First off, I’d like to express my sincere gratitude for the care and thoughtfulness with which Professors Tom Dannenbaum, Jan Klabbers, and Paul Stephan have engaged my article. Before turning to their individual commentaries, I want to briefly address one common theme in their remarks: that the link between IO legitimacy and IO reputation for compliance with international law can be quite complicated.
That’s absolutely right; after all, compliance with international law is only one facet of IOs’ legitimacy. Other facets include the morality of IOs’ actions (or omissions), IOs’ effectiveness in achieving the purposes for which they were created, and—especially in the context of technocratic organizations—their scientific and technical expertise.
In this article, I focused on compliance with international law because I was seeking to explain why the IO Responsibility Articles will have important practical consequences. That required explaining why IOs and their member states would pay attention to claims made in transnational discourse about IOs’ international obligations and possible violations. I argued that IOs would heed such discourse because it could threaten their reputations for complying with international law, and IOs have even more reasons than states do to cultivate those reputations. IOs that flout international law risk being perceived as illegitimate, and IOs that are perceived to be illegitimate will be less effective—and will face more obstacles to securing both financial support and cooperation from their member states.
I completely agree, however, that a fuller account of when and why IOs and their member states will be motivated to comply with international law would have to wrestle with the other facets of IO legitimacy—and especially the way they might be in tension with one another.
Paul Stephan’s Commentary
Paul aptly observes that compliance with international law is not the only metric along which IOs should be evaluated. A compliant organization may still be ineffective. Consider the criticism that has been heaped on the WHO for its handling of the Ebola crisis; although there have been real failures, none involved violations of international law.
Paul also identifies an aspect of states’ multidimensional reputations that merits more attention. In addition to having reputations for complying with international law, he notes that states have reputations for being more (or less) willing to engage in cooperative projects. Paul argues that states’ reputations for cooperativeness may be more consequential than their reputations for complying with international law.
It’s interesting to consider just how this facet of states’ reputations might carry over to IOs. The translation from states to IOs is not quite direct. IOs are established by states in order to achieve particular purposes, and have limited authorities that are tailored towards achieving those goals. These limited authorities can make it harder to assess whether an IO is in fact being uncooperative. Consider the ongoing debates about whether the World Bank should take human rights into account in its lending decisions—and the extent to which it can do so consistent with its charter, which provides that the Bank “shall not interfere in the political affairs of any member.” Is the World Bank being “uncooperative” by declining to give human rights a prominent role in its lending decisions? I’m genuinely unsure.
Tom Dannenbaum’s Commentary
Tom’s commentary raises an important question: won’t the importance of compliance with international law vary among IOs? He suggests, in particular, that complying with international law might be less important to IOs that are perceived as legitimate for other reasons—because they are advancing a moral cause, standing up for particular values, or reflecting the interests of a subset of states.
My tentative view is that IOs with limited membership do have less reason to be concerned about their reputations in the international community as a whole. After all, they depend on only a fraction of that community for their continued existence.
That said, it’s probably still true that IOs with limited membership will be more influential if they maintain a reputation for complying with international law. Consider the 1998 decision by the Organization of African Unity to stop complying with the Security Council sanctions imposed on Libya in the wake of the bombing of Pan Am 103 over Lockerbie, Scotland. The OAU explained the decision as “owing to the fact that the [referenced] resolutions violate Article 27 paragraph 33, Article 33 and Article 36 paragraph 3 of the United Nations Charter.” As Antonios Tzanakopoulos has pointed out, the OAU’s decision can thus be seen as a lawful countermeasure. Tom is right that United Nations hadn’t violated clear legal obligations in adopting sanctions against Libya. But the OAU’s legal arguments provided something of a fig leaf for its decision, thereby blunting the force of objections that might have been raised to it and making it easier for other states to follow the OAU’s lead.
Jan Klabbers’s Commentary
Jan also highlights alternative sources of IO legitimacy, and draws on Fritz Scharpf’s work to distinguish between input legitimacy (whether IOs go about their business in a way that is transparent, democratic, and in compliance with international law) and output legitimacy (whether IOs succeed in serving the purposes for which they were created). Tension between input legitimacy and output legitimacy can certainly exist. Indeed, this tension might explain why the United Nations responded to the Haiti cholera response in the way that it did. The most charitable explanation I can come up with is that the United Nations worried that, by compensating individual cholera victims in Haiti, it would set a precedent that would make risky but important projects of all kinds harder to undertake. In particular, peacekeeping could become more expensive and therefore less common. And the end result could be a net loss for the United Nations’ primary mission of maintaining international peace and security. Perhaps the United Nations deliberately privileged output legitimacy over input legitimacy.
Jan also expressed some concern that I drew too sharp a distinction between IOs and their member states when I wrote that IOs need to be members of the international community in good standing because they depend on their member states for their continued existence. I should have been clearer that I did not intend to suggest a fundamental distinction between IOs and their member states. Member states play dual roles with respect to IOs. They are “outsiders” who establish IOs, decide how generously to fund them, assign specific tasks to IO secretariats, and choose whether to implement IO decisions. At the same time, member states are “insiders” who collectively make decisions in the name of the organization through organs like the UN General Assembly or Security Council. In my view, it’s not only IO secretariats that will consider how their decisions will be perceived by the membership as a whole. States acting as insiders also have reason to worry about the way that decisions made by the requisite majorities or supermajorities of states will be perceived by the membership as a whole. That’s why, for example, the Security Council went to the trouble of finding more than 100 co-sponsors to support a recent resolution on foreign terrorist fighters. This broad support helped to insulate the Security Council from charges that it was exceeding its Chapter VII authorities by responding to a generic problem (“terrorism in all forms and manifestations”); it also increased the likelihood that the Security Council’s decisions would be implemented on the ground.
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Once again I’d like to express my sincere appreciation to the authors of the commentaries, and to EJIL Talk! for hosting such a stimulating discussion.