Conceptualizing Accountability in International Law and Institutions

I had the privilege of moderating a panel today at the Yale International Law Journal annual confab of junior (meaning untenured?) scholars, a panel on accountability of international organizations.  International organizations in this setting means the United Nations, but also a vast array of organizations beyond what we ordinarily think of as the UN (the General Assembly, Security Council, Secretariat, etc.), including many organs and sub-organizations of the UN, and many others, such as the World Bank or the World Trade Organization, that might be in some formal sense part of institutions the UN system but which in fact have their own mechanisms of governance and funding.  The three panelists were Kristin Boon (Seton Hall), David Gartner (Arizona), and Stadler Trengrove (UN Office of Legal Counsel), and their remarks were uniformly excellent, and I commend their work to you.

I

I am a skeptic of global governance on grounds of being both unachievable on the terms and to the ends that its proponents seek, and undesirable as well, so I am perhaps a surprising choice to moderate a panel that takes more or less as an assumption both of those things.  I am finishing the copy edits of a book to appear in May or June from Hoover Press, Living with the UN, which includes such phrases as “The General Assembly, which vascillates between waste and wickedness …”  You catch my drift.  My basic point in that book, however, is the message to American conservatives that the UN is not going anywhere and they need to work that into their calculations, principally by turning the vacuous slogan of the Obama administration of  “engagement” with anything that looks “multilateral” into a genuine policy.  Principally that means treating different parts of the UN differently, and engaging with them, or not, or sometimes deeply opposing and obstructing them, each according to its function and effects.

The message for liberals, and particularly the liberal internationalists who principally make up the field of international law, is that the UN … is not going anywhere.  It is what it is.  It is not evolving into something new or different, at least not in any good sense.  It is like the energizer bunny, marching away in a cul-de-sac, in stasis and equilibrium – although, as I argue in the book, a peculiarly happy equilibrium.  Historically ‘stranded capital’, in the ireprressible language of utility regulation.  Anyway, to the extent that it might manage reach beyond rent-seeking behaviors, and become more efficient, that efficiency mostly means more efficient anti-Americanism.  But mostly the organization, at 60, at 70, at 100, has achieved adulthood, such as it is, and it’s not going to evolve or emerge or pupate or larvate or anything else into the glorious global governance of liberal internationalist dreams.  The UN is not a child gradually growing up, it is grownup and dysfunctional.

Moreover, on the question of mechanisms of accountability, I have offered many reasons — many of which are critiqued by David Gartner in his excellent new paper — for why “global civil society” is not a solution for the legitimacy deficit of international organizations.  The question of legitimacy always has to start with, “Legitimate for what?”  On that score, international organizations reach for the legitimacy required to do things that take the legitimacy of a settled domestic society (in Weber’s sense) rather than the limited things that the UN’s limited legitimacy of intergovernmental organizations negotiating with each other can hope to do.  I’ve referred to this limited sense of legitimacy of international organizations and the rejection of the “social” legitimacy of Weberian society in the short hand of saying that the international community is a “politics, not a society.”  I think this is actually very hard for international law scholars to take on board because we do spend so much time in the company of other members of what looks to us to be a sort of transnational society of many different actors, and it all looks rather social to us.  But it is thin, thin gruel measured against the actual institutions of actual societies, in which the legitimacy of political and legal institutions arises from their being embedded within a thick social order.

In any case, within our community of international law gentility, the gentility of the “invisible college of international law,” NGOs, academics, advocates, activists, the community seems intent on seeing sociability everywhere sufficient to legitimate what it proposes to do in so many spheres.  What seems thick enough to support so many global initiatives on the basis of international organizations — the Millennium Development Goals, climate change agendas, many other things across almost every sphere of human aspiration — seems to me gossamer thin, and heaven help someone forced to rely on these as the social ties that bind.

II

For a very long time I have argued that the nongovernmental organizations, the NGOs, or more ideologically freighted, “global civil society” lacks the legitimacy itself to confer the legitimacy that the institutional UN craves.  Indeed, I had sort of thought the discussion over, first, with 9/11 and Kofi Annan’s recognition that his true love was not “global civil society” — so, so 2000, so Millennium Global Civil Society Summit — nor even the motley crew that inhabits the General Assembly, playpen of the nations, but once and forever the Security Council.  And second, with the rise of new great powers and the new players — China of course, but others as well.  We are in a resurgent Westphalianism, so far as I can tell, and the happy time of imaging we were beyond that a mere chimera, and that not an effect of the UN or international organizations, but rather a dream permitted by US hegemony and the rough political order that it provided.

We’re tired of that, dear old world, and so why don’t you look out for yourselves on the high seas while we sort out our fiscal mess?  We don’t want to be the global provider of order of last resort, thanks — but by the way, we do want to continue being the world’s reserve currency so we can debase it at will.  Will you continue to let us do that, please?  The universalism of liberal internationalism is mostly an artifact of US hegemony.

Well, that might or might not be right; I don’t suppose that was the view of anyone on the Yale panel today, or probably of anyone else in the room (well, perhaps Eugene Kontorovich).  But if you think that’s basically true, as I do, then it is hard to see the NGOs as anything other potentially influential players — contra Eric Posner’s new essay pooh-poohing “lawfare” as largely imaginary — on particular issues, such as counterterrorism policy, detention, targeted killing, or other things.  But not as the grand partner in mutual legitimation of the liberal international order and global governance.  The action is back around nation-states in a heightened Westphalian competitiveness mode, and I trust that folks at the Pentagon are not so focused on n0n-state actor threats that they have forgotten about the spectre of state-to-state wars, whether the Koreas, China and Taiwan, Pakistan and India, Russia and Georgia among other places, just to name off the nuclear players in this.  So I find it somewhat peculiar that the role of NGOs is back on the table as a vanguard party for global governance.

III

But the panel was focused on accountability, and I think it raises important questions that need to be considered even if one has a fundamentally skeptical attitude on several axes toward global governance and international organizations.  So what can we say about accountability?  What does it mean?  I put on the table at the panel by way of introduction a couple of thoughts taken from a new paper coming out soon in the Brooklyn Journal of International Law, following on its splendid symposium last year on NGO accountability.  Here are three ways of thinking about accountability, whether of international organizations or of NGOs.

First, we can talk about “internal” accountability.  So, in this sense, NGOs are institutions that offer greater or lesser degrees of accountability in an internal “governance” sense. By this I mean the accountability that would be relevant to any organization in its fiduciary governance, particularly fiduciary institutions of a nonprofit nature that also owe obligations of public trust. These obligations of accountability include, to start with, mechanisms to account for the stewardship of funds, fidelity to the mission for which those funds were conveyed, and the range of often quite technical accountability issues that go along with the classic fiduciary duties of care and loyalty, as well as (in the case of a charitable organization) some duty of transparency.  We might think of this as the “thou shalt not steal the silverware” meaning of accountability.

These “internal” forms of accountability ensure stewardship of resources toward a mission, and they can be satisfied – indeed, really can only be satisfied – through expert and technical ministration by auditors, accountants, lawyers, and others. There is a further important question as to whom those “internal accountability” monitors should themselves account – in the transborder NGO arena, regulators of which countries? Those, for example, giving aid assistance, or those receiving it, or both? Since presumably no one favors embezzlement of NGO funds, and more broadly accountability in the sense of stewardship toward a declared mission, this form of accountability is largely instrumental and not contested, even if the role of the government regulator raises important questions of political governance in a world in which NGOs cross borders.

A second form of accountability, however, might be thought of as “external” accountability.  It is explicitly about the relationship of NGOs to the globalized world in a political sense, and hence it is a question of accountability as legitimacy. It is whether NGOs claim, and by some actor are apparently conveyed, a role in political governance of a kind that hithertofor might have thought to have attached to governments and their governed peoples. If, as has often been claimed during the last twenty or so years, NGOs act to “stand in” as representatives of the “peoples” of the world before international organizations, in what sense and to whom are they accountable, if they now stand alongside or supplant states in this role?

These two meanings of accountability are not incompatible with each other; far from it.  We ideally want international organizations and NGOs to have both, sufficient to their missions.  The first, after all, is essential for any organization, for profit or non-profit or governmental alike. The most contested issues for cross-border NGOs and accountability at this moment arise from this second sense – political sense, without in any way slighting the enormous importance of the work, often highly technical, around the standards, rules, and best practices for internal accountability.

IV

But we can point to a third question of accountability — one that has not received sufficient attention anywhere.  It is one that particularly attaches to the human rights and related “values” NGOs – those devoted to questions of international morality, whether framed as human rights law or politics or some other way. This third question of accountability asks whether, and if so under what circumstances, an NGO actor making pronouncements and offering judgments of law and morality – judgments, for example, on the law of war applied to terrorism situations, or calls for forcible humanitarian intervention by states or international governmental organizations – should be called to “account” for its judgments, given that it has no “skin in the game.”

One way, after all, in which human rights NGOs, in particular – though it can be seen to extend to other issues and other kinds of NGOs as well – might be described as “unaccountable” is that it is easy to call for other people to do things when you have no direct stake yourself in the outcome.  One way to think of Human Rights Watch is as the Annointed Keeper of the Categorical Imperative; the Impartial One.  But one might equally well think of that as merely being the Repository of Moral Hazard and Global Kibitzer on things in which it bears no cost for its sweeping judgments, whether they turn our for good or ill.  The NGO that is responsible for the safety of no population, no territory, no governance responsibilities – and yet freely calls for many, many things, including the expenditure of blood and treasure – it is natural to ask to whom such organizations are accountable. God? Kant?

This too is a form of accountability, because what we call rights might just as easily be called “externalizing costs, internalizing benefits.”   It is an impoverished understanding of rights, but that is not on account of the economicsy reductionism, but because the human rights movement has so assiduously taught the ‘bearers of rights’ that they have no corresponding responsibilities: a modern trope that reached its tragic-comic nadir in the London bomber screaming about his human right not to be killed.  The function of rights in the world of human rights these days seems to be principally about splitting apart rights and obligations, goodies and burdens, and re-allocating them according to favored political categories.

V

Yet, with respect to this third question of accountability, when the failure to have a stake in the outcome should be regarded as an accountability liability and when not, is a vexed question in jurisprudence and ethics. After all, there seems to be something rather too easy about human rights organizations solemnly instructing governments in their duties while sitting in the comfortable position of kibitzer who has nothing at stake.  At the same time, in many situations, however, we do not want the actors who pronounce duties to have anything directly at stake – judges, for example, for whom having no skin in the game is a sin qua non of the rule of law.

There are important observations one could make about why judges are not to have stakes in the matters they judge, while still being critical of the too-easy claims of NGOs.  It would start with the way in which judges are connected directly to the second question of accountability raised above, a connection with the state, the impartial judiciary as an embedded part of a state that does have the commonweal as its moral and political obligation.  They perform their function as part of a society, not merely a politics.  But it is a much more difficult question in moral and political philosophy and jurisprudence than one might have thought: when is it morally imperative to have “skin in the game” and when it is equally morally imperative that one not?

(I’ll have to add links later.)