Kristina Daugirdas renders an excellent exposition of a particular kind of argument about the development (us economics-oriented folk might say production) of international law. She focuses on the ILC’s Draft Articles on the Responsibility of International Organizations, a measure that some have criticized as premature. The degree of discomfort with the project that IOs have shown, however, might suggest (somewhat paradoxically) that its time has come, if only as a focus of debate. She illustrates the salience of the Draft Articles through the lens of the cholera crisis in Haiti, a matter that the United Nations has handled with all the finesse of a Fortune 500 CEO confronted horrific product liabilities.
Within the terms of her argument, Daugirdas succeeds in establishing her conclusion. The Draft Articles provide a defined and ostensibly neutral set of claims about responsibility and compensation. The absence of clarity in the international legal system about the content of the international law that IOs might violate, thus incurring responsibility, is not an impediment to talking about this. Debates about responsibility can contribute to the definition of primary obligations. Acts of reparation can reinforce the legal, rather than political and moral, nature of the obligation. An important means of inducing potentially responsible actors ‒ IOs ‒ to confront these claims is the impact of their actions on their reputation.
I do not want to push back against any part of Daugirdas’s argument. Rather, I want to use this opportunity to reflect a bit on the value ‒ and limits ‒ of two concepts on which her argument rests. Both transnational discourse and reputation present interesting problems that Daugirdas acknowledges, but understandably does not fully explore. My ultimate goal is to move the goalposts for talking about the processes involved in producing international law.
Transnational discourse. Let me posit that law making and law applying is largely a discursive process involving the manipulation of symbols to achieve verbal communication. In other words, talk matters a lot. This brute fact may frustrate the economically oriented, who usually prefer to look at preferences revealed by actions and may regard discussion as potential disinformation. No competent lawyer, however, can fail to attend carefully to the arguments made in the process of moving towards a legal outcome. Read the rest of this entry…