Cogan: Representation and Power in International Organization: The Operational Constitution and Its Critics

ILR's editor Jacob Katz Cogan (Univ. of Cincinnati - Law) has posted Representation and Power in International Organization: The Operational Constitution and Its Critics (American Journal of International Law, forthcoming). Here's the abstract:

There is nothing more fundamental to or characteristic of a constitutional system than the techniques it adopts and employs for the selection of its decision makers, be they executive, legislative, or judicial officials. Such techniques can be based on a variety of principles and can be codified using a number of different forms. In the international system, we have a plethora of possible representative principles – those that treat all States the same, giving them each an equal vote (the sovereign equality principle); those that treat States or groups of States differently and allocate representation on the basis of their relative wealth, military power, amount of exports and imports, or some other distinctive characteristic or interest (the differential responsibilities principle); and those that prioritize region and divvy up positions accordingly (the regionalism principle). We also have a wide array of possible forms for implementing those principles – treaties, resolutions, decisions, and understandings, among many others. In the post-War world, there evolved an operational constitution of representation in which formal and informal arrangements together were employed to reconcile the conflicting principles and interests in play. Though sometimes moderating regional tensions, the operational constitution most often rewarded power – financial, trade, political, military, or otherwise – in order to maintain effective international organization.

This operational regime is currently under stress in two distinct ways. It is being assailed on its own terms as unreflective of contemporary power dynamics. Challenges to the composition of the Security Council and pressure to reallocate voting rights in the International Monetary Fund (IMF) and World Bank are the best examples of this. The operational regime is also being criticized on a more fundamental level by those who would do away with informality and preferences altogether. We see this in the attempt to wrest away the “rights” of the United States and Europe to appoint the heads of the IMF and World Bank. These two critiques of the operational constitution are moves to create an international system that works on radically different terms from that which has existed for the past sixty years. The Article concludes by considering the future of the operational constitution in light of these challenges.