of the Contributions and Abstracts

The following are the titles and abstracts of each contribution.

Drafting for Universality

By Nigel White

Abstract

At the outset of his 2006 analysis of the United Nations, the historian Paul Kennedy cites a poem by Alfred Lord Tennyson, ‘Locksley Hall’, published in 1837. A few lines from that poem are quoted here:

For I dipt into the future, far as human eye could see,

Saw the vision of the world, and all the wonders that would be;

Till the war-drum throbb’d no longer, and the battle flags were furl’d In the Parliament of Man, the federation of the world.

There the common sense of most shall hold a fretful realm in awe, And the kindly earth shall slumber, lapt in universal law.

(Paul Kennedy, The Parliament of Man: The Past, Present and Future of the United Nations. London: HarperCollins, 2006).

In contrast to this vision of a ‘federation of the world’ given by Tennyson, this paper will draw on a number of histories of the UN and its predecessor organization, the League of Nations, to demonstrate how each organization was primarily a product of the conflict that preceded it. It will be shown that this relationship applies not only to the structures of the League and UN, but also to the legal framework governing each institution, and the laws produced by them. Both treaties were drafted to tackle the problems that preceded their creation. Rather than looking to the future, each organization captured the post-war status quo as shaped by the experiences of the devastating conflicts that preceded their creation.

The League reflected the weaknesses of international law and international relations at the time. The Covenant embodied a framework of international law that sought to preserve the status quo including empire. However, it’s cooperative model, though reflective of international law based on sovereignty and consent (but also containing within it the seeds of a more disruptive norm of self-determination), was not strong enough to withstand the tumultuous events that led to its downfall and the descent into the Second World War. Sanctions, both forcible and non-forcible, were very much auto-interpretive under the League of Nations.

Indeed, the League was constructed to address the diplomatic, political and legal blunders that led to the First World War, not the sort of deliberate, hegemonic aggression that led to the Second. As a consequence, the UN was borne out of the alliance that defeated the Axis powers, an executive model with a great deal of centralized sanctioning power put into the hands of the primary organ. The UN Charter appeared so much more constitutionally and institutionally developed (crudely exemplified by length of the Charter compared to the League), and ‘action’- oriented than its predecessor, although it did not explicitly promise the end of empires (and therefore did not fully envisage universal membership).

However, that promise was false at the outset, not only because of the obvious limitations of the veto, but because the constitution of the Security Council did not promise a law-based system of collective security. Mainstream legal commentaries on the newly drafted Charter of 1945, showed a scepticism as regards the potential for the UN to overcome the limitations of the League. In particular, the problems besetting the Security Council were anticipated in 1945. The permanent members could, as envisaged by the UN Charter, control the agenda of the most powerful organ, and develop concepts such as threat to the peace in a discretionary way, so that enforcement fulfilled their common agenda in a way that rarely could be categorised as the enforcement of universal laws. In fact, the current consensus in the permanent five has been reduced to a crude ill-defined form of counter-terrorism and preservation of the nuclear hierarchy, and enforcement action is largely taken against non-state actors (regimes and terrorists) that threaten their common interests.

However, as with all constitutions, the future development of the Charter could not be fully predicted in 1945, and the changes brought by the vast increase in member states representing the first real move towards universal membership, have enabled a form of universal lawmaking not envisaged in 1945. Indeed, the pivotal Declaration on Decolonization of 1960, the General Assembly resolution that crystallized international law on self-determination, embodied both universal aspirations of membership and lawmaking.  Although the Assembly remains grounded in traditional principles of international law, and its lawmaking remains ‘soft’, the drafting of the Charter did allow enough room to enable the Assembly to keep universality alive, although it might not be the universality dreamt of by Tennyson.

But then dreams rarely come true.

Common Law Constitutionalism in Public International Law: A Dream of Universal Progress

By Guy Fiti Sinclair

Abstract

The dream of universality that infuses the international legal imaginary—that complex “common understanding”, both descriptive and normative, shared by the officials of international organisations and international lawyers, which “makes possible common practices and a widely shared sense of legitimacy”—is carried in a variety of images and narratives. One such image is the metaphor of constitutional growth in international organizations, which has proved surprisingly resilient over the past one hundred years. Drawing upon a tradition of thought about “living” constitutions in domestic legal systems, and comparable to what Georg Jellinek termed “constitutional transformation” in states, this metaphor facilitated the adoption of the doctrine of implied powers and related techniques of interpretation in international jurisprudence. Adding to its power, the metaphor aligned with the notions of moral, political, and technological progress reflected in the culturally dominant narratives of civilization, modernization, and globalization over the same century.

This paper focuses on one instantiation of this metaphor in the writings of C. Wilfred Jenks, whose career was entirely spent in the service of the International Labour Organisation. Jenks’ The Common Law of Mankind (1958) exemplifies a style of thinking and practice in public international law that draws on a constitutional vocabulary and set of techniques originating in common law jurisdictions. The paper examines three core meanings of Jenks’ titular phrase – law beyond the state, law beyond Europe, and living law – and shows how each of these related to his practice as a legal advisor at the International Labour Organisation. The paper concludes with some reflections on what Jenks’ ‘common law constitutionalism’ might tell us about other public law-centred projects in contemporary international law.

Universal Legal Systems

By Lorenzo Gasbarri

Abstract

The proposal focuses on the role of international organizations in developing universal legal systems. The idea is to apply analytical jurisprudence, seen as an attempt to provide an answer to the questions of what law and legal systems are, to the capacity of international organizations to create orders that are separate from their member states and from international law. The reason to indulge in this endeavour rests in legal pluralism, under which global governance is composed by a heterarchical interaction of various layers of law, which are ultimately set by each layer for itself. Assuming that international organizations are able to develop their own legal system, the proposal intends to describe how the dream of universality of international organizations relates with the establishment of particular legal systems.

When the European Court of Justice famously affirmed that the EC constitutes “a new legal order of international law”, and the International Court of Justice claimed the existence of an “organized legal system of the United Nations” legal scholars mainly focused on the consequences of the capacity to create legal orders. The relation with international law was completely overlooked. Conversely, this proposal focuses on a method to study the relationship that IOs’ legal systems have with international law. In a constellation of interacting legal systems, the nature of the legal system developed by international organizations has outstanding effects on the nature of the law they produce. The problem is that even if international organizations are able to develop a legal system, they are based on international law and their law-making mechanism seems to produce international law. The research tackles this issue in two steps.

First, the nature of the legal system developed by an international organisation pivots around a dichotomy between ‘derivative’ and ’original’. For example, the EU can be considered an international organisation derived from international law and producing international law, or it can be understood as an institution that it is not based on international law and producing law which is internal in nature. The latter conceptualization produces a legal system which is ‘original’ in the sense of not being based on something that existed before. ‘Originality’ may take various forms: in the case of the EU it is represented by the claim of being ‘exceptional’, while in the case of the OSCE (for instance), it is represented by the claim that the organization is political in nature. Legal systems are original when they are not founded by a legal instrument belonging to a different legal system. Conversely, the former conceptualization produces a legal system which is ‘derivative’, founded by a legal instrument belonging to a pre-existent legal system. International organizations’ legal  systems  can  be  considered  as  either  original  or  derivative,  depending  on  whether  the organisation’s constitutive instrument is considered to be a constitution or a contract. If conceived as original legal entities, organisations possess a closed (‘opaque’) structure in the same way in which states are opaque. This is how ‘EU exceptionalism’ is traditionally considered. If conceived as derivative legal entities, organisations possess an open (‘transparent’) structure based on the concept of a forum, under which the conduct of member states remains visible. This is how the North Atlantic Treaty Organisation (NATO) is traditionally considered.

Secondly, the research addresses the relevance of the point of view. If the actors of the international legal system, through its law-making mechanism, say that Security Council resolutions are international law, they become law of this system under its perspective. If the actors of the organization legal system, through its law-making mechanism, say that Security Council resolutions are internal law, they became law of that system. This issue has been defined as a problem of “relative legality”, under which the legality of a norm is what a legal system perceives through its own rules of recognition. It could consist in the recognition of a norm as its own law, or it could consist in the recognition of a norm as part of a different legal system. It is still an internal point of view. Clearly, these different perspectives affect how organizations are perceived either as universal or as particular legal systems. The paper will focus on the unclear nature of the legal systems developed by international organizations in order to discuss the “dream of universality”.

International Responsibility and the Pluralist Global Order: Stunting the Move towards International Organisations?

By Scarlett McArdle

Abstract

The mid twentieth century began to see the real explosion of international organisations as the ‘saviour’ against state action. In spite of the drive towards international organisations, the lack of a fully constitutionalised international system and the continued pluralistic nature of the international system inherently limited any push towards this universal concept of institutions as positioned against state action; states always remained the default. In spite of the practical push towards institutions, this was always limited by the theoretical structures of the global system.

One substantial demonstration of the issues here is the law of responsibility. The delayed development of principles of institutional responsibility in favour of an initial focus on the state resulted in institutions acting without a developed framework to address wrongful actions. With continued misconduct arising in a vast array of areas, most prominently the continued accusations of sexual abuse by UN peacekeepers, this lack of responsibility substantially impacted the legitimacy and perception of some institutions. Not only this, but the eventual development of principles resulted in ideas that are substantially limited and theoretically grounded in the identity of the state rather than of autonomous, multifaceted international organisations. This gives rise to two dominant issues with the continued move towards institutions.

The first is the continued growth in actions and capacities alongside an inability to fully and appropriately address the responsibility of organisations; there are significant issues with the legitimacy of organisations actions. The second issue is a broader one for the future of institutions. Alongside the difficulties in determining responsibility and the problematic actions of institutions, newer actors at the global level are continuing to expand to fill the gaps left by the inefficiency left by institutions. There is perhaps now a move towards other ‘saviours’, such as non-governmental organisations, private corporations, and philanthropic entities to name but a few. The power, influence, and control these alternative actors wield on the international stage is considerable, and their presence on the international stage has been seen alongside the retreat of the state and, arguably, international organisations.

This paper begins with an examination and conceptualisation of the global order as pluralistic and a conception of the complexities this poses for the position of multifaceted institutions often seeking to engage in these different interacting frameworks. It then, secondly, argues that the principles of institutional responsibility have inherent limitations arising from its limited theoretical foundations before, thirdly, through a consideration of recent case law and examples in particular, exploring the practical difficulties in establishing responsibility and, consequences for responsibility. At its core, the paper argues that the limitations in the principles, and in their application, restrict the continued push towards institutions.

Throughout the paper a distinct argument is made that there exists a mismatch between theory and practice that inherently limits what once appeared to be a continual proliferation of institutions as the ‘saviours of mankind’. While the practical circumstances clearly show a huge expansion in the powers of institutions, the theory of the system continues to be grounded in much more limited concepts. The law of responsibility, more specifically, may show a theoretical acceptance of responsibility of institutions but there is an innate inability for this to have any real practical impact. The core of this mismatch goes to the identification of those holding power; the theory continues to focus upon specific identity, whereas the practice shows power being exercised through the exercise of competence and authority, irrespective of the ‘type’ of actor involved. The inability of institutions, and more broadly the global order, to match theory with practice substantially limits the ability of institutions to grow at the global level. Of further concern, however, is the growth of other, newer actors at the global level who fit neither of these two accepted paradigms of responsibility. The inability of the global order to develop a system to address misconduct is not limiting the expansion of powers, nor yet, of actors. As this continues, it is argued that it may result in the attempt to turn to a new type of ‘saviour’ beyond institutions.

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