In association with the International Commission of Jurists

Author: Kristina Daugirdas

15 Oct

[Kristina Daugirdas is a Professor of Law at the University of Michigan Law School.] Absent a contractual relationship, individuals who have been harmed by the acts of international organizations rarely have access to institutions to hear their claims. National courts are often unavailable on account of organizations’ immunities. Some organizations have established alternative mechanisms to resolve such claims. The World Bank Inspection...

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17 Dec

[Kristina Daugirdas is Assistant Professor of Law at Michigan Law]

First off, I would like to thank Paul, Daniel, and David for their very thoughtful comments.  I’m glad to have the opportunity to respond to some of the key points that they made.

Paul provocatively suggested that perhaps we should care about results rather than democratic accountability per se.  If a particular set of institutional arrangements actually improves human lives, maybe it’s of secondary importance whether those institutional arrangements are anti-democratic.  Put in the terms of my article, the question wouldn’t be whether the World Bank suffers from a democratic deficit, but whether Congress’s participation in setting World Bank policy advances the Bank’s efforts to rid the world of poverty.

That’s a challenging question.  Many government and Bank officials decry Congress’s meddling, arguing that it politicizes the Bank, that coping with congressionally-created financial crises detracts resources and staff time away from the Bank’s core mission, and that Congress’s interventions amplify the Bank’s tendency to cater to members who contribute funds at the expense of members who borrow them.  Those are serious concerns.  At the same time, the U.S. Congress was a forceful advocate of some innovations in the Bank’s operations that are widely praised, including the establishment of the World Bank Inspection Panel.  The voting rules at the World Bank ensure that only those proposals that are able to gain the support of a range of member states are translated into World Bank policy.  The obviously parochial legislated instructions that could impede the Bank’s efforts to support development are typically dead on arrival.

Both Daniel and David ask whether the dynamics the article describes in the World Bank context are likely to carry over to other international organizations, especially those that are more central to foreign affairs.  Isn’t the conventional wisdom about the President’s dominance in foreign affairs, Daniel asks, really a story about high-salience foreign-affairs issues?  Well, kind of.  It’s certainly right that “foreign affairs” is often equated, explicitly or implicitly, with war and national security.  But one of the points I hoped to emphasize is that this is an increasingly outdated and misleading perception of what “foreign affairs” encompasses.  Today, nearly every federal regulatory regime has an international counterpart of some kind.  To name just a few, there are international agreements that address wetlands protection, financial institutions, and food safety standards.  If we want to understand the dynamics between the political branches in foreign affairs, we would be seriously remiss to ignore the vast realm of lower-salience issues.

The narrower question nonetheless stands:

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12 Mar

[Kristina Daugirdas is Assistant Professor of Law at Michigan Law] I'm delighted to have the opportunity to comment on Professor Curt Bradley's excellent new book. Before getting to the question of how the decisions and orders of international institutions are integrated into U.S. law—Professor Bradley's main focus in this chapter—it's worth pausing to consider why states bother to create international institutions at all. States could have drafted a series of treaties that simply codified substantive obligations relating to various issue areas. Instead, they created institutions and delegated authority to them to do things like monitor how diligently states are implementing their international obligations, resolve disputes about the scope of those obligations, and revise those obligations in response to new technological developments or growing scientific knowledge. These delegations can make the regimes more effective by spurring compliance and ensuring that states' international obligations remain current. It's exactly the features that make international institutions so useful that raise constitutional questions for the United States. For example, the Chemical Weapons Convention (CWC) establishes a Technical Secretariat whose tasks include monitoring states' compliance with their obligations. This inspection regime makes the CWC more effective by increasing the likelihood that noncompliance will be exposed. But some scholars have argued that these provisions are incompatible with the Appointments Clause (because the inspections are undertaken by international officials) as well as the Fourth Amendment's protections against unreasonable searches and seizures.
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