Rebuilding the international institutional order is necessary

Interview with Samantha Besson

Samantha Besson is a professor of law.Her research focuses on international and European law. Since 2019, she has held the International Law of Institutions Chair at the Collège de France.

This chair revives a long tradition of teaching and research in international law at the Collège de France. She has given it a more specific focus, emphasizing the study of the institutional dimension of international law, and a more regional direction, since it includes the study of the international law of European organizations such as the European Union and the Council of Europe, as well as international organizations in other regions of the world.

For the first time, a Chair of International Law at the Collège de France focuses on institutions. Are you interested in studying the international law that governs these institutions, or the international law that emanates from them ?

Samantha Besson :Both. The modern Western conception of law - which has become that of international law, and consequently of (part of) law everywhere in the world - is based on the principle of therule of law and thus, more generally, of the institution of law :law is adopted by institutions, which it also governs in return. Thus constructed, the law cannot be conceived outside an institutional order, and vice versa.
Nevertheless, for various reasons, international law has not always been conceived in institutional terms, or not sufficiently so.This applies, of course, to theState itself.The international law of theState suffers from numerous shortcomings, as revealed, for example, by the extent of the privatization of the rights and prerogatives of States, but also by the residual indeterminacy of the institutional content of the right to self-determination of peoples. The missing institutional component of international law is even more evident in the law of international organizations. With certain exceptions, the existence of a public international law statute common to these various organizations is still largely lacking.It is hardly surprising, therefore, that there are doubts about the ability of many of them to comply with the principle of therule of law.

Between the Covid-19 pandemic, marked by widespread criticism of the World Health Organization (WHO) ; the climate crisis and the criticism of international institutional shortcomings in this field ; the war in Ukraine and the questioning of the United Nations Organization (UNO), international institutions are currently being severely tested. What can we still expect from them ?

First and foremost, it's important to point out that these different institutional realities have very different causes. However, it is also true that this outpouring of criticism against them reveals something common : the fragility of an international law whose institutional dimension has not been sufficiently thought through, and is artificially kept at a distance from legal issues.
Indeed, how can we expect an organization like the WHO, whose political dimension has always been suppressed in favor of techno-scientific expertise, including private expertise, to adopt a legitimate international public health policy and lay the foundations for an international health law whose authority is respected ? How can we imagine being able to protect the climate as an international public good, and hope to be able to allocate responsibilities as we tried to do at the recent COPs, without first having identified and put in place the institutional procedures for egalitarian recognition of this good as the property of an instituted international public ? And, finally, how can an organization like the UN, founded on the equality of States, but making their inequality within the Security Council its mode of decision-making to the point of paralyzing itself, be able to treat States equally and protect world peace against the illegal use of armed force by some of those States that the organization has privileged ?
What some have called the " polycrisis " (ecological, health, social, economic or military) is a powerful warning signal. In the mirror it holds up to us, however, we must also see the crisis of our international institutions. A critical examination of this institutional reflection reveals how necessary it is to rebuild the international institutional order, and consequently to develop a genuine International Law of Institutions to accompany it. It's a formidable collective challenge that the research and lectures of my Chair aim to take up with others around the world.

Why do we have the feeling that we have to wait for crises before we can ask ourselves essential questions about the way our institutions work ?

It's true that this is regrettable. However, the great institutional moments, sometimes referred to internally as " constitutional moments ", are always moments of rupture following an economic collapse, an epidemic, a climatic catastrophe, a war or even a revolution. Indeed, it was this absence of a European constitutional moment that was criticized at the turn of the millennium, when the Treaty establishing a Constitution for Europe failed. Today, in the face of the tremors that regularly rock Europe, no one doubts any longer that an institutional turning point is imminent. The problem seems to be more one of having the courage to seize the moment and reinstitute a more egalitarian, more social and greener European Union.
In the international arena, the major upheavals from which contemporary international institutions have emerged have been regional and then global armed conflicts, as well as the serious economic and social crises of the first part of the last century. And a new international institutional moment is now in sight. It's a moment to be seized, both legally and politically. If we don't, we run the risk of allowing the international institutional order to weaken even further, and even of this weakening leading to even more violent unrest.

Was it not possible to anticipate these difficulties ?

It certainly was. As it happens, many internationalists (including at the Collège de France, of course) have long since identified some or all of these institutional shortcomings. However, there is always a time lag between the critical analysis and reform proposals put forward by jurists, and the political reaction, both domestic and international. Especially when the stakes are so high: never before has the international institutional order brought together so many peoples, and above all peoples who are in principle instituted as equal States under international law. The complexity of what is at stake is also unprecedented : while some of the challenges to be met have common causes, others can only be resolved, at least in appearance, at the cost of deepening the others. Faced with an international institutional moment of this magnitude and complexity, our responsibility as jurists is to prepare possible outcomes with proposals for critique and reform.

With a view to reconstruction, is there an ideal institution to serve as a model ?

The first mistake, and one we must never make again, is precisely to consider that each new problem common to peoples and States can and must receive a single institutional response, in the form of a new international organization whose function would be to respond to that problem. The " proliferation " of international organizations since the end of the ^19th century, and the functionalist model which underpins it, are in fact partly responsible for contemporary difficulties. These difficulties range from the lack of representativeness of international organizations (their legitimacy was to derive solely from their functional expertise) to their lack of accountability (limited by a mandate and serving the common functions assigned to them, they were not to be induced to cause violations of international law).
In reality, it is possible to make a virtue of the need to deal with the existing international institutional landscape. The multiplicity of contemporary international institutions - be they public, such as states, international organizations, regions or cities, or private, such as NGOs or multinational corporations - can and must also be approached as a democratic lever. Provided, however, that we understand that these institutions repeatedly reinstate the same peoples, and that we organize this chain of national, regional and universal representation. This is the thrust of the non-ideal political theory argument I developed, with my colleague José Luis Martí, in favor of a " system of multiple international representation ". Multiplicity does not have to rhyme with mere institutional plurality. The question of good representation in international law is the theme of my lecture this spring.
To return to the question of reconstructing the international institutional order, we would therefore be well advised to better identify and understand the strengths and weaknesses of the contemporary international institutional order before proposing reforms. These reform proposals should come first from within, and then from outside in cases where reform cannot be achieved without revolution, and therefore without completely rebuilding the organization, as was the case with the League of Nations at the time of the creation of the United Nations. Of course, we must not rule out the development of new international institutional forms to better represent the peoples of the world, in parallel with, or even in place of, the many public and private institutions currently in existence. For example, in my work I have outlined the republican virtues of non-domination that could be achieved by involving cities and regions more closely in the adoption of international law.

Although reconstruction seems essential, governments don't seem to be reacting. Why is this? 

That depends on the countryconcerned , as new alliances and majorities fromthe South and East have been emerging for some time now. On the other hand, you will certainly have in mind the few States whose dominant position within the UN system, but also within the global landscape of regional organizations, has been legally ratified as such. Or the new powers that invoke or seize the same privileges ? In fact, it is precisely because the post-war international institutional order failed to respect the equality of all States that it can so easily provide a breeding ground for these new powers today. If the sovereign equality of States was only a distant preoccupation of the giants of the last century, it is now being urgently recalled by these giants on the verge of becoming dwarfs. The future of the United Nations, reformed or refounded, must therefore be egalitarian. As early as 1795, Immanuel Kant wrote that there could be no lasting peace based on a simple balance of power. Let us hope that, at the end of the war in Ukraine, the victors will have not only the generosity, but also the wisdom of equality.

If the initiative for reconstruction does not come from the States, where can it come from ?

As always, from the people - of which states, along with other institutions, are the international representatives ! The reconstruction of the international legal and institutional order must begin at national level. This means, for example, ensuring that international treaties and other international norms, which will become part of national law once ratified, can be approved by national parliaments. The international mandate given to our government representatives in international negotiations and organizations must also be subject to effective parliamentary deliberation and control. More generally, all foreign policy issues should also feature prominently in the political programs of executive candidates, and in electoral debates where candidates up for re-election should be held to account for their international record. In addition, other forms of international representation of peoples can be set up, whether by cities or regions, or by private organizations such as NGOs or multinational companies. In each case, however, these public and private institutions should also be legally organized in such a way that they can be effectively controlled by the peoples they represent on the international stage. These and other themes will be the subject of my lecture this spring.

Interview by Romain Cayrey