‘Extend the sphere …’
14.1 Introduction
International organizations (IOs), in the sense here of interstate organizations, stand out amid the madding crowd of international institutions.Footnote 1 They are formed at the will of States, possibly in competition with existing IOs, and personify the collectivity of the Member States.Footnote 2 Their autonomy is recognized and protected de jure, although de facto it is only relative insofar as they remain dependent on their Member States institutionally (decision-making power rests with Member States in their principal organs), functionally (their powers do not usually extend to the enforcement of their acts and policies), and financially (their own resources being limited). In other words, IOs have a separate existence from their Member States, but Member States have rights collectively over them and individually within them (rights of representation, voting rights, participation in the procedure for amending the constituent instrument, etc.) as well as obligations towards them.
As public bodies of a special kind, IOs remain essential components of internationalized governance despite the surge in informal modes of cooperation that compete with or subordinate them. Neither their ‘antiquity’ nor the degree of formalization of their activities spare IOs from criticism. On the contrary, they are reputed to suffer from a deficit of legitimacy or democratic legitimacy, which supposedly reflects poorly on their Member States – and on internationalized governance as a whole. Delegitimization ‘by ricochet’ results from the fact that the exercise of State power and the conduct of public policy are ‘embedded’Footnote 3 in internationalized governance and depend, in varying extents, on ex ante or ex post prescriptions from IOs, which are channelled through a wide range of instruments; with the transfer of power to IOs that lack mechanisms of representation or participation of peoples equivalent to those found in democratic States,Footnote 4 democratic legitimacy is supposedly diluted in the internationalization of the exercise of power. This widely shared diagnosis needs to be addressed before proposals for institutional reform are considered.
14.1.1 A Look Back at the Crisis of IO Legitimacy
The recurring theme, in legal doctrine, of the deficit or crisis of legitimacy of IOsFootnote 5 calls for certain clarifications and nuances to unveil possible biases.
While normative legitimacy cannot readily be disentangled from the sociological legitimacy of institutions,Footnote 6 a first bias – of approximation (or exaggeration) – is detectable in the perception by scholars of a widespread crisis of legitimacy of IOs. When subjected to closer scrutiny, sociological surveys show that the crisis of confidence in or legitimacy of IOs is not as deep-rooted as is suggested;Footnote 7 it could have its roots far from the institutional structures of IOs, in the degree of intersubjective trust that prevails in a society,Footnote 8 or in IOs’ incapacity to tackle the concrete problems facing populations; and, finally, it does not generate a particularly strong demand for the democratization of IOs,Footnote 9 at least in the sense of the institution or ‘re-institution of IOs’Footnote 10 by the people or peoples they supposedly represent or of making IOs more representative of Member States and infra-State constituencies.
Dramatization can also result from the evaluation of IOs’ legitimacy deficit in terms of normative standards that are not firmly enshrined in positive law, even though they may be there in outline. This is particularly true of the lack of democratic legitimacy attributed to IOs. This grievance is all the more serious given that the real power of IOs, understood here in the Foucauldian sense of their capacity to exert an action on the actions of others, far exceeds their formal power (IOs’ power to prescribe and condition public policies exceeds, for example, the decision-making power attributed to them by their constituent treaty). While a principle subjecting IOs to a requirement of direct or even indirect democratic legitimization would contain an obvious promise of emancipation for peoples and individuals in relation to the inter-statism still prevalent in international society, its existence in positive law remains dubious. Even if the principle of democratic legitimacy could be invoked against their members, which is far from certain, most IOs have been deliberately instituted and have persevered in being on the basis of an exclusively governmental representation of States – and, through them only, of peoples – without regard to the democratic form of State government. This could correspond to a lex specialis.
Focusing on the legitimacy of IOs considered in isolation is another possible bias. Since IOs rarely have the full power to adopt, impose, and implement norms (or policies), the legitimacy of this whole process can only vary with two factors: the balance achieved between international and national bodies and the interplay of the principles of legitimacy operating within the IO and in the Member States. A growing ‘democratic discontinuity’Footnote 11 can undoubtedly be observed between the real seat of decision-making, shifted outside the State, increasingly distant from its original consent and less and less controlled by the people or their elected representatives, and the space of democratic legitimization of power, enclosed within States. This is not to say that the State should be idealized as the ultimate instance of true democratic legitimization. On the one hand, national decision-making procedures, unless specially prescribed (e.g. in the form of an obligation to carry out an impact assessment), are not designed to take into consideration the voices of other States and populations affected by instruments or public policy subject to validation by the people or their representatives. Conversely, the detour via IOs and submission to majority rule in IOs have the advantage of forcing, to a certain extent, national bodies to take into consideration points of view other than strictly national interests or the interests of the most powerful groups at national level.Footnote 12 On the other hand, while certain questions of general interest can be decided within the framework of the Nation-State, and while certain interdependencies are reversible, others are irreducible, notably in environmental and economic matters (barring a sudden disruption in globalization). The leeway that the people or their representatives give themselves is sometimes illusory, and reactions to unreasonable displays of unilateralism (perhaps legitimized by the command of a majority) are often entirely for form. For these reasons, the relevant scale for constructing and assessing processes of political legitimization is probably neither that of the State alone, nor that of IOs alone, but either that, on a meso-scale, of the whole formed by an (or several) IOs and its (their) members, or that, on a micro-scale, of ‘transverse institutional arrangements’ which associate organs of one or more IOs and organs of Member States in the processes of drawing up and enforcing norms (or policies).Footnote 13
Finally, beyond the original and therefore distant legitimization of the IO by the consent of the Member States and debatable legitimization by the output (i.e. legitimization that ignores the political principles of the founding and framing of power), the legitimacy deficit may arise from the discrepancy between the purpose for which the IO is set up and its results, or between its stated goals and the interpretation of its mandate by intergovernmental bodies (set up according to principles that do not, or no longer, provide sufficient legitimacy). Leaving aside the risk of projecting onto IOs values, expectations, or ends that are those of the observer rather than of the members or constituencies underpinning the IO, political reform of IOs for the purpose of re-legitimizing these bodies should indeed envisage the revision of their goals, functions, competences, and powers, the determination of the normative constraints weighing on them in view of their nature (notably in terms of the protection of human rights), as well as the redefinition of the conditions under which public affairs (or questions of international public interest) are brought up for discussion, the related instruments deliberated upon, adopted, and monitored, and their authors held to account. Disregarding a critical discussion of IOs’ future purposes and obligations is nothing more than a convenient fiction in this academic exercise.
Under the benefit of this delineation, it appears that legal doctrine, whether or not it tends towards a radical critique of the current IO model, relates their legitimacy deficit to several of their institutional features:
(1) unequal representation of Member States: the strictly egalitarian representation of States does not, in itself, ensure that less powerful States make their voices effectively heard in IOs; the differentiation of representation rights in IOs (in the form of privileges such as a permanent seat with a veto, or a weighting of votes, or eligibility criteria in restricted bodies) feeds the suspicion that IOs are designed to prolong relations of domination: ultimately, the distortion between, on the one hand, the relatively fixed distribution of seats and votes and, on the other, the current redistribution of power or competences in the international system reproduces and amplifies inequalities rooted in the experience of colonization;
(2) the ‘disordered plurality’Footnote 14 that has governed participation in standard-setting processes in IOs since the 1990s: the attempt to make IOs more ‘democratic’ or ‘inclusive’ promotes a degree of blurring between the formal prerogatives of IO bodies (intergovernmental or otherwise) and the power conquered by non-State actorsFootnote 15 (NSAs) over certain decision-making processes; conversely, although NSAs are most often confined to the margins of bodies and selected on the basis of ill-defined or dysfunctional procedures or principles, their presence, according to certain institutional and doctrinal discourses, (re-)legitimizes IOs’ action;
(3) the monopolization of power within the institution by government representatives or by experts lacking representative status;
(4) the preference for a logic of depoliticization of the issues brought before the IO, to the detriment of a logic of confrontation pitting States and, possibly, social groups against each other.Footnote 16
Ultimately, the cumulative effect of these discrepancies would be to widen the gap between the degree of power that certain IOs can exercise over their members and over the living conditions of populations or private individuals, and the legitimacy of that power.
14.1.2 A Look Back at Some Responses to the Legitimacy Deficit Through the Democratization of IOs
In response, a number of internationalists have come up with ambitious ideas on the updating of constitutionalist approaches to IOs,Footnote 17 the advent of a ‘cosmopolitical transition law’Footnote 18 or the transformation of IOs into democratic institutions.Footnote 19 Whether idealistic or explanatory or ‘non-ideal’ theories, these proposals are centred on the principle of equality among States, peoples, or individuals (depending on the perspective) and on the right to equal participation and consideration of all those who are or could be affected by the exercise of power by these institutions. In a ‘non-ideal’ theory of ‘international democratic representation’, Samantha Besson argues that IOs must be ‘re-instituted’ as representatives of peoples, without, however, ousting either States or their representatives. Without waiting for this constitutive moment, the potential of a ‘multiple representation system’ dominated by the principle of democratic legitimacy should be explored in and through IOs.Footnote 20
While lacking the space here to enter into the detailed discussion that these proposals deserve, it is worth pausing to consider the idea that IOs are subject, or subjectable, to the principle of democratic legitimacy. However alive democracy may be as a practice or an experience,Footnote 21 however flexible the concept, in the current state of international law, this principle can only be found, unadulterated, in IOs that follow the model of the club of States or pursue an integration project, provided that their Member States all share the same conception of democracy and make it a condition of (initial or ongoing) participation in the IO.Footnote 22 It remains alien to the institutions with a universal vocation (hereafter: universal IOs) on which our attention will focus.Footnote 23
Three considerations drawn from the current state of law and institutions underpin this objection. First, the principle of democratic legitimacy is, at best, emerging in international law at the universal level, and suffers from profound divergences as to what constitutes democracy.Footnote 24 Second, its transposition into the sphere of universal IOs can accommodate neither the omnipresence of the State, interposed before peoples, communities, and individuals, nor the presence, in numbers, of non-democratic States.Footnote 25 Third, the regime of universal IOs is the product of a ‘mix of egalitarian and hierarchical arrangements’:Footnote 26 equality among States is a founding fiction that makes it possible to institutionalize inequalities among members (and therefore among peoples or individuals); thus, this regime is a hybrid of unequal representation by States and participation by NSAs, that may be viewed as ‘drowned’ in a multitude of processes and statuses. Unequal representation or participation is thus embedded, to varying degrees, in the very structure of IOs.Footnote 27 But after all, it may be said, no political form is set in stone, and it is conceivable that IOs could mutate: from interstate bodies instituted with a view to fulfilling a mandate conferred by States, they could become democratic or cosmopolitical bodies forging decisions in the general interest at the universal level; in a less radical variant of the mutation, they could serve as vectors for a more democratic representation of peoples and individuals.Footnote 28
But a ‘non-ideal’ theory of international democratic representation would then come up against another set of objections, this time drawn from the contemporary political context. Unless we project ourselves towards the utopia of a new kind of IO constituted without or against States, the balance of power and the political mindsets of States are decisive, since institutional reforms and, a fortiori, a redesign or refoundation of IOs presuppose, in one way or another, an agreement among States. However, the current political climate does not seem conducive to the deployment of democratization of IOs or democratic representation in and by IOs.Footnote 29 On the one hand, the beneficiaries of the current institutional arrangements, including some of the most democratic StatesFootnote 30 (sometimes exposed to a phenomenon of democratic backsliding), are a priori more interested in fine-tuning than in the complete dismantling of these arrangements.Footnote 31 On the other hand, the challenge to the established institutional order is not led only by States in a position of institutional inferiority or of dependence on IOs, all supposedly eager to continue ‘opening up’ the IOs until they are fully democratized. It is also vigorously opposed by openly ‘illiberal’ States (to use an all-encompassing category), whose project is to confine IOs to the representation and protection of States alone, as sovereigns over their territory. The lack of consensus and the paradoxical distribution of votes on a series of United Nations General Assembly (UNGA) resolutions on a Democratic and Equitable International Order (DEIO) reveal the depth of divisions in international society over the very notion of democracy and the desirability of transposing it into the international institutional system.Footnote 32 While the DEIO is pledged to ‘[t]he right to equitable participation of all, without any discrimination, in domestic and global decision-making’,Footnote 33 some fifty Western and allied States are opposed to it, while the sponsors of the latest resolution (2022) are drawn from among the most illiberal and authoritarian States, including Russia and China, which are engaged in a coordinated effort to subvert concepts borrowed from Western liberal-inspired political rhetoric and redefine the modalities of multilateralism, in a more oligarchic than democratic sense.Footnote 34 To attempt to rush this momentum by formulating reform proposals based entirely on democracy is to run the risk of devitalizing or subverting the concept in the international political arena, or even of creating a formidable ‘paradox of consequences’ (M. Weber).Footnote 35 Indeed, IOs have once again become an arena for ideological confrontations over the foundations and limits of power: States taking political control of them, either as a result of a shift in power, or as a result of a redistribution of seats and votes dictated by the imperative of true equality between States, peoples, or individuals, will be able to impose their conception of ‘international democracy’ on fragile or hesitant States, and protect themselves against the assertion of a universal and robust principle of democratic legitimacy.
For all these reasons, ‘democratic representation’ seems to have no explanatory power for the current structure and operation of IOs (which bring together States and NSAs) and a weak justificatory value for upcoming political reforms of universal IOs. Nothing in this observation precludes reflection on the hypothetical conditions for potential or ideal political models that would transcend national frameworks to guarantee public participation whenever issues of international or transnational interest are at stake. There may even be an urgent need to do so,Footnote 36 given the widening gap between existing political models – including representative democracy – and the challenges we face, particularly environmental ones. But if, in the current context, reflection tends towards the prescription of remedies to the legitimacy deficit of existing universal IOs,Footnote 37 it cannot follow the path of ‘democratization’ of IOs that remain interstate, largely open to non-democratic States, and permeable to manipulations of the idea of democracy.
14.1.3 Searching for an Alternative Route
The alternative approach proposed here takes as its starting point today’s universal IOs and the under-exploited potential of positive international law, while remaining guided by the necessity to preserve the basic conditions and virtues of democracy in the State.Footnote 38 This requires some degree of methodological and political cautiousness. As a preliminary, no-harm rules can be formulated. The first principle is that IO reform should be designed in such a way that IOs do not become, on the pretext of equal representation (of States, peoples, individuals), the crucible of a political project to annihilate the democratic legitimization of power or of organized resistance either to the crystallization of a general principle of democratic legitimacy in a national or international framework or to a more inclusive deliberation within IOs. The second principle, which is also negative, is that the political reform of IOs should not prejudice the regime of political entities that have a democratic regime or are converting to one, since the democratic dynamic can only be expressed, for the time being, within a national or integrative framework (with the limits pointed out in this chapter). In addition, since we must start from what already exists, one fact stands out: universal IOs do not make their Member States’ participation conditional on the existence of an unequivocally defined democratic regime. This absence of democratic conditionality is obviously the sine qua non for maintaining a framework conducive to the indispensable cooperation among, potentially, all States, from the least to the most democratic, that we hold to be indispensable.
Building thereon, we propose to define, positively, principles of political reform of IOs that do not relate their legitimacy either solely to the consent initially given by the State, or to a hypothetical democratic representation in and by IOs. This reflection is rooted in the matrix of IOs: multilateralism. Whatever the degree of concordance between States’ political values, multilateralism on a universal scale is defined and justified as a principle articulated to values, a method of cooperation, and a space for apprehending objects from a multitude of sides. In this way, these objects become truly common and can, if need be, give rise to common questions and answers.Footnote 39
However, and this is what this contribution will focus on, as States and their representatives are not in a position on their own to identify objects that transcend their interests and go beyond their borders, the space of international deliberation needs to be restructured to accommodate, in bodies that have yet to be created for the most part, voices other than those of States, in a way that makes it possible to clearly identify the share of each voice in an enlarged, pluralist multilateral deliberation. In concrete terms, the challenge is to identify why, and under what conditions, new subsidiary bodies should and could contribute to:
(1) improving the quality of deliberation within IOs, by ensuring that voices other than those of States or a few ‘stakeholders’ are heard;
(2) creating fora for coordinated discussion of projects (instruments and actions) or of the track record of IOs with related, complementary or overlapping skills (better deliberation among IOs);
(3) or promoting accountability (better deliberation about IOs).
‘Reinvigorating multilateralism’, ‘constructing international public space’ within the IOs themselves,Footnote 40 this is the contribution that can be expected, on a theoretical level, from a ‘reconceptualization’ of the IO’s functions (Section 14.2) and, on a more practical level, from the creation of new subsidiary bodies with consultative functions alongside intergovernmental bodies, welcoming participants from civil society and others (referred to here as NSAs) (Section 14.3).
14.2 Arguments for a Pluralist Approach to Deliberation within IOs
The review of the functions of IOs allows us to identify both a metafunction (deliberation) and an organizing principle (pluralism) that can serve as guidelines for a political reform of universal IOs. When the question of representation and representativeness resurfaces, it does so in a secondary role and without the ballast of a democratic requirement that cannot be transposed to this type of IO as it stands.
14.2.1 Rethinking the Functions of IOs and Their Reform
Much has been written in international law on the limits of a functionalist approach to IOs, weakened by ‘blind spots’ (the rights of third parties and human rights) and tainted by biases inherent in the principle-agent theory, the fictitious nature of their political neutrality, or the fragmentation of competences.Footnote 41 Our intent here is not to fuel a plethoric doctrinal debate that has helped to renew our understanding of IOs, and to reevaluate ‘functional necessity’. However, the relevance of these criticisms does not render the notion of function useless in understanding IOs, since they remain institutions established for certain purposes or with a view to the fulfilment of certain functions which the Member States agree to exercise in common or through them, or to consider as falling solely within the remit of an IO.Footnote 42 Goals, functions, competences, and attributed powers can be said to form together the mandate of the IO.Footnote 43 If we are willing to accept this constitutive feature of existing IOs, legitimization through functions remains inherent in them. This is not to say, of course, that it is or should be exclusive of any other principle of legitimacy, nor that it is never misused. On the contrary, it can only be maintained under certain conditions.
However diverse universal IOs may be, unless they have strictly operational or jurisdictional functions, they are invested with ‘metafunctions’ that override their respective mandates. The historical metafunction of this type of IO is undoubtedly to provide a framework for the coexistence of States that are always likely to compete for power, influence, and control over space and resources, a framework that relatively pacifies their relations, at the cost of inequalities in member representation (notably to keep the most powerful States in the institutional system). But there are other metafunctions which today constitute the ultimate raison d’être of universal IOs:
(1) opening up spaces for confrontation and deliberation;Footnote 44
(2) defending universalizable values translated into universal legal principles and common interests;
(3) understanding complex interdependencies that transcend national borders;
(4) contemplating the long-term, since they are disconnected from national political fluctuations which are not themselves synchronous;
(5) and, perhaps, taking into account planetary boundaries.Footnote 45
The ‘forum’ function is the ‘only utility that is not contested (at least in the plenary bodies)’.Footnote 46
To put it more succinctly, the ultimate function of universal IOs is to constitute the perennial framework for inter- and transnational deliberation on common objects defined by a space, a temporality, and constraints that do not coincide with the coordinates of deliberation in any other public institution at State or sub-State level.
14.2.2 Rethinking the Functional Legitimacy of IOs Based on Their ‘Deliberation’ Metafunction
‘Deliberation’ might seem at odds with the mundane understanding of States’ interplay in/through IOs, supposedly based on bargaining (under threat sometimes) and negotiating. Negotiation is defined, negatively, as ‘neither the result of an aggregate of individual choices (like voting), nor that of a single decision taken by a hierarchical authority’Footnote 47 and, positively, as a mode of ‘joint decision-making’ among parties who, having divergent interests, seek a mutually acceptable solution.Footnote 48 By contrast, deliberation is ‘[e]xamining, weighing up all the elements of a question with other people, or possibly oneself, before making a decision, in order to reach a conclusion’.Footnote 49 Deliberation, then, may or may not lead to the unilateral adoption of an act, which may or may not be legally binding, depending on the features of the law-making, evaluation, or control procedure considered. On closer scrutiny, IOs are indeed the seat of deliberation and voting, both of them permeated by transactions.
It remains to be explained how the concept of deliberation can be transposed to IO theory without contradicting the assertion that democracy is not a relevant concept for universal IOs. It is true that, in political theory, deliberation has often been closely associated with democracy, right up to the construction of a model of ‘deliberative democracy’ according to which ‘the norm is legitimate only if it is based on public reasons resulting from an inclusive and equitable deliberative process in which all citizens can participate and in which they are led to cooperate freely’.Footnote 50 Yet, deliberation is not a concept captive to that of democracy, and the conditions for good or better deliberation do not necessarily exclude all forms of transaction – not even in a deliberative theory of democracy. Deliberation can also be articulated with ‘non-deliberative procedures’, such as voting. A more comprehensive approach envisions that participants might have both the common good and their ‘self-interests’ in sight, that they might resort to ‘non-coercive forms of negotiation’ and, ultimately, that lingering divergences might usher in the ‘clarification’ and ‘structuring’ of conflict instead of consensus.Footnote 51 Conceived of as an alternative to ideal ‘deliberative democracy’, this expanded conception of democratic deliberation can in fact be transposed to non-democratic universal IOs. After all, general principles binding members of IOs are not so remote from the prerequisites for ‘mutual justification’ as to be the ‘central task’ of deliberation between citizens: ‘mutual respect, equality, reciprocity, mutual justification, the search for fairness, and the absence of coercive power’.Footnote 52 What is more, IO members have no less interest in arguing than in bargaining.Footnote 53
Finally, decisions by IOs (even if not unanimous) can be considered legitimate through the combination of the legitimacy derived from the State’s initial consent, from the IO’s metafunction (deliberation) and specific functions, from the respect for its particular mandate (subject to evolving interpretation), and ultimately from the fairness of the deliberative process.
14.2.3 Rethinking Pluralism in IOs Beyond the Requirement for Democratic Representation
When one focuses on democratic representation in IOs, a series of a priori requirements, in particular equality of participation in decision-making bodies and procedures, or representativeness, are to be imposed on the constitution of IO bodies. But when the purpose is to define the conditions for good or better deliberation in IOs, the yardstick to determine which voices should have which share – given that different perspectives should be confronted but that each is imbued with a potential bias towards unilateralism – is to be found in their metafunctions and specific functions. These conditions prefigure and configure the exercise of each IO’s own mandate.
Several avenues can be explored, simultaneously or not, to (re)create or maintain a space for interstate and transnational deliberation that is as open as possible, and therefore pluralist, enabling the settlement of public affairs and the assumption of functions of international public interest (within the mandate of each IO).
Hence, the rebalancing of State representation within IOs. While this is impossible to justify in terms of democratic requirements,Footnote 54 it can be done, classically, by updating the representation of the collectivity of Member States, per se (egalitarian or specular representation) or with regard to the functions of the IO (a potentially differentiated representation) or, in the perspective defended here, with regard to the need for pluralization of the voices heard in IOs. Institutional arrangements are available, such as the enlargement of restricted bodies to currently under-represented States, the rotation of seats on restricted bodies, or the maintenance of the ‘one State one vote’ rule in combination with complex decision-making rules that protect all members against automatic majorities or institutionalized unilateralism, and force Member States, to either compromise or display outright opposition. The IO’s capacity to take decisions may suffer as a result, but this is the price to pay if the greatest number of States are to retain a genuine interest in international cooperation. In order to re-establish a certain continuity in the legitimization of the power shared between States and IOs, the participation of people’s representatives, designated within a national framework, in the definition of positions taken by the Member States in the IO and in the adoption of IO instruments may involve the systematic inclusion of parliamentarians in national delegations, or the creation of (inter)parliamentary bodies.Footnote 55 This will not result in democratizing decision-making in IOs since not all representatives of the people will be freely appointed. Nonetheless, deliberation in IOs could thus be more pluralistic.
The expansion of multilateral deliberation should not, however, benefit only Member States and their parliaments. Indeed, universal IOs are already marked by the strong presence of NSAs. It was enough for Member States to support or tolerate the opening up of universal IOs to entities other than themselves for multiparty ‘representation’ or participation to take root. It is not ‘democratic’ (despite the institutional rhetoric) but could gain in legitimacy and legitimizing force if justified and adjusted to the requirements of better deliberation. This presence should be amplified, but rationalized, for reasons of principle: the object of deliberation in IOs cannot be apprehended solely through the confrontation or a sum of statist points of view because States are themselves subject to limitations arising from their difficulty in projecting themselves into the long-term,Footnote 56 in apprehending the negative cross-border externalities of public policies,Footnote 57 and, even in the most democratic States, in hearing the plurality of all relevant voices on a subject.
Deliberation institutionalized in the IO can and must therefore in abstracto accommodate persons with a representative mandate associated with IO membership, but also experts (subject to robust and controlled rules of independence) without a representative mandate,Footnote 58 as well as persons giving voice either to natural entities (with or without legal personality) or making their point of view heard or to groups that find no satisfactory political expression in any State (e.g. refugees or migrants), to peoples without a (universally recognized) State, to marginalized groups, and so on.Footnote 59 Deliberation can also be enriched by the ad hoc direct participation of particularly interested categories of people, in the form of petitions or ‘pure’ or hybridFootnote 60 transnational citizens’ conventions. In fact, deliberation can be adapted, according to the functional specificities of each IO in terms of designating the categories of subjects, interests, or perspectives that are granted an institutional role and/or status, and defining the procedural rights of each. The proposal to transform universal IOs from fora in which a ‘polylateral diplomacy’ with multiple channels or voices already unfoldsFootnote 61 into restructured and structuring spaces for inter- and transnational deliberation is clearly liberal in inspiration: a quest for greater inclusivity and greater rationality in the product of deliberation is at stake.Footnote 62
Focusing on IOs, a good or better deliberation will be one that:
(1) may lead to varying degrees of change in positions initially defined from a necessarily one-sided perspective or on the basis of partial information;
(2) will lead, at best, to a reasoned outcome, taking the form of a majority decision or no decision at all, or at least to a ‘reasonable dissensus’;Footnote 63
(3) affords comparison between the final outcome and the particular positions of each party at each stage, on the one hand, and between the arguments exchanged, on the other.
The concrete determination of the parameters of this space for deliberation takes place by descending from the level of the metafunction to the functions and powers of the IO and the bodies designated to carry them out.
14.3 Arguments for a Renewed Institutional Model
Historically, pluralism in deliberation within IOs has been fostered by two main models: the inclusion in State delegations of representatives of non-State interests, as with tripartism at the International Labour Organization (ILO), the extension of which would presuppose a revision of the constituent instruments of IOs; the proliferation of official participation by NSAs in the work or activities but not as members of IO bodies. This participation itself follows two main patterns: the ‘social participation model’, which enables them to be involved without voting power in the work and debates of an IO body (sometimes at the cost of their own identity or their power to contest); the ‘partnership model’, which associates NSAs with the implementation of IO policies, making them IO’s auxiliaries.Footnote 64 The permanent movement maintained by NSAs masks the limits of these models: the efficiency of NSAs involvement in the work of intergovernmental bodies can be low;Footnote 65 the legibility, then contestability, of the game played by these actors and their contributions are cumbersome; the non- or under-representation of the most vulnerable populations, future generations, and natural entities persists.Footnote 66 Various biases (capture by profit-seeking actors, instrumentalization by States, over-representation of Western perspectives, categorization of actors, etc.) are likely to distort both the deliberation itself, and the public’s perception of it. A third model, sometimes referred to as the ‘stakeholder model’, is currently being tested with the Committee on World Food Security (CFS) which, in 2009, became a de facto multi-stakeholder bodyFootnote 67 bringing together voting members (States), participants (including NSAs that take part in deliberations but not in voting), and observers. Two mechanisms, one for the civil society sector and the other for the private sector, coordinate the preparation of these groups’ contributions to the CFS, with the support of the Food and Agriculture Organization (FAO). A disagreement of a sector with the CFS can occasionally be formalized either on the substance or on the procedure followed.Footnote 68 The model is innovative but not yet taken up elsewhere.
It may sound more promising to limit NSAs participation in IO deliberations to outside bodies or on the basis of informal arrangements, in order to avoid State blockages or promote bottom-up IO reform. On the contrary, there are a number of reasons for renewing the institutional model and structure of universal IOs. First, consideration for the many facets of the issues addressed by IOs should be permanently regulated by institutional law rather than decided on a case-by-case basis by intergovernmental bodies, according to the interests of the moment. Moreover, the involvement of NSAs must be controllable, notably by the public. Finally, the integration of NSAs into the IO’s own institutional structure could make it possible to limit the effects of exclusion (or over-representation) and reduce the control exercised either by intergovernmental bodies or by the IO’s administrative bodies over ‘authorized’ NSAs. This proposal may seem paradoxical, given that any further institutionalization of NSAs’ roles in the deliberation process would ultimately depend on the consent of the Member States. This does not mean, however, that the definition of new spheres of deliberation within the IO, and the designation of eligible actors, should be left to them in detail. Indeed, if we accept that IOs are ‘spaces of struggle’ more or less ‘detached from the mandates given by States’Footnote 69 and that NSAs are already active protagonists, the operation cannot be envisaged without the active participation of the latter.
14.3.1 Reshaping the Institutional Architecture
Institutional architecture follows basic patterns that spread by isomorphism. The dominant, strictly intergovernmental models are still so powerful that the International Renewable Energy Agency (IRENA) was set up in 2009 without a body designed to accommodate NSAs, despite the sensitivity of its field of competence to actors engaged in the ecological transition.Footnote 70 However, the functioning of IOs already depends on the possibility granted to actors other than members to participate in the deliberation process (with the rights that are those of an observer, for example) and on the creation of additional, so-called subsidiary bodies. These bodies may themselves be intergovernmental, but they can also accommodate people with no representative mandate, as is the case with expert bodies. In this way, they offer a particularly interesting institutional format for remedying, in part, the growing dissociation between the purpose of IOs, which is no longer strictly interstate, and their structure, dominated by intergovernmental bodies with a contested balance.
Designed for one, two, or more of the IO’s intergovernmental bodies, and open to actors other than States or IOs (grouped here under the generic name of NSAs) to enhance their deliberation, consultative bodies would be distinct from multi-stakeholder fora, networks, or platforms set up by an IO with the explicit aim of helping it fulfil one of its prime objectives, under the control of the integrated administrative body.Footnote 71 Functionally, they would be closer to certain recurring multi-stakeholder fora which, like the Youth Forum of the Economic and Social Council (ECOSOC), can lead to NSAs adopting their own positions.Footnote 72 Their institutional status, however, would be that of IO bodies with attributions formally articulated to those of the main bodies.Footnote 73 This is an essential point. The UN Permanent Forum on Indigenous Issues created by the ECOSOC in 2000 as a subsidiary organ with representatives of indigenous peoples sitting in their personal capacity as ‘independent experts’ could inspire further practice.Footnote 74
14.3.1.1 Creation of New Subsidiary versus External Bodies
A first method – the creation of new subsidiary bodies – makes it possible to include the expression of non-strictly State interests or perspectives in the IO’s institutional structure. A second method – the creation of a body external to the IO – facilitates contributions from NSAs and makes them more visible, without formally integrating them into the IO. The risk is that this may encourage the creation of an autonomous sphere of deliberation with no knock-on effect on deliberation within intergovernmental bodies. In practice, however, as the experience of the Council of Europe shows, the links can be quasi-organic between the interstate structure and the ‘external’ body.Footnote 75
The most complete scheme is probably to combine the institution of a new subsidiary consultative body open to NSAs and IO support for fora that enable NSAs to structure themselves, in order to determine common positions and designate participants for deliberation within the subsidiary body.
14.3.1.2 Creation of New Consultative Bodies: Closer Scrutiny
The institutional architecture of IOs can easily be expanded to include, alongside the main bodies (or only the intergovernmental, main or subsidiary bodies),Footnote 76 new subsidiary bodies resulting from secondary legislation adopted by one, two, or even more bodies of the IO. Created, reformed, or abolished by a simple act of secondary legislation, they are part of the necessary but equivocal ‘transformism’ of the IO.Footnote 77 These bodies may even be common to two IOs (as in the case of the Codex Alimentarius, common to the FAO and World Health Organization (WHO)). This process is commonplace in IO lawFootnote 78 but the main intergovernmental bodies’ creativity is limited by certain rules. Needless to say, subsidiary bodies are subject to various forms of pressure from the main organ if the balance of power allows.Footnote 79
The power to create subsidiary bodies is often provided for in the constitution, either generally or for the benefit of certain IO bodies. Otherwise, the theory of implied powers can justify their creation on the fundamental proviso that they are necessary for the fulfilment of the functions of the IO and the principal organ, as interpreted in the light of generally accepted IO practice.
The second condition for a main organ to be able to appoint one or more subsidiary bodies without dispute is that the former does not delegate to the latter the exercise of powers that the constituent instrument would require it to exercise itself. This does not prevent the main body from creating, for the performance of its own functions, a body with a composition quite different from its own and appropriate to the exercise of the powers assigned to it. This may include, if necessary, a body of experts, or even a jurisdictional body whose acts the intergovernmental body cannot reverse, and which it could not have adopted itself. Apart from this very special case, ‘not a complete delegation by which the principal organs would be definitively divested, but rather a kind of provisional and precarious delegation, the exercise of the delegated powers being subject to a permanent right of revision by the principal organ’.Footnote 80 The main bodies would probably not be able to share with or delegate to subsidiary bodies the power to decide on matters falling within their own prerogatives and subject to the voting rules defined by the constituent instrument (unless the composition and operating rules of the body reproduces those of the main body, or allows a reversion to them). In other words, the power to adopt binding secondary legislation could not be delegated to a subsidiary body made up of non-State delegates. At a minimum, if such an instrument were adopted by a majority of the main organ, its own regularity could be challenged. If not, it is possible that, in time, such an innovation should become accepted practice, but it is more likely that, fairly quickly, there will be Member States of the main intergovernmental body to propose reversing the acts of the subsidiary body, notwithstanding the terms of the institutive resolution, and a (qualified) majority to follow them.Footnote 81 As the law and practice stand, the main intergovernmental bodies can associate themselves with subsidiary bodies intended to exercise, under their control, a power of recommendation or decision, or with bodies whose opinion they would merely consult, it being up to the main organs to draw the consequences from this in the exercise of their own normative power. In this way, the IO and its members would retain political responsibility for their actions and decisions. Still, implied powers may develop overtime.
14.3.1.3 Expected Functional Benefits
In theory, institutionalizing the participation of NSAs in the deliberations of the IO offers a series of advantages compared to contemporary practice, from the increased legibility of debates to the production of either common positions or statements of disagreement, not to mention the (at least partial) control of the agenda by the members of the subsidiary body, or the possibility of hearing whistle-blowers or independent experts, or receiving petitions.
For NSAs, the creation of such bodies would represent a substantial enhancement of their institutional status. They are currently confined to a variable consultative status with intergovernmental bodies that may have no decision-making powersFootnote 82 or to sitting in a council attached to the integrated administrative body with sometimes very vague remits.Footnote 83 Instead of or in addition to these positions, they could join subsidiary bodies set up under the main bodies (possibly the ones endowed with extensive normative powers) and intended to enlarge the sphere of deliberation within the IO. The public at large would be able to follow these deliberations, within the limits of the body’s attributions, and enjoy ready access to the minutes and the output of their work.
From the point of view of the operation of IOs, where decision-making power remains with intergovernmental bodies, a fourfold contribution could be expected.
First, they could contribute to improving deliberation in intergovernmental bodies, provided that a series of procedural rules, under IO secondary legislation, rigorously articulate the different circles of deliberation. These rules could provide for the possibility or obligation for the main organ (or another organ) to refer a request for an opinion to the subsidiary organ, which would then be incorporated into the material for its own deliberation, or for the subsidiary organ to request the inclusion of a recommendation on the principal organ’s agenda and the right to obtain a response, or even an obligation for the principal organ to decide on an opinion or recommendation presented by the subsidiary organ (while retaining its freedom of decision). A modification of the main body’s rules of procedure would be necessary for these purposes, which raises no legal difficulty as long as they are compatible with the provisions of the constituent treaty and do not undermine its normative power (see above, Section 14.1.1). The public could thus understand more clearly which proposals or opinions emanating from NSAs sitting on the subsidiary body have been opposed, successfully or unsuccessfully, by (certain) States within the main body, or which divisions have prevented the adoption of an opinion or recommendation within the subsidiary body.
Second, these subsidiary consultative bodies could contribute to enriching the deliberations of national legal systems, taking into account the interests of other populations or expertise without equivalent in the State, provided that these consultative bodies include delegations of national parliamentarians (in necessarily limited numbers) or are duly articulated with (inter)parliamentary bodies, or see their opinions transmitted to national parliaments for discussion.
Third, these bodies could deliberate on the operation or achievements of the international organization or, as the case may be, of one of its bodies. There is nothing, other than political reluctance, to prevent endowing a subsidiary consultative body with the power to open a debate and, possibly, formulate an opinion on the achievements or future orientations of the IO or one of its bodies – in conjunction, where appropriate, with an interparliamentary body and after having heard from the heads of integrated bodies, presidents, or members of the office of the presidency of intergovernmental bodies. Going a step further, the consultative body could be empowered to organize annual Q&A sessions with the presidency of the principal body. More or less formalized practices already involve NSAs in exchanges with candidates for the position of head of the secretariat in certain IOs, or with the secretariat on the IO’s achievements and prospects. They could be institutionalized. The value of this power of control obviously depends in part on the composition of the advisory body.
Fourth, these bodies could contribute to better coordination between IOs through deliberation. It is widely acknowledged that there is a division of competences between universal IOs, with no formal hierarchy and no satisfactory coordination, thus opening up the possibility for those IOs with the greatest real power, because of their dispute settlement system or the financing capacities made available to their Member States, to ignore, thwart, or ruin the mandate of other IOs. The consultative subsidiary bodies envisaged here could contribute to confronting the Member States of these IOs with contradictions between IO mandates or in the positions taken by their representatives of the same State in different IOs, a fortiori if the subsidiary bodies were common to two IOs.
No sphere falling within the competence of an IO can be excluded a priori from the benefits expected from an extended deliberation on the pretext that it would be either too political, or too technical: the objects of deliberation in IOs always ultimately concern human communities. It is likely, however, that the creation of subsidiary consultative bodies cannot be generalized to all intergovernmental bodies, or even in every IO. In some cases, the strict delimitation of these bodies’ mandates, excluding them from expressing opinions on specific situations (of States or other subjects), will be the condition for their political acceptability. In other cases, it might prove impossible to mobilize people capable of voicing the plurality of non-State perspectives in multiple fora imposing a timetable and a certain formalism. But in any case, the possibility for NSAs to act on the margins of the bodies or from the outside on the IO’s work should be preserved. This is a sine qua non if the institutionalization of their contribution to deliberation is not to become a pretext for re-closing interstate organizations in on themselves.
14.3.2 Participation of Non-State Actors in Consultative Subsidiary Bodies
Defining rules for participation is key for adequately enlarging and improving deliberation within IOs.
14.3.2.1 Homogeneous or Multiparty Bodies
Given that the aim is neither to guarantee the perfect representativeness of the IO (by piercing the screen of the collectivity of Member States), nor to democratize its operation, but to improve the conditions of deliberation, the rules governing the composition of the new subsidiary bodies can be guided, primarily, by a concern to redress the biases in interstate deliberation that would be identified as the most detrimental to the fulfilment of the IO’s mandate, or, to put it positively, to ensure that voices are distinctly heard, the consideration of which would enable the IO to best fulfil its primary functions.
There are two main options:
(1) to give precedence to one class of interests or non-State perspectives that would otherwise be marginalized or would necessarily have to be heard by the intergovernmental body, or;
(2) to bring together diverse interests and perspectives.
These bodies can therefore be of homogeneous or multiparty composition, with many variations.
In theory at least, and depending on the IO’s functions, it is conceivable that the consultative subsidiary body could only accommodate people whose mandate would be either to make the voice of populations from the South heard, if they are the ultimate recipients (with interests or expectations that may vary) of the instruments, projects, or policies under discussion, or to highlight the stakes, for a natural entity or ecosystem, of the discussions underway. In practice, for reasons relating to the need to invigorate the feeling of international solidarity, the desire to organize the confrontation of radically antagonistic points of view, or the positions already acquired with IOs by many NSAs who will become players in the creation of such bodies,Footnote 84 multiparty bodies should often be preferred.
This formula could see the coexistence of State representatives who volunteer or are designated for this purpose by an intergovernmental body (and/or State representatives designated for this purpose by national parliaments and/or representatives of local and regional authorities) with NSA delegates. Alternatively, a multiparty body could host solely delegates from civil society or the private for-profit sector and/or persons in charge of the interests of natural entities and/or persons designated for their scientific expertise and/or representatives of non-State or transnational communities (indigenous peoples, refugees, women, etc.).
The choice of a combination will depend both on the functions of the IO and of the subsidiary body, and on a balance being struck between the interest of multiplying perspectives and the constraints inherent in the time available for debate within an IO. The aim could be for instance to bring together different types of expertise (e.g. scientific and citizen), or to make the voice of future generations heard, by bringing together scientists working on planetary boundaries and representatives of younger generations, and so on.
14.3.2.2 NSA Eligibility and Appointment Methods: The Role of Self-organization
The definition of eligibility criteria is a sensitive issue. Functionalist logic, in relation to the deliberative function of IOs, provides arguments for excluding a priori interest classes that are already over-represented or benefit from other channels for making their voices heard. Here, we are of course thinking primarily of multinational corporations, or even non-profit players who already occupy a dominant position, such as certain foundations. Whatever the choice made in this respect, structuring the participation of NSAs in subsidiary consultative bodies could aim for the reproduction of civil society in all its diversity, the due representation of all those affected by or subject to the IO (or the most affected, the most directly subject, etc.),Footnote 85 the confrontation between representatives of different pre-identified classes of interests, or the presence of different perspectives, irreducible to homogeneous and pre-identifiable interests. The introduction of thematic or regional quotas,Footnote 86 could be envisaged, if necessary to make heard the voices that State representatives fail to convey and that a given IO needs to hear to fulfil its functions.
Formally, it is up to the main body to adopt the by-laws of its subsidiary bodies, and to lay down the rules governing their composition. Once the main principles of eligibility (which are also necessarily principles of exclusion) have been laid down, there is nothing to prevent the body from making room for the self-organization of NSAs called upon to sit on it in one capacity or another.Footnote 87 In so doing, it would reduce the well-known risk of accreditation procedures being used to discipline NSAs, either as a group or one by one, or to admit organizations that are no more than a front for States. By opting to grant NSAs relative freedom in the modalities and the choice of those among them who will sit on the consultative body, the IO would give an additional chance to a transnational political space to structure itself – in line with the objectives it pursues. This experiment is already underway with the nine major groups identified since 1992 in the United Nations system for their contribution to the theme of sustainable development.Footnote 88 By design, the freedom given to NSAs should be exercised within the limits set by the statutes and under the ultimate control of the main body, according to the modalities it has itself defined in the exercise of its power of self-organization.
14.3.2.3 Institutional Status and Statutory Protection
These subsidiary advisory bodies will need premises, administrative support, interpreters, and so on, but also funds to facilitate the participation of some NSAs. The financing of bodies whose creation falls within the scope of the IO’s activities is based on the organization’s budget. It is not hard to imagine that some Member States might object to financing via compulsory contributions, and argue for financing at least part of the costs through voluntary contributions. All considerations of IO budgetary law aside, the latter type of funding entails obvious risks of bias and instability, and should be rigorously supervised. The quality of the work produced by these bodies will depend, in part, on the amount of funding they receive from the IO budget. It is a safe bet that the managerial logic at work in IOs, sometimes used as a front for political reluctance or resistance, will impose limits on sessions, speaking time, and so on, here as elsewhere. Preserving them is a matter of balance of power.
The status of members of the consultative subsidiary body is another delicate issue. Unlike observers or beneficiaries of consultative status, who act at their own expense (except in the case of financial support from the IO for certain categories of them), under their own responsibility and with very limited privileges, the members of these consultative bodies would sit on them in the interests of the organization lato sensu, to enable it to perform its functions to the best of its ability. As members of an IO body without being members of the organization, contributing to the exercise of its functions without being its agents, they could benefit from a status inspired by that of independent experts mandated by the IO. All their mission expenses could then be covered by the IO which would not be held responsible for their actions, since they would act for the IO without its acting through them. Finally, they would have to be granted privileges (e.g. access to the territory of the host State of the advisory body) and immunities: immunity from arrest for the duration of the mission; immunity from jurisdiction for acts and writings carried out in the context of their participation in the work of this body.Footnote 89 This guarantee would be essential to the freedom of expression of the members of these bodies, itself indispensable to improving deliberation in the IO. Taking functionalist logic to its logical conclusion, this immunity would have to be made systematically enforceable against States of nationality and residence. The context of democratic backsliding and resurgent authoritarianism that forms the backdrop to these proposals obviously argues in favour of greater protection for the members of the consultative body, and therefore, of its role.
14.4 Conclusion
The proposed approach is modest, as it does not presuppose the search for agreement between States on a concept of democracy, which could ultimately be weakened: it simply involves going back to the primordial function of institutionalized multilateralism, and adding to the intergovernmental bodies holding the bulk of the power in the new IO bodies endowed with consultative power and formally integrated into the deliberation in the IO. The aim is to build up, through the reasoned consideration of varied arguments, an international, transnational, transgenerational, cross-border perspective through deliberation and to articulate shared and individual, local, and global perspectives.
This proposal may be politically feasible if the Western States, which (still) occupy a dominant position in IOs shaped by their own hands – and which are (still) among the most democratic in the sense of international rankings – understand that it is in their interest to open up universal IOs to a certain extent, at the same time as the States that are under-represented in them, particularly those from the South, realize that their best interests lie in a combination of correcting imbalances in State representation and further institutionalizing the involvement of NSAs in all their diversity – and therefore of NSAs from the South – in the interpretation and fulfilment of the IO’s mandate.Footnote 90
Some diffuse ‘democratization’ effects might be observed here and there: truly pluralist deliberation in universal IOs would contribute not only to keeping alive the idea of international and transnational solidarity, but also to preserving the chances of progress for the democratic idea within a national framework.Footnote 91 This hoped-for democratization effect will result from the opportunities that IOs can offer for learning new political practices or from the protected spaces for free expression, particularly of the ‘voiceless’ in their own State. However, these are not principled justifications for expanding multilateral deliberation, but simply possible desirable consequences.
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