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Weekend Roundup: December 14-20, 2013

This week Kevin briefly turned the blog into The Onion Juris with his satirical ICTY press release, after the Court, in Kevin's opinion, nailed the final nail in the coffin of its legitimacy. In a guest post, Eugene Kontorovich framed the question as a design choice in terms of who should bear the risk when a judge becomes unavailable before a trial has...

AJIL Symposium: Reply by Kristina Daugirdas

[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:

AJIL Symposium: Congress and the World Bank

[David Gartner is Professor of Law at Sandra Day O'Connor College of Law at Arizona State University]

In Congress Underestimated, Kristina Daugirdas offers a valuable new perspective on the role of the Congress in shaping the foreign relations of the United States with respect to international institutions.  The article presents a fascinating case study of the assertive role of the Congress in influencing executive branch positions towards the World Bank and offers an interesting counter-example to the idea that the President reigns supreme in contemporary foreign relations.  In these comments, I want to address two important questions raised by the article: First, is it right that Congress has been underestimated with respect to its influence over the World Bank?  Second, is the World Bank case exceptional or does it reflect a more generalizable conclusion about the role of Congress in shaping US policy towards international institutions?

Daugirdas argues that leading accounts of Congress as a feeble participant in foreign affairs have underestimated its influence over US participation in the governance of the World Bank.  She highlights the ways in which Congress has used its power of the purse to impose conditions on funding and give directives regarding the positions taken by the US Executive Director of the World Bank.  Across Presidential administrations and in times of both unified and divided government, the executive branch has largely followed these congressional instructions with respect to the World Bank.  Although the article recognizes some limits to this influence, it captures an important source of congressional leverage even as it potentially overstates its ultimate impact on the day-to-day operations of the Bank.

AJIL Symposium: Comments by Daniel Abebe on “Congress Underestimated”

[Daniel Abebe is Professor of Law and Walter Mander Teaching Scholar at the University of Chicago] In Congress Underestimated: the Case of the World Bank, Professor Daugirdas studies the World Bank to gain better traction on two important debates in the foreign affairs law literature, namely the extent to which the President, vis-à-vis Congress, is dominant in foreign affairs and the claim that international organizations like the World Bank weaken democracy by enfeebling domestic legislatures.  As I understand it, her argument is that contrary to the conventional wisdom of presidential dominance, Congress has used the threat of reduced World Bank funding and specific voting instructions to force the President to at least embrace, if not implement, Congress’s preferences.  Moreover, Congress’s influence on U.S. policy at the World Bank challenges the view that international organizations undermine democracy by enfeebling Congress’s capacity to influence policy outcomes.  If correct, her overall argument challenges existing conceptions of the relationship between the President and Congress in foreign affairs, and complicates our understanding of the interaction between domestic legislatures and international organizations. Congress Underestimated: the Case of the World Bank is filled with rich institutional detail about the World Bank’s internal operations and the negotiations between Congress and the President over World Bank policy.  Although much of the detail warrants discussion, due to the space constraints of a blog post I will focus my comments on the two related arguments and the evidence offered in support.  Let me start with the presidential dominance claim and move from there.

AJIL Symposium: Congressional Oversight of International Organizations

[Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken '71 Research Professor at the University of Virginia School of Law.] Many scholars believe that a shift of authority to international organizations benefits the Executive Branch more than Congress. The Executive interacts directly with these organizations and bears undiluted accountability for the consequences of their actions. Congress deals with them sporadically and has weak institutional interests. Members are elected by local, rather than national, constituencies and therefore have an incentive to focus on local rather than national effects of foreign affairs, the actions of international organizations included. Therefore, some have suggested (myself included), Executive Branch actors might prefer international delegations as a means of hobbling legislative oversight. To oversimplify greatly, people like me have argued that internationalists who wish to deepen and broaden international cooperation through institutions might find themselves playing into the hands of the Imperial Presidency. Kristina Daugirdas’s excellent article pushes back against the widely held belief that international institutions augment Executive power at the expense of Congress. Rather than theorize, she does research. Her careful study of the history and pattern of legislative oversight of the World Bank demonstrates the Congress has the capacity effectively (and significantly) to influence U.S. policy toward the Bank, and even to alter the Bank’s behavior. Creation of the Bank did not lead to a surrender of the legislature’s prerogatives, but rather gave members (especially in the House) a new pressure point for extracting concessions from the Executive. The key factor that enables Congress to ride herd on the Bank, Daugirdas observes, is the Bank’s need for periodic new funding. This was not always true, as the Bank was designed to generate a positive return on its founding capital. The creation of a more aggressively redistributionist institution in the form of the International Development Association in 1960 changed this dynamic, because the IDA depends on frequent infusions of new capital. Because Congress must approve any U.S. contributions, it can hold the funding hostage to its policy preferences. Moreover, it has demonstrated an ability to monitor the Bank and thus to respond to slippage between its instructions and the Bank’s performance. In early years, when Congress instructed the U.S. Executive Director not to vote in favor of certain loans, the U.S. representative behaved as required but did nothing to alter the votes of other Directors. After Congress responded through more aggressive pressure on the funding lever, the Bank shifted course. Although the need for regular funding is the salient variable, also important is the role of departmentalism within the Executive Branch. The White House, with its own agenda as well as acting as the focal point for all the Executive’s components to express their interests, may have a particular policy, but the Treasury has the responsibility for managing the United States’s relationship with the Bank and deals regularly with Congress. When Congress has been unhappy, Daugirdas shows, it focuses its displeasure on Treasury, which in turn works hard to steer the Bank’s behavior in the direction Congress wants, whatever the White House might prefer. This article does several wonderful things.

Weekly News Wrap: December 16, 2013

Your weekly selection of international law and international relations headlines from around the world: Middle East The UN sent its first delivery of humanitarian aid by air to Syria from Iraq and said it plans to deliver more food and winter supplies to the mainly Kurdish northeast in the next 12 days. Yemen's parliament called for a stop to drone attacks in a...

Events and Announcements: December 15, 2013

Hebrew University of Jerusalem and the Freie Universität Berlin have announced a new joint 3-year interdisciplinary Doctoral Program entitled “Human Rights under Pressure – Ethics, Law and Politics” (HR-UP), funded by the German Research Foundation (DFG) and the Einstein Foundation Berlin. HR-UP offers young researchers a unique opportunity to conduct cutting-edge research on the most pressing contemporary challenges for human rights, including issues...

Weekend Roundup: November 30-December 13, 2013

This fortnight on Opinio Juris, Deborah reminisced about her handshake with Nelson Mandela during her time as a junior White House staffer and Roger posted about the day Mandela was free. Mandela's example was invoked at the WTO Ministerial Conference in Bali, where trade ministers reached their first trade agreement in years. Julian argued that the WTO however does not need the Bali Package...

Despite Deal, Iran Still Needs Pressure (and UN Sanctions)

Most reporting on the nuclear agreement with Iran has tended to generalize about the types of sanctions and the impact of the deal on these various measures, so it would be easy to assume that United Nations sanctions are being eased or lifted, but this is not the case. The deal primarily eases unilateral sanctions by the United States and...

Breaking News: U.S. State Department Grants Santa Claus a Visa Waiver

A nice light-hearted exchange at today's U.S. State Department media briefing, which shows some folks in government like Jen Psaki still have a sense of humor. Reporter: “So has the U.S. already issued a visa to Santa?” Psaki: Santa does not need a visa. He has a visa waiver in the United States. (Laughter.) So he can get to every house, and...