Is an international organisation’s (IO’s) compliance with international law essential to its legitimacy? And, even when a link between compliance and legitimacy obtains, is member state cooperation with the organisation contingent on its legitimacy? Might the answer to either of these questions vary systematically by organisational type?
In a rich and important contribution to understanding the dynamics of a relatively young area of international law, Professor Kristina Daugirdas offers a transnational legal discourse framework to understand why IOs comply with international law and the vital role that the Draft Articles on the Responsibility of International Organizations (DARIO) can play in that process. She supplements this with a granular, compelling account of the theory in action in the transnational struggle to hold the UN to account for the cholera epidemic in Haiti.
As I understand it, Kristina’s account of the IO accountability process (exemplified by the Haiti case) goes something like this:
- The legitimacy of an IO depends on its compliance with its international legal obligations.
- By bringing clarity and specificity, the DARIO expand the quality and quantity of transnational legal discourse on IO responsibility, catalyze clarity on the primary obligations of IOs, and therefore tighten the link between IO compliance and legitimacy.
- The legitimacy of an IO is essential to the IO’s success in generating the cooperation and support of its member states.
- IOs will act so as to ensure that cooperation and support.
- In light of (1)-(4), the DARIO can sharpen and enhance IOs’ incentives to comply with and uphold both the primary and secondary rules of international law.
My comments focus on step (1) – the tie between legality and legitimacy, and step (3) – the claim that from IO legitimacy, member state cooperation follows. Both are crucial to Kristina’s theory and to her assertion that IOs are likely “even more sensitive” to transnational discourse than are states. However, I suspect that IOs may vary considerably in the degree to which they conform to either step. Understanding that variance and what explains these relationships when they do obtain is essential to grasping the scope of the theory and its implications for the role of the DARIO.
Legitimacy and Legality
Consider first the link between legal compliance and IO legitimacy. Kristina is no doubt correct that the legitimacy of some IOs in some contexts is primarily a function of their compliance with international law. But I’m not sure that this is a general truth. To understand the power of Kristina’s theory, we need a fuller account of the link between legality and legitimacy – an account that tells us when compliance is likely to prove crucial in generating IO legitimacy, and when it is unlikely to make a difference.
Famously, the Goldstone Commission deemed NATO’s Kosovo intervention an “illegal but morally legitimate” war. On one level, the intervention’s putative legitimacy was tied primarily to the moral values it served. However, there is also a widely held view that the legitimacy of illegal wars of this kind can be bolstered by IO endorsement. (See, e.g., ICISS report, paras 6.28-6.35). If that’s true, it indicates that IOs not only derive legitimacy from sources alternative to legal compliance, but that those alternative sources are sufficiently powerful to confer legitimacy on illegal action.
If not compliance, then what is driving legitimacy in such scenarios? In the context of humanitarian intervention, IO legitimacy might come from a number of sources. For one thing, IOs dilute individual state influence and, especially when the procedural hurdles for action are high, they create a check that an ad hoc coalition of convenience cannot. In some cases, they share core interests with the target state, making their endorsement of military action against it especially morally significant. In the first scenario, the IO’s legitimacy is rooted in its structure and decision-making procedures. In the second, those factors are supplemented by the IO’s authority to speak for the people affected. Either can override the legitimacy conferred by international law compliance.
In some cases, IOs may even gain legitimacy from acting illegally. The EU may have reaped precisely such a benefit from its judicial organ’s willingness to stand up to the Security Council in the various iterations of the Kadi case. In light of article 103 of the UN Charter, it is difficult to that the Security Council obligation on EU member states did not override any competing obligations. Moreover, even though the EU is not itself a UN member state, a key contribution of the DARIO is to preclude states from using IOs to avoid their own international obligations (DARIO art 61). And yet Kadi was celebrated in many quarters and may well have contributed to the organisation’s legitimacy.
Similar examples obtain elsewhere. Kristina herself raises the Organisation of African Unity’s resolution against compliance with the Security Council’s Lockerbie sanctions regime. However, where she concludes acting illegitimately harmed the UN, I’m not sure that this is the relevant implication. The UN may well have acted illegitimately in that case, but it is hard to argue it violated clear legal obligations. The OAU, on the other hand, may have gained legitimacy – at least internally – precisely by placing certain fundamental values above its members’ overriding international legal obligation to comply with the Security Council resolution. The African Union’s 2009 resolution declining to comply with the ICC’s arrest warrant for Omar al-Bashir is arguably yet another case of an IO’s internal legitimacy trading on its willingness to stand up to international law obligations. Although the AU couched its position in article 98 of the Rome Statute, it overrode the ICC’s authority to interpret the text and demand compliance.
In the context of Kadi-type cases, the IO’s legitimacy could arise from its consistency of commitment to certain fundamental values, from its representative or democratic credentials, or simply from a collective judgment that the values it instantiates in the moment are morally superior, even if legally inferior, to those against which it stands firm.
Whatever the alternative legitimacy source, the worry is that these alternative sources of legitimacy are likely to be systematically dominant over international law compliance, at least in certain kinds of IO. The UN’s legitimacy may be especially sensitive to compliance in light of its connection to the governance and development of general international law, but it is less obvious that this would hold true for other IOs, whose legitimacy may be tied more to concerns about internal fairness or democratic deficits.
It may also be that there is an informal normative hierarchy in the background here, whereby certain kinds of international law violation (such as human rights violations) are more likely to impact an IO’s legitimacy than are others. In providing a general account of DARIO’s likely impact on IO responsibility, we should think carefully about the contingency of step (1) in the argument.
Member State Cooperation
Second, even when a link between legal compliance and organisational legitimacy obtains, the member state cooperation is not obviously driven by IO legitimacy. Again, this is likely to vary not just across specific situations, but systematically across different kinds of IOs.
Oversimplifying, some IOs are primarily tools for the coordination of allied states’ interests, others provide a global governance function, others facilitate deep regional integration, and still others are used for the pursuit of certain fundamental values. These different postures are likely to correlate with different sources of legitimacy, but they are also likely to determine whether legitimacy is the key factor in generating internal cooperation.
The UN is a global institution that is, at least putatively, structured to facilitate global governance rooted in general international law, rather than to serve the interests of a subset of states, pursue a narrow range of values, or facilitate integration. However, the notion that even UN authority over member states depends on compliance with the secondary rules of IO responsibility is far from obvious. Many member states have benefitted from the organisation’s simultaneous assertions of UN responsibility for peacekeepers and UN immunity from suit. The Dutch government’s submissions in various strands of Srebrenica litigation exemplified the appeal to states of this evasive one-two punch by the IO.
But, even granting the claim that UN authority over members is contingent on a legitimacy rooted in international law compliance, is the same necessarily likely to be true of NATO, the Economic Community of West African States, the EU, or the Organization of American States? Why would we expect member state cooperation to be rooted primarily in IO legitimacy in those cases?
NATO, for example, is primarily the agent of its members, rather than an institution of global governance. Whether member states cooperate and support the organisation is most likely a function of its efficacy in realizing their security and other interests, whether or not that entails violating international law or ignoring its reparative responsibilities. Indeed, if NATO could achieve that security outcome while diluting or blocking member state responsibility for collateral wrongs arising in the process, that may be a boon for the members who would otherwise bear those wrongs more directly.
The EU is more functionally complex than is NATO. It integrates politically, it facilitates economic benefits, and it advances certain shared values. Whether it generates internal cooperation and support is likely down to whether it performs these functions fairly and effectively, realizing the outcomes that its members desire. When it fails on those dimensions, its authority wanes. This, it seems, is likely true irrespective of whether the EU is in compliance with general international law. This is not to say the EU is immune from the effects of transnational discourse when it violates international law. However, if violating international law is a collateral consequence of pursuing its core functions, member states may be grateful that the IO shields them from the more direct infliction of those discourse costs and could well be more disposed to cooperate with it than they are deterred from doing so.
Ultimately, in identifying where and when we are likely to see the kind of chain of events that Kristina traces in Haiti, we need to be aware of the contingencies of that process. The cholera crisis involved a high-profile wrong that proved fruitful in mobilising a political response, an issue on which IO non-compliance with international law harmed IO legitimacy, and an organisation whose capacity to generate member state cooperation and support is plausibly rooted at least in part in its general legitimacy. To understand the impact of the DARIO, we need to know what determines when these factors align and what function the Draft Articles can play when they don’t.