Constituent Power and the Legitimacy of International Organizations

The Constitution of Supranationalism

John G. Oates

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000028379
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book develops a constitutional theory of international organization to explain the legitimation of supranational organizations.

Supranational organizations play a key role in contemporary global governance, but recent events like Brexit and the threat by South Africa to withdraw from the International Criminal Court suggest that their legitimacy continues to generate contentious debates in many countries. Rethinking international organization as a constitutional problem, Oates argues that it is the representation of the constituent power of a constitutional order, that is, the collective subject in whose name authority is wielded, which explains the legitimation of supranational authority. Comparing the cases of the European Union, the World Trade Organization, and the International Criminal Court, Oates shows that the constitution of supranationalism is far from a functional response to the pressures of interdependence but a value-laden struggle to define the proper subject of global governance.

The book will be of interest to students and scholars of international organization and those working in the broader fields of global governance and general International Relations theory. It should also be of interest to international legal scholars, particularly those focused on questions related to global constitutionalism.

1 Introduction

From contracts to constitutions

Abstract

This chapter frames the puzzle that motivates the book, showing how existing theories of international organization do not fully account for the politics that accompany the constitutional legitimacy of supranational organizations. The dominant approach to explaining the creation of powerful IOs focuses on the functionality of different design choices, arguing that governments choose institutional forms in order to enhance efficient policy coordination, yet this perspective, which broadly conceives of IOs as contracts, provides an overly narrow view on the politics of founding supranational organizations. It largely neglects the symbolic and principled arguments that accompany the effort to legitimate international organizations and thus overlook much of the contentious politics that mark the origins of supranationalism. Constructivist approaches have shown more interest in the politics of legitimacy, but they tend to focus on the legitimation of specific policy choices by IOs and overlook deeper questions of constitutional legitimacy. After identifying the limitations of existing approaches, I briefly introduce the primary argument, discuss its importance, and summarize the remainder of the book, including a discussion of the rationale for the case selection.

In the late summer of 2015, as the migrant crisis in the Mediterranean deepened, the European Council, a legislative body of the European Union (EU), adopted a measure intended to ease the burden borne by Italy and Greece in managing the growing population of asylum seekers coming to Europe. The measure mandated all member states to assist in the resettlement of 120,000 migrants over the next 2 years, using a quota system to determine the number of migrants each member would be expected to accept. Such a drastic measure was necessary, the EU argued, to demonstrate solidarity towards Italy and Greece and the thousands of refugees crossing the EU's borders. As Jean-Claude Junker, the EU Commissioner, noted in September 2015, “If ever European solidarity needed to manifest itself, it is on the question of the refugee crisis. It is time to show collective courage and deliver this European response now.”¹ With 28 member states, it is perhaps unsurprising that such an ambitious policy measure was met with varying degrees of support, ambivalence, and outright repudiation by EU member states. What is surprising, however, is that despite the formal objections of four member states – the Czech Republic, Hungary, Romania, and Slovakia – the measure was nevertheless adopted and became formally binding for all EU members. Few international organizations today enjoy the authority to mandate policy choices for member states without their consent, particularly on matters that so directly implicate their domestic jurisdiction, and the ability of the European Union to wield this supranational authority over its member states marks it out as one of the more powerful international organizations in world politics.

The appeal to European solidarity notwithstanding, the European Council's decision was not accepted with equanimity by the dissenting states, and they refused to fulfill their specified resettlement quota. These states objected to the perceived intrusion of EU authority into matters integral to state sovereignty, an argument that rested primarily on principled objections to the EU's supranational authority rather than a concern with the material costs of resettlement. As the Hungarian foreign minister, Peter Szijjarto, argued after the unsuccessful challenge of the Council's authority before the European Court of Justice: “Politics has raped European law and raped European values. This decision practically openly legitimatizes the power of the EU above the member states of EU. This is unacceptable in all terms.”² The dissenting member states are now subject to infringement procedures initiated by the Commission and may face punitive fines for their noncompliance with the Council's decision.

The political tensions associated with the EU's migrant crisis help to illuminate two important questions related to the practice of supranationalism in world politics. Cases in which international organizations exercise authority over the domestic jurisdiction of member states without first securing their consent are not limited to postwar Europe. This type of supranational authority is an increasingly common attribute of international organizations, evident in major global institutions like the International Criminal Court (ICC), the dispute resolution mechanism of the World Trade Organization (WTO), and to a more limited extent the United Nations Security Council (UNSC). These developments signal a dramatic shift not only in the distribution of public authority in the international system but also in the rationalities and ideas that inform the practice of international organization. How did this move to supranational authority become possible in the postwar international system? How do governments legitimate the creation of international institutions with the authority to bind them to policy choices without their consent?

The ongoing controversy over the European Council's decision and the Eastern European member states' continued objection to the EU's authority on this issue raises another equally important set of questions concerning the relationship between supranationalism and state sovereignty. Supranational authority is far from a settled practice in world politics, and it continues to generate intense debate and controversy in many governments and publics around the world, not just in the context of the EU where the recent migrant crisis and Brexit have thrown these debates into sharp relief, but also in the South African threat to withdraw from the ICC and the Trump Administration's continuing efforts to undermine the WTO dispute settlement mechanism.³ How is the claim to supranational authority, divorced as it is from the nation-state, reconciled with the long-standing traditions of popular sovereignty and democratic self-determination that underlie the legitimacy of national governments? And why does this attempted reconciliation sometimes fail, leading to a repudiation of supranational authority? These questions are not merely of academic interest; they have significant implications for the legitimacy and effectiveness of global governance institutions and the quality of national democratic governance.

The principal goal of this study is to understand how powerful, supranational organizations are constituted as legitimate authorities in a world of sovereign states. Rather than beginning, as many explanations of international cooperation do, from the presumption that the agreements establishing international institutions are best understood as contractual agreements among governments, I argue that we gain greater analytic leverage on explaining the foundations of supranational authority if we theorize international institutions as constitutional orders. A constitutional approach focuses on the politics surrounding the effort to legitimate the distribution of public authority among member states and international institutions, rather than the politics related to choosing policy outcomes or the legitimation of specific moments in which an institution wields authority. It further assumes that the problems confronting the constitution of institutional authority are not reducible to the cooperation problems that impede efficient policy coordination but encompass deeper problems related to the legitimacy of formal, institutionalized power. Rather than highlighting the importance of interest-based intergovernmental bargaining, a constitutional approach draws our attention to the dynamics of representing the constituent power, that is, the collective subject in whose name authority is exercised, which underlies the authority relations of an institutional order.⁴ How this constituent power is represented during moments of institutional foundation, I argue, fundamentally shapes the legitimation of different constitutional authority relations within an international institutional order. The origins of supranational authority, therefore, lie not in objective, structural conditions of interdependence or in the strategic calculations of decision-makers but in ideas about the proper public identity of global governance arrangements and the politics of legitimacy through which these ideas are translated into an institutional reality.

The constitutional theory of supranational authority developed in this book contributes to our understanding of world politics in two ways. First, it advances our understanding of the conditions under which supranational forms of governance emerge in world politics. Though less common than other forms of governance, such as transnational governance networks,⁵ international hierarchies,⁶ or private regulatory frameworks,⁷ supranational institutions, such as the EU, the WTO, and the ICC, remain some of the most significant sites for international governance in the world. Unlike the other forms of governance mentioned above, moreover, supranational institutions rest upon public international authority and thus represent perhaps the most promising avenue for realizing more accountable and legitimate forms of global governance. While none of these institutions has escaped the focus of IR scholars, the study of these powerful international institutions is often treated in isolation from other, similarly powerful international institutions. As a result, it is difficult to identify, much less explain, common patterns and processes in international authority that we might observe across these cases. This book provides the first cross-case comparative analysis of the constitutional legitimacy of supranational institutions. In so doing, it develops the concept of supranationalism as a generic institutional form, one not limited to the unique experience of postwar Europe, and provides a theory to explain the dynamics of constitutional legitimacy that endow this institutional form with authority. I examine three distinct supranational institutions (the EU, the WTO, and the ICC) and show that while each case exhibits its own particularities, they also all exhibit a common set of principles related to international authority that enable us to identify them as supranational and a similar set of processes that help to explain the genesis of those principles.

This study also makes an important contribution to our theoretical understanding of international organization by developing two related claims. The first is an ontological claim about the nature of international institutions. Most approaches to international organization conceptualize institutions as functional instruments of statecraft and thus assume that their creation is akin to adopting a new method of accounting to collect and organize information, or establishing a new bureaucratic procedure to oversee policy implementation. I argue that international governance institutions are institutionalized associations that endow relations among governments with a durable character that exists above and distinct from their individual interests. Their creation is thus more akin to the founding of a new constitutional order than the invention of a new policy instrument or strategy. This alternative perspective suggests that governments confront a series of questions when creating new institutions that are constitutional in nature, such as the degree of autonomy that an institution will enjoy from the individual member states, and the relationship of the obligations that will follow from membership to the domestic laws of the member states. These questions concern the public identity of the institution rather than its functionality, and they share similarities with the constitutional issues that we observe in domestic political orders, such as the question of how individual interests will be related to the collective will of the people in a democracy or the question of the proper boundaries between individual freedom and state power in a liberal state. In showing that some variant of these constitutional questions are also present when governments create international institutions, I hope to demonstrate that institutions are more than simply contractual agreements; they also represent forms of political unity and should be understood as a species of constitutional order, albeit ones that exhibit their own properties given the unique context of international relations.

Conceptualizing international institutions as constitutional orders suggests a second claim, namely, that we can fruitfully understand international organization as a form of constitutional politics. Constitutional politics are distinct from the everyday politics of positional bargaining not only because they address basic, foundational questions of political organization but also because they are driven by philosophical or normative considerations rather than an interest in distributional gain.⁸ Constitutional politics, in short, are defined by struggles over basic value commitments, and I argue that the politics of international constitutional design can be understood as a struggle to define the public identity of governance institutions, on the one hand, and the purpose of state power, on the other. These struggles occur both between governments as they seek to define the collective subject whose interests an institution will serve, and within governments as they seek to reconcile the obligations associated with membership in a new institution with traditions of state sovereignty. At the center of both of these struggles is a set of competing ideologies of global governance that define the purpose of international cooperation and state power in fundamentally different ways. Existing approaches to international organization overlook these ideological struggles and overlook, as a result, key conditions of possibility for the emergence of international authority.

The argument

Scholars use the concept of supranationalism in a variety of ways: to describe a particular bargaining process,⁹ a process through which national loyalties are transferred to higher level institutions,¹⁰ or a particular institutional outcome.¹¹ Even when understood as an outcome, however, there is little agreement as to what features differentiate supranational institutions from intergovernmental arrangements. I seek to redress this confusion by developing the concept of supranationalism as a generic institutional form, arguing that it is defined by two properties: (1) the ability to wield regulatory, legislative, or judicial authority without first securing member-state consent, (2) over matters that are typically within the exclusive jurisdiction of states. These two properties – what we can call (1) nonconsensual authority and (2) jurisdictional primacy – set supranational institutions apart from traditional intergovernmental institutions, and their emergence represents more than simply a change in the strategies that governments use to realize policy coordination; it represents a significant transformation in the distribution of public authority in the international system, constituting a new locus of authority above (rather than between) sovereign states.

The emergence of powerful international organizations has been the focus of a growing body of International Relations (IR) scholarship.¹² The dominant approaches to explaining supranationalism in Europe and beyond offer functional explanations to account for the origin and design of international institutions,¹³ yet this focus on functional efficiency elides the range of principled ideas and arguments that often structure public debates on the legitimacy of supranational organizations. Proposals to establish supranational organizations frequently confront an already crowded field of proposals for different forms of policy coordination, not all of which involve delegating authority. Emphasizing the functional benefits of delegation as an explanation for institutional choice neglects the historical context out of which proposals for supranationalism emerge and the political dynamics through which these competing ideas become settled into a foundational rationality for an authoritative IO. Constructivist schol...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• 1 Introduction: from contracts to constitutions
• 2 A constitutional theory of supranationalism
• 3 A community of fate: supranationalism and the origins of European integration
• 4 From states to industry: neoliberalism, supranationalism, and the WTO
• 5 The conscience of all nations of the world: the founding of the ICC
• 6 Conclusion: the future of supranationalism and international authority
• References
• Index