Samantha Besson: "Democratic Representation in and by International Organizations"

Samantha Besson, University of Fribourg: "Democratic Representation in and by International Organizations"

Abstract
Most contemporary international organizations (IOs) are empowered to adopt international law that claims to bind their Member States (and their peoples). Certain IOs have also become members of other IOs or, at least, active participants in international law-making processes that claim to bind those IOs and their Member States (and their peoples). From the perspective of the democratic legitimacy of international law, this raises the question of the conditions under which those IOs may be regarded as democratic representatives of their Member States’ peoples and, accordingly, under which the international law they have the discretion to adopt inside and outside of IO organs and processes may claim to bind those peoples legitimately. When one knows how powerful and even dominating certain IOs and certain States and their governments (usually not the most democratic ones) within those IOs have become politically, the stakes of those IOs’ democratic representativeness are extremely high. Curiously, however, the democratic representativeness of IOs does not seem to be much of a concern of IOs and their Member States, at least if one refers to the international law of IOs. Even more curiously, it has only rarely been addressed as such in the lively scholarly debates pertaining both to democratic representation theory and to the democratic legitimacy of IOs –the latter have focused mostly on “participation” and “deliberation”, artificially opposing it to representation, and have promoted the compensating participation of “non-State actors” and other “stakeholders”, without caring for the latter’s representativeness and at the price of State-based representation. This paper aims at remedying this neglect of representation. It builds upon the author’s previous work on international democratic representation in and through IOs, and brings her argument in favour of IOs as “multiple international representation systems” one step further to address democratic representation by IOs. The structure of the paper is three-pronged. The first section sets the conceptual framework for the argument by presenting what is meant by international “democratic legitimacy” and “representation” in the paper and argues against the widespread output-based approach to both of them. The second section specifies the subjects of democratic representation by IOs. It argues against a conception, now common both in international democratic theory and in the international law of IOs, that considers States to be the subjects of international representation as opposed to peoples, and States’ peoples only as opposed to the multiple publics those peoples, but also others, are re-instituted into by different public institutions now involved in international law-making. In the third and final section, the paper turns to the relation of democratic representation by IOs. It criticizes three existing accounts of that relation in international law for their lack of democratic legitimacy, i.e. functionalism, incorporation and agency, and proposes a new “institutive” interpretation of the international law of representation.