PRIVIGO: Intergovernmental Organizations between Mission and Market

By Jan Klabbers  

When international organizations were first created, during the nineteenth century and the first half of the twentieth century, they were expected to operate in a vacuum. International organizations such as the International Telegraphic Union or the International Institute for Agriculture were expected to perform tasks delegated to them by their member states, and in the service of those same member states. It never occurred to the founding fathers that the organizations would, somehow, entertain relations with anyone other than those member states. This is manifested quite clearly in various respects. Few, if any, were given international legal personality by their member states. Few, if any, were given treaty-making powers by their member states. And for many decades, even the capacity of international organizations to act under international law was considered highly questionable.

Since much of today’s legal framework for international organizations was developed in those early years, during the nineteenth century and the first half of the twentieth century, it stands to reason that much of this legal framework is based on the assumption that indeed, international organizations do operate in a vacuum. They are established in order to perform functions assigned to them by their member states, and for the benefit of those same member states. Whether the assumption ever was accurate or not is beside the point – what matters is that it was this assumption that the law was based on. As a result, international organizations law has fairly well-developed doctrines on powers and competences; knows an intricate framework of privileges and immunities vis-à-vis the member states; and has some reasonably well-developed rules relating to admission or expulsion of member states. But the vacuum drawn around the relationship between the organization and its member states also entails that the law offers little clarity when it comes to developments within the organization: the relations between organs of the same organization, or the law of the international civil service. And most visibly, the law has few resources to address the relations between international organizations and the outside world. For, as it turns out, the vacuum has been pierced: international organizations engage in all sorts of relations with agents and actors other than their member states. And arguably, the vacuum was pierced as early as the 1920s with the creation of the League of Nations and its involvement with mandate territories, and the International Labour Organization and its attention for individuals and for representation by capital and labour in member state delegations.[1]

And following World War II, the piercing has been inescapable. The UN was recognized in 1949 to have international legal personality. The same UN established a treaty-practice, brilliantly documented by Rosenne at the Hague Academy in the early 1950s. The Bretton Woods institutions, likewise, were concluding treaties, and were considered separate enough from their member states to deny any member state liability for their actions. NATO was created to act against a common enemy; many organizations were granted some treaty-making powers; organizations started to work together, and during the 1980s an entire convention on treaties concluded with and between international organizations saw the light. Even if this Convention still awaits entry into force, it is undisputed that international organizations can and do conclude treaties, and that they have a generally recognized capacity to do so.

In other words: the vacuum has been broken, yet the underlying legal framework has remained unaffected, and that helps explain why discussions on the accountability of international organizations tend to be difficult. The law never anticipated them to act externally, and thus never anticipated (let alone accommodated) any kind of accountability towards actors other than their member states. The dominant legal approach has it that international organizations are subject to control only by their member states; and this, in turn, ignores that the relevant accountability relations tend to be not with member states, but with third parties: non-member states, affected populations, individuals, other international organizations, and the private sector.

The latter of these (the private sector) forms the object of study of the research project PRIVIGO, funded by the European Research Council (grant no. 883417), and running from January 2021 until December 2025. The idea behind it is twofold. First, there has been little study of how the relations between international organizations and the private sector are organized and how they affect obvious issues of governance, decision-making and accountability. Hence, a first goal of PRIVIGO is to map these relations and the various legal solutions that have been developed in legal practice, and to do so in eight policy domains, ranging from arms control to food security, and from human settlement to global health.

In addition, there is an expectation that the piercing of the vacuum must have theoretical consequences: it is something incongruous in the realization that the law is based on assumptions that may have had some limited validity a century ago, but have been outdated for at least seventy or eighty years. Put differently, the law needs to be re-thought from the ground up, partly by re-thinking its theoretical foundations and the epistemic assumptions on which it based. This involves an investigation of the relations between international organizations and the private sector – although it may benefit also from studying the other external relations of international organizations, in particular with non-member states and with each other.

PRIVIGO conceptualizes relations with the private sector in three ways: input, throughput and output, and is currently hiring three post-doctoral researchers for a period of four years each.[2] Under ‘input’, one of these post-doctoral researchers is expected to study the extent to which international organizations are funded by the private sector, and what this entails for how organizations are governed, how decisions are made, and how accountability is regulated – if at all. A second post-doctoral researcher will investigate how international organizations themselves act on markets, not only when procuring materials but also when offering their services for remuneration. And the third post-doctoral researcher will be expected to investigate the re-distributive role of decisions of international organizations for private actors. For, as the covid-19 crisis has abundantly illustrated, rules set by international organizations and decisions of these organizations tend to have distributive or re-distributive effects. A decision to declare a public health emergency of international concern may lead to the bankruptcy of airlines, to hotels and restaurants closing down, to football clubs having to cut costs, to many individuals losing their jobs, to other ill people having their treatment postponed. And yet, a decision not to declare such a situation may directly cost lives. Studying relations with the private sector may all the more instructive as there is an obvious tension between private sector involvement (‘the market’) and the oft-assumed public ethos (‘the mission’) of international organizations: the existence of international organizations and of the rules relating to them are often justified under reference to the public nature of their tasks. When international organizations are expected to help bring about the ‘salvation of mankind’, as someone once put, then surely intense and intensive private sector involvement cannot be without theoretical ramifications.

The largely empirical, doctrinal work of the post-doctoral researchers in turn is expected to feed into further thinking about the theoretical foundations of international organizations law. The law as it stands was formed over a century ago, and had largely been solidified when Paul Reinsch published his Public International Unions in 1911. It has been fine-tuned in the intervening years, but its foundations have essentially remained in place since Reinsch’s days. Given the increasingly relevant role of international organizations (they are the main institutions of global governance, exercising authority and monitoring it), it is strange, to put it mildly, that they still operate on the basis of an intellectual framework developed over a century ago. No wonder that discussions on whether the World Bank can be blamed for human rights violations, or whether the UN can be held accountable for bringing cholera to Haiti, or whether the International Monetary Fund carries responsibility for austerity policies, seem to go on forever… The law as it stands lacks the resources to address these and many other issues; it is hoped that PRIVIGO will contribute to the renewal of international organizations by zooming in on how organizations relate to an important part of the world around them.


[1] For a fuller statement, see Jan Klabbers, ‘An Accidental Revolution: The ILO and the Opening Up of International Law’, in Tarja Halonen and Ulla Liukkunen (eds.), International Labour Organization and Global Social Governance (Dordrecht: Springer, 2020), 123-140.

[2] For more details: https://www.helsinki.fi/en/open-positions/three-3-post-doctoral-researchers-in-international-organizations-law

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ESIL LAWSEA IG

The Law of the Sea Interest Group of the European Society of International Law

IGPS

Interest Group on Peace and Security / Groupe de Réflexion sur la Paix et la Sécurité

International Organisations Interest Group

European Society of International Law

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