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In Jam v. International Finance Corp., the U.S. Supreme Court held that the International Organizations Immunities Act of 1945 (IOIA) affords international organizations (IOs) the same immunity from suit in U.S. courts that foreign governments currently enjoy under the Foreign Sovereign Immunities Act of 1976 (FSIA), which codifies the restrictive theory of foreign sovereign immunity. The International Finance Corporation (IFC) had argued that the IOIA, which grants international organizations the “‘same immunity’ from suit … ‘as is enjoyed by foreign governments’” (p. 15), should be understood to provide international organizations with absolute immunity, which it argued foreign governments enjoyed prior to the United States’ explicit adoption of the restrictive theory in 1952. Under the restrictive theory, a foreign state is immune from suit for its sovereign acts (acta jure imperii), but not for its commercial acts (acta jure gestionis). By interpreting language in the IOIA as granting the “same immunity” to international organizations as foreign governments enjoy at the time the suit is filed, the Supreme Court aligned the regime for IO immunity with that of foreign state immunity, except in cases where the IO's founding charter provides a different rule or where the executive branch has explicitly limited immunity. It remains to be seen what IO activities are deemed “commercial” under this regime and what types of transactions are found to have a sufficient nexus to the United States to fall within the FSIA's commercial-activity exception.
To what extent do rules of general international law apply between international organizations and their members? The article tackles this question by distinguishing between two categories of relations: those that take place on the international plane and those that are, rather, situated on the institutional plane constituted by the organization’s internal law. I argue that general international law applies by default to relations belonging to the first category, only being displaced when the internal law of an organization contains applicable lex specialis, but that it cannot claim a similar role at the level of internal institutional relations. The question there becomes one concerning the dialogue between relatively autonomous international legal orders, so that it is the internal law of each organization that defines the terms on which rules of international law are allowed in. At the same time, a normative argument can be made for a ‘monistic presumption’ for the application of general international law in cases where the rules of the organization are silent. By delving into such questions of applicable law and identifying the relevant analytical frameworks, the article aims to help international lawyers dealing with complex disputes opposing international organizations and their members to structure the legal analysis.
The drafters of the Rome Statute sought to accord human rights a central place within the legal framework of the International Criminal Court (ICC). This was done not only through numerous provisions on the rights of the accused, victims, and witnesses, but also through the inclusion of the overarching Article 21(3) of the Rome Statute. Article 21(3) Rome Statute requires that the interpretation and application of all ICC law be consistent with internationally recognized human rights. While this provision has been employed on numerous occasions to bolster human rights protection in the ICC legal framework, it is not without its limits. In a series of decisions over the past few years, ICC judges have placed limits on the protections that can be read into the ICC legal framework on the basis of Article 21(3). Beyond stating that the ICC ‘is not a human rights court’, the decisions in question articulate no clear justification for the limitations imposed on Article 21(3). The present article analyses these decisions and identifies the underlying rationale for the Court’s approach: the principle of speciality. However, the picture is further complicated by the judges’ willingness to overlook the principle of speciality when particularly serious violations of human rights are involved. This leaves the precise contours of human rights protection in the ICC legal framework undefined.
This paper highlights how international organizations can use global performance indicators (GPIs) to drive policy change through transnational market pressure. When international organizations are credible assessors of state policy, and when monitored countries compete for market resources, GPIs transmit information about country risk and stabilize market expectations. Under these conditions banks and investors may restrict access to capital in noncompliant states and incentivize increased compliance. I demonstrate this market-enforcement mechanism by analyzing the Financial Action Task Force (FATF), an intergovernmental body that issues nonbinding recommendations to combat money laundering and the financing of terrorism. The FATF's public listing of noncompliant jurisdictions has prompted international banks to move resources away from listed states and raised the costs of continued noncompliance, significantly increasing the number of states with laws criminalizing terrorist financing. This finding suggests a powerful pathway through which institutions influence domestic policy and highlights the power of GPIs in an age where information is a global currency.
compares cosmopolitan vs communitarian issue positions of national, European and global elites. It is important to go beyond the national elite focus since the prototypical members of a cosmopolitan elite are thought to be no longer attached to one national context but to have an entire region or even the ‘global village’ as their point of reference. Our empirical analysis supports this expectation: The positions of European-level elites turn out to be even more strongly cosmopolitan than those of national elites, which indicates that a particularly large gap exists between the cosmopolitanism of European elites and the more communitarian orientation of mass publics. Cultural explanations - measured by embeddedness in transnational networks - have the greatest explanatory power. Those elites who have more transnational contacts and travel experience are more cosmopolitan with regard to trade, immigration and supranational integration. However, economic explanations help us to explain within-elite variance in cosmopolitanism. In particular, we find that business and labour union elites diverge strongly in their positions on international trade and supranational integration.
analyzes globalization-related conflict in the UNGA and the European Parliament. These two ‘strong publics’ feature debates on issues related to the permeability of borders and are directly tied to important centers of decision-making in global governance. The findings show a powerful cosmopolitan presence in both assemblies. The EP also features more communitarian counter voices. An indepth analysis of the partisan nature of debate in the EP and the difference between directly elected Members of the EP and appointed European Commissioners lends strength to the hypothesis that electoral accountability strengthens the presence of communitarian voice in supranational arenas. Direct elections and proportional representation appears to increase the presence of communitarians in global governance. This finding implies that cosmopolitan democrats face a difficult trade-off. They can democratize global governance, but it will likely come at the price of less cosmopolitan policies made in international institutions. Alternatively, they can pursue cosmopolitan policies, but only if they limit the democratic accountability of key global governance institutions.
In this chapter we argue that the key to an understanding of international governmental organizations (IGOs) is to conceptualize them not as standard forms of organizations with individuals as their members, but as meta-organizations comprising organized actors as members. Meta-organizations are paradoxical constructions: autonomous actors with autonomous actors as members. Organizational elements cannot be considered in isolation in meta-organizations; their combination are key factors; therefore meta-organizations are often partially organized. IGOs are permanently competing for actorhood with their member states and this competition has far-reaching implications for to what extent they can make use of all organizational elements. Using one element may require the avoidance of other elements or certain forms of decision-making. This helps to explain why IGOs have problems achieving co-ordinated organizational action and why they are less powerful actors than standard organizations are. Yet IGOs are strong in other respects. The most important organizational element in IGOs is membership. The strengths of IGOs can be understood in relation to their creation, their expansion, and their long-term influence on their members.
The idea of partial organization has not been fully explored. Relatively little attention has been paid to organization within organizations or to the possibility of partial de-organization. We explore this possibility in the context of business firms for which innovation and strategic renewal are imperatives. The firm’s top management created conditions for autonomous action in the form of a dedicated internal development program for strategic renewal. Thus, it attempted to partially deconstruct its organizational hierarchy and other elements of its decided order. Employees from all over the organization were invited to participate in the program and to present proposals for new strategic initiatives. The contribution of the paper is in the introduction of the concept of partial de-organizing and in the argument that partial organization is also observable within, and not just without, the boundaries of formal organizations.
The sheer amount of non-state participation in the creation of the World Bank Environmental and Social Framework (ESF) is surely noteworthy. The aim of the Bank’s consultation was to get ‘global’ input and feedback, and with over 8,000 stakeholders from over 63 countries taking part, it is laudable. The extent of the participation challenges the positivist approach to international law-making, which views only states as having the power to make law and raises questions about how to legitimize such international soft-law making. Legitimacy is entangled with democracy, as scholars debate whether democracy is the required benchmark for decision-making processes at international organizations. This article uses deliberative democracy to analyse the ESF consultation process. Whilst, democratic legitimacy has been interpreted to mean inclusivity and participation, deliberative democracy raises a series of hard questions about equality and power that scholarship on global governance needs to grapple with. Although this participatory process at the World Bank challenges traditional narratives in international law, analysing it through a lens of deliberative democracy exposes the work that still needs to be done to discuss democracy in international decision-making.
Because of its transboundary effects and because states will be the primary actors, large-scale solar geoengineering and its governance are matters of international law. This is the first of four chapters that consider rules from custom, treaty, and principles as well as international organizations. Although there are no international instruments that are legally binding, in force, and specific to solar geoengineering, international law provides both a substantial extant governance framework and a foundation upon which future norms, rules, procedures, and institutions specific to solar geoengineering could be built. This chapter introduces how international law operates and discusses several general international legal principles that would guide its interpretation and development with respect to solar geoengineering. It describes one source of binding international law – that of states’ customary behavior – and what it might mean for solar geoengineering, emphasizing procedural obligations. The chapter reviews some relevant nonbinding multilateral environmental agreements and activities of intergovernmental organizations, such as the Intergovernmental Panel on Climate Change.
Existing norms, rules, and institutions seem insufficient to govern solar geoengineering in the long term. This chapter recommends additional and feasible measures to help ensure that it is researched, developed, and – if appropriate – used in ways that improve human well-being, are sustainable, and are consistent with widely shared norms. This will be challenging for reasons such as political contestation, conflicting desires for early governance and the reduction of uncertainty, and the endeavor's speculative nature. The suggestions are divided into rough stages of indoor and small-scale outdoor research, large-scale outdoor research, and deployment. The suggested forms of governance are norms, standards, and best practices; cooperation among nonstate actors; institutionally affiliated committees; state law; international institutions, including one dedicated to solar geoengineering; and – most speculatively – a multilateral agreement. Among governance's functions are reducing uncertainty and environmental risks, synthesis and assessment of results, public engagement, and preventing premature implementation, international tensions, and harmful abatement displacement.
This chapter zooms in on the behavior of a particular intervener: the United States of America. The United States is, as we show, the world's top election intervener. The combination of superpower status with Wilsonian messianism provides powerful incentives to shape democratic fortunes abroad. The United States, even when compared to all other liberal powers, is the actor most committed to free and fair elections around the world. The rise of international organizations, dedicated to election observation and other democratic practices, has increased American pressure for clean contests. In all, cases where the United States and other liberal powers have dominated elections, have seen less bias and more democracy than cases where illiberal powers dominate. Thus, both in terms of policy and in terms of outcomes, America's mission and dedication to free elections stands clear in the empirical record.
This paper applies the concept of emergency powers to the crisis politics of international organizations (IOs). In the recent past, IOs like the UN Security Council, the WHO, and the EU have reacted to large-scale crises by resorting to assertive governance modes bending the limits of their competence and infringing on the rights of the rule-addressees. In contrast to rational and sociological institutionalist notions of mission creep, this paper submits that this practice constitutes ‘authority leaps’ which follow a distinct logic of exceptionalism: the expansion of executive discretion in both the horizontal (lowering of checks and balances) and the vertical (reduction of legal protection of subjects) dimension, justified by reference to political necessity. This ‘IO exceptionalism’, as argued here, represents a class of events which is observable across fundamentally different international institutions and issue areas. It is important not least because emergency politics tend to leave longer-term imprints on a polity’s authority structures. This article shows that the emergency powers of IOs have a tendency to normalize and become permanent features of the institution. Thus IO exceptionalism and its ratcheting up represent a mechanism of abrupt but sustainable authority expansion at the level of IOs.
Since 2008, a global ‘land rush’ has been unfolding and so have efforts by international, national and regional actors to position themselves as the principal authorities in the determination of appropriate usages of land. This article examines three of the most influential ‘soft law’ instruments: the Principles for Responsible Agricultural Investment; the Principles for Responsible Investment in Agriculture and Food Systems and; the Voluntary Guidelines on the Responsible Governance of Tenure. Despite their substantive differences, all three documents share a specific form of state-centrism. They imagine the host state of such large-scale investments as internally unitary and externally independent and entrust it with the bulk of responsibilities regarding the management of land investments. However, I argue that this particular form of state-centrism obscures the legal and administrative realities of the post-colonial state that is often legally bifurcated and subject to pervasive forms of international authority. Rather, an appreciation of the multitude of actors who claim jurisdiction over the lands of the South enables a better understanding of the legal mechanics of land-grabbing. Sierra Leone, which has been positioned as a ‘poster child’ for the implementation of such ‘soft law’ instruments, serves as the focal point of this jurisdictional approach to land-grabbing. In this context, the promise of ‘soft law’ instruments to make the post-colonial state the guarantor of universally beneficial large-scale land acquisitions is shown to be a false one.
Many of the international technical agencies formed after 1945 addressed environmental topics within their specific fields of work. By the late 1960s, a growing awareness of pollution and an emerging environmental movement in Western countries led to a perceived need for more coordinated and institutionalized international cooperation on the environment. Before the landmark United Nations Conference on the Human Environment, held in Stockholm in 1972, and the subsequent creation of the UN Environment Programme, several organizations competed for recognition as principal reference organizations for environmental matters. This article analyses the combination of cooperation and rivalry, involving in particular the North Atlantic Treaty Organization (NATO), the Organisation for Economic Co-operation and Development (OECD) and the United Nations Economic Commission for Europe (ECE). Among other initiatives, the OECD became the first international organization to establish a permanent committee specifically dedicated to environmental issues and the ECE organized a Conference on Environmental Problems, held in Prague in 1971. Both called for a critical review of the dominant growth-centred economic model. Their analysis adds a neglected dimension to the origins of today’s international structure of environmental cooperation as well as to the long-term evolution of economic environmental thinking.
In recent years, the academic field of international institutional law has taken a clear ‘constitutional’ turn. In this normative endeavour, liberal ‘rule of law’ ideals are being reinvigorated, translated and projected onto international organizations. This article trades this well-trodden path for a socio-legal inquiry into how the ‘rule of law’ is produced, practiced and performed in the everyday political and operational life of one specific international organization (the World Bank) during one contentious historical episode. To grasp what it means for ‘law to rule’, I argue, we need to expand our archives to the daily praxis of legality: the actors that embody it; the consciousness that drives it; the politics that rely on it; and the fragile institutional balances that give it meaning. Grounded in this pragmatist perspective, I retrace the intervention of legal expertise during the Bank’s turn to state reform in the wake of the Cold War. Descending from principles to practices, from norms to acts, from abstract heights to situated performances, the article not only strives for an enhanced understanding of the ‘rule of law’ within the World Bank, but also aims at a critical methodological intervention in the field of international institutional law.
This article seeks to explain when governments are more likely to take an intergovernmental approach to resolving global collective problems rather than step back and encourage (or simply allow) nongovernmental actors to become the main global governors. The authors suggest that an important factor driving this choice is the domestic ideological leanings of powerful states toward greater or lesser government activism. Such ideologies connect domestic preferences to international ones. They also lead to the establishment of domestic institutions that, in turn, facilitate the emergence of international organizations. Using these arguments, the authors develop a set of inferences regarding the likelihood that governments will establish and join intergovernmental organizations. The authors test their hypotheses through a study of global governance in the education realm, and also apply a series of statistical analyses covering developments in all issue-areas over the last century and a half.
Blockchain technology has been considered a vehicle to foster development in poor countries by promoting applications such as secure delivery of humanitarian aid, digital identity services, and proof of provenance. This article examines whether (and if so, how) blockchain technology can enhance the effectiveness and efficiency of foreign aid governance, thereby moving beyond completely anonymous contexts. Foreign aid governance is plagued by lack of credible commitments among states, which are further exacerbated by information asymmetries and which often undermine aid effectiveness. In this context, blockchain technology holds two promises. First, through the guaranteed execution of smart contracts, it can strengthen the credibility of state commitments, for example collective burden-sharing rules among a group of donors or recipient country compliance with policy conditionality in return for aid. Second, through leveraging prediction markets, blockchain technology can allay information problems related to the verification of real-world events along the entire aid delivery chain.
This article examines the development of health system metrics by international organizations, exploring their relationship to the politics of world health. Current historiography treats measurement either as progressive illumination or adopts a critical stance, viewing indicators as instruments of global governance by powerful nations. We draw on diverse statistical publications to provide an empirical overview of change and continuity, beginning with the League of Nations Health Organization, which initiated health system statistics, and concluding with the World health report 2000, with its controversial comparative rankings. We then develop analysis and explanation of these trends. Population indicators appeared consistently owing to their protective function and compatibility with development thinking. Others, related to provision, financing, and coverage, appeared more sporadically, owing to changing trends and assumptions in international health. While partly affirming the critical literature, metrics were also used by peripheral or resistant actors to challenge or influence policy at the centre.
Human rights violations by international organisations (IOs) are a possible side effect of their growing authority. Recent examples are the cases of sexual exploitation by UN peacekeepers and violations caused by IMF austerity measures. In response, IOs increasingly develop safeguards to protect human rights from being violated through their policies to regain legitimacy. We argue that this development can be accounted for by a mechanism we call ‘authority-legitimation mechanism’. We test this theoretical expectation against ten case studies on UN and EU sanctions policies, UN and NATO peacekeeping and World Bank and IMF lending. Next, we demonstrate inductively that the authority-legitimation mechanism can evolve through different pathways, depending on which actors get engaged. We label these pathways legislative institution-building if parliaments in member states put pressure on their governments to campaign for human rights safeguards in IOs, judicial institution-building if courts demand human rights safeguards, like-minded institution-building if civil society organisations, middle powers and IO bodies with little formal power push for human rights safeguards, or anticipatory institution-building if IOs adopt such safeguards from other IOs without having violated human rights themselves. Finally, we argue that which of these pathways are activated and how effective they are depends on specific conditions.