“Why do we have so many courts and so many organizations? Because Western states want it that way — they have the power and resources to keep it that way.”
On 10 September 2013, the United Nations University in Tokyo hosted a conversation between Prof. Jose Alvarez, a prominent scholar in the field of international law, and UNU Rector David M. Malone on the role of international organizations in advancing the rule of law.
The discussion began in the context of international law and organizations, with Prof. Alvarez pointing out the current roles that international organizations play, but stressing a general lack of formal enforcement bodies for the bulk of international rules. Likewise, he noted, there are few formal enforcement mechanisms in place to apply the rule of law to international organizations.
From there the conversation moved to how the practices of international organizations influence the law, and the politics involved in this process. Prof. Alvarez likened international organizations to judges who “interpret” and “apply” the rule of law, pointing out however that their power of influence can turn the treaties and the standards which they promulgate into dynamic instruments that evolve as needs and interests change. As such, Alvarez commented that “international organizations have a legal impact on people, states, multinational corporations, and even individuals. Organizational soft law often becomes hard law more than do treaties, as the latter are often ignored by states”.
Examining the rule of law among — versus within — states, Alvarez noted that many international organizations, including the United Nations, attempt to promote the “rule of law” within states. They undertake a number of “good governance” activities intended to improve the rule of law within states, yet they still face the challenge of adhering to the rule of law themselves because law exported to states still functions very differently from laws among or between states and international organizations.
On the question of accountability, Prof. Alvarez noted that the United Nations is better at accepting its legal responsibilities when this involves small-scale breaches of law, but because of privileges and immunities extended to organizations, it may be easier to blame the Member States.
Prof Alvarez also emphasized that international law no longer comprises “the rules that states and only states” decide and interpret for themselves. This is yet another way that the traditional state-centric sources of international law need updating. Nevertheless, Prof. Alvarez did note that NGOs, as new actors in the field of international law, face few formal mechanisms for accountability or transparency.
The final point in the conversation focused on the issue of democratic legitimacy in international law-making. Prof. Alvarez examined the perception of a historical “democratic deficit” that has only been exacerbated in the age of international organizations, as it is increasingly evident that laws are being made within international forums that are democratic by virtually any metric. He noted that states might turn to international organizations like the UN Security Council or the International Monetary Fund precisely to bypass the arduous (and more democratic) processes required by the negotiation and ratification of treaties.
The one-hour event, which offered a chance for the audience of over 140 people to ask questions, was followed by a buffet where students, scholars, and other guests had an opportunity to engage with the speakers.
For more information, download this PDF-format event report.