7.2.1 Building an Institutionalized Representation

The ICC and the IOE are two international employers’ organizations that took root in a common ground, the (very European) ‘matrix’ of the First World War.Footnote ²⁴ They are composed of (often common) organizations and of individuals who maintain more or less close ties through international conferences and their membership in national employers’ organizations and networks. Yet, the institutional positions of these two organizations are relatively distinct. While the IOE occupies a secure position, it remains largely confined to the ILO. In contrast, the ICC progressively developed (if unofficially, at first), a privileged relationship with the LN, and later with the UN but without exclusivity.

In beginning our examination of the IOE and the meaning of business representation at the ILO, it is important to keep in mind that the ILO is the only truly tripartite intergovernmental organization where governments, trade unions, and employer representatives are represented on an almost equal footing. According to constitutional and regulatory provisions, the IOE had no institutional existence at the time of the ILO’s creation because the official members of the ILO are national employers’ organizations. Much has already been written about the selection and conditions of participation of national employers’ organizations at the ILO.Footnote ²⁵ Much of the debate relates to the national representativeness of employers’ organizations for participating in the International Labour Conference (ILC),Footnote ²⁶ a condition set out in Article 3 of the ILO Constitution. At this level, the IOE does not play a decisive role, except maybe before the ILO Credentials Committee in order to challenge the representativeness of an employers’ organization and prevent it from participating in the ILC and for coordinating the employers’ group as a whole, to better oppose governments and trade unions.Footnote ²⁷ It is more at the level of the ILO’s restricted and executive body, the Governing BodyFootnote ²⁸ and of certain strategic committees such as the Committee on Freedom of Association that the IOE may influence the policy of the ILO. It does it successfully by controlling the composition of the employers’ group at the Governing Body (which is far more restricted than the employers’ group of the ILC). Since 1948, the IOE has obtained a general consultative status. This status further formalized the role and participation of the IOE, but it is comparable, at least on paper, to that of other NGOs such as (at the time) the International Confederation of Free Trade Unions (ICFTU) now the International Confederation of Trade Unions (ITUC), or the International Cooperative Alliance to name a few. Yet, labelling the IOE as an ordinary NGO within the ILO would be misleading. In practice, and mostly because of the tripartite structure of the organization, the IOE’s relations and influence exceed that of other NGOs with that same status at the ILO. The place of the IOE extends to the ILO’s bureaucracy through a specific service devoted to private companies (the Bureau for Employers’ Activities, ACT/EMP) with which it maintains close ties, even though ACT/EMP is not subordinated to the IOE. Within the ILO, the IOE can only truly be compared to its trade union ‘counterpart’, the ITUC (previously the ICFTU and before it the International Federation of Trade Unions (IFTU)). While the IOE is not mentioned as such in the ILO’s Constitution, it de facto operated the secretariat and federated the Employers’ group within that organization without interruption, if not without contestation, since 1920.

The institutional configuration of the ICC, which also claims to be the most representative organization of business at the international level, is quite different. As highlighted above,Footnote ²⁹ the ICC likewise established very early on a lasting relationship both official and unofficial with the LN in order to exert influence on commercial, financial, and monetary issues. The formalization and institutionalization of this privileged relationship were strengthened in the aftermath of the Second World War, since the ICC was one of the very first NGOs to obtain general consultative status with the Economic and Social Council (ECOSOC) pursuant to Article 71 of the UN Charter. Moreover, if we move to the contemporary period, it is currently the only organization representing the private sector to have obtained, in 2016, a permanent observer status with the UNGA, following a long negotiation process that benefited from significant political support, including that of France.Footnote ³⁰ But contrary to the IOE, the ICC does not control the composition of strategic organs and its influence over the negotiation process is more diffuse.

A comparative perspective reveals that the IOE and the ICC hold different positions in terms of institutional representation. To ground its position as spokesperson, the IOE can rely on the constitutive link that binds national employers’ organizations to the ILO, a link which derives both from the constitutional texts and from its bureaucratic structure. The IOE is a kind of ‘proxy member’ of the ILO towards business, a role which was sanctioned a posteriori when it was granted consultative status. The ICC, however, remained outside the LN treaty system, before moving constitutionally closer to the UN, owing to its consultative status with ECOSOC and then to its observer status with the General Assembly. The ICC strived to develop, through other channels than institutionalized representation, a privileged relationship as adviser, rather than negotiator as would be the case for the IOE, vis-à-vis the UN and other organizations.

Despite its a priori more certain and secured position within the ILO, the IOE remained, in the early years of the ILO at least, very hesitant as to its ability to be a true spokesperson for the interests of business, and oscillated between functions of information and expertise, of facilitation, and of representation. It was not until the Cold War that the IOE fully endorsed its spokesperson role, especially by popularizing the idea of a group of ‘free’ employersFootnote ³¹ and the representation of the ‘free enterprise’, while defending itself from being a ‘propaganda’ or ‘combat’ institution.Footnote ³² The ICC, however, embraced much more quickly, as early as the interwar period and without a specific institutional basis, its role as ‘spokesman for economic information in its broadest sense, and the intelligent, unofficial but effective guide to international action’Footnote ³³ and ‘spokesperson of the business world to the League of Nations’,Footnote ³⁴ which is in line with the ‘Merchants of Peace’ slogan popularized in particular by the 1938 book of George Ridgeway and constantly repeated by the ICC.Footnote ³⁵

Moreover, the IOE’s a priori privileged position only applies to the ILO, despite a strategy clearly pursued by the IOE since the early 2000s to broaden its field of competence and make its relationship with the ILO ‘one among others’, somewhat on the model of the ICC, which also developed privileged links with the General Agreement on Tariffs and Trade (GATT) and then the WTO. Despite its openness to other organizations, the IOE is clearly struggling to expand beyond its organic relationship with the ILO. It is on that basis that the IOE believes it has legitimacy to be represented in the UN. Indeed, notwithstanding its consultative status with ECOSOC since 1948 (which it obtained two years after the ICC), the IOE does not have, like the ICC, observer status with the UNGA. In its still pending application for the same status, the IOE places particular emphasis on its link with the ILO, and highlights the support given to its application by the ILO Director-General.Footnote ³⁶ Even in arenas relatively far from UN multilateralism and the ILO, such as the Business7 or Business20 (i.e. the employers’ counterpart of the G7 and G20 summits), the IOE most often justifies its participation by highlighting its relationship with the ILO.Footnote ³⁷ In this respect, while the ICC remains quite independent from the LN and UN system, one could discuss whether the IOE belongs to the category of ‘IO-sponsored NGOs’ developed in particular by the political scientist Jens Steffek in order to better characterize the interdependency between intergovernmental organizations and NGOs.Footnote ³⁸

7.2.2 An Ambivalent Process of Cross-Legitimization

As a counterpoint to the research on lobbying, which most often sees the relationship between business and employers interest groups as a unilateral logic of pressure exerted by the private sector on the public sector, the elements highlighted above point to a more ambivalent process of cross-legitimization between international employers’ organizations and intergovernmental organizations, even if it may vary depending on the historical context. We now suggest moving to the end of the 1990s until today to show the dynamic through which intergovernmental organizations seem to welcome the participation of the business organizations.

A press conference held in 1999 in the UN at the behest of the then Secretary-General Kofi Annan offers an interesting illustration. This event was convened for the launching of what would become the Global Compact, an initiative that supports private companies in upholding principles on human rights, labour rights, and the environment. Juan Somavia, then Director-General of the ILO, highlighted the ILO’s experience in cooperating with what he sometimes calls ‘business’, and ‘the private sector’, and which refers, in the case of the ILO, to national employers’ organizations, to the IOE, but also to the links cultivated by ACT/EMP with companies of various natures – in the following words:

These words do not convey unbridled enthusiasm for business participation in the work of the ILO, but a rather pragmatic posture justified by a logical imperative (employment and development) and supported by a relatively vague reference to ‘values’. They are also interesting from the point of view of the institutional logic (tactics, almost) by which the ILO sets itself up as an example, or, at least, as a forerunner and reference organization for the inclusion of non-State actors, in the present case, business. Now more than a hundred years old, the ILO continues to relentlessly draw attention to its tripartite structure and negotiating system as a key element of its legitimacy, both in terms of processes and results. As shown in a previous analysis where we define representativeness as a ‘practical value’,Footnote ⁴⁰ the way in which the notion of representativeness is codified in legal texts but also performed by relevant actors in their capacity of delegates and representatives, does not allow for a clear delineation as to what would fall under ‘input’ legitimacy (legitimacy through procedures) or ‘output’ legitimacy (legitimacy through results).Footnote ⁴¹ The representativeness resulting from tripartism is based both on a logic of efficiency linked to the representation of the interests and forces involved, and on a democratic logic. Here, this democratic logic is essentially understood in terms of social democracy, which (among other characteristics) transposes the mechanisms of collective bargaining tested at the national level to the international level. These two logics (efficiency and democracy) make it possible to justify the presence of employers’ organizations, trade unions, and governments by presenting it as both desirable (in terms of norms and values) and beneficial (in terms of results).

Yet, this difference in status and institutional positioning does not necessarily mean that the IOE has been able to exert a stronger influence at the ILO than the ICC within the LN and later the UN, nor that its relationship is always well accepted by members of these organizations. On this point, it is always interesting to come back to the ‘mythology’, that is, to the stories passed down by generations of employers’ representatives, within these same international employers’ organizations.Footnote ⁴² Within the IOE for instance, there is a recurring theme of the IOE’s perception as the ILO’s ‘unloved’ partner. This narrative goes back to the time when Albert Thomas, the first Director of the ILO, would have compared the organization to a train in which the unions are the engine and the employers the brake, a metaphor to which the Employers’ group itself keeps referring.Footnote ⁴³ The defensive organizational culture of the IOE, the virulence of the debates, and the recurrent crises of social dialogue (most recently with regard to the right to strike)Footnote ⁴⁴ also temper the impression of harmonious cooperation, including at the level of the relations between Secretaries General and Presidents. The IOE fosters a culture of social dialogue which is made possible by a guaranteed representation and a participation on a (quasi) equal footing with States and trade union organizations, as well as by the recognition of conflicting interests. This culture of social dialogue prevails within the framework of the ILO and is framed not only by the ILO Constitution but also by the negotiation practices that have crystallized over time.

In contrast, the ICC’s relationship with the UN borrows more from the flexible channels of economic diplomacy, even though it is sustained by institutional arrangements. The ICC has participated in many UN initiatives, starting with the Global Compact in 1999–2000 or the Paris Agreement in 2015, thus developing its reputation as a responsible partner rather than an adversary. Indeed, even if the Global Compact mainly focuses on individual companies and not on international employers’ organizations, it was primarily from the ICC that the then UN Secretary-General Kofi Annan sought and obtained political support, through Maria Livanos Cattaui (ICC Secretary-General) and Adnan Kassar (ICC President). This is exemplified in Adnan Kassar’s declaration at the aforementioned 1999 press conference:

This is also exemplified in Maria Livanos Cattaui’s following words:

While both insist on a strict delineation between the public and private spheres in order to avoid too many responsibilities and public interference, they began to sketch a narrative of their participation that is more compatible with democratic values and articulated around the idea that companies could be ‘good citizens’, in particular by doing their part in abiding by international law.

One could think that the context of the 1990s, which was marked by a generally business friendly atmosphere offers an explanation for these statements. However, this was only the beginning of a more deeply rooted trend. For instance, twenty years later, in 2019, in a context already much more critical of business and multinational corporations, we could hear a political figure like Laurent Fabius, in his capacity as former Minister of Foreign Affairs of France, declare on the occasion of the Centenary of the ICC: ‘[I] hope that ICC will use all its authority to convince governments … obviously you are realistic men and women because you are in business, interested in short term issues but you never forget long term issues … I appreciate very much the way you tackle problems: realistic, humanistic, with your heart.’Footnote ⁴⁷

This brief comparison of the IOE and the ICC in their relationships with the ILO, the LN, and the UN, reveals, first of all, the different trajectories taken by the institutionalization of the representation of business. Such a finding resists a homogenizing view on the channels of influence of the private sector on the public sphere. This comparison further highlights a movement of interdependence and cross-legitimization between international and intergovernmental employers’ organizations based on arguments that sometimes draw on a form of pragmatism very close to the functionalist reading grid,Footnote ⁴⁸ sometimes in a (neo)corporatist culture of social dialogue, sometimes in a more classically liberal register of the necessity and desirability of a pluralist representation of interests. As a result, this process of cross-legitimization must be described as ambivalent, because it does not pursue the same type of purposes or rest on the same foundations.

The third part of this contribution now leaves the analysis of the relationship between the IOE and the ICC and intergovernmental organizations and moves to a closer examination of their internal organization and the way they deal with the issue of representativeness.

7.3.1 The Political Limits of a ‘Universal’ Representation

Accessing the documents governing the internal organization of employers’ organizations is undoubtedly more difficult than accessing those of trade unions and NGOs. Yet, a journey through the archives of the IOE and the ICC evidences a concern to codify the rules of representation and the statutes of the organization, ranging from the admission criteria for membership to the rules governing the delegation of the authority to speak to the international employers’ organization on behalf of private companies, but also to exchanges on the evolution of the political context. Without necessarily interpreting these discussions as signs of a democratic vitality on the part of the ICC and the IOE, they show, at the very least, a concern for demonstrating their representativeness, as a way to ground their legitimacy and safeguard their authority in representing a rather heterogeneous collective, in a twofold concern for inter-sectoral and inter-national universality.

As explained in the first part of this contribution, whereas the ICC seems to quickly embrace the role of ‘spokesperson’ or even ‘parliament’ of the business world,Footnote ⁴⁹ the first years of the IOE were marked by its initial difficulty in assuming a representative function and speaking on behalf of a collective. This is especially visible when the IOE urges to respect the voting autonomy of its members, but also in its emphasis on the diversity of national contexts, as well as in vivid discussions about the possibility, for a member of the IOE or the employers’ group at the ILO, to speak on behalf of a wider collective. As for the ICC, while this consideration for the autonomy of the members is more likely driven by considerations of institutional survival – aimed above all at not alienating the support of large employers’ organizations which pay larger contributions – rather than by a concern for internal democracy, there remains a certain attachment to issues of procedure and authority delegation, most often aimed at preserving this autonomy. Both the IOE and the ICC are searching for a compromise that is classically sought by any IO, governmental or not: a compromise between the affirmation of their role as representative institutions with their own voice, and the recognition of the autonomy of their members. This quest leads them to constantly insist on the diversity and heterogeneity of the collective they represent.

With regard to the selection of their members, the common choice made by the IOE and the ICC to represent the entire private sectorFootnote ⁵⁰ results in a preference given to ‘umbrella organizations’ or ‘peak organizations’, as opposed to sectoral professional associations. Although the IOE has long been more restrictive than the ICC by only accepting employers’ organizations and not individual companies (this restriction has been loosened since the 2010s) and insisting on the need for a single interlocutor per State,Footnote ⁵¹ the two international employers’ organizations share a concern for geographical representativeness on a national basis (by country), while also encouraging regional groupings. They both ground part of their legitimacy on their ability to ‘universalize’ representation and speak on behalf of the ‘greatest number’. This concern to increase the number of their members, whether employers’ organizations in the case of the IOE, or national committees in the case of the ICC, manifests itself at different key moments in the history of these two organizations, which more or less overlap (creation phase, Second World War which caused the loss of many members, decolonization, end of the Cold War), but towards which they will at times adopt different attitudes. This is again where distinct trajectories are observable in the representation of business.

While the ICC places greater emphasis on the number and the diversity of the companies it represents, the IOE mostly insists on the number of States in which it has members (i.e. employers’ organizations), and even more on the fact that its members come from States in which employers’ organizations are independent from public authorities. Without necessarily raising the argument of democratic representation, the condition of representativeness in the sense of the independence and autonomy of employers’ organizations from State authorities, is a more decisive criterion for admission within the IOE than the ICC. The ‘borderline’ case of communist countries, of which both the IOE and the ICC are, unsurprisingly, open adversaries, offers an illustration which can be studied from the interwar period until (at least) the end of the Cold War and even afterwards. The relationships between the IOE and the ICC and Soviet and then Russian organizations and companies are generally non-existent until the end of the 1990s. The rejection was more pronounced on the side of the IOE which spearheaded the fight against communist ‘employers’, to whom it denied any representativeness. The treatment of China, however, is slightly different. As for the IOE, there was no question, until the end of the 1990s, of making room for Chinese representatives within the IOE and the ILO Governing Body (see Section 7.1).Footnote ⁵² Infringements of the principle of freedom of association and suspicions about the lack of independence of employers’ organizations continue to be considered as obstacles, if not fully prohibitive impediments, to the genuine integration of Chinese organizations into the IOE for instance. No Chinese national holds a leadership position within the IOE’s internal structures or in the employers’ group of the ILO Governing Body. To this day, the Chinese delegate in the ILO Governing Body only has a deputy member status and plays a rather marginal role in the employers’ group dynamic.Footnote ⁵³

Quite to the contrary, as early as the interwar period, the ICC adopted a much more depoliticized and open attitude towards China, prompted by the need to maintain links with Chinese trading circles and the observation of China’s dynamic trade and development.

In 1995, the ICC publicly supported China’s (and Russia’s) accession to the newly created WTO pointing to the supposed benefits of socialization into multilateral institutions and to the gradual normalization of these countries in the economic and commercial system. ICC Secretary-General Maria Cattaui then declared: ‘ICC wants to deliver a very important message that as Asia – especially China – develops, there is a growing need for Asian economies to be integrated into the rule-based, multilateral system for international business transactions’.Footnote ⁵⁴ Moreover, the ICC includes a large number of Chinese chambers and organizations among its members,Footnote ⁵⁵ and among its most senior representatives (presidents and secretaries-general) are many individuals who have developed privileged interests and connections with Chinese companies.

This type of borderline case highlights the two different conceptions of representativeness of the IOE and the ICC. The IOE seems to rely more on a neo-corporatist paradigm, grounded in the recognition of the autonomy of interest groups as a prerequisite for the institutionalization of negotiations and any form of democratization. In contrast, the ICC seems to follow a liberal paradigm of ‘gentle commerce’ (‘doux commerce’), which bets on the democratization resulting from the development of trade and liberalization, in line with its historical slogan of ‘Merchants of Peace’ mentioned above. Such a slogan allows it to display a posture apparently less political and restrictive than the IOE in its relationships with its members.

7.3.2 The ‘Diversity’ Argument in Light of the Growing Importance of Multinational Companies

This last section addresses the dilemmas raised by the growing place of multinational corporations in the public debate. It examines how the IOE and the ICC have tried to reconcile their claim of representation of all companies with the need to intervene in the specific field of regulation of multinational corporations to defend their interests. Since the 1970s, when the debates on the regulation of multinational corporations became increasingly politicizedFootnote ⁵⁶ and the number of arenas and forums speaking in the name of business like the Davos Forum multiplied, the question of members’ representativeness and of the type of companies represented (multinational or not) became more and more pressing. In order to understand the place of multinational corporations in the organizational structures of the IOE and the ICC, it is necessary to review their respective membership admissions procedures.

As mentioned above, the IOE’s statutes have long reserved membership to employers’ organizations (with a preference for a single interlocutor per State), whereas the ICC established a system of national committees which oversee multiple entities and to which companies can adhere directly. In the case of the ICC, employers’ organizations, chambers of commerce, and businesses are also eligible for membership status, and the ICC tries to federate them through its national committees. In the case of IOE, the national member is the employers’ organization (in principle the largest organization, even if this is not systematic),Footnote ⁵⁷ which results in the indirect representation of companies, including those that are multinational. In addition, the ICC brings to the fore at the level of its presidency the leaders of large companies, including multinational corporations; for a long time, this was not the case at the IOE, where preference is given sometimes to leaders, sometimes to ‘permanent employers’, thus making the presence of multinational corporations within this organization even less visible.

In addition, the architecture of the ICC tends to layer on levels of representation by adding new structures such as the World Chambers Federation which was created in 1951 and currently claims to convene some 12,000 chambers of commerce.Footnote ⁵⁸

As a result, the ICC at least seems to benefit from a kind of a ‘critical mass’ effect, from a diversity of companies, and from an institutional flexibility that seems to be greater than the IOE. Because of its network structure, the ICC has a varying membership which should be analysed in greater depth, but such an analysis goes beyond the scope of this chapter. According to a report on its relationship with the UN, the ICC represented, in 2015, 6.5 million companies in more than 130 countries.Footnote ⁵⁹ In 2023, the ICC claims in the membership section of its website to be bringing together more than forty-five million companies from more than 170 countries ‘ranging from the world’s largest companies, to SMEs, business associations, banks, law firms and local chambers of commerce’.Footnote ⁶⁰ Again in 2023, the World Chambers Federation section of the ICC’s website claims that the ICC has members in 116 countries/territories.Footnote ⁶¹ The IOE, which also claims to be ‘the largest network of the private sector in the world’, lists 150 employers’ organizations,Footnote ⁶² representing fifty million companies worldwide,Footnote ⁶³ in about 140 States and territories.Footnote ⁶⁴

Yet, these competing claims of representativeness result in different strategies of positioning and justification on the question of multinational corporations. The ICC defends the idea according to which the organization, while directly including multinational corporations and powerful actors from the international trade among its members, also represents small and medium-sized enterprises, regardless of their degree of integration into the world market. Hence the emphasis placed on national committees, which are (in principle) a privileged liaison body with the local companies:

The IOE resorts to the same type of arguments, especially when it finds itself caught up in debates on the regulation of multinational corporations. It is also because of the intense lobbying exercised by the IOE during the negotiations on the 1977 ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy that the definition of a multinational enterprise adopted in that Declaration is so broad.Footnote ⁶⁶ However, the IOE is subject, especially within the ILO, to a different criticism than the ICC. Indeed, the employers’ group and the IOE are regularly accused by trade unions and other civil society NGOs of not being representative of any companies, multinational or not. This criticism points to the ‘lawyers’,Footnote ⁶⁷ working for the law firms defending the employers’ interests, to the employer civil servants or to the ‘permanent employers’ who hold the main representative functions within the Employers’ group and the IOE. Although this criticism is only partially justified and is part of the much broader phenomenon of bureaucratization of professional representation and the NGO world,Footnote ⁶⁸ it is worth noticing that, in 2008, the IOE decided to make explicit room for multinational corporations within the framework of specific mechanisms such as the Global Industrial Relations Network (GIRN). The GIRN aims to offer a small group of multinational corporations, in exchange for a specific fee, a space for confidential discussion on the problems they encounter in terms of labour law, as well as information and advice on existing international regulations pertaining to social matters.

In a context where the representation of business is becoming increasingly competitive, and where debates are becoming politicized – whether about the responsibility of multinational corporations or the issue of conflicts of interest, as exemplified by the progressive exclusion of the tobacco sector from the UN public-private partnerships or the negotiation since 2014 of a UN treaty to regulate the activities of transnational corporations – the question of the representativeness of organizations such as the ICC and the IOE is no longer only an issue of internal legitimacy, that is, vis-à-vis their members, but also, of external legitimacy, that is, vis-à-vis their trade union interlocutors and civil society, as well as the IOs in which they have institutionalized and established their representation.

8.3.1 Illustrating the Logics

Each year, COPs to the UNFCCC draw droves of participants of every kind, and garner global attention. In recent years, these conferences have received particularly pointed critique for the presence of many oil and gas representatives.Footnote ³⁶ Consider COP 26, in Glasgow, Scotland, in November of 2021. This COP was particularly notable for at least two reasons: it was delayed for a year due to the Covid-19 pandemic, and according to the five-year timetable set by the Paris Agreement, this was the first COP at which many parties were required to communicate new climate pledges that reflected more ambition than the pledges they had delivered when first joining the Paris Agreement.Footnote ³⁷ Adding to the drama of the occasion, organizers had promised ‘the most inclusive COP ever’, specifically encouraging participation by traditionally marginalized groups.Footnote ³⁸

Consider the narratives emerging from this climate conference. The first was a narrative of failure, principally focused on failures of participation, representation, and access, but also noting substantive failures and linking those substantive failures to process failures. The second was a narrative of success, focusing neither on representation nor on the substantive content of the traditional interstate climate agreements (in this case the pledges made by State parties), but rather on innovative new agreements made by private sector entities.

Narrative 1. Many reports coming out of Glasgow focused on how, despite the organizers’ claims that this would be the ‘most inclusive COP ever’, Glasgow was in fact not inclusive at all. The challenge mostly seemed to stem from pandemic restrictions, but reports in popular and social media communicated the sense that these restrictions excluded some groups more than others, and the privileged groups were private sector lobbyists.Footnote ³⁹ Reports highlighted the fact that indigenous peoples’ groups, groups from the Global South, and other civil society actors had borne the expense and burdens of pandemic travel, yet were not able to gain access to the conference.Footnote ⁴⁰ They described prohibitively long lines and pandemic restrictions that kept participants from meaningful engagement with the conference. The result was rampant frustration, with civil society representatives being sent back to their expensive hotel rooms to view the proceedings over the internet – no different than if they had not made the effort to attend the COP at all. Juxtaposed against these access challenges were stories about fossil fuel representatives garnering privileged access.Footnote ⁴¹ According to one BBC headline, the ‘[f]ossil fuel industry has [the] largest delegation’.Footnote ⁴² Climate youth activist Greta Thunberg tweeted in response: ‘I don’t know about you, but I sure am not comfortable with having some of the world’s biggest villains influencing and dictating the fate of the world.’Footnote ⁴³ Others claimed that fossil fuel representatives were being ‘ushered to the beginning of the line’ and that they had access to otherwise closed-door negotiations between the delegates.Footnote ⁴⁴ One story concerned Australia’s pavilion being sponsored by a fossil fuel company, with the observation that the pavilion colouring and logos looked strikingly similar to those of the corporate sponsor.Footnote ⁴⁵ This narrative juxtaposed the privileged access of fossil fuel groups with the disappointing substantive results of the conference, expressed memorably from outside the pavilion by the activist chant: ‘blah blah blah’.Footnote ⁴⁶ Indeed, State pledges made at that conference expressed insufficient ambition to avert disastrous global warming consequences, and often committed States to reductions far in the future, much past the tenure of current officeholders.Footnote ⁴⁷

Narrative 2. A second narrative emerging from the conference was a celebratory one. This report did not focus on representational disparities or even the mediocre pledges by State parties, but rather celebrated non-State commitments. These reports focused on the newly launched Glasgow Financial Alliance for Net-Zero (GFANZ) project, a platform to coordinate climate pledges by the financial sector, which, by the end of the COP, had drawn membership from financial firms responsible for assets of over $130 trillion.Footnote ⁴⁸ A November 2021 GFANZ press release delivered the message that ultimate climate success had essentially been achieved. Here is the headline: ‘Amount of finance committed to achieving 1.5 °C now at scale needed to deliver the transition’.Footnote ⁴⁹ According to Mark Carney, UN Special Envoy for Climate Action and Finance (and former head of the Bank of England), ‘[t]he rapid, and large-scale, increase in capital commitment to net zero, through GFANZ, makes the transition to a 1.5 °C world possible’.Footnote ⁵⁰ In this narrative, governments are not sources of public authority or agenda-setters, but rather sources of ‘help’ for the private sector: ‘Now we need governments to help get the job done, by setting the ambitious policies that can unlock, accelerate and help direct the investment to where it’s needed most.’Footnote ⁵¹

As these stories show, popular and social media reporting from the Glasgow climate conference offer a window into two narratives that can arise around the work of IOs.

The first centres public process values, representation, and input legitimacy. Those who decry the failures of the Glasgow conference are concerned not just about substantive failures but about public law values like representation, transparency, and equality in the processes of decision-making, and they link failures in substance to failures in process. Animating this narrative is an implicit claim that, without these process values, an international institution cannot effectively wield public authority.Footnote ⁵² There is a deontological claim here: indigenous people’s groups, island nations, and other members of civil society should be heard. There is also a consequentialist claim: States’ failure to take more ambitious action within the COP process could be related to the fact that the primary influences in that conference were those who have a stake in doing little, that is, fossil fuel representatives. Bad outcomes flow from a tainted, illegitimate process that includes undue influence or capture.

The second narrative shifts focus from the representativeness of the process to functional outcomes, no matter the source of those outcomes. It is laser-focused on consequences: which actors and which actions can best achieve the 1.5 °C goal? This narrative widens the lens beyond State action to celebrate productive contributions by any kind of actor. This is a functionalist, consequentialist, output legitimacy sort of account. Proponents of these successes celebrate the way that private actors can sometimes outstrip or bypass slow-moving States or interstate organizations.Footnote ⁵³ IOs can be ‘reinvented’ by a process of opening up and welcoming input and participation from multiple stakeholders, which can bring fresh ideas and capacity to solve important problems.Footnote ⁵⁴ According to this perspective, progress can be achieved outside of formal interstate commitments and all forms of progress are equally worth celebrating.

8.3.2 Representation and Expedience As Ideal Types

The two lenses on the Glasgow COP illustrate the two logics I am trying to crystallize. I will soon claim that these logics have animated various choices to open and close international institutions to private sector actors over time. Before getting there, let me sketch out the logics another way – as ideal types.

The logic of representation centres the values of democratic self-determination and interest representation. It views legitimacy through these lenses of democracy and representation. That is, an organization possesses democratic legitimacy when it can make a claim that its governance decisions are representative of populations, whether through State authority or a broader conception of public authority.Footnote ⁵⁵ Because self-determination and representation are the touch points for the legitimacy of the organization’s work, the organization seeks to ensure that the right actors are contributing to governance, however that ‘rightness’ is conceived. Indeed, different concepts of representation have gained prominence at different times.

Because, in this concept, self-determination and representation are key to an organization’s legitimacy, organizations should care about democratic values like the accountability of governance organizations to represented populations for actions taken in their interest. Governance acts should be constrained by notions of accountability to the public. Moreover, those purporting to take decisions or actions in the public interest must bear some sort of authority to do that, grounded in the principle of representation. Different theoretical strains within this logic will focus on different units of authority, whether those be national governments, smaller self-determining political communities, or perhaps interests, represented by civil society or others.

The key challenges for organizations, as this logic sees it, are to reconcile diverging interests and policy differences and to determine how to implement functional public structures at the global level without the many possible representation distortions that lead to legitimacy failures and effectiveness failures. Thus, the logic of representation sees many of the problems facing the international system as distortions of public authority and democratic process: rent-seeking, imperfect interest representation, and replication of entrenched power structures.

The logic of representation can be conceived as a deontological perspective rather than a consequentialist or teleological one. That is, democratic self-determination and interest representation are inherent goods. Decisions made, rules developed, and actions taken through a legitimate process are right and correct because they are products of that process.

The logic of expedience is defined by its embrace of consequentialist and teleological reasoning. An outcome is right and correct when it advances the mission of an organization. This position values efficiency, problem-solving, and progress on accomplishing public goals, whether those goals be public health, climate stabilization, sustainable development, and so on.

What is important, according to this logic, is ends-oriented progress. Therefore, participants in the process should be those who can help the organization accomplish these ends. Participants to be welcomed include those with expertise, capacity to develop meaningful rules or policy interventions, innovative new approaches, or ability to assist with implementation.

This perspective can see processes of public deliberation as draws on the resources of an organization, and civil society as an outside force to be answered by satisfactory resolutions to practical challenges. It sees the challenges facing the international system as information and capacity failures, and opportunities for innovation and new synergistic partnerships. An organization’s incapacity to address a problem may arise out of a need for scientific and technical advancement, or it might be a result of bureaucratic dysfunction and too much deliberation without action.

The blind spots for this approach are legitimacy problems, particularly input legitimacy, and the entrenchment of the western economic elite. As with the logic of representation, the logic of expedience can encompass different conceptualizations of how to capture progress, such as technocracy or neoliberalism. See Table 8.1.

Of course, proponents of one logic or the other will have differences of opinion about some of the particulars. For example, theories falling within the ‘representation’ logic might be concerned with the authority of States in the international system, deriving public authority at the international level from the representative structures within the nation-State.Footnote ⁵⁶ A more cosmopolitan approach to representation might note the realities of global interdependence and interconnectednessFootnote ⁵⁷ and seek representation of populations, whether or not mediated by governments.Footnote ⁵⁸ Armin von Bogdandy has called this a concept of ‘international public’ authority, and others have explored other extra-governmental perspectives on authority.Footnote ⁵⁹ The logic of expedience could be more technocratic, taking a knowledge-based perspective, or it could be more neo-liberal, seeking synergies between the goals of the public and private sectors and advocating for market-based solutions to public problems.

The two positions do tend to lead to distinct perspectives about the participation of private sector actors in international governance, and it is this difference that concerns us for the purposes of this chapter. See Table 8.2

8.4.1 The ‘League Method’: Expedience

During the 1920s and 1930s, the League of Nations approach to non-State groups came to be known as the ‘League Method’. The League Method characterized a working relationship where ‘voluntary associations’ and IOs had very close collaborations. As Steve Charnovitz characterizes this, ‘[b]ehind many [early IOs] stood idealistic and active [associations]’.Footnote ⁶⁰ These associations defined and presented issues for the League’s consideration; served as ‘insiders working directly with government officials and international civil servants to address’ international problems, principally through policy conferences; and lobbied those in power.Footnote ⁶¹ These methods of cooperation had emerged by the end of the nineteenth century, when ‘there was a pattern of private international cooperation evolving into public international action’.Footnote ⁶²

In the League era, there was no strong distinction made between voluntary associations that advanced business or commercial ends and those that lobbied for other causes. Rather, associations advancing business interests were among the influential early ‘semi-public and private organizations’, terms which correspond to the modern-day NGO.Footnote ⁶³ In Charnovitz’s assessment, during the League period, the ICC was among the top three most significant associations in its impact on international governance, together with the Red Cross and the Women’s International League for Peace and Freedom.Footnote ⁶⁴

For example, at this time railway businesses helped form the International Railway Congress Association, which led to the creation of the intergovernmental Central Office for International Railway Transport. The International Telegraph Union invited private companies to participate in its meetings. The ICC had official roles in League-sponsored economic conferences. Business associations also participated in the League’s work relating to finance, commercial law, transportation, pharmaceuticals, and other areas.Footnote ⁶⁵

With some exceptions, the League of Nations generally took an approach to engagement with private sector actors that aligns with the logic of expedience. Public-private relationships in this era were often characterized by function over status, looked for expertise, capacity, and ideas more than interest representation, and were open to associations representing the private sector whenever their participation was relevant to the matter under consideration. That said, even in the League of Nations, there was a status-function ambivalence. For example, the ILO was developed according to a tripartite structure that welcomed employers, labour organizations, and government representatives on equal, but status-based, terms.

8.4.2 Article 71 of the UN Charter: Representation

The pendulum swung in a different direction at the founding of the UN – towards status and away from function; towards authority and representation, and away from ends-based collaboration.

Consider Article 71 of the UN Charter, which contains the Charter’s single reference to non-State actors and empowers ECOSOC to ‘make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence’.Footnote ⁶⁶ The ‘League Method’ of close working relationships between non-State groups and intergovernmental groups had been an informal practice, but non-State groups wanted to formalize this practice in the new UN Charter. About 1,200 of them travelled to San Francisco in 1945 to seek some sort of ‘provision for NGOs in the UN Charter’.Footnote ⁶⁷ They partly succeeded, as Article 71 did authorize the ECOSOC to ‘consult’ with NGOs. However, that provision formalized a clearly subordinate role for NGOs in comparison with IOs and State parties. NGOs did not obtain any voting privileges, rights to participate in treaty drafting, or any other formal rights of participation. Moreover, even the term ‘consultation’ was not defined in the Charter, and so the contours of this relationship were left to ECOSOC’s later discretion. The Charter also failed to articulate or formalize relationships between NGOs and any other organ or instrumentality of the UN, such as the General Assembly or the Security Council.

Article 71’s terms reflect the preoccupation of the drafters of the UN Charter, and this was to clarify the special status of intergovernmental organizations, like the UN itself. Even the term ‘non-governmental organization’, or ‘NGO’, was coined at the birth of the UN; its purpose was to distinguish these groups from intergovernmental organizations, as well as government-sponsored groups. These are status-based distinctions, as groups are organized based on identity. If a group is governmental, it must be represented through a delegation and not through the consultation procedure. If it is non-governmental, it can participate, but only as an outsider to the organization: merely ‘consulting’, not contributing.

Note, too, that Article 71 did not distinguish between groups advancing different kinds of agendas, such as business agendas versus other kinds. Rather, as Stephen Tully has tellingly observed, Article 71 lumped together all kinds of non-governmental groups, in order to obtain ‘equality of status for the purpose of counterbalancing competing perspectives’ rather than ‘differential access or treatment to exploit operational specialization’.Footnote ⁶⁸

Thus, the UN at its founding moved away from the League’s largely function-based working relationships towards a largely status-based model that attempted to elevate governments and the new intergovernmental organizations by giving all non-governmental groups an equal and secondary status.

8.4.3 ECOSOC Accreditation Reforms: Still Representation

Another significant moment in the relationship between IOs and non-State actors came a half century later, when ECOSOC reformed its working relationships with NGOs in 1996. This moment featured a reaffirmation of the logic of representation, but in a more cosmopolitan and less sovereigntist form than at the UN’s founding.

In the half century between the founding and the 1996 reforms, ECOSOC had wielded the authority granted to it by Article 71 to pass regulations establishing an accreditation procedure and consultation system.Footnote ⁶⁹ However, by the early 1990s, the existing accreditation procedure had drawn various forms of criticism. There was a perception that the rules were too restrictive in that they allowed only ‘international’ groups, and allowed States to veto consultative status for NGOs from their own countries.Footnote ⁷⁰ There was also a perception that there was ‘unequal representation … [of NGOs] from different regions of the world’ and, in particular, over-representation of organizations from Western industrialized nations.Footnote ⁷¹

The resulting reforms clearly spotlight the influence of the logic of representation in seeking a ‘representative’ composition of NGOs in the consultation system. ECOSOC Resolution 1996/31 noted that ECOSOC sought ‘just, balanced, effective and genuine involvement of non-governmental organizations from all regions and areas of the world’, and in particular, greater participation from developing countries and countries in transition.Footnote ⁷²

In addition to an increased representation of NGOs from developing countries, ECOSOC sought to ensure that accredited associations would be accountable representatives of the interests of their constituencies. The new rules therefore moved to criteria that evaluated the representativeness of the organization’s governance structure. The criteria focus on how well an NGO seeking accreditation represents its members, whether it has internal governance mechanisms that make its representatives accountable to that membership, and whether it has governance documents that evidence and safeguard this representational character. For example, the new rules required:

Organizations must be non-profits and obtain their funding from ‘national affiliates … or from individual members’.Footnote ⁷⁴ Finally, the organization must represent its particular field by ‘be[ing] of recognized standing within the particular field of its competence or of a representative character’. ECOSOC moved to a three-tier access structure at this time, with NGOs representing the broadest constituencies receiving the most access, and those representing more narrow, specialized interests receiving the least. All of these reforms express a representative model, premised on the theory that what NGOs offer is representation of populations or interests.

Indeed, this representative function was explicitly celebrated at the time. UN Secretary-General Boutros Boutros-Ghali gave a speech in 1994 calling NGO participation in IOs a ‘basic form of popular representation in the present-day world’ and a ‘guarantee … of political legitimacy’.Footnote ⁷⁵ A high-level panel of experts a decade later observed that ‘[t]he growing participation and influence of non-State actors is enhancing democracy and reshaping multilateralism’.Footnote ⁷⁶

Several years after the 1996 reforms, ECOSOC commissioned a report known as the ‘Cardoso Report’, which organized then-prominent critiques of the existing consultation system and proposed reforms. This report, too, emphasized the representative function of the NGO consultation system. It advocated ‘forging stronger links between [NGOs at] the local and global levels, which would help overcome democratic deficits in global governance’.Footnote ⁷⁷ The Cardoso Report also collected concerns by national governments about the ‘legitimacy, accountability and “hidden agendas”’ of NGO consultants: ‘Many of the accredited NGOs are perceived as lobbyists rather than “true” stakeholders. Most are seen as not accountable while demanding higher government accountability. Many governments feel they, being elected, are the legitimate representatives of society’.Footnote ⁷⁸

These concerns by national governments exhibit the prominence of the logic of representation in how the consultation system was conceived at the time. They reveal a fundamental normative assumption that it is NGOs’ ‘democratizing’ and representational qualities that qualify them to participate as consultants to IOs. For example, if the principal concern were to gather sufficient expertise to develop an efficient or workable rule, the principal analysis would not be whether an NGO represents its members, but whether the organization offers expertise, local knowledge, implementation assistance, or some other benefit.

8.4.4 Global Compact: Now Expedience

As the latter half of the twentieth century brought longer supply chains and globally dispersed corporate families, IOs sought to engage multinationals directly, in a move that embraced functional contributions over representation of populations. UN Secretary-General Kofi Annan ushered in a new logic and created a major inflection point in the relationship between the UN and non-State entities just a few years after the 1996 ECOSOC reforms. In a landmark speech at the 1999 World Economic Forum in Davos, Switzerland, to an audience of CEOs, Kofi Annan advocated for ‘a creative partnership between the United Nations and the private sector’.Footnote ⁷⁹ The speech, introducing the Global Compact, proposed a synergy of interests:

Through the Global Compact initiative, Kofi Annan asked business entities to ‘demonstrate their leadership roles as world citizens’ by pledging to ‘endors[e] and champion’ the principles of the Global Compact and try to carry them out in corporate practice.Footnote ⁸¹ The Global Compact was an enormously successful initiative, claiming, as of this writing, membership from ‘over 15,000 companies based in over 160 countries, both developed and developing, representing nearly every sector and size’.Footnote ⁸² Its participant database has nearly 20,000 entries.Footnote ⁸³

The impact of the Global Compact has stretched far beyond the four corners of that initiative. As George Kell has observed, in its wake, ‘cooperation with the private sector became politically acceptable and institutionally supported’.Footnote ⁸⁴ It ‘enabl[ed] other UN entities to explore cooperation with the private sector. It gave strong impulse to the role of business in the work of the Organization.’Footnote ⁸⁵

The launch of the Global Compact coincided with several other significant movements in the relationship between the UN and private sector entities, including the Millennium Declaration and the creation of the Millennium Development goals, which advocated for lifting populations out of poverty and improving health, education, equality, and environmental sustainability while reducing hunger, lack of shelter, and disease. These were all goals to which the private sector was invited to contribute, and indeed, the Millennium Declaration of 2000 noted explicitly that the private sector had an important role to play in carrying out these agendas. The year 2000 also saw the founding of the Global Fund to Fight AIDS, Tuberculosis and Malaria, a multi-stakeholder project that welcomed participation from the private sector. The next year, the General Assembly introduced UN-private sector relationships as a new agenda item.

In the years since that 2000 launch, the UN has seen a ‘silent reform’,Footnote ⁸⁶ with the organization adopting private sector ideas like ‘brand management, modern management formats, more effective use of technology, and … opensourced, networked collaborations’.Footnote ⁸⁷ The UN has developed a ‘Private Sector Focal Point’, the ‘Annual Private Sector Forum’ and numerous public–private partnerships.

By 2015, the orientation towards the private sector had changed such that UN Secretary-General Ban Ki-moon called for ‘all hands on deck’ when opening the Paris Climate conference.Footnote ⁸⁸ In particular, he praised climate pledges by ‘some of the world’s largest’ oil and gas companies and financial institutions and asked that others come on board.Footnote ⁸⁹ The Paris Agreement adoption document contained meticulous provisions calling for efforts by non-State actors and launching the Non-State Actor Zone for Climate Action (NAZCA) platform and its Global Climate Action portal. Both called for non-State actors to ‘display their commitments to act on climate change’.Footnote ⁹⁰

The narrative these events expose is an ends-oriented narrative. It is about encouraging progress on distinct goals, and enlisting contributions from all actors who can contribute to these goals. It is less concerned with self-determination, which requires representativeness of some sort, and more concerned with progress, which requires contributions. It is less about status – public versus private, international versus domestic – and more about function – less poverty, less disease, more renewable energy.

8.4.5 Early Twenty-First Century: Unreconciled Narratives

What has unfolded since the Global Compact turning point? In the first quarter of the twenty-first century, the two narratives are both prominent in the UN system. They animate debates about the practices and outcomes of IOs and, to the extent they conflict, this conflict is largely unresolved.

United Nations Framework Convention on Climate Change. For example, the reports from the COPs at UNFCCC show one area where the two logics produce entirely different perspectives on what happened and how to assess what happened. After the Glasgow COP, one narrative decried failures in inclusivity and linked these to failures in output. Better representation, according to this account, may have produced a better outcome. The presence of oil and gas interests – and perhaps their privileged access – was detrimental to progress on climate stabilization commitments. The failure to offer adequate access to those most affected by climate change could have affected the outcome, and tainted the conference regardless of the outcome. In sum, the conference was plagued with both input and output legitimacy problems. The second narrative from the Glasgow COP focused on an entirely different set of facts: rather than representation, participation, or access issues, this narrative focused instead on progress. Rather than progress by State actors on core climate commitments, which was limited, the narrative focused on commitments by non-State actors, celebrating the Glasgow Financial Alliance for Non-State Action.

United Nations Commission on International Trade Law. The United Nations Commission on International Trade Law (UNCITRAL), an organization focused on the harmonization and modernization of international trade law, offers another view of the competing, unreconciled narratives. In its working processes, UNCITRAL has come to embrace the logic of expedience. The organization is very open to outside observers. Its deliberations are open to both non-Member States and non-State actors, all of which are called ‘observers’, and which are admitted without distinction. Note the focus on function, rather than status, in UNCITRAL’s description of its participatory structures: UNICTRAL ‘maintains mailing lists of organizations whose expertise is relevant to issues addressed by the various working groups’ and will send invitation letters to request expertise for a particular meeting. UNCITRAL will continue to send invitations to particular groups ‘so long as their work remains relevant’. Moreover, these non-State actors can shape the consensus process, so the UNCITRAL working practices themselves minimize the status distinctions between State parties and non-State actors.

However, those UNCITRAL working methods have been subject to critique by those who would instead have the organization emphasize status and representation. France challenged current practices in a complaint lodged in 2007, calling for a review of the meaning of consensus and the level of non-member participation. France noted that non-State actors were ‘play[ing] a major role because of the expertise they possess in the areas under discussion’.Footnote ⁹¹ In particular, France observed that when UNCITRAL seeks to draft a new legal instrument, it is the non-State experts and the groups that they represent that initiate the process and provide much of the technical expertise. France expressed the concern that these non-State groups were neither representatives nor delegates, and that their number had expanded greatly, with a substantial effect on the ultimate UNCITRAL work product. France’s principal complaints were identity based: many of the NGOs were not members of civil society but instead professional associations; distinction between Member States and observers was frequently blurred; and non-State groups had too much influence in the decision-making procedure. France sought to preserve the sovereign rights of States to exert control over the international lawmaking process.

This debate at UNCITRAL crystallizes the two narratives. UNCITRAL’s working practices exhibit a functionalist, consequentialist, logic of expedience approach. France sought a status-based approach that preserved a special role for State authority.

World Health Organization. The WHO’s recent activity also epitomizes the current century’s representation/expedience ambivalence. The WHO reforms address a function problem by doubling down on status.

The WHO has long been plagued by concerted interest campaigns around tobacco, sugar, pharmaceuticals, and other public health issues, which have harmed its efforts on these issues. In response, the organization updated its working relationships with non-State entities in 2016 with a Framework of Engagement with Non-State Actors (FENSA).Footnote ⁹² FENSA distinguishes between ‘private sector entities’ and ‘international business associations’ on the one hand, and ‘non-governmental organizations’ on the other, with additional safeguards in place for engagement with the former group.Footnote ⁹³ FENSA’s safeguards are meant to guard against conflicts of interest that may have negative impacts on the ‘WHO’s integrity, independence, credibility and reputation; and public health mandate’.Footnote ⁹⁴ Thus, the rules try to create separate influence pipelines for public interest NGOs on the one hand, and for-profit entities and groups on the other.

The WHO’s reform flows from a functional concern about bad outcomes, but it addresses this concern by making a further set of distinctions based on status. Yet, this reform is not about representation. That is, this looks different than the prior examples of institutional design based on representation: the WHO reforms are not aimed at elevating the status of governmental representatives (as at the UN founding) or trying to generate a sense of popular democracy (as with the 1996 ECOSOC reforms). Rather, they flow from an ex ante normative judgement about the functional benefits and risks that attach to private sector participation. This is a functional concern channelled into a status-based distinction: private sector influences may taint a process seeking to develop public health regulations. Non-profit-oriented groups do not pose such a risk. What is to be regulated, then, are the actors that participate in the process.

The WHO reform suggests the possibility that IOs do not have adequate tools to conceive of the relationship between themselves and the for-profit sector. Even when organizations, like the WHO, think functionally about these relationships, the familiar tools are representational. But as I have argued elsewhere, those status-based tools will not likely address the problems they aim to solve. Nor will they necessarily deliver a process with more representation or more public authority because they are not optimized for that agenda, but rather aimed at a functional problem.

9.2.1 Animal Interests or Rights

The interspecies injusticeFootnote ³ exists independently of the answer to the controversial question whether animals (or some animals such as sentient animals) have fundamental moral and/or legal rights (such as the right to life). I posit that animals have interests (stakes in something that concerns them). In many respects, their (presumable or discernible) interests significantly diverge and conflict with the typical human interests, also in areas that are regulated by the WOAH. For example, the WOAH has adopted standards on slaughter. The mitigation of suffering on their way to death is in the interest of the animals, but in the end, the animals certainly are even more interested in not being killed at all.

On the premise that sentient animals possess a set of fundamental rights, it can be argued that the proper protection of those rights requires political power and order. The political order best able to protect those rights is a democratic political order.Footnote ⁴ It follows that animals need to become part of (or must be better considered in) this democratic order.

Alternatively, on the contrary premise that non-human animals do not possess fundamental rights, the political process also needs to be changed. The reasoning along this line is that in liberal democracies, the legal sphere (the protection of fundamental rights) or the political sphere (democratic lawmaking procedures) are seen as complementary and even as communicating vessels. Mechanisms and safeguards in one sphere might (to some limited extent) compensate for the lack of mechanisms and safeguards in the other sphere. On this premise, it can be argued that as long as animals lack fundamental rights, their interests must all the more be brought to bear in political (democratic) processes.

9.2.2 Relevant Decision-Making Beyond the Nation-State

In a world of global capitalism and with global governance, animal interests are affected by (and subjected to) decision- and rule-making across State boundaries. Much of the human behaviour harming animals occurs in the context of global supply chains, and has manifold extraterritorial or global implications. This ranges from animal live transports to the global trade of animal derivatives, the transboundary transmission of zoonotic diseases (such as Covid-19), to deforestation, erosion, water scarcity, and global warming (caused inter alia by methane from cattle waste) as a result of animal overuse and abuse by humans.Footnote ⁵

These global problems are being addressed by States, and by international, transnational, and hybrid actors. For illustration, this chapter describes in some detail one IO, the WOAH. Other IOs also make decisions that are often especially relevant for the well-being and flourishing of animals, for example, the World Trade Organization (WTO) and the Food and Agriculture Organization (FAO). Relatedly, activities by other bodies and programmes run by IOs, such as the International Conference on Population and Development (ICPD) and the Programme of Action and the Environmental Programme of the United Nations (UNEP), matter. The line between decision-making ‘of’ an organization and decision-making by States under its auspices may be blurry. For example, heads of States and governments have, under the aegis of the United Nations (UN), adopted the Sustainable Development Goals (SDGs) in 2015 which are highly relevant for animals. Also, in non-incorporated treaty regimes, conferences of the parties (COPs), such as committees under the Convention on International Trade in Endangered Species (CITES) or the International Whaling Commission (IWC) under the International Convention on the Regulation of Whaling (ICRW), take decisions without much consideration for animals’ interests. Finally, transnational civil society organizations (such as People for the Ethical Treatment of Animals (PETA)) and hybrid actors (such as the International Conservation Union (ICU)) specifically deal with animals. Given the relevance of the said actors’ activity for animal interests, these interests need to be brought to bear not only in national but also in international decision-making. In the end, political (democratic) processes need to be redesigned for a dual extension: beyond State boundaries and beyond species boundaries. This has been called ‘a sentientist cosmopolitan democracy’ by Alasdair Cochrane.Footnote ⁶

9.3.1 Animal Consideration in National (Democratic) Lawmaking

In some democratic States, political parties that stand for animals have been created, but their candidates have been gaining only exceedingly small numbers of votes.Footnote ⁷ In addition, several jurisdictions (national and local) have established ombudspersons, committees, commissioners, or advocates for animals. One example is the German Tierschutzbeauftragte (animal commissioner). The office was created in 2023. The first office holder espouses a broad and loose conception of representation, claiming ‘to give animals a voice on the federal level and, for example, represent them in the legislative process’.Footnote ⁸ Typically, these institutions and offices do not possess lawmaking powers but are tasked to observe, make recommendations, or develop strategies. They are (despite the language used) not democratic representatives. If they are sufficiently independent from the executive and legislative branches, their work may help to mitigate the systematic neglect of the animal interests in national (or subnational) political processes.

9.3.2 Animal Consideration in International Forums

In transnational and international political forums, including in formal IOs, various players have articulated representative claims in favour of animals. Several big transnational civil society organizations (CSOs) defend various aspects of animal-related causes on a global plane, ranging from animal species protection (such as the World Wildlife Fund (WWF)) to the welfare of agricultural animals (such as Compassion in World Farming).Footnote ⁹ These CSOs seek to bring animal interests to bear both in the domestic political processes of States and in IOs. Their voice and participation in decision-making processes can make a democratic contribution, but they are not democratic ‘representatives’ of animals.Footnote ¹⁰

The European Union (EU) is a special IO, inter alia because its lawmaking process has (weak) democratic characteristics. In the EU Parliament, delegates of animalist political parties won three seats (out of 705) in the 2019 elections to the EU Parliament.Footnote ¹¹ Moreover, several EU citizens’ initiatives (ECIs) have been successfully launched under Article 11(4) TFEUFootnote ¹² with regard to animal welfare, and have triggered political responses by the EU Commission. Recent examples are the ECI ‘End the Cage Age’Footnote ¹³ and ‘Save Cruelty-free Cosmetics – Commit to a Europe without Animal Testing’.Footnote ¹⁴ Such initiatives are one building block of what the EU calls democratic participation (Article 10(3) TFEU), and they do feed animal interests into EU decision-making. However, the citizens launching an initiative do not ‘represent’ animals, and unfortunately the legal effects of an ECI are very feeble by design because initiators cannot propose a concrete bill.

To conclude, the current practices of bringing animal interests to bear in political processes on the national and international level are very weak. They need to be stepped up for the reason given in Section 9.2.

9.4.1 Institutional Framework

The WOAH has its main seat in Paris and a dozen regional representations in the entire world. It was founded as the Office International des Epizooties (OIE) in 1924, in response to a Rinderpest occurrence, by twenty-eight States. It now counts 183 Member States and is thus an almost universal intergovernmental organization.Footnote ¹⁵ Its English name was introduced in 2003, and its English acronym WOAH in 2023.

The legal bases of the organization are the International Agreement for the Creation at Paris of an International Office for Dealing with Contagious Diseases of Animals with annexed Organic Statutes forming an ‘integral part’ of the agreement.Footnote ¹⁶ Further key legal texts are the Organic Rules,Footnote ¹⁷ the General Rules,Footnote ¹⁸ and several headquarters agreements.

The WOAH’s narrow original objectives are defined in Article 4 of the Organic Statutes.Footnote ¹⁹ On its current website, the WOAH formulates its ‘vision’ as follows: ‘Provide leadership in global animal health governance. Improve animal health care and welfare worldwide and support global goals.’ The guiding principles of the WOAH’s animal health (and welfare) governance are, according to the former General Director, ‘excellence [i.e. scientific expertise], transparency and solidarity’.Footnote ²⁰ The website describes the organization’s mission as: ‘Promoting coordination of animal health and welfare; fostering transparency in the animal disease situation worldwide; support Veterinary Services to strengthen the governance of animal health systems.’ In order to fulfil its mission, two main activities of the WOAH are (1) the production, collection and dissemination of information on the global animal disease situation; and (2) standard-setting on animal health (and welfare).

The WOAH’s main organs are listed in Article 3 of the Organic Rules.Footnote ²¹ For the purposes of ‘representation’, I shall mainly look at the plenary body, the World Assembly of Delegates (Assembly).Footnote ²² Similarly as in other IOs, this Assembly is neither democratically elected by (nor directly accountable to) any global citizenship, nor does it have the power to make binding laws. The Assembly meets at least once a year for the General Session in May in Paris.Footnote ²³

The WOAH’s mandate, structure, working methods, and activities have evolved significantly during its near one hundred years’ existence. Its bodies have been re-organized and its mandate has been extended. This practice of high dynamism should make further reforms that would strengthen the consideration of animal interests easier than in other organizations that have been more static.

9.4.2 Standard-Setting

One important task of the WOAH Assembly is the adoption of codes and standards and other rules. The standard-setting activity seeks to contribute to a worldwide regulatory harmonization whose twofold aim is (just like the purpose of the entire organization) to ensure a high level of protection of animal health and welfare and to remove undue sanitary obstacles to animal and animal product trade.Footnote ²⁴

Working for this dual purpose, the two major standards produced by the WOAH are the two Animal Health Codes: the Terrestrial Animal Health Code (TAHC)Footnote ²⁵ and the Aquatic Animal Health Code (AAHC).Footnote ²⁶ These Codes are updated and revised annually, under the responsibility of two code commissions which each comprise six elected members. The final code texts are adopted by decision of the Assembly.Footnote ²⁷ The 2025 edition of the TAHC comprises sixteen sections, covering topics ranging from animal transport over slaughter and killing for disease control to the use of animals in research and education, plus chapters on agricultural animals (beef-cattle, broiler chicken, dairy cattle, and working equids).

All Member States are represented in the Assembly ‘by one permanent technical Delegate’ (who should belong to the Member State’s official veterinary services). These delegates are appointed by the Members States in differing procedures, depending on the State. They act under the instruction of the State’s bureaucracy. Each delegation has one vote in all matters that require voting and in all ballots.Footnote ²⁸ In practice, many proposals are adopted by consensus (absence of a formal counting of votes).

The WOAH standard-setting activity is science-driven. All leading officials are veterinarians or scientists, and the elaboration of standards is based mainly on scientific input. This approach bears some guarantee of rationality and distance from political influence. However, the scientific approach cannot completely rule out capture by industrial interests (agro, food, and pharmaceutical) that are often harmful for animal welfare.

Given the importance of influencing (up to capturing) the organization through the ‘golden reigns’ of funding, it is laudable that the final reports formally acknowledge voluntary financial contributions by Member States, the EU, and animal friendly non-governmental organizations (NGOs). No direct industry donations are mentioned.Footnote ²⁹ To conclude, the WOAH standard-setting does not enjoy any democratic legitimacy, but it enjoys some legitimacy through scientific expertise, participation of stakeholders (except the animals themselves), and a modest degree of transparency. Animal interests are hardly brought to bear in the processes.

9.4.3 Legal and Other Functions of the Standards

The WOAH standards are not formally legally binding. Nevertheless, the animal health standards are, due to their solid scientific base and their institutional and legal link with the Agreement on Sanitary and Phytosanitary Measures (SPS), a crucial economic factor for States seeking to trade animals and animal products.Footnote ³⁰ The reason is that conformity with these standards largely determine whether a State’s sanitary measures constitutes an unlawful trade barrier or not under the WTO and under regional or bilateral regimes modelled on the WTO regime.

The WOAH animal welfare standards are a more novel output. The welfare chapters in the Codes are recommendatory in form, and vague in substance. As a general matter, such secondary law must be taken into account in good faith by the organization’s Member States.Footnote ³¹ Moreover, the standards are referred to or otherwise incorporated into the national laws of most Member States, they are cited in international trade law agreements, they are a constant reference point in the work of other IOs (such as the WTO, the Organisation for Economic Co-operation and Development (OECD), and FAO), and they are also mentioned in business codes of conducts. Thereby, these standards, as shallow as they may be, affect and arguably even subject animals.Footnote ³²

9.4.4 The Failed Laying Hen Welfare Standard

To illustrate the abysmal failure of the standard-setting procedures to properly take into account animal interests, we might look at the defeated attempt to introduce a laying hen welfare standard in 2021. An ad hoc working group had worked five years (since 2016) on this topic. The Code Commission had proposed a new Chapter 7.Z. on animal welfare and laying hen production systems. The drafts had been circulated five times to Member States.Footnote ³³ The language of the final draft Chapter was very modest, saying that bathing areas, foraging areas, nesting areas, and perches were ‘desirable’ – not more.Footnote ³⁴ Moreover, the chairman of the Code Commission stressed that the code was ‘not a legal text’ but a ‘recommendation’ and that the new chapter’s implementation ‘was not expected to be immediate’.Footnote ³⁵

The EU had already in 1999 started to legislate against laying hen batteries and prescribes ‘enriched cages’ since 2012. For the EU, the proposed standards were too weak and ‘would not lead to any real improvements’.Footnote ³⁶ The EU had requested that the word ‘desirable’ be replaced by ‘should’ in those points, ‘as this would encourage countries to gradually converge with these international recommendations, leading to a progressive improvement in the welfare conditions of laying hens in the mid to long term’.Footnote ³⁷

But even the mere ‘desirability’ was too much for numerous southern States from all continents. They found the draft chapter too rigid and demanded ‘more flexibility’. The USA (which does not ban battery cages itself) was ready to compromise with the Global South. It is noteworthy that the industry representative, the ‘International Egg Commission’ had a say in the plenary, but no animal protection organization.Footnote ³⁸ In the end, the reluctance of States of the Global South to commit to enrichment of cages, not to speak of outdoor areas for laying hens, prevented the adoption of the new chapter.Footnote ³⁹ This story illustrates how basic animal interests of billions of animals who suffer extreme harm (most painful leg disorders and broken bones during their entire life span) are neglected in the standard-setting of the WOAH.

In conclusion, the organization’s decision-making, including its standard-setting activity, is not democratic. And although the standards (in combination with the domestic law of its Member States) affect and arguably even subject animals such as the laying hens, their interests in physical integrity, health, and well-being hardly come to bear in the standard-setting process. This situation should and could be changed. The following sections lay out the complicated underlying concepts and some concrete proposals for procedural design.

9.5.1 Interspecies Democracy

The neglect of animal interests in the political process has been picked up in interspecies democratic theory.Footnote ⁴⁰ The problems are most discussed under the headings of animal citizenship and political agency. Various proposals have been made to define a new political status for at least some animals in politics.Footnote ⁴¹ They range from animal ‘enfranchisement’ without animal citizenship (Robert Garner)Footnote ⁴² up to ‘animal citizenship’ for domesticated animals (Sue Donaldson and Will Kymlicka).Footnote ⁴³ An intermediate position which I find most convincing is to qualify animals as political patients and part of the demos with the ‘passive political right’ to have their interests considered in political processes (Janneke Vink).Footnote ⁴⁴

9.5.2 From Animal Representation to Animal Consideration

This section argues that the difficulties of a systematic responsiveness to animals allow us to speak of animal representation only in the very broad and most literal sense of ‘making present’. The job of political representatives is to render politically present to an audience those who are not physically present in the forum that takes political decisions.Footnote ⁵⁵ Several aspects of the complex concept of representation are especially important for a (potential) political representation of animals.

9.5.3 The Circumscription of the Animal ‘Constituency’

A key question is how and where to draw the boundaries of the group that needs to be represented (or considered) in a given forum.Footnote ⁷⁹ We call this group the ‘constituency’.Footnote ⁸⁰ For decision-making in States, this constituency is formed by the citizens, and therefore the question of animal ‘citizenship’ is so important (see above, Section 9.5.1). IOs do not have a territory and no acknowledged citizens. Therefore, the group to be represented cannot be defined by ‘belonginess’ or ‘community’, as often proxied by residence in a given territory and captured or symbolized by citizenship.

With a view to animals in relation to the decision-making by IOs, the ‘boundary question’ presents itself as a double question: the groups potentially affected and even subjected to decisions by organizations are not only spatially dispersed, but potentially also comprise more than humans. In order to bring animal interests to bear in the decision-making of IOs, the boundaries of the constituency must not only be pushed across the State boundaries, but additionally across the species lines (see above Section 9.2.2).

So the question is how to circumscribe the circle of animals whose interests should be brought to bear. A widespread premise in democratic theory is that the collective decision-making processes (especially beyond the Nation-State) should grant each human an equal say in decisions affecting him or her. This premise is relevant both for decision-making in IOs, and for the unilateral decision-making of States with transnational repercussions for people at other places of the globe, an issue that is not dealt with in this chapter.

The all-affected approach has been extended to animals. It has been said that there is no theoretical reason why the ‘all-affected’ principle should not transcend the species barrier.Footnote ⁸¹ Following Robert Garner, the all-affected principle demands ‘the inclusion of animals if and when their interests are affected by decisions made. It is clear that many political decisions that are made do impact, often detrimentally and often profoundly, upon animals. Therefore, it follows that animals (more specifically humans acting for animals) ought to have a say in those decisions.’Footnote ⁸²

It is submitted here, in line with other scholarship, that the so-called ‘all-affected’ principle is too broad. Basically, all human decisions on infrastructure, on the economy, on food, education, sports, affect different groups of animals. If all who are ‘affected’ by decisions of a State or – for the purposes of this chapter – of an IO were entitled to be represented (or only considered) in its decision-making, this would require to bring into the picture an amorphous group. This is neither morally not warranted nor practicable. Limitations and qualifications are needed.

The desirable and necessary limitations and qualifications can be reached in different strategies. The ‘constituency’ could be limited to a certain group of actors, namely sentient animals.Footnote ⁸³ This is still an exceedingly broad and vague group. A different approach to demarcate animal ‘representation’ would be to demand such representation only when fundamental or basic interests of animals are probably and deeply affected (‘no slaughter without representation’).

Alternatively, or cumulatively, the idea of ‘subjection’ – as propagated for the human say in political decision-making – could be applied to animals. ‘Subjection’ can be understood in different ways, ranging from being under the formal purview of the law, to being under coercive authority, to being under the sheer exercise of physical power.Footnote ⁸⁴ Animals are in a special way subjected to human laws. Although animals are not expected to abide with the law, they still form the object of regulation, and the human laws apply to them. Also, animals are in factual terms fully dominated through physical violence by humans. Where this is authorized by law, the coercive apparatus of the human State condones this domination. Due to the animals’ lack of understanding, the formal aspect of subjection is less relevant, but the physical aspect all the more. In that sense, animals are subjected by human decision-making, also when such decisions are taken by IOs.

The aspect of coercion is modified by the fact that most organizations do not possess any enforcement authority, also not over the animals. This does not prevent the animals’ constant and intense reduction of life chances and options for flourishment due to the acts of States that implement the relevant organizational acts. Many animals are in this sense ‘subjected’ to a number of decisions by IOs, most surely to the relevant standards set by WOAH for their species.

The problem remains that the criterion of ‘subjection’ does not lead to any clear boundary of the ‘constituency’ either. But such blurriness is not fatal if the animal ‘citizens’ do not have a vote. Taking their interests into account needs no firm boundaries. The circle of who must be taken into account can be blurry, and it can also be graded. My tentative view is that there should be no hard distinctions along species lines because this would be skewed in favour of rare animals. It also seems that not only domesticated animals but also wild animals need to be considered, because they, too, are harmed by human activity.Footnote ⁸⁵ Further explorations must be left for another paper.

9.5.4 Animal Deliberative Democracy

With a view to a democratization of decision-making in IOs, many theorists favour deliberative democracy as an alternative or complement to the ‘vote-centric’ models of democracy. At the same time, this approach has been pursued for environmental and animal-related issues.

Deliberative elements are first of all debates with the goal of reaching an acceptable decision based on good grounds (‘deliberations’), the participation of all affected (‘stakeholders’), and transparency. In IOs (as in other transnational and international forums), deliberations seem to be easier to realize and are indeed practiced widely (as opposed to transnational or global elections that are fraught with practical and conceptual problems).Footnote ⁸⁶ Along this line, Sabino Cassese has called deliberations a ‘surrogate’ for the lack of democratic decision-making by IOs.Footnote ⁸⁷

Environmentalists have espoused deliberative democracy, because deliberative elements are thought to yield better outcomes for nature.Footnote ⁸⁸ The environmentalist ideas have been applied to animal governance.Footnote ⁸⁹ Some authors count communicative exchanges between humans and animals as ‘animal deliberation’.Footnote ⁹⁰ Indeed, it is intuitively plausible that the ostensibly beneficial features of deliberations might serve to bring animal interests to bear more in the political process. Generally speaking, deliberations probably enhance rationality, intensify the consideration of the interests of differently situated others, and facilitate mutually acceptable outcomes. They presumably generate more truthfulness, more reason-giving, more social learning, and most of all more reflexivity. All this means that democracy without deliberations would be deficient.

‘Animal deliberation’ might therefore be a beneficial procedure in IOs such as WOAH. However, the concept of democracy is overstretched when it is applied to mere deliberations without the possibility of electing and recalling representatives. In the absence of voting, deliberations by themselves do not amount to democracy (which needs deliberation and voting), and deliberations do not necessarily involve representation at all, because also those who are absent from a concrete decision-making forum can still participate in deliberations around the decision-making. ‘Animal deliberation’ might enhance the consideration of animal interests in IOs such as WOAH but would not transform them into more democratic institutions.

10.2.1 The Initial Set-Up: Sovereign Consent and Technical Expertise As Historical Legitimation Narratives in the Nineteenth Century

The original blueprint for IOs, including the first scholarly reflections on the legitimacy of their lawmaking activities stems from the nineteenth century. Industrialization, scientific, and technical inventions, European imperialism and the associated first wave of economic globalization in the nineteenth century created the perceived need of European national administrations to co-ordinate technical and humanitarian standards. Under the leadership of specific European powers and industrial or philanthropic elites, public international unions and commissions were created by international treaty law, such as the World Telegraph Union, the World Postal Union, or the river commissions for the navigation on the Danube and the Rhine; but also the late nineteenth century international debt commissions which regulated the Egyptian, Turkish, and Chinese debt restructuring programmes or the International Sugar Commission are cases in point. In the field of institutionalized humanitarian and social regulation the Office for the Prevention of Maritime African Slave Trade and Liquor Traffic based in Zanzibar, the Institute for Agriculture in Rome, the International Labor Office in Basel could be added as examples.Footnote ⁷

The original blueprint of these forms of cooperation is the harmonization of administrative action between European countries on certain issues which in the eyes of Europe’s great powers seemed to require international regulation. Particularly obvious was this need for coordinated administrative action in the field of new (communication‑) technologies, which had only been invented during that period. The International Telegraphic Union, which later became the International Telecommunications Union (ITU), served as a precedent for the subsequent creation of other permanent forms of administrative cooperation of States.Footnote ⁸ When major European powers, which were particularly advanced in the development of telegraphic technology, realized that the envisaged global expansion of this technology needed international cooperation, they invited twenty States in 1865 to Paris for a first international conference. States were represented diplomatically by their ambassadors in Paris and by expert delegates from the respective national administrations. The aim of the conference was a continuous harmonization of telegraph administration in the respective countries. Negotiators in Paris differentiated between the convention as a basis for further cooperation and specific harmonized regulations. Even though the convention had to be signed by the ambassadors, the concrete regulations were negotiated by the experts from the national administrations.Footnote ⁹

In the eyes of great power political elites, legitimacy was formally provided by sovereign consent and substantially by technical expertise. The initial convention foresaw regular conferences of the parties to formally amend its rules and regulations. Conferences would be organized by national administrations on a rotating basis. Only later was a permanent secretariat added to the organizational structure of the ITU with the task to facilitate the application of the convention by national administrations.Footnote ¹⁰ At an even later stage the organization decided to establish an executive council, consisting of a limited number of Member State-representatives with the task to represent the plenary organ between the regular plenary conferences.

With this organizational set-up, consisting of a plenary of diplomatic representatives, a smaller executive body of diplomatic representatives elected by the plenary, and a secretariat with international civil servants, a model for further IOs had been created: the convention usually established a main diplomatic plenary organ, in which legitimate rule-making in form of resolutions and standard-setting could take place. The plenary organs usually decided on the basis of the ‘one State one vote’ principle, hereby basing the authority and legitimation of new rules on the principle of sovereign equality. Voting under the unanimity-rule was therefore the standard procedure. The unions also often established a permanent secretariat as a facilitator of future conferences and for enhancing the application of standards. In the more mature organizations we can then observe the creation of an executive board or council as an executive supervisory organ usually consisting of a limited number of national representatives, elected by the plenary organ and representing the membership.Footnote ¹¹

In all international unions and commissions, the permanent secretariats not only started to employ international civil servants, but they also involved private expertise in their knowledge-creation and dissemination activities.Footnote ¹² The latter of which was not only the case for unions dealing with technical innovations but was also very common in the financial, humanitarian, and cultural field. Often private technical innovation or philanthropic projects driven by elite-networks led to privately organized international conferences, which preceded the initiation of international diplomatic conferences on the respective matters.Footnote ¹³ Those private associations, scientific institutions, and industry representatives, which had spearheaded technical or humanitarian cooperation, later usually remained an integral part of the knowledge and policy network, at the very heart of the respective international organization. The Egyptian Debt Commission of 1880 for instance consisted of national representatives from the major European creditors, which were in constant contact with the involved banks and their national financial stakeholders. Without the consent of the representatives of the creditor nations in the Commission, the Egyptian government could not incur any expenditures not authorized under the Convention.Footnote ¹⁴

Formal legitimation for lawmaking and standard-setting was taken to be provided by sovereign consent, substantively by technical expertise, and culturally by a strong ideology of universal cooperation in a perceived ‘common interest’. Decisions by executive bodies would be confined to less fundamental, that is administrative decisions, deriving their legitimacy indirectly from the plenary as an elected body. It goes without saying that colonized societies had no representation in the deliberations of these institutions being excluded from the legal privileges of European sovereignty as so-called ‘non-civilized’ entities. Colonies of the metropoles, such as the British crown-colony India, were usually represented by colonial administrations adding hereby to the numerical weight of European empires in these institutions, thus introducing the very first weighted voting procedures. European nineteenth-century observers of this early phase of international organization often waxed lyrical about these new organs, which are seen as an expression of the solidarity between ‘civilized’ nations in tackling practical questions raised by a rapidly advancing ‘European civilization’. Many of these co-operative endeavors in the eyes of European elites had become necessary in order to better administrate and enforce European economic and military imperialism in what contemporaries called ‘non-civilized’ areas of the world. In that sense European imperialism was not only facilitated by these first international institutions, but Europe’s ‘civilizing mission’ also provided a legitimation for enhanced cooperation between the metropoles. Contemporary literature abounded with the rhetoric of an ‘international community’ based on common interests. In 1907 the influential American commentator of the move to institutionalized cooperation Paul Reinsch, looking back to this first phase of institutionalization, expressed this optimistic liberal sentiment in the American Journal of International Law in the following words:

10.2.2 Weighted Versus Majority Voting in the UN System and the First Rebellion of the Third World

While the League of Nations had preserved the basic nineteenth-century structures of legitimation and decision-making in international institutions, including the ‘one State one vote’ principle and the unanimity-rule, the UN era introduced both majority voting and weighted voting in various international institutions and organs. The unanimity-rule had been identified by practitioners and scholars as one of the main obstacles to ‘getting things done’ in international institutions already before and during the Interbellum. Nicolas Politis in 1928 held that ‘to lay down the principle that in international organizations every important decision must be taken unanimously … is to admit that among nations no real organization is possible, for the rule of unanimity may lead to paralysis and anarchy’.Footnote ¹⁶ Considering that functionalist aspirations, understood as the common aim of elite-representatives to solve international co-ordination problems, had always been a driving force of the move to institutionalization, the frustration created by small minorities blocking institutional action was felt in various institutional settings since the late nineteenth century.

It may nonetheless seem surprising that in 1945 the US, the USSR, and the still existing European empires could agree on majority voting becoming the default rule in the UN and its specialized agencies; a development described by Wilfred Jenks as ‘a revolution of decisive importance’ for the future of international organization.Footnote ¹⁷ For majority voting always comes with the risk of being outvoted by coalitions of smaller States. One explanation for this great power acceptance of majority voting was the new combination with weighted voting procedures understood in a broad sense of the term. A pertinent if not infamous example are the veto rights of the five permanent members of the UN Security Council, entrenching a hegemonic position within a particularly powerful organ of the UN. But not only in the field of international security weighted voting procedures reflected a particular post–Second World War hegemonic status quo. In the Bretton Woods institutions, weighted voting rights equally translated the dominant position of the US and the European empires in the post-War world economy into institutional procedures and the composition of executive bodies. Democratic ideals as well as the principle of sovereign equality in many organs of international institutions gave way to forms of weighted representation according to material contributions, capabilities, and power resources.Footnote ¹⁸ Formally, unequal representation could of course always be legitimized by small States ‘consenting’ to accede to the respective regimes, reminding us of Karl Marx criticizing the notion of ‘free consent’ in the context of a starving worker signing an exploitative labour contract.

Be that as it may, post-war plenary organs of universal organizations by and large had moved from unanimity to majority voting on a ‘one State one vote’ basis. That plenary organs with majority voting rules could be used against executive bodies with privileged veto rights had been famously demonstrated in the 1950s by the Uniting for Peace Mechanism, which the US had invented to counter Soviet vetoes in the UN Security Council by UNGA resolutions on matters of war and peace. Unexpectedly, however, during the post-Bandung decolonization era, the US and the other Western great powers increasingly lost control of these plenary organs. The first Third World ‘rebellion’ started in the UNGA and developed into a broader ‘Battle for International Law’ in the decolonization era.Footnote ¹⁹ Legally, the crucial issue for the Third World represented by the Non-Alignment Movement was how to give non-binding majority resolutions of the UNGA, often adopted against the will of great powers, more weight in international legal discourse. It is the time of the debates on ‘instant custom’, the latter being allegedly created by non-binding resolutions over a short period of time.Footnote ²⁰

Reactions by Western scholars to this rebellion are revealing. Resolutions sponsored by a Third World majority in the context of decolonization and international economic cooperation were criticized by Western politicians, diplomats and scholars as ‘reckless’, ‘irresponsible’, and ‘undemocratic’.Footnote ²¹ New proposals for weighted voting in plenary organs countering the now deplored ‘automatic’ majority of Third World States suddenly abounded.Footnote ²² Particularly harsh were the reactions in US foreign policy circles given that up until the mid-1950s, the US had dominated the UNGA and practically all other organs of the UN, except for the Security Council where it had to cope from day one with the veto right of the Soviet Union. A US senator in a publication on the future of the UN pointed to the problem of unequal democratic representation because of diverging population-sizes behind the veil of the ‘one State one vote’ principle. He did so in racialized terms: ‘In this grotesque United Nations calculus one African bushman becomes the equivalent of 100 Frenchmen or 400 Americans’.Footnote ²³ In his very influential monograph on the emergence and structures of international institutions published in the 1950s, US scholar Inis L. Claude also warned his readers to be ‘on the guard’ against those who praise the turn to ‘equalitarian’ majority voting in international institutions:

The main problem for the Third World, however, was that the (non-binding) majority resolutions passed in the UNGA against the declared will of the great powers could not lead to new legal obligations under the prevailing doctrine of voluntarist positivism and the mainstream doctrine of sources. Joint Third World efforts during contemporary codification projects, such as the UN Conference on the Law of the Sea, were also only partially successful because of entrenched resistance by great powers in the respective negotiations.Footnote ²⁵ As to the claimed new customary rules emerging from UNGA resolutions, the ICJ would confirm new customary rules only in the case of norms from important and unanimous UNGA resolutions, hereby confirming the doctrinal requirement of sovereign (tacit) consent for new international law to emerge.Footnote ²⁶ Apart from the gradual incrimination of colonialism, the aspired international legal, political, and economic revolution was eventually thwarted by Western States and their scholars.Footnote ²⁷

One of the main reactions of Western powers during and after decolonization was to sideline those institutions or organs which were now perceived as ‘unruly’ and difficult to control because of majority voting on a ‘one State one vote’ basis. Instead, Western great powers enhanced cooperation through institutions, which remained under their political control, such as the G7, the North Atlantic Treaty Organization (NATO), the Security Council, and the Bretton Woods Institutions, often using also informal standard-setting and cooperation mechanisms such as the Basel Committee on banking-regulation. As to formal multilateral treaty-making, treaty projects were usually welcomed by great powers once they could help to cement their dominant or advanced position in certain sectors of global politics, be it global trade, investment, armaments, security, health, or communication technologies. Typical examples are the NPT for nuclear weapons, safeguarding an exclusive right of some States to possess nuclear weapons, or the TRIPS Agreement adopted under the WTO roof in the 1990s protecting technical innovations and thus the central position of the largest and most competitive domestic economies in global markets.

10.3.1 Participation of ‘the Most Affected’

Let me start by explaining the argued recent shift towards enhanced participation of the ‘most affected’ in international institutional law. On an empirical level this trend is rather obvious for civil society participation in international institutions. If we look back to the 1990s, ‘civil society’-participation in ‘Global Governance’ through involving NGOs was seen as a panacea-like concept to ‘democratize’ international institutions and to facilitate the realization of ‘common interests’ in international law. This idea of NGO-representation of abstract common interests, such as environmental protection or fighting impunity from human rights violations, however, has arguably given way to the more recent principle of participation of the ‘most affected’ in international institutions – the rise of ‘affected persons organizations’.Footnote ²⁸ Classic NGOs in various fields of law- and policy-making are increasingly replaced by local and transnational social movements, so called ‘affected persons’ organizations’ (APOs) as a reaction to a perceived crisis of legitimacy and a backlash against both international institutions and international NGOs.

This trend has, over the last ten years, already transformed rules of civil society participation in more than twenty prominent IOs. For example, members of indigenous groups and peasant organizations have successfully lobbied for new rights instruments and institutional reforms to ensure protection, participation, and influence in international institutions.Footnote ²⁹ Persons affected by HIV/AIDS, tuberculosis, and malaria have been accorded designated seats on decision-making bodies in the Global Fund, UNITAID, and other institutions of global health governance.Footnote ³⁰ Organizations of persons with disabilities took on a strong role in the negotiations of the UN Convention on the Rights of Persons with Disabilities. Working children movements from the Global South challenged the Western understandings of child labour in various intergovernmental organizations.Footnote ³¹ Among the first institutions which modified their rules of procedure accordingly were the FAO of the UN in Rome, the Monitoring Mechanism of the Convention on the Rights of Persons with Disabilities, and the WHO. In the FAO, Via Campesina, a global peasant movement, has for instance replaced Oxfam and ‘Friends of the Earth’ in the civil society mechanism.

Classic international NGOs and also States increasingly see political benefits in co-operating with social movements representing the ‘most affected’. In the fight against climate change, international institutions are also experimenting with new forms of participation of the most affected from small island States in the form of affected persons organizations and States.Footnote ³² In the same field young climate activists claim intergenerational justice as an age group that will be more affected by global warming than the rest of the population. Activists involved in these movements do not want to exercise formalized decision-making powers in these institutions. Rather, the general idea is to participate in institutionalized deliberations in order to influence the content of adopted decisions. For social movements participation in international institutions is one strategy among others aimed at fostering the transnational mobilization of political resistance against perceived hegemonic networks of powerful national administrations, scientific expertise, and influential corporate actors.

The status of speaking for those who are being negatively affected on the ground by certain norms and policies, if credible and well-coordinated, gives these voices moral and sometimes also empirical persuasiveness in these institutional settings. Usually, their positions are more radical and uncompromising than those of classic NGO representatives. Even without formal voting rights, APOs can have a considerable impact on the content of new international norms, standards and decisions; one example being the negotiations on the UN Convention on the Rights of Persons with Disabilities, during which many persons with disabilities representing disability-organizations participated and exerted considerable influence on the content of the convention adopted in 2006.Footnote ³³

The general concept of affectedness of course, is neither new, nor has it remained unobserved by researchers in social sciences. It is a basic and long-standing democratic ideal that those who are affected should have a say on issues that concern them.Footnote ³⁴ In traditional Western democratic theory, from Emmanuel Kant to John Rawls, being affected by rules enforced in a certain delineated territory has been conceptualized as requiring elections of representative bodies on a ‘one citizen, one vote’ basis, in order to ensure equal influence of affected individuals on the composition of parliaments and executive bodies. More recently, global justice scholars have sought to conceptualize an ‘all-affected principle’ as a normative expectation for law- and policy-making with transnational effects, and discussed its potential implications from the perspective of political philosophy.Footnote ³⁵ Even more relevant for the phenomenon under scrutiny here, Nancy Fraser proposed to replace the ‘all-affected principle’ by a more specific principle of involving all those groups ‘subjected’ to a given transnational governance structure (‘all-subjected principle’).Footnote ³⁶

Participation of ‘the most affected’ also has a constructivist and self-mobilizing dimension, which in this context should not be overlooked. By rallying and articulating their demands on the streets and in conference halls, affected individuals also constitute themselves as a specific collective entity. This self-constitutive mechanism is well known in democratic theoryFootnote ³⁷ – but now it is no longer ‘we the people’ but rather ‘we the 1.2 billion smallholders’ or ‘we the 600 million persons with a disability’. Reflected here on a global level is what Pierre Rosanvallon ascertained for the Nation-State: the people (peuple) nowadays is only a ‘litany of minorities and situations’.Footnote ³⁸ Given that organizations representing the ‘most affected’ do not primarily claim to advance universal or common interests, the question of how they actually managed to be regarded as an actor that can render the work of international institutions more legitimate is not easy to answer. One reason certainly is that under postmodern conditions ‘speaking for others’ generally has fallen under the suspicion of being another form of hegemonic paternalism. We are also witnessing a widely perceived crisis of representation in Western societies, which arguably comes with the perception that the articulation of one’s own interests as a general rule has to be as direct as possible. According to this concept, affected individuals should speak for themselves.

And yet ‘representation’ in the sense of ‘making present’ something that is literally absent is unavoidable even when the most affected take the floor in international institutions. The small holder-farmer from India is precisely being heard and included because she also claims to speak on behalf of similarly affected persons out there. Employing the categories of representation developed in Hanna Pitkin’s seminal monograph, participation of the most affected would fall under forms of ‘descriptive’ representation resting essentially on the resemblance between the group and its representative.Footnote ³⁹ The move to affectedness also has a related performative dimension that is connected to opportunities offered by new media. The authentic testimony of the speaker’s own experiences of discrimination, rising sea-levels, violence, or impoverishment is now crucial to have an impact on deliberations in and around international institutions.

Current media-driven campaign concepts, even those of classic NGOs, seem to require the authentic and tangible testimony of affected individuals in order to deliver their own message effectively. Affectedness in that sense has become an element of the political economy of civil society activities, which are always dependent on external donors. The existence of multifaceted relationships between large NGOs and most affected peoples’ organizations is therefore not surprising.Footnote ⁴⁰ Allow me one further remark on the political context, in which the rise of the ‘most affected principle’ takes place: the system of global governance structures, which was erected over the last thirty years, has proven to be quite efficient in creating globalized market structures, but it is increasingly seen as being more or less dysfunctional with regard to the protection of central social, humanitarian, and environmental values of human beings and all other living species inhabiting our planet.

Interestingly, in the nuclear non-proliferation field analysed as an example in more detail in the remainder of my contribution (Ban Treaty), a broad coalition of small and middle powers cooperating with most affected person’s organizations and classic NGOs successfully launched a new treaty project in order to correct the old NPT. Interestingly this initiative used majority decisions in the UNGA to create a new dynamic previously blocked by the great powers within the consensus-oriented NPT treaty organs. Creating more progressive treaties alongside existing multilateral regimes is perhaps the most formal approach to launching a rebellion against status quo-oriented great powers.

10.3.2 Rebel Treaties

Surabhi Ranganathan in her pathbreaking work on ‘strategically created treaty conflicts’ has shown how hegemonic powers (the US in particular) managed to exercise and indeed change multilateral treaty-regimes by a strategic move into bilateral treaty making. These moves served to counter the objectives of lawmaking conventions, such as the UN Convention on the Law of the Sea (UNCLOS) or the Rome Statute.Footnote ⁴¹ In a similar albeit reversed way broad coalitions of small and medium sized States together with Civil Society groups are currently trying to create new multilateral treaty law in order to put pressure on a small number of hegemonic powers to reform existing treaty regimes, if necessary by creating new complementary treaties. Arguably such rebel treaties are processes of lawmaking, which often aim at turning vaguely termed goals of existing regimes into specific (cross-sectorial) and thus now effective obligations of States in the form of new binding law. The resulting legal rules amount to substantial reforms and as such tend to be in tension with the existing (old) regimes even though they attempt to conceal potential collisions by somewhat euphemistically calling themselves ‘complementary’ or merely ‘concretizing’ instruments. One of the first examples of these forms of counter-hegemonic treaty making in the 2000s arguably was the International Treaty on Plant Genetic Resources for Food and Agriculture called ‘the seeds treaty’. This treaty set out to correct a hegemonic Western dominated intellectual property protection regime for agricultural seeds established in the 1990s by the Union for the Protection of New Varieties of Plants (UPOV) and the TRIPS regime. Its provisions aim at regulating biodiversity and intellectual property rights’ issues through a cross sectorial approach.Footnote ⁴²

From a legal perspective, such rebel treaties complementing the old treaty regime are not able to formally modify another existing treaty with a different set of States parties.Footnote ⁴³ Nonetheless rebel treaties can add a number of new obligations and institutional structures to the existing ones and change the overall legal landscape, in which the regime operates.Footnote ⁴⁴ Six characteristics of such forms of ‘rebellious treaty-making’ can be discerned:

1. - Rebel treaties are conceptualized and put forth as a reaction to ‘a failure of the international community in showing solidarity and equity’Footnote ⁴⁵ through existing legal regimes in face of planetary threats and catastrophes;

2. - These initiatives foresee a special (also performative) role and respect for both States and private groups who are particularly vulnerable or affected (‘the most affected’) by the failure of the international community to take action on the respective regulatory issue;Footnote ⁴⁶

3. - Rather than using only informal policy mechanisms to challenge the status quo through UNGA or other fora, these initiatives aim at formal and ‘complementary’ treaty-making hereby nonetheless substantially reforming existing international legal regimes without formally replacing or amending treaties already in force. They can be seen as a new counter-hegemonic version of ‘strategically created treaty conflicts’;Footnote ⁴⁷

4. - They also usually go beyond the Framework-Protocol approach known from international environmental law by challenging fundamental norms of the existing regime rather than concretizing regime-goals through new protocols, decisions, and regulations (framework-protocol approach);

5. - In their cross-sectorial approach, which reacts to the nature of the crisis phenomena addressed, these treaty projects disregard prior legal boundaries drawn by a deliberately fragmented institutional landscape;

6. - The new treaty instruments can create new organs but also use existing institutional infrastructures for oversight and monitoring as well as administrative capacities of the pre-existing treaty regime, while delegating new tasks to these bodies.

It is the TPNW which fulfils all of these rebel treaty-characteristics in an exemplary fashion. More than forty years after the adoption of the NPT, a broad coalition of non-nuclear weapons States created a new UN treaty on a general prohibition of nuclear weapons (TPNW) alongside the NPT.Footnote ⁴⁸ This initiative had been launched by a broad coalition of civil society organizations and small and middle-sized States.Footnote ⁴⁹ Within the coalition Japanese civil society organizations and representatives of small island States from the Pacific, which had suffered from nuclear testing activities by the US and France in the second half of the twentieth century, played a prominent role. At the first Meeting of States Parties to the TPNW in June 2022 Member States declared that the comprehensive legal prohibition of nuclear weapons had been established by the treaty as a necessary measure to implementing the disarmament pillar of the NPT. The aim of the treaty project was to ‘further stigmatizing and delegitimizing nuclear weapons and steadily building a robust global peremptory norm against them’.Footnote ⁵⁰

What was the prior status quo legalized by the NPT and in which way can the new TPNW with its sixty-eight Member States be seen as a fundamental challenge or correction of the previous legal regime? In 1968 with the adoption of the NPT a compromise had been struck between the then five nuclear powers and the rest of the world. All Member States not belonging to the exclusive group of nuclear powers at that point in time were obliged not to acquire nuclear weapons in the future. In return for taking on this obligation, Member States were allowed to develop civilian usages of nuclear energy facilitated by the nuclear powers. Moreover, Article VI of the NPT requires:

Additionally, the NPT came with a complex verification system based on differentiated monitoring activities carried out by the International Atomic Agency (IAEA). At the heart of the political mobilization for the new treaty was a sense of frustration among non-nuclear powers that the stockpiles of the five nuclear States had steadily expanded and diversified and that disarmament activities despite certain bilateral disarmament initiatives in the 1980s and 1990s had largely failed. Article 1 of the TPNW fundamentally challenges the NPT-distinction between privileged nuclear States and the ‘rest’ by generally prohibiting the development, deployment, possession, use, and the threat of use of nuclear weapons. As to its cross-sectorial implications, the TPNW takes a clear stance in the fifty-years-old struggle to ban nuclear weapons as a legitimate means of warfare in international humanitarian lawFootnote ⁵¹ holding in its preambular part that ‘any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law’. No wonder that the five nuclear States privileged by the NPT did not become parties to the TPNW claiming time and again that the new treaty was a dangerous development weakening the existing NPT regime.

But how does the new treaty itself deal with the NPT regime and with potential collisions between the two treaties? It is noteworthy in this context that the coalition driving the drafting process took care to avoid a confrontational stance regarding the NPT regime. Quite the contrary was the case as is reflected in numerous statements by delegations over time and more importantly in various norms of the TPNW. The preamble of the TPNW reaffirms that ‘the full and effective implementation of the [NPT], which serves as the cornerstone of the nuclear disarmament and non-proliferation regime, has a vital role to play in promoting international peace and security’. Rather than challenging the NPT explicitly, the Ban Treaty is thus portrayed as being a complementary regime enhancing the implementation of the above cited Article VI of the NPT, which indeed already in 1974 foresaw the conclusion of a disarmament treaty in the future. Not everybody agrees of course. France for example argued that the Ban Treaty created an ‘alternative, incompatible and incomplete norm’Footnote ⁵² undermining the existing non-proliferation regime. Interestingly, Article 18 of the Ban Treaty also holds that ‘[t]he implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty’. While the first half-sentence of the provision strikes a conciliatory tone (‘not prejudice obligations … ’), the second half-sentence establishes a general collision-rule in favour of the provisions of the Ban Treaty hereby implicitly claiming that the Ban Treaty is lex specialis vis-à-vis other regimes on nuclear weapons.

As mentioned above, another characteristic feature of these exercises of rebellious treaty-making is the use of organs and institutional features created by the pre-existing regime. The new treaty inserts itself into the existing institutional set-up and monitoring mechanisms extending as a result the old regime without formally amending it. For example, Article 3 not only requires States parties to maintain their existing IAEA safeguards ‘without prejudice to any additional relevant instruments’ but the treaty also sets the IAEA Comprehensive Safeguards AgreementFootnote ⁵³ as a minimum non-proliferation verification requirement, herewith drawing heavily on the existing institutional infrastructure.Footnote ⁵⁴ At the same time this minimum-requirement for all Member States goes beyond the obligations set out in the NPT and from that angle the Ban Treaty strengthens the overall regime.