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date: 24 August 2019

(p. v) Preface

(p. v) 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.

(p. vi) 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.

(p. 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.

(p. viii) 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 (p. 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.

(p. x) 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 (p. 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 (p. xii) 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.

(p. 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 (p. xiv)