The concept of global governance is commonly associated with the redeeming virtue of a pluralization of political authority beyond the nation state which has gained prominence in the second half of the 20th century. International law is cheered for imposing limits on the otherwise unfettered state voluntarism for which the ‘Westphalian’ state system has been notorious. Political authority no longer resides solely with states, but steadily migrates into the international sphere, especially to international organizations (IOs). As facilitators of multilateral cooperation, IOs are believed to enhance international peace and justice. In fact, many equate this emerging post-Westphalian era with a constitutionalization of the global order, in which the principles of human rights, democracy, and the rule of law prevail over state sovereignty.
What is rarely taken into account, however, is that IO authority might itself be in need of legal constraints. The time when IOs – for lack of powers – could hardly do wrong and were, in the words of Jan Klabbers, basically angelic in nature, is over. The more political authority is vested in IOs, the more likely it is that they, if unchecked, may turn out to violate the very normative principles they are supposed to promote. Be it for reasons of corporate regulatory capture, the instrumentalisation by powerful states, or the dynamics of bureaucratic politics: authoritative international organizations can and sometimes do disregard the rights of their state or individual rule-addressees, assume powers beyond control, or abrogate the legal authority structures in which they are embedded. Such acts of authority can be understood as authoritarian. Hence, in contrast to the optimist view that the post-Westphalian order reflects principles of constitutionalism by design, we argue that post-Westphalia can be both constitutionalist and authoritarian.
It is thus an important question to ask which post-Westphalia we are actually heading to. While we do certainly not argue that IO authority is always authoritarian, we do hold that traits of authoritarianism mark some legal sub-orders of international organizations that coexist with more constitutionalized legal orders. By conceiving IOs as embodying legal orders which can be assessed against the yardsticks of democracy and the rule of law, we open IOs to the analysis of the normative quality of their authority structures – just as comparative political science has done for decades with regard to states. IO decision-making over the constitution of authority can be located on a scale between democracy and autocracy and the exercise of IO authority can be situated between the poles of judicialized constraints on authority (rule of law) and unfettered executive discretion (arbitrary rule).
Two illustrative examples of what we take to be authoritarian legal sub-orders in international organizations are the following:
First, the UN Security Council’s counter-terrorism regime is markedly authoritarian. To begin with, the constitution of authority by the UNSC followed autocratic principles when it empowered itself to act as a global legislator. After the 9/11 terrorist attacks, the Council – an executive organ in the UN Charter framework – decreed abstract and general provisions to the international community as a whole and thus created new and indefinite international legal obligations for all states (Resolution 1373 (2001)). In so doing, it bypassed regular international law-making procedures based on state consent and, in fact, ‘usurped’ legislative powers abrogating the authority structure as provided in the Charter. That this was not a one-time exception is highlighted by later, structurally similar, legislative resolutions on non-proliferation (Resolution 1540 (2004)) and the so-called ‘foreign fighters’ (Resolution 2178 (2014)). Furthermore, the UNSC not only redefined the scope of its own authority, it also carved out a realm of basically unlimited discretion in its counter-terrorism regime. It founded a regime of targeted sanctions addressing individual terror suspects which builds on a terrorism blacklist (Resolutions 1267 (1999) and 1390 (2002)). Once on the list, an individual is subject to severe financial restrictions and a travel ban. No evidence is presented for the suspects’ involvement in terrorist activities and – for a long time – no legal remedy was available to them. The regime thus reversed the burden of proof, undermined the presumption of innocence, and violated the right to a fair hearing by an independent court as provided by international human rights law.
Second, the EU’s economic and monetary union has seen the introduction of traits of authoritarianism throughout the euro crisis. It has brought about spheres of authority which were constituted in undemocratic processes undermining the legal authority structures (autocracy) and which are reined by executive discretion beyond judicial review (arbitrariness). Arguably, the bailout regime, the excessive imbalance procedure (EIP), and also the bond-buying programs by the European Central Bank represent partially authoritarian legal sub-orders in the EU’s economic system. All three emerged from executive-dominated and legally dubious processes which altered the constitutional authority structures to the detriment of representative bodies. They also provide ample discretion to executive actors in exercising their authority: there are hardly any limits to what the Troika may require from states that are under one of its support programs; the EIP gives the Commission almost full discretion over the corrective measures to be recommended and enforced; and the ECB – after the CJEU’s preliminary ruling in the OMT case even more so – enjoys the privilege of a wide margin of appreciation to determine its competences based on its own expertise. While mostly introduced as exceptional measures, they have factually led to a structural transformation of the EU’s economic system.
These post-Westphalian ‘islands of authoritarianism’ are paralleled by concomitant constitutionalization processes in IOs. Co-existing IOs may be constitutionalized or authoritarian, and even within one and the same IO, there can be both constitutionalized and authoritarian spheres of authority. Besides the reconsideration of the normative assessment of the rising IO authority that this perspective provokes, a number of further questions emerge: Under which conditions will IO authority structures tend toward constitutionalist or authoritarian principles? Is the emergence of authoritarian orders likely to ‘contaminate’ adjacent legal orders? Or is it likely to produce counter-reactions that then trigger further constitutionalization – a form of constitutional dialectic?
Christian Kreuder-Sonnen’s and Bernhard Zangl’s article “Which Post-Westphalia? International Organisations between Constitutionalism and Authoritarianism” has been published in the European Journal of International Relations 21, no. 3 (2015): pp. 568–94.
Access to the article is available here.