The Theory of International Relations (IR) has, for the most part, been dominated by the Realists; as a result, international law formed as “the law of nations,” so that order could be carved out of the anarchy of sovereign equality. Though its origin is rooted in global anarchy, or lack of a hierarchy of authority between states that materializes as parallel claims to authority, sovereign equality has come to refer to the political process that allows all states, regardless of size, political clout, or economic power, to be treated equally. It found its first form in the customary law, which has lasted for centuries, and was finally solidified by the U.N. Charter “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” To that end – global order, peace and security – the Realist approach has mostly succeeded. Of course, conflict continues, associated with growing pains of the Global South from the expansion of the global economy, but the great nations of the world have used the U.N. Security Counsel to stave off nuclear war and to avoid conflicts between global alliances, like those of the I and II World Wars. Before the conversation continues, that success must be recognized as a step forward from the constant battle for supremacy that characterized the industrial revolution, the colonial era, and before.
However, the international community has evolved over the years. Since the creation of the U.N., private actors have become ever more relevant, so that international relations and international law has ceased to be solely a field devoted to “the law of nations.” The precursor to this new era of international law was the recognition of an international responsibility to the people by creating the optional protocol to, first, the International Convention on Civil and Political Rights in 1966, followed by, inter alia, the Convention on the Elimination of All Forms of Discrimination against Women in 1999 and the International Convention on Economic Social and Cultural Rights in 2008. These protocols give standing in the international arena to individuals, which was previously limited solely to the states. They, along with the conventions from which they spawned, form the foundation of a global shift toward the Constructivist interpretation of the world; an interpretation where the social and cultural understanding of the objective facts, valued by the realists, are only important because of their influence on the moral identity and belief structures of the various powerbrokers and stakeholders. That influence creates a decision tree rooted in the “logic of appropriateness,” where the choices of the rational actor, “embedded in a social collectivity,” are mediated by social norms that “are appropriate for themselves in a specific type of situation.”
The move toward Constructivism in IR is closely related to the move toward a Global Governance model of international law. The sudden increase of global trade and swell of multinational corporations have turned domestic issues, from labour practices and political inclusion to nutrition and environmental protection, into international issues. The end-user in the Global North, or at least their governments, has started to demand certain affirmations regarding the conduct of nations, or at least the multinational corporations therein, producing products that find their way into the Global North. Meanwhile, the people of the Global South, or in some cases their governments, have started to demand equitable treatment and a seat at the negotiating tables of the U.N. Security Council and the World Trade Organization. The influence of these stakeholders has begun shaping a cultural understanding of previously understood facts in a way that has forced the international community to question the use of a system whose sole means of maintaining order relies on the management of interactions between unitary state personalities.
Global Governance is still an amorphous concept, and the form it will eventually take is unknown. However, the introduction of new participants into the international arena,
through non-governmental organizations (NGOs), has already begun to influence how the existing structures adapt to the change. Using the Global Governance model, international institutions are working out how to address the rights and responsibilities of non-state actors in regard to their interactions with each other and with states. The expanding nature of NGOs has been compounded by the development of partnerships between parallel organizations. These partnerships communicate with horizontal reciprocity on an operational level, exchanging regular dialogue that enhances cooperation on issues relating to effective strategy and advocacy at local, regional, and international levels. Once these partnerships develop strong enough bonds they often form international non-governmental organizations (INGOs) that exert pressure on multiple state-actors simultaneously. These INGOs, like their for-profit multinational cousins, exert more and more influence on international institutions.
While NGOs and INGOs, as a class ([I]NGOs), tend to exert a moral influence on decision makers to use the logic of appropriateness in their decisions, the multinational corporations’ growing influence is more often exerted toward a loosening of economic restrictions. Because it is possible for multinationals to have similar, if not greater, financial capabilities than the state-actor they are trying to compel, their influence is often more powerful and more quickly responded to than the [I]NGOs seeking a solution to a moral question. That is the next great challenge in rethinking IR from an ethical perspective: to evolve the current system, create a new system, or devise a new means separate from the system to filter the desirable influence from the less desirable. Despite the current state of flux, the principles that form the foundation of the formal institutions persist, maintaining consistent expectations and guaranteeing the equality of states. Meanwhile, the transnational networks of INGOs, the pervasiveness of Multinationals, and the disaggregation of state personalities into competing interest groups have emerged as compelling reasons to re-evaluate both the foreign office model of IR and the Realist world view.
AnneMarie Slaughter describes the disaggregated state as “regulators pursuing the subjects of their regulations across borders, judges negotiating mini-treaties with their foreign brethren to resolve complex transnational cases, and legislators consulting on the best way to frame and pass legislation affecting human rights and the environment.” Perhaps this disaggregated state – something resembling the model of the Islamic Uma and Shari’a
, that applies to all adherents regardless of territorial jurisdictions – is a more progressive and fair model of IR than the status quo. International actors would subscribe their organizations to an ethical model of conduct to which they would be legally bound and their interactions with others, whether members of the same model or a different model, would be governed by rules that were previously established between models, and not between individual actors. So that when future conflicts arise within a cross-cultural context, the means to determine compromise are preordained and agreed to by both parties, if not the solution to the conflict itself.
Sectors of the [I]NGO community already participate in what could be considered a framework example for such a structure. The International Committee of the Red Cross (ICRC), Red Crescent, and Red Crystal stands astride the international community as an unrivaled powerbroker. The “request” of the ICRC to enter a conflict zone to assist with the wounded is rarely seen a request at all, but as notification of pending action to which the state will, of course, agree. While state actors may occasionally resist the entry of ICRC personnel, the rest of the international community rarely excuses such disregard for international humanitarian law (IHL). That is, after all, what the ICRC represents. Despite not being an official instrument of the U.N., its special status and recognition by The Geneva Convention and the Additional Protocol means the ICRC is essentially the soft arm of IHL. They even, on occasion, extend missions beyond the legal mandate that was granted by Geneva, e.g., inspecting the conditions of political prisoners outside of conflict and providing relief in the event of a natural disaster.
The rest of the [I]NGO community does not need to rival the ICRC in power or responsibility to be considered a valuable part of the international community. Many of the [I]NGOs conduct activities, similar to what the ICRC conducts outside of its mandate, that are vital to health, welfare, and safety of the people. Because many of these organizations come very close to meeting the 1933 Montevideo Convention criteria necessary for a new state to come into existence the nature of the work that many of these organizations perform, combined with the acceptance of the concept of popular sovereignty, further complicates the ethical conundrum that non-state actors bring to the question of international personality, especially because the Court and various other U.N. instruments have used the criteria more as a guideline than a bright line. These criteria include: 1) permanent population; 2) a defined territory; 3) government; and 4) capacity to enter into relations with other states. Larger non-state actors, like the U.N. and the ICRC even fulfill all this criteria, and that is part of the reason why the question of international personality has become so important.
In the U.N. Reparations Case, the International Court of Justice (ICJ) determined that the U.N. possessed the requisite international legal personality to gain standing before the Court. The ICJ found that the U.N. met a certain set a requirements that granted it personality. First, the member states intended to impart on it the functions and rights co-extensive with a legal personality. Second, the U.N. was in fact exercising in a manner compatible with a legal personality. Third, the duties and responsibilities which have been placed under the competency of the U.N. imply the power to engage in activity that requires a legal personality. These steps help to establish a legal tradition regarding the basis of international legal personality; however, the legal tradition is only one school of thought emerging out of this complex issue.
There are three schools of thought that are emerging to develop a source rationale for international legal personality. They are: (1) the legal tradition, as stated above; (2) Factual Realism; and, (3) the dynamic state, which is something of a compromise between the other schools. Where the legal tradition requires that any non-state actor gain their legal personality in an explicit grant from a state, Factual Realism recognizes the fundamental shift from the unitary state to non-state actors as international powerbrokers and stakeholders. The Factual Realists accept, at least tacitly, the eventual failure of the nation state, pointing to the passive-reactive nature of their bureaucracy as an outdated and dying institution; subsequently, they are invested in an understanding of legal personality that is derived from the ability to influence the international community.
Factual Realism has numerous examples of their theories already in action. NGOs have been granted supervisory and interpretive role within existing institutions, like the ICRC or those NGOs that helped to develop the “Siracusa Principles” on the meaning and scope of the limitation provisions of the ICCPR. There is nothing inherent to the [I]NGO that restrains it from acting in a manner compatible with a more substantive legal personality. Even if the introduction of [I]NGOs into existing international institutions is incompatible with their current manifestation, an international institution designed exclusively for the purpose of incorporating their influence could be formed of committees, cooperatives, multi-lateral partnerships, etc., of [I]NGOs that would shadow the existing government, and intergovernmental institutions.
However, great caution must be taken with any alteration to the status quo. Quasi-governmental international bodies created through treaty, like that of the International Labour Organization (ILO), to replace or institutionalize existing interest groups have resulted in questionable outcomes. The ILO was nearly invalidated because the political realities of member states were not considered when voting rights were established. Because they were a legitimate majority employer, Socialist and Communist states exploited the seats reserved for employers to supplement their government’s vote. That skewed international policies in favour of states that where administered in such a way as to take advantage of those votes and caused problems in states that lacked government control of production and commerce, but whose economies contained industries that competed with those states. As the old adage goes, the devil is in the details. Similarly, the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), created a legal fiction that anthropomorphized incorporated associations like [I]NGOs, Political Action Committees (PACs), Super PACs, and corporations in persons. Establishing a legal personality equivalent to the control group without accounting for divergent characteristics has already presented a cautionary tale about the unintended consequences of introducing new funding sources and new interest groups into an already complicated web of interests. The civil rights’ culture and financial freedoms of the U.S. led to the decision in Citizen’s United, but the ramifications on the political culture have been surprising. Any similar personification of incorporated entities in the international community must necessarily consider how that personification will affect the political culture of the existing international institutions.
With the changing reality of global integration, the manner in which the international community evolves to integrate these non-state actors is only the first step in a long, complicated transition toward a more robust, expressive, and representative international community. The foundation has been set and, though the framework is being debated, the once doubtful prospect that a legal capacity for [I]NGOs to directly affirm their international personality in substantive ways (i.e., asserting their rights before an international court or conducting other activities within particular international fora) will emerge in the near future grows ever more likely. It is in the best interest of the international community and the people of the world that the decision makers understand and duly consider the IR theory that is dominating diplomatic relation, the legal paradigm that is dominating international law, and the institutional structures that administer international instruments (treaty bodies, U.N. agencies, regional intergovernmental organizations, etc.).
Gage DeMont Hansen گیج هنسن
Juris Doctor Candidate 2014
University of Utah
S.J. Quinney College of Law