It has long been recognized by international lawyers of a more or less critical bent that one of the ways international law can be considered useful – regardless of the question whose idea of usefulness it serves – is that is provides a vocabulary for discussing things. Rules on use of force and self-defense may not solve conflicts, but provide a language (and often enough the most relevant language) for discussing the use of force. Rules on international trade may not solve trade conflicts, but help provide the relevant actors with a language in which to discuss whether tuna caught by means of driftnet fishing should be banned from markets or not. And even the rules on state succession, limited and few as they are, help facilitate discussions on what to do once a succession of states occurs.
In this light, Kristina Daugirdas’ main argument is hardly surprising. The point that the ILC’s articles on the responsibility of international organizations will play a role in what she refers to as ‘transnational discourse’ is both well-taken and well-crafted. Indeed, the evidence in support of that proposition is perhaps even stronger than she realizes: both before and after their adoption by the ILC, the articles have been referred to by international and domestic courts, including the European Court of Human Rights. That said, it is perhaps also useful to note that the International Court of Justice managed to avoid making any reference to the ILC articles in two recent decisions where a fleeting reference could have been expected: the 2011 judgment between Fyrom and Greece, and the 2012 advisory opinion on the International Fund for Agricultural Development. Still, on the topic at hand, the ILC’s articles are the main authoritative instrument available, so it stands to reason that participants in transnational discourse make reference to it, and look at the articles for inspiration and guidance, regardless of whether the articles are formally binding or can be said to reflect customary international law.
If her general point is not all that surprising, the more interesting part of Daugirdas’ article resides in the combination she makes of two distinct approaches to the study of international organizations. She draws inspiration both from constructivism (highlighting the relevance of norms) and rational choice theory (assuming actors to be inspired by rationalist motives in the pursuit of their self-interest), and does so to good effect. In itself, this combination too is not entirely novel: Ian Hurd and Ian Johnstone have done something similar in recent years (to name just two examples), and one of the Ur-texts of constructivism, Fritz Kratochwil’s Rules, Norms and Decisions (1989) was to a remarkable (and oft-forgotten) degree also inspired by rationalist insights. That said, in his later work Kratochwil seems to have lost some confidence in that kind of reasoning – or maybe he just lost confidence in some of its practitioners.
Daugirdas works out her theoretical premises by suggesting that one of the reasons why the ILC articles will prove to be of relevance resides in the concern these entities will have for their reputation and their legitimacy. Most of what she writes makes eminent sense, but there are two dangers involved in her conceptualization of legitimacy and reputation.
First, while it is no doubt true that organizations worry about their legitimacy and that a reputation as law-abiding actors will serve them well, nonetheless legitimacy is probably (if it is anything cognizable at all) a multi-faceted phenomenon. The German political scientist Fritz Scharpf has helpfully distinguished, some fifteen years ago, between input legitimacy and output legitimacy. The input legitimacy of actors would depend on such things as democracy, transparency in decision-making, and possibly also their law-abiding nature. Output legitimacy, by contrast, would be derived from the actual work that actors do. The distinction can be captured in the phrase sometimes used to describe Mussolini’s Italy: it may have been a dictatorship, but he made the trains run on time. Italy under Mussolini, on this line of reasoning, enjoyed little input legitimacy, but a decent measure of output legitimacy.
Scharpf further suggested that international organizations (to be sure, he focused mainly on the EU) typically depend, largely, on output legitimacy, if only because few of them are democratic in the sense of allowing for the public at large to be heard. By this standard, the Security Council may well violate human rights when it imposes targeted sanctions, but as long as its sanctions do what they are supposed to do (e.g., prevent terrorist activities), then the Council will nonetheless enjoy a great deal of legitimacy. Likewise, if World Bank-sponsored projects result in economic improvement in a state, then the circumstance that some international standards may have been violated in the process will do little to diminish the Bank’s overall legitimacy: limited input legitimacy will be compensated for by a large degree of output legitimacy.
Perhaps this is more a general reflection on all too easily invoking legitimacy as an important factor than a critique on Daugirdas’ argument, but either way, legitimacy is a complicated notion, and its existence cannot too easily be assumed without further conceptual clarification. By and large I think she is correct on the point at hand – my gripe (if that is what it is) relates to treating it under the heading of legitimacy. Legitimacy would seem too broad, vague and multifaceted to have much analytical traction – it needs to be handled with great care, greater probably than the limited confines of part of a journal article can offer.
There is one further point where Daugirdas is at risk, and this relates mostly to the rationalist strand of her argument. International organizations, she writes, need to be members in good standing of international society ‘because they depend on their member states for their continued existence’ (at 1010). This is no doubt correct as such, but the underlying assumption is worrisome: it assumes a fundamental distinction between the organization and its members, to such an extent that the organization is portrayed (however implicitly) as being able to act in total defiance of its member states. Yet this ignores the presence of those same member states within the organization in the form of the plenary organ, and their role in steering and implementing the organization’s activities.
True enough, there can be a discrepancy between what the plenary organ prescribes and the international civil service manages to accomplish in the field, e.g. when negotiating with a reluctant partner: Verdirame’s excellent 2011 study The UN and Human Rights: Who Guards the Guardians, offers some telling examples. Still, by and large the member states will be implicated in most of the debatable activities of international organizations. This is so partly because the organization comprises the member states, who will usually have the final say, and partly because organizations usually depend on member states for implementation of their decisions. NATO could not have dropped bombs on Belgrade without both the approval of its member states and the participation of those member states’ air power; and the UN could not have sent peacekeepers to Haiti without both the approval of a group of member states (in this case those assembled in the Security Council) and the participation of member state troops and police. In short, while Daugirdas’ distinction between the organization and member states makes some sense, it is too sharp a distinction to do justice to the complicated legal nature of international organizations – and this in turn may have consequences for the potential of rational choice theory in explaining international organizations to begin with.
Still, Daugirdas’ message is well-worth listening to: the ILC’s articles on responsibility of international organizations, warts and all, are destined to play a pivotal role in transnational discourse concerning the activities of international organizations, and thus should not readily be dismissed. And they will do so no matter what and from whatever angle: dismissing the articles out of hand is itself also part of the very same transnational discourse.