International Institutions as Fiduciaries of Humanity
In the preceding chapters we elaborated a model of international law that is structured and animated by the idea that the state is a fiduciary of the nationals and non-nationals subject to its power. In the last chapter in particular, we drew on Benvenisti's claim that states are trustees of humanity to help explain and critique international refugee law (IRL). In this chapter, we consider international institutions and their relation to the entities or persons subject to them. We argue that international institutions, like states, are fiduciaries of humanity.
International organizations (IOs) are the paradigmatic example of international institutions, and are generally understood to be entities established by agreement under international law having at least one organ with a will of its own. There are some 500 to 700 IOs operating in the world today. They take many forms and assume many roles. Some IOs, such as the United Nations (U.N.) and the World Trade Organization (WTO), have a universal mandate. Others, such as the European Union (EU), the Organization of American States, and the African Union, have a regional mandate. The aforementioned organizations are all formal and umbrella-like IOs in that they establish an international legal system that contains other specialized international institutions or organs with relatively specific functions. Their founding treaty sets out their organs and competences. Ordinarily, these organizations have a plenary body, an executive body or council, an administrative secretariat, and sometimes a dispute resolution entity or court. In the case of the United Nations, for example, the principal organs are the plenary General Assembly, the U.N. Security Council and the Economic and Social Council (both executive entities), the U.N. Secretariat, and the International Court of Justice (ICJ). Other IOs and treaty bodies, such as the International Labour Organization (ILO), U.N. human rights monitoring bodies, the European Court of Human Rights (ECHR), and the WTO's Appellate Body, are established by multilateral treaties or by the founding treaty of the umbrella organization to which they belong (e.g., the ICJ was established by Chapter XIV of the U.N. Charter). In yet other cases, states may choose to cooperate through non-treaty based or soft law organizations, such as the General Agreement on Tariffs and Trade (GATT) that preceded the WTO, and the Organization for Security and Cooperation in Europe (OSCE).
In this chapter, we deploy a capacious understanding of "international institution” in which the key consideration is whether an entity recognized under international law has authority to make, interpret, implement, apply, or enforce some range of international or transnational norms. Under this classification scheme, IOs count as international institutions, as do treaty bodies such as those tasked with monitoring U.N. human rights treaties, organs such as the Security Council, and soft law organizations such as the OSCE. The idea is to capture all those supranational institutions that international legal subjects (mainly states) have created to establish and govern humanity's international, transnational, and cosmopolitan legal order.
As the growing literature on globalization and transnational law rightly adverts, IOs are not the only legal actors engaged in the administration of inter- or transnational matters. Benedict Kinsbury, Nico Krisch, and Richard Stewart point to four additional kinds of global administration. The first involves informal transnational networks between national regulatory officials, such as the Basel Committee that regulates banking. The second consists in “distributed administration” in which domestic agencies take decisions on issues offoreign or global concern, such as those concerning greenhouse gas emissions. The third is “hybrid intergovernmental- private administration,” such as the Codex Alimentarius Commission, which adopts food safety standards with the participation of governmental and nongovernmental actors. And finally, there are strictly private bodies carrying out globalized public functions, such as the International Organization for Standardization (ISO), which has adopted over 19,500 product harmonization standards. The idea that these bodies hold any form of public authority is highly controversial, given that their formal membership is private. Nonetheless, we suggest that the fiduciary theory might be able to explain the limited form of public authority that the ISO and its standards appear to possess. If the argument succeeds, it could offer a blueprint for explaining the (limited) public authority of other transnational global entities.
International institutions are frequently classified and discussed in terms of their functions. Indeed, functionalism is generally considered “the leading approach to international organizations.” Functionalists look to an organization’s founding document to distill its main functions, and then proceed to delineate the scope of its powers based on those functions. Most notably, the ICJ, in the Reparations for Injuries Case, developed the doctrine of implied powers under which the scope of an institution’s powers and authorized activity may extend further than the powers and activities expressly authorized in its constituent document. The guiding interpretive principle is whether the alleged implied power is necessary for the organization to fulfill its function (or functions). As Jan Klabbers notes, however, the function of an IO “is very much in the eye of the beholder,” and more worrying still, functionalism offers little insight into the question of the organization’s accountability. Typically, the delineation of an institution’s function would not specify to whom the institution is accountable, the standards or principles under which its actions may be properly assessed, or the institutions and remedial means through which it may be held to account.
International law has replied to the accountability deficit of functionalism through various attempts to bring its institutions within the constraints of international legal order. In 1986, the United Nations sponsored a conference in Vienna that led to the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (VCLT-IO). The VCLT-IO is essentially a carbon copy of the Vienna Convention on the Law of Treaties (VCLT), suitably adjusted to include IOs as parties. The Preamble of the VCLT-IO affirms the functionalist implied powers doctrine, justifying the treatymaking capacity of IOs on the grounds that this capacity "is necessary for the exercise of their functions and the fulfillment of their purposes.” But as with states under the VCLT, the treaty-making powers of IOs under the VCLT-IO are limited by legal principles codified in the VCLT-IO. IOs cannot bind other parties whose purported consent was given in error (Article 48) or as a result of fraud (Article 49), corruption (Article 50), or coercion (Articles 51 & 52). Nor can IOs make valid treaties that conflict with peremptory or jus cogens norms of international law (Article 53). The VCLT-IO, however, has yet to attract the requisite number of state parties to come into force.
In 2011, the International Law Commission (ILC) adopted Draft Articles on the Responsibility of International Organizations. The draft articles affirm that IOs are responsible for internationally wrongful acts (Article 3), and that this responsibility arises when an IO commits an act attributable to it that constitutes a breach of one of its international obligations (Article 4). Nonetheless, although Article 26 and Chapter III attribute responsibility to IOs for violations of peremptory norms, the draft articles provide merely that the "characterization of an act of an international organization as internationally wrongful will be governed by international law” (Article 5). There is no discussion of whether or how treaty law or customary law might govern IOs or ground a determination that an act is "internationally wrongful.”
More promising than these relatively austere and inchoate measures of positive law, publicists have observed that the accountability of international institutions may be framed and addressed through four contemporary approaches to international accountability: global or transnational constitutionalism, global administrative law,24 international institutional law,25 and a hybrid theory (though structured mainly by international institutional law) that its advocates call simply a "public law approach.”26 Constitutionalists typically invest their preferred conception of international legal order and its organizations with constitutional ideals of democracy, human rights, and the rule of law.27 Global administrative lawyers look to domestic administrative law to borrow principles of due process, public participation in rulemaking, transparency, and reason-giving.28 International institutional lawyers focus on the relatively similar rules and principles that govern the legal status, structure, and operation of IOs; that is, rules related to membership, legal personality, attribution of powers, representation of members, decision-making, finance, dispute-settlement, and external relations, as well as internal and external supervision.29
The public law approach aims to bring the "sensibility” of constitutionalism and the "insights of administrative legal thinking” into contact with international institutional law, but with a normative orientation that expressly envisions a "move beyond mere functionalism.”30 The ambition of the public law approach is to lend a legal framework to global governance by conceiving of all instances of international public authority as "the legal capacity to determine others and to reduce their freedom; i.e., to unilaterally shape their legal or factual situation.”31 Capacity is understood broadly to apply to both binding and non-binding decisions, regulations, standards, and so forth.32 Binding decisions change the legal position of the subject,
Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian Themes about International Law and Globalization, 8 J. Theoretical Inquiries L. 22 (2007); Matthias Kumm, The Legitimacy of International Law: A Constitutionalist Framework Analysis, 15 Eur. J. Int’l L. 907 (2006); Anne Peters, Contemporary Constitutionalism: The Function and Potential of Fundamental Norms and Structures, 19 Leiden J. Int’l L. 579 (2006).
- 24. See, e.g., Kingsbury et al., supra note 9; Sabino Cassese, Administrative Law Without the State? The Challenge of Global Regulation, 37 N.Y.U. J. Int’l L. & Pol. 663 (2005); Daniel Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L.J. 1490 (2006).
- 25. See, e.g., Jose E. Alvarez, International Organizations as Law-Makers (2005); Jan Klabbers, An Introduction to International Institutional Law (2002); Nigel D. White, The Law of International Organizations (2d ed. 2005); Schermers & Blokker, supra note 3.
- 26. See, e.g., Armin von Bogdandy, Philipp Dann & Matthias Goldman, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, in The Exercise of Public Authority by International Institutions: Advancing International Institutional Law 21 (Armin von Bogdandy, Rudiger Wolfrim, Jochen von Bernstorff, Philipp Dann & Matthias Goldman eds., 2010).
- 27. See, e.g., Kumm, supra note 23.
- 28. See, e.g., Kingsbury et al., supra note 9.
- 29. See, e.g., Schermers & Blokker, supra note 3; Ruffert & Walter, supra note 3.
- 30. von Bogdandy et al., supra note 26, at 6, 11.
- 31. Id. (emphasis in original).
- 32. Id. at 11-16.
whereas a non-binding decision simply “conditions another subject” by giving her an incentive to comply.
Like the public law theory, we wish to harness the insights of both constitutionalists and global administrative lawyers, all the while remaining faithful to the core structural features of international institutional law. Furthermore, as with the public law approach, we agree that the authority of international institutions holds the key to understanding the nature and effects of the legal framework they lend to global governance. Where we diverge from the public law approach, however, is in our account of public international authority. Under the fiduciary model, we argue, international public authority consists in the legal power to make, interpret, and apply authoritatively international norms. This legal power is held in trust by international institutions on behalf of humanity. Accordingly, international institutions must exercise their legal power in a manner that serves humanity. In practice, this means that for a purported exercise of international legal power to be authoritative as an actual exercise of legal power, it must satisfy the fiduciary theory's criterion of legitimacy: that is, it must be intelligible as an action taken on behalf of, or in the name of, every person subject to the relevant institution's jurisdiction. The basis of this authority is the institution's subjection to and compliance with the requirements of the trust-like or fiduciary position in which it stands vis-a-vis its legal subjects.
The basic argument for viewing international institutions as fiduciaries of humanity is the same as the foundational argument for viewing states as fiduciaries: the relationship between international institutions and those subject to their power—states, nonstate entities, and individuals—satisfies the constitutive criteria of fiduciary relationships, as elaborated in Chapter 1. Like domestic legal institutions, international institutions possess discretionary and administrative powers that are other-regarding, purposive, and institutional in nature. Moreover, the persons subject to those powers are not entitled to exercise them unilaterally or in their individual capacity. For them to do so would ordinarily indicate capture, just as a private party exercising a putatively public power in the domestic sphere would signal corruption.
Of course, states commonly make international law through treaty-making, and customary international law emerges from state practice. Decentralized lawmaking of this kind, however, is always a collective endeavor. Just as no individual private party is entitled to make national law, no individual state is entitled to announce unilaterally a treaty or custom binding on others.
Once international legal authority is entrusted to an international institution— be it an adjudicative, administrative, rule-making, or enforcement authority—that authority constitutes legal power that is always other-regarding, purposive, and institutional in nature, in the senses explained in Chapter 1. As a consequence, states and others subject to international authority are in a public fiduciary relationship with the institutions that possess this authority, and those institutions themselves may properly be called fiduciaries of humanity. By this we do not mean that every international institution has a universal mandate (they do not), but rather that any international legal subject within the scope of an international institution's mandate may be thought of as a beneficiary entitled to impartial and solicitous regard irrespective of nationality.
International institutions stand in a position of stewardship to humanity that assumes both indirect and direct forms. Institutions are indirect or second-order fiduciaries of humanity when they stand as lawgiving fiduciaries of an international legal order within which states are both agents and subjects. States are agents of international legal order because they enjoy delegated authority from international law to govern and represent their people. But they are also its subjects because they remain highly significant bearers of international rights and duties. When international institutions construct and oversee an international legal order that enables states to interact rightfully among themselves and with their own nationals and foreign nationals, they act as second-order or indirect fiduciaries of humanity. What unites this class of stewardship is that even after international institutions have spoken, individuals and substate actors are still ultimately subject to the legal authority of states. In Part II of this chapter, we elaborate some of the ways international institutions function as indirect fiduciaries of humanity.
International institutions are direct or first-order fiduciaries of humanity when they themselves interact directly with groups of individuals. For example, when the U.N. High Commissioner for Refugees (UNHCR) provides protection to refugees or internally displaced persons, it is acting as a first-order or direct fiduciary of humanity. Likewise, when the United Nations conducts international territorial administration, as it did in Kosovo and East Timor (now Timor-Leste), it does so as a direct fiduciary of humanity. More controversially, when the U.N. Security Council adopts measures to promote peace and security under Chapter VII, including its more recent targeted sanctions program, it too must be viewed as at least purporting to act as a direct fiduciary of humanity. In Part III, we discuss these and other cases in which international institutions serve as direct fiduciaries of humanity, and the implications that follow from their status as fiduciaries.
In Parts IV and V, we suggest that viewing international institutions as fiduciaries of humanity helps to resolve the following puzzles regarding their legal authority and obligations:
- a) Do international institutions owe individuals subject to their authority human rights obligations, notwithstanding that international institutions are not states and therefore are not parties to human rights treaties?
- b) What is the basis of the authority of international courts that at times interpret international law in ways states would never have anticipated when they created them, and whose rulings, ordinarily, are not enforced through the threat or use of force?
- c) What is the basis of the legal authority possessed by the informal transnational entities identified by global administrative lawyers— transnational networks, "distributed administration,” hybrid public- private bodies, private bodies exercising global functions—and what is the basis of global administrative law's procedural obligations?
- d) What is the nature of the relationship between international and national authorities tasked with interpreting and applying international norms to the same or similar cases? Under what circumstances, if any, should a state defer to an international body's determination? And conversely, under what circumstances should an international authority defer to a national- level decision?
We can of course provide only an outline of a reply to these questions, which implicate perennial debates over monism and dualism, and the relationship between international and domestic law.
In Part VI we conclude and briefly sketch some future directions of inquiry where the fiduciary theory promises to supply a helpful and illuminating framework. These areas of future interest include climate change, the international legal status and rights of indigenous people, global economic justice through the prism of the emerging right to development, and the fiduciary theory's relation to global democracy and the idea of an unbounded demos. Our ultimate conclusion is that international legal order is fiduciary in nature from top to bottom, and across all dimensions in which public power is held and exercised. The fiduciary constitution of state sovereignty is thus a reflection at the state level of the fundamental nature of international legal order itself.
-  Eyal Benvenisti, Sovereigns as Trustees of Humanity: On the Accountability of States to ForeignStakeholders, 107 Am. J. Int'l L. 295 (2013).
-  Benvenisti has argued similarly that international institutions bear “trusteeship obligations,”which include rule of law requirements and human rights obligations. See Eyal Benvenisti,The Law of Global Governance 117-44 (2014).
-  Henry G. Schermers & Niels M. Blokker, International Institutional Law 37(5th rev'd ed. 2011); see also MAttHiAs Ruffert & Christian Walter, InstitutionalisedInternational Law 9 (2015) (defining an IO as “an association of two or more subjects ofpublic international law (mostly States) based on an international treaty, that is vested with [sic]own bodies and designed to fulfill tasks of common interest.”).
-  Schermers & Blokker, supra note 3, at 37.
-  See Geir Ulfstein, Institutions and Competences, in Jan Klabbers, Ann Peters & GeirUlfstein, The Constitutionalization of International Law 46-48 (2009).
-  U.N. Charter ch. XIV, arts. 92-96. Schermers and Blokker point out that the United Nationshas numerous specialized agencies, such as the U.N. Industrial Development Organization(UNIDO) and the U.N. Conference on Trade and Development (UNCTAD), which in practicehave enjoyed functional autonomy independently of whether they eventually became autonomous IOs, as was the case with UNIDO in 1986. Schermers & Blokker, supra note 3, at 41-42.
-  See Ulfstein, supra note 5, at 51-55. There are various ways of classifying IOs. Schermers andBlokker distinguish between universal and closed organizations (e.g., the United Nations versusthe European Union, the OECD, the Commonwealth, etc.); intergovernmental versus supranational organizations (decision-making power rests with national governments versus decisionmaking rests with the IO); and special organizations versus general organizations (organizationscreated to perform a specific function versus IOs that are not limited by subject matter, such asthe United Nations, European Union, OAS, and AU). Schermers & Blokker, supra note 3,at 50-59.
-  See, e.g, Ulfstein, supra note 5, at 46-55 (distinguishing formal IOs from treaty bodies andsoft law organizations).
-  Benedict Kingsbury, Nico Krisch & Richard Stewart, The Emergence of Global AdministrativeLaw, 68 Law & Contemp. Probs. 15, 20-23 (2005).
-  Id. at 21-22.
-  Id. at 22.
-  Jan Klabbers, International Institutions, in The Cambridge Companion toInternational Law 230 (John Crawford & Marti Koskenniemi eds., 2012) (citing M. Virally,La notion de fonction dans la theorie de l‘organisation internationale, in Melange offerts aCharles Rousseau: La Communaute Internationale 277-300 (S. Bastid et al. eds.,1974)); see also Schermers & Blokker, supra note 3, at 50 (affirming that for purposes of classification and comparative study, Virally’s idea of function continues to provide “the most fundamental” and “most useful” criterion).
-  Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion,1949 ICJ Rep. 174, 180 - 85 (affirming that the United Nation’s rights and duties “depend uponits purposes and functions as specified or implied in its constituent documents and developed inpractice.”). We discuss this case in Part III.
-  Klabbers, supra note 12, at 231.
-  Vienna Convention on the Law of Treaties Between States and International Organizationsor Between International Organizations, 25 I.L.M. 543 (1986), Doc. A/CONF.129/15 (Vienna,Mar. 21, 1986) [hereinafter VCLT-IO].
-  Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331[hereinafter VCLT].
-  VCLT-IO, supra note 15, pmbl.
-  Id. arts. 48-52.
-  Id. art. 53. See Chapter 3 for discussion of jus cogens.
-  The VCLT- IO has not attracted thirty-five state parties, as required by its "Entry intoForce” provision, Article 85. As of July 25, 2015, thirty-one states and twelve IOs had ratified oracceded to the treaty: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII-3&chapter=23&lang=en (last visited July 25, 2015).
-  Draft Articles on the Responsibility ofInternational Organizations, 2 Y.B. Int’l. L. Comm’n,2011, pt. 2.
-  Id. art. 5.
-  See, e.g., Jean Cohen, Globalization and Sovereignty: Rethinking Legality,Legitimacy and Constitutionalism (2012); Klabbers et al., supra note 5; Martti
-  Id. at 12 (emphasis in original).