4.1 Introduction

Two myths of statehood are foundational to the international system of representation as it is formally constituted. The first is that only States are international actors. The second is that all States are equal and should be treated accordingly. Both are obviously false. Many non-State actors – private organizations of all types, including non-governmental organizations (NGOs) and corporations, and sub-State and super-State governmental entities – clearly act internationally in important ways, leveraging their authority and power, making decisions and entering into agreements of consequence. And obviously as well States are unequal in any number of respects, including their economic wealth, military power, and technological capabilities. Nevertheless, the rules, processes, and institutions of the international system are designed as if these two assumptions and their corollaries were valid, as if States could be counted on to effectively govern their own territories and represent the diversity of their peoples, as if States alone ruled the world, and as if States participated equally in global governance. It is not surprising that a system built by States and for States would mythologize statehood and strictly and all-but-exclusively incorporate State-centric beliefs into its core formal rules, acting as if States are and should be the sole representatives at the international level.

What is true of the international system generally is true in particular of international organizations (IOs). IOs are created by, and composed of, States and, with rare exceptions (particularly the European Union in its areas of competence and employers and workers in organs of the International Labour Organization) only States. And those States are, with very rare exceptions, treated as equals in the founding documents of organizations. It follows that the rules of IOs, again with rare exceptions (such as voting in the Security Council and international financial institutions (IFIs)), put States on an equal footing when it comes to decision-making: one State, one vote, with all members eligible to vote in the organization’s plenary. It follows as well, in this statist framework, that all States should have an equal opportunity to take part in the organization’s activities: to participate and vote in the organization’s main committees, to be elected to non-plenary bodies within the organization, to have its nationals chosen for high-level positions, and to influence the organization’s agenda and policies. Like the primary myths of international representation, these understandings are untrue. Some States and certain NGOs have heightened influence within organizations that belies the statist paradigm. Nonetheless, it is not surprising that IOs, as the creatures of States, adhere to statist myths and so reserve actual decision-making to States, and regional groups composed of States, and purport on the whole to treat States equally.

Though the myths are well-known as myths, and have been since their creation, that does not diminish their strength in the formal systems of IOs. Indeed, it is a testament to the power and resilience of these myths, and to the control that States still retain, and insist on retaining, at the international level, that their evident falsity has not yet led to any significant changes in blackletter international institutional law and its formal mode of representation.

Even so, the myths are problematic if they are strictly adhered to in practice. Systems cannot operate effectively unless they are recognized as authoritative and unless they can achieve their desired results. The absence of non-State representation and democratic legitimacy in IOs undercuts the authority of organizations because it does not permit the incorporation of a broad range of voices. And the notion that all States are equal undercuts the ability of organizations to achieve results as it fails to recognize the role of power in international society. There is thus a gap – an ‘operational gap’ – between the myth world of IOs and the real world in which IOs exist. It is understood by those who work in, with, and around IOs that there need to be ways to bridge this gap if organizations are to succeed and retain legitimacy and authority.

The operational gap inherent in the formal mode of representation can be, and has been, elided in three distinct ways in order to enhance and achieve both the democratic legitimacy and functionality of organizations. One is through informal adaptations in the operation of organizations – the operational mode – that seek to reconcile the needs for authoritativeness, legitimacy, and effectiveness with a formal system that falls short. A second – the aspirational mode of representation – aims to do the same but through changes in the formal and operational modes. A space for advocacy and critique, not a method of representation itself, the aspirational mode is liminal, for success formalizes or operationalizes the reform’s content. And a third – the alternative mode – closes the operational gap by creating substitutes for IOs, such as informal groupings of States and organizations established under national law, that are not bound by the paradigmatic statist myths of the formal international system and, having been freed of those constraints, provide representation, including forms of democratic representation, in ways that are not fully possible within traditional IOs. Including the formal mode, which is the international system’s default, the practice of representation, as it has evolved, encompasses four distinct forms. From the standpoint of democratic legitimacy, the formal and operational modes are generally weak in their current manifestations, as they most often reflect international law’s State-centric assumptions and the influence of power. Those who advocate for greater democratic legitimacy in IOs therefore work most often within the aspirational frame as they attempt to promote and institute reforms.

This chapter reviews the four modes of representation – formal (Section 4.2), operational (Section 4.3), aspirational (Section 4.4), and alternative (Section 4.5). They are separate yet intertwined; they contend with yet depend on each other. Together they form the international system of representation. This is not simply descriptively true. The resort to, and the use of, the four modes is also optimal. All four are necessary, as for any successful system to evolve and maintain equilibrium there needs to be a variety of mechanisms available that allow for the balancing of competing values and the reconciliation of formal rules with the actualities of power and expectations of legitimacy, since alignment will never be perfect.Footnote ¹ Importantly, the four modes allow a range of entry points for democratic legitimacy in the representative practices of IOs, creating the possibility of change going forward (Section 4.6).

4.2 The Formal Mode

The formal mode of representation, with limited exceptions, codifies statist values through rules written into the constitutive treaties and resolutions of IOs and thus represents the greatest challenge to democratic legitimacy.Footnote ²

Representative principles in treaties appear in two ways: (1) in rules regarding the participation of States in decision-making bodies and (2) in rules regarding the election and appointment of individuals to formally non-political bodies, such as secretariats, courts, and expert panels. For the former, the principles largely arrange themselves by subject matter – political organizations, where sovereign equality is mostly paramount, and IFIs, commodities organizations, and similar subject matter specific institutions, where differential responsibilities are highlighted. For the latter, individuals are largely treated equally as to their nationality, but other personal characteristics or qualifications sometimes come into play explicitly, depending on the post.

In the constitutive documents of political organizations, such as the United Nations (UN) and regional institutions like the Organization of American States, the theory of the sovereign equality of States usually dominates. States are considered the electors, each one equal with the other, and all States (or, depending on the position, their individual nominees) are free to run for office. If one reviewed the documents of these organizations, as well as the plenary bodies of many non-political organizations, one would find much evidence to support this representational norm. The UN General Assembly (UNGA), where each Member State has a single vote regardless of the size of its population, territory, military, or economy, is the most obvious example, but there are many others.

Other principles appear in treaty form when the parties strongly agree on their relevance – most often in specialized organizations. For example, under the articles of agreement of IFIs, the members quotas, which are not equally distributed, (roughly) determine the number of votes allocated to each one. International commodities agreements divide votes equally between exporting and importing nations and allocate in the councils of such organizations individual States a subset of votes based upon the volume of their exports or imports. The Montreal Protocol requires that decisions of the Executive Committee of the Multilateral Fund be approved (in the absence of consensus) by two-thirds majorities of both developing and industrial countries.Footnote ³ The Convention on the Intergovernmental Maritime Consultative Organization (now the International Maritime Organization) allocates seats in the Organization’s Council according to the ‘interests’ of its members (for example, international shipping services or seaborne trade),Footnote ⁴ and the Convention on International Civil Aviation sets aside seats in the Council to ‘States of chief importance in air transport’ and States with the ‘largest contribution to the provision of facilities for international civil air navigation’.Footnote ⁵ In the Constitution of the International Labour Organization, ‘members of chief industrial importance’ are given representational preference over other States in the organization’s Governing Body,Footnote ⁶ and the Chemical Weapons Convention allocates seats in the Executive Council by region, designating a certain number for ‘States Parties with the most significant national chemical industry in the region’.Footnote ⁷ Some other agreements, such as the Statute of the International Tribunal of the Law of the Sea, provide regions with minimum representation in certain bodies.Footnote ⁸ Still others encourage, but do not require, electors to ‘give consideration’ to, pay ‘due regard’ to, or ‘bear in mind’ ‘equitable geographic distribution’. In all these organizations, the negotiators of the agreements decided that the representative principle in question (differential responsibilities or regionalism) was essential to the success of the institutions they were building and that the institution itself could not operate unless this principle was incorporated into the organization’s most fundamental document.

Ironically, what all these formal rules have in common is their flexibility. On the surface, they appear rigid – one State, one vote; the allocation of greater power to certain groups of States or regions; the requirement that candidates have certain qualities – but, in fact, these rules are designed as much to allow States to implement, or even avoid, their principles through lower-level decision-making.Footnote ⁹

IOs thus often establish rules regarding representation through resolutions and decisions. These resolutions usually pertain to appointments to other bodies (both subsidiary and coordinate) or to the election of the organization’s officers (such as chairs and presidents of sessions and committees). These rules implement and supplement provisions that appear in constituent documents, filling in their intended gaps and ambiguities.

Resolutions are often used to establish regional representation. Thus, the resolutions of the UNGA rigidly allocate the Assembly’s officers by region, including its presidency, vice presidency, and committee chairs. The General Assembly’s resolutions also divide, by region, positions on subsidiary bodies, funds, and programmes, such as the International Law Commission (ILC), the United Nations Commission on International Trade Law (UNCITRAL), the United Nations Environment Programme (UNEP), the United Nations Children’s Fund (UNICEF), the United Nations Development Programme (UNDP), and the World Food Programme (WFP), as well as positions on other principal UN organs, such as the Security Council and the Economic and Social Council (ECOSOC). ECOSOC resolutions allocate positions by region on its subsidiary bodies, the now defunct Human Rights Commission, the Commission for Social Development, and the Commission on the Status of Women, among others. In the Food and Agriculture Organization (FAO), resolutions distribute council seats by region. The General Conference Rules of Procedure of the United Nations Educational, Scientific and Cultural Organization, divide Member States into groups and give each group a set number of seats on the Executive Board. In the International Criminal Court, a resolution established a requirement that States Parties vote for a minimum number of judicial candidates per region, which number will vary according to judges from the region already sitting or elected.Footnote ¹⁰ A 1994 decision of the Congress of the Universal Postal Union distributed seats in the Council of Administration by region.Footnote ¹¹ And by resolution the States Parties to the UN Convention on the Law of the Sea have allocated seats on the Commission on the Limits of the Continental Shelf and the International Tribunal for the Law of the Sea by region as well.Footnote ¹²

The prevalence of regionalism at this level of decision-making should not surprise. As a representational principle, regionalism has (and has had for some time, particularly since decolonization) a level of legitimacy second only to the notion of sovereign equality. That stems, in part, from regionalism’s guarantee that all (not just some) parts of the world will be represented. But the attractiveness of regionalism results from its effect of decreasing the number of States in the pool for elections and appointments, hence increasing the likelihood of election for States that might not otherwise be able to compete. This dynamic is enhanced by the common practice among regional groups of putting forward agreed slates of candidates that are often based on an informal rotational system among their members. The latter phenomenon points to other features of regionalism: efficiency and compromise. Regionalism ‘reduces the potential for conflict in the selection of Members and gives all groups a more secure sense of representation’.Footnote ¹³ For these reasons, the regionalism principle is relatively easy to adopt in multilateral forums.

Democratic inroads in the formal mode manifest, albeit weakly, through techniques such as observer status that allow the access of non-State actors to IOs without providing them the decision rights accorded to States.Footnote ¹⁴ The UN Charter, for example, authorizes the ‘Economic and Social Council [to] make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence’.Footnote ¹⁵ Accordingly, ECOSOC has established principles for consultative relations, most recently in resolution 1996/31, that outline the criteria for consultative status and the forms of consultation with the Council and its subsidiary organs, including (with some limitations) the ability to propose agenda items, attendance at meetings, written statements, and oral presentations.Footnote ¹⁶ The World Health Organization (WHO) has adopted a ‘Framework of Engagement with Non-State Actors’ that establishes rules for ‘private sector entities’ and ‘international business associations’, and others for ‘nongovernmental organizations’.Footnote ¹⁷ The extent to which such participation can be understood as enhancing the democratic legitimacy of IOs will depend upon how these NGOs are characterized, the access they are provided, and the influence they wield in practice.Footnote ¹⁸

Altogether, the formal mode reflects State-centred international law at its apogee. The limited participation of non-State actors through formal mechanisms demonstrates simultaneously both the recognition of the need for a broader, more democratic representation and the strong impediments that exist for the achievement of that goal.

4.3 The Operational Mode

Formal rules of representation, because they are based on a statist myth, can only rarely recognize the differential power of States and the authority of non-State actors. The operational mode provides informal means that allow IOs to do both – but off the record and only in part. Representational practices in this mode take the form of informal agreements (that give greater say to powerful States), financing mechanisms (that give informal control over IO programmes to wealthy States and private foundations), and consultative processes such as meetings and conferences (that provide voice to non-governmental and sub-State actors).Footnote ¹⁹

Much of international decision-making is done through informal processes, particularly informal agreements, either one-off or long-term. In no area is this more apparent than in the realm of agreements concerning international representation. Because of their unofficial, typically unpublicized, all but hidden, and often evolving nature, such agreements are inherently difficult to identify and ascertain. Unsurprisingly, a search of official records uncovers little, if any, explicit mention of their existence, let alone a comprehensive compilation. But only with an understanding of the entire scope of these informal rules can one comprehend not only international representation as it is currently constructed.

The obvious place to begin an examination of informal agreements concerning representational issues is with IFIs. The most well-known is the agreement between the United States and the Europeans regarding the leadership of the International Monetary Fund (IMF) and the World Bank. But the two flagship IFIs are not alone in allocating posts by custom. The four major regional IFIs exhibit the same pattern of informal delegation of leadership selection to a particular country or countries. Thus, the President of the Asian Development Bank has always been a Japanese national, the presidency of the European Bank for Reconstruction and Development has always alternated between French and German nationals, the President of the Inter-American Development Bank has always been a Latin American national, and the presidency of the African Development Bank has rotated among ‘various [African] linguistic and geographic groups’.Footnote ²⁰ Further, related institutions, such as the Multilateral Investment Guarantee Agency (MIGA), where only Japanese nationals have occupied the highest post, have also informally specified the nationality of their top officials.

Though scholars and the media have focused on the top positions in the IFIs, the allocation of posts goes deeper. For instance, IFI vice presidencies are frequently slotted as well. Adding this layer to the analysis shows that the designation of top posts cannot be seen in isolation – they are often part of a package deal. Thus, while the Managing Director of the IMF is always a European national, the IMF’s First Deputy Managing Director is always a US national, chosen by the United States.

The pattern holds for the regional banks. Here, the designations are usually component parts of informal deals that allocate the top position to one State or group of States from the region the bank serves and the bank’s deputy position or positions to another State or group of States that is located outside the region but contributes significantly to the organization’s coffers. Consistently, whereas the Asian, European, and Inter-American Banks are headed by nationals from their respective regions, a US national has always served as the First Vice President of the European Bank and the Executive Vice President of the Inter-American Bank, and since 1978 has served as a Vice President of the Asian Bank.

US nationals are not the only ones who benefit from these arrangements. In 1983, a third vice presidency was added at the Asian Development Bank so that the Europeans would have a designated senior official there. And in 2003, a fourth vice presidency was added to give the Chinese representation. In the African Development Bank, vice presidencies are allocated informally as well. From the Bank’s founding until 1985, the four vice presidents were distributed regionally within Africa – one to North Africa, one to Anglophone Africa, another to Francophone Africa, and one to Nigeria. In 1986, a fifth vice presidency was added for a non-African.

The patterns of high-level appointments in IFIs demonstrate a series of interlocking agreements, all off the books, that allocate positions among the institutions’ major contributors and the world’s financial powers – the US, the European Union, and Japan. These three take advantage of their positions as levers of influence within the IFIs, often seeking to staff their posts with individuals who previously served in their respective national finance ministries. Thus, for example, the US nationals who have held regional development bank vice presidencies have frequently been former US Government officials, usually from the Department of the Treasury.

The informal allocation of appointments and positions is also prevalent outside the context of the IFIs, particularly in the UN. Among the foremost beneficiaries in the UN are the P-5 – China, France, Russia, the United Kingdom, and the US. By a rule, nowhere codified and only occasionally breached, each of the members of the P-5 (or one of its nationals) can sit on any UN body, if the country so chooses. The only significant exceptions to this ‘P-5 Convention’ were considerable gaps in China’s representation because of the long-running dispute over whether Taiwan or the People’s Republic properly represented China in the UN.

This informal agreement has applied regardless of the nature of the institution or position, courts included. Thus, until recently, with one notable exception, a judge from each P-5 member, except for China, has had, by ‘tradition’ (the word used in a 1956 Department of State memo),Footnote ²¹ on the International Court of Justice (ICJ) since the Court’s inception, even though its Statute does not provide for such preferences. Similarly, each of the P-5 countries continuously had a judge on one of the two ad hoc criminal tribunals, the International Criminal Tribunal for the Former Yugoslavia or the International Criminal Tribunal for Rwanda.

The P-5’s prerogatives extend to other UN bodies as well. All of the P-5 States, again with the exception of China and some other minor, occasional interruptions, have continuously been members of the ECOSOC and its subsidiary bodies, such as the Commission on Human Rights, the Commission on Narcotic Drugs, the Commission on Population and Development, the Committee for Program and Coordination, the Commission on Social Development, the Commission on Sustainable Development, the Commission on the Status of Women, and the Statistical Commission. With few exceptions, they (or their nationals) have also served, when they have chosen to run, on the subsidiary bodies of the General Assembly – such as the Advisory Committee on Administrative and Budgetary Questions and the ILC – as well as on the executive boards and councils of UN Funds and Program – such as UNDP, UNEP, UNICEF, and the United Nations Human Settlements Programme. Furthermore, they have effectively held permanent seats on the councils and boards of UN specialized agencies, such as the FAO, the International Atomic Energy Agency, the International Civil Aviation Organization, the International Maritime Organization, the International Telecommunications Union, the Organization for the Prohibition of Chemical Weapons, and the World Meteorological Organization.

Finally, the P-5’s preferential treatment extends to the top levels of the UN Secretariat. At least one of its nationals from each member of the P-5 has been appointed to the Under-Secretary-General level (the rank just below the Secretary-General and the Deputy Secretary-General) since the founding of the organization. The purpose is evident. As Marrack Goulding, himself a former British Under-Secretary-General, has written, ‘[a] senior UN official nominated by his or her government was … assumed to be in the Secretariat to do that government’s bidding’.Footnote ²² The P-5 Under-Secretaries-General are assigned the most significant portfolios, each one reflecting the country’s particular interests at that moment. From 1992 until 2007, for instance, the US insisted on the post of Under-Secretary-General for Administration and Management, reflecting the US concern with those topics during this period.

The P-5 Convention is far from the only informal rule operating at the UN in the area of representation. Some positions informally rotate by region. For instance, upon Kofi Annan’s resignation, it was widely said that it was ‘Asia’s turn’ to have one of its own as Secretary-General – and so it was. Predictably, a European national – António Guterres – succeeded Secretary-General Ban Ki-moon. UNCITRAL informally rotates positions in the Commission’s bureau among regional groups, and the ILC does the same for its officers. Further, judgeships at the ICJ are informally allocated by region, and even sub-region. Of the ten ICJ seats not set aside for the P-5, two are from the Western European and Other Group (WEOG), one is from the Group of Eastern European States, two are from the Group of Latin American and Caribbean States, three are from the Group of African States (including one from Arab North Africa, one from Francophone sub-Saharan Africa, and one from Anglophone sub-Saharan Africa), and two are from the Group of Asian States. This distribution mimics the formal distribution of the ten non-permanent seats on the Security Council. Regional groups choose their own candidates for ‘their’ seats, when they can agree, sometimes on the basis of region-specific informal agreements that allocate nominations among sub-regional groups.

Other positions are allocated exclusively to a specific region or country. Thus, the UN Legal Counsel (the Under-Secretary-General for Legal Affairs) is always a WEOG national (from a non-P-5 country). The US has been given the top job at UNICEF and the WFP (since the early 1990s) and the second-ranking job at the FAO. Since the 1970s, Japan, a major funder of the UN, has held a permanent slot at the Under-Secretary-General level and a judgeship on the ICJ for its nationals.

In addition to informal agreements, which privilege powerful States, the operational mode manifests in two other ways: in budgeting practices and informal consultation processes. When an organization depends on voluntary contributions, either for its general budget or for the support of specific programmes, the organization becomes particularly dependent on its donors. And with their contributions, donors expect to exert influence on the operation of the organization. Organizations themselves – and other Member States of the organization – understand this and provide donors with an outsized influence on the organization’s operation. Sometimes, in the case of restricted contributions, this is recognized explicitly by the contracts entered into by organizations and their donors that establish reporting and monitoring frameworks. Sometimes it is done implicitly by giving donors special privileges within the organization.

Organizations that primarily rely on voluntary contributions therefore no longer act as true multilateral institutions with collective principals but rather in significant respects as the delegated agents of multiple principals. In this form of funding, the ‘IO agent is guided by and held accountable through its bilateral relationships with individual donors, rather than through a single relationship with the intergovernmental body’.Footnote ²³ Though the assessed contribution regime is not perfectly multilateral because of the greater sway of high-contributing States, in comparison the funding of IOs through voluntary contributions significantly decreases the role of collective decision-making on the critical issues that pertain to budgetary matters, including the size of the budget, burden sharing among Member States, the organization’s priorities, and its accountability.Footnote ²⁴ Depending on the type of voluntary contribution (restricted or unrestricted), some or all of those issues will be determined not by the organization’s collective principal but by the aggregation of decentralized choices made by individual donors, including non-State actors such as the Bill & Melinda Gates Foundation. Effectively and informally, then, wealthy states and non-profit organizations control IO decision-making through their ability to control the funding of IO budgets.

The operational mode also manifests in informal influence arrangements. As an example, cities, networks of cities, and groups of networks have convened on the margins or sidelines of intergovernmental meetings and diplomatic conferences hosted by IOs, and mayors have testified at committees before and during negotiations. These efforts have had influence. In 2015, the Global Taskforce of Local and Regional Governments, together with others, worked with sympathetic States to ensure the inclusion of Goal 11 Sustainable Cities and Communities in the Sustainable Development Goals.Footnote ²⁵ That same year, city networks were crucial in the run-up to the Paris Agreement and also had influence in the creation of the Sendai Framework for Disaster Risk Reduction 2015–2030. As part of the Habitat III process that generated the New Urban Agenda in 2016, the Global Taskforce advocated through the production of policy papers, the organization of informal hearings for the benefit of the Habitat III Secretariat and the Bureau of the Preparatory Committee, and the coordination of the second World Assembly of Local and Regional Governments.Footnote ²⁶ The New Urban Agenda’s Quito Declaration on Sustainable Cities and Human Settlements for All ‘acknowledge[d] … the contributions of subnational and local governments, in the definition of the New Urban Agenda and [took] note of the second World Assembly of Local and Regional Governments’.Footnote ²⁷ And the Quito Implementation Plan for the New Urban Agenda ‘note[d] the importance of continuing to engage in the follow-up to and review of the New Urban Agenda with subnational and local government associations represented at the World Assembly of Local and Regional Governments’.Footnote ²⁸ Following Quito, the 9th Global Conference on Health Promotion, held in Shanghai, included a Mayors Forum in recognition of the role mayors in urban health. Over 100 mayors adopted the Shanghai Consensus on Healthy Cities. Subsequently, cities had similar influence in the creation of the Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees.

Policy communication between cities and IOs also takes place in forms and spaces specifically designed for that purpose. IOs have organized conferences, such as the World Urban Forum, for the exchange of information and perspectives with representatives of cities and city networks, and IOs have entered into memoranda of understanding and partnership agreements. Since 2014, the Global Partnership for Effective Development Co-operation, a ‘multi-stakeholder vehicle for driving development effectiveness’ that IOs participate in, has included a representative of local governments on its steering committee.Footnote ²⁹ The Global Forum on Migration and Development (GFMD), an intergovernmental venue that works closely with the UN and the International Organization for Migration, has a Mayors Mechanism, which ‘is a means to formalize the relationship between the government-led GFMD process and the local authorities’ and ‘establishes a platform to interact with States … [and] aims to add depth to the GFMD deliberations by bridging existing divides between local realities and global policy discussions, and between migrants, civil society, and States’.Footnote ³⁰ Similarly, local authorities, as a ‘major group’, are provided significant participatory rights in the High-Level Political Forum on Sustainable Development and previously in the Forum’s predecessor, the Commission on Sustainable Development. IOs participate in or have strong links to these dialogic processes where cities have some form of participation.

This is not to exaggerate the role of cities in IOs, which varies significantly by organization and topic, but those in the know appreciate how and when the system works, how it differs from the official narrative (the formal mode), and where the fault lines are located. It is a silent compromise among those involved.

The operational mode works to enhance the influence of powerful actors – States and NGOs – and incorporate the voices of the less influential and those that are not recognized as formal participants at the international level, like cities. There are thus democratic aspects to the operational mode and antidemocratic characteristics in the mode’s current practice.

4.4 The Aspirational Mode

The operational mode incorporates and gives priority to voices and policies that are not countenanced by formal rules of IOs. In the aspirational mode, States, IO officials, politicians, activists, and scholars advocate for changes in the formal and operational modes. The aspirational mode is thus reformist in nature, though it can be revolutionary as well. Either way, it is necessarily a technique of advocacy, not of governance. It is an attempt to change the status quo, its rules and techniques. If successful, the results will be incorporated into the formal and operational modes. Its content, thus, can be transitory.

Contemporarily, broad calls for ‘democratic representation within international organizations’ dominate the aspirational mode,Footnote ³¹ as do more narrow proposals to change IMF quota formulas and decision-making rulesFootnote ³² and ‘calls for merit-based, open and transparent … selection process[es]’ for high-level IO staff appointments, such as the World Bank president.Footnote ³³ These critiques of the formal and operational modes of representation seek to change the rules to bring IOs more in line with the representational principles of democratic legitimacy propounded by their advocates.

In this way, the aspirational mode operates outside of the rules of IOs as they are currently constituted, though its policies can be advocated both inside and outside organizations by their supporters. The aspirational mode, therefore, is a position from which to reform IOs. It serves, in this way, as a great value for organizations, since it provides an opportunity to think through, suggest, and lobby for change and improvement. IOs need to maintain their democratic legitimacy, and therefore organizations require reformers to push for change. The aspirational mode serves that function by providing a space for bringing IOs into line with new and evolving expectations.

4.5 The Alternative Mode

The aspirational mode can lead to changes in IOs and their formal or operational modes, but sometimes the desired change will not be possible or will not occur soon enough. Under these circumstances, actors may resort to alternatives to IOs as a means of allowing representational practices that the formal and operational modes do not permit. In the alternative mode, States and non-State actors establish either groups or NGOs that are not constituted within international law’s formalist framework, thereby allowing them to create representational systems that are not available under current international law.

Perhaps the best examples of IO alternatives are the Global Fund to Fight AIDS, Tuberculosis and Malaria and Gavi, the Vaccine Alliance, both organized under Swiss domestic law. The Global Fund’s board includes twenty voting and eight non-voting members.Footnote ³⁴ Of the voting members, seven represent developing countries (with regional distribution among them), eight represent donors, and five represent civil society and the private sector (including one person living with HIV/AIDS or from a community living with tuberculosis or malaria). The non-voting members represent additional constituencies or Fund officials (the Board Chair and Vice-Chair, the Executive Director). Similarly, the Gavi Alliance board is divided into ‘Representative Board Members’ (representatives from partner institutions and stakeholders, including permanent seats for UNICEF, WHO, the World Bank, and the Bill & Melinda Gates Foundation) and ‘Unaffiliated Board Members’ (individuals appointed in their personal capacity on the basis of their skills and networks).Footnote ³⁵ Both organizations are established as foundations under the Swiss Civil Code and are provided a significant degree of independence that they generally would not have under most countries’ domestic law. Further, under its Host State Act, and previously under other domestic authority, Switzerland has entered into headquarters agreements with both organizations because they ‘carry[] out tasks which are normally the responsibility of those intergovernmental organizations, international institutions or States; [and] play[] a key role in an important area of international relations’.Footnote ³⁶ Such agreements grant them privileges and immunities, including tax exemptions, distinct from those that would otherwise apply under Swiss law.Footnote ³⁷ Other States have also provided privileges and immunities to the Global Fund by amending their domestic lawFootnote ³⁸ or entering into a multilateral privileges and immunities treaty for their benefit.Footnote ³⁹ Effectively, these States have recognized these NGOs (foundations) as IOs.

Groups, like the G7 and G20, are another alternative to IOs. These meetings allow States to meet together and with representatives of IOs, such as the African Union, the European Union, the IMF, and the Word Bank. Recently, for example, the heads of the IMF, World Bank Group, Organisation for Economic Co-operation and Development, and Financial Stability Board met with the G7 finance ministers and central bank governors.Footnote ⁴⁰ In September 2023, the African Union was made a permanent member of the G20.Footnote ⁴¹ These types of State-IO interactions would generally be difficult within the formal confines of IOs.

The alternative mode provides opportunities for the representational assumptions of the formal mode to be bypassed. It is not a perfect solution to the challenge of democratic legitimacy, however. There is nothing inherent in the alternative mode that leads to that outcome. The alternative mode is used primarily by States when it is convenient for them to do so: when States find that they want to operate outside of the formal and operational modes because those modes do not allow them to achieve their desired goals. The alternative mode therefore is an opportunity to achieve democratic legitimacy, but as with change to the other modes, there must be political commitment and an openness to innovative thinking to realize that goal.

4.6 A Second-Best System of Representation and Democratic Legitimacy

Each of the four modes of representation reflects different inclinations: the positivist, the functionalist, the principled, and the practical. The positivist prefers the formal mode; the functionalist employs the operational mode; the principled advocates through the aspirational mode; and the practical looks to the alternative mode. All four have their advantages, and all four have their limits.

Where an actor (a State, a sub-State actor, an NGO, a corporation) falls along the representational spectrum will depend on particular circumstances, not who they are. For some issues, a State will act within the formal and operational modes, while at other times and for other issues they will use the alternative mode. Similarly, an NGO may be satisfied with the formal mode in some instances but resort to the alternative mode in other situations. Many actors thus work in multiple modes simultaneously, often doubling up with the aspirational mode as they operate within established rules and attempt to reform them at the same time. The four modes are different techniques of representation, used by participants to achieve desired goals within the State-centric framework of international law and IOs.

From the perspective of minimum public order, the co-existence of all four is essential. Each mode does separate work. Together, they allow for change and provide processes to achieve an equilibrium among competing values.Footnote ⁴² Within the statist paradigm that defines the international system, a system of multiple modes of representation is thus not only descriptively accurate, it is also necessary because of the challenge of democratic legitimacy that is most prominently manifested in the aspirational mode. Optimally, the formal system would fully adapt to that challenge. But there are limits to the formal system’s ability to change because of the unwillingness of certain actors to accede to that change. In the meantime, there need to be methods and spaces to advocate and implement change. The international representational system of the four modes is thus second best. Yet, second best is better than any of the possible alternatives while the process of change slowly proceeds.