11

International Organizations and Global Justice

José E. Alvarez

i the development of international organizations

Jean-Marc Coicaud (JMC): To begin our conversation, tell us how
international organizations came to be.
José E. Alvarez (JA): Most histories of international organizations start
with the nineteenth-century conferences where lawyers got together from
different countries for various treaty-making efforts. Dissatisfactions with
those ad hoc treaty-making efforts – the fact that such initiatives were left to
the discretion of the host state who decided to convene them, whom to invite,
and what specific issues were on the agenda – led to initiatives for greater
institutionalization to permit more coherent and continuous efforts to address
global issues. The deficiencies of those nineteenth-century conferences led to
the creation of permanent (brick and mortar) institutions with international
secretariats. Over time, some of these institutions aspired to achieve universal
or quasi-universal membership. Among the first was the International Labor
Organization (ILO) in 1919 and later the League of Nations. This historical
account relies heavily on functionalism. The premise is that international
organizations (IOs) were the product of rational state actors driven by the need
to fulfill certain functions requiring international cooperation.
This functionalist explanation for IOs is clear, for example, in Duncan
Snidal and Kenneth Abbott’s important article which distills these functions to
two: states’ needs for centralized actions and their need to rely, at least for some
things, on neutral or independent actors.1 States need to combine their efforts
to achieve the level of resources, financial as well as intellectual, to resolve
certain issues. They also need institutions like the International Court of

1
Kenneth W. Abbott and Duncan Snidal, “Why States Act through Formal International
Organizations,” Journal of Conflict Resolution (vol. 42, no. 3, 1998).

254

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 International Organizations and Global Justice 255

Justice (ICJ) and independent international civil servants led by the UN

Secretary-General because these third-parties, at some remove from states,
are perceived as more capable of settling interstate disputes neutrally, allocat-
ing resources impartially, or carrying out in disinterested fashion the work
of IOs.
JMC: And why did this need emerge in the late nineteenth century?
JA: These needs did not emerge for the first time in the nineteenth century.
Centuries before, Grotius, for example, sought to establish rules that should
govern maritime trade.2 But globalization – the modern world’s generation of
continuous transnational flows of goods, people, capital, and ideas – generated
ever more pressing needs by more and more states to coordinate their efforts,
including to address the negative externalities of such flows. The increased
interdependence of states, not just on economic issues but on lots of others,
their need to resolve problems of the global commons, for example, emerged
more forcefully starting with this period. States had to address not only how to
encourage trade in goods among them but also how to prevent the
transmission of diseases that may come with port traffic, for example – and
the need to resolve the tension between these two goals by agreeing on certain
rules became all the more acute with the turn to civil aviation.
JMC: And these needs which developed throughout the 1920s and 1930s grew
even stronger in the aftermath of World War II?
JA: The UN system was indeed the product of World War II and would not
have developed, at least not in the same way, without that conflict, including
the horrors of the Holocaust. The last inspired the rise of the human rights
revolution. The United Nations is itself a product of the perceived flaws with
prior institutional efforts. Many of the provisions in the UN Charter are
conscious efforts to correct the flaws of the League of Nations Covenant.3
Organizations like the UN are products of a learning process. From the UN to
the WTO, IOs are efforts to correct the past. The UN Charter is at least in part
a backward-looking document that seeks to build a viable collective security
scheme that would, unlike the League of Nations, enable a central organ – its
Security Council – to take enforcement action and impose legally binding
obligations on states. The absence of such a central organ in the League, along

2
Hugo Grotius (1583–1645), Dutch Jurist and author of seminal works in international law
including De Jure Belli ac Pacis (On the Law of War and Peace) (1625).
3
José E. Alvarez, International Organizations as Law Makers (Oxford: Oxford University Press,
2005).

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 256 José E. Alvarez

with its failure to delineate clearly the respective powers of all the League’s
organs, were flaws that the UN Charter sought to correct. The lack of
institutional separation of powers in the League led to establishing a
Security Council charged with “primary” obligations over peace and
security, a General Assembly that is principally a talk shop for almost
everything else but is also in charge of finances, and an ICJ presiding over
“legal disputes.” The drafters also omitted a provision to permit withdrawal,
which they feared would only encourage future aggressors to exit from the
organization. They sought to avoid the resulting loss of leverage that the
League of Nations suffered with respect to Japan, for instance. The WTO
and its relatively legalized Dispute Settlement Mechanism was established to
respond to the inadequacies of the less formal GATT.
Of course, institutional learning does not just occur when IOs are first
established. Organizations – at least healthy ones – learn from their own
mistakes over time and adapt. The UN adapted to de-colonialization – the
product of its own efforts to recognize the principle of self-determination. This
led to a radical shift in the composition of the General Assembly, which went
from a body that was under the control effectively of the United States and
other Western powers to one that exceeded 190 members with no one country,
least of all the United States, in control of a predictable majority. The UN has
also had to adapt to first the Cold War – which practically paralyzed its
collective security system for decades – and, later, the fall of the Berlin Wall,
which, at least for a time, reactivated the Council and emboldened that body
to take innovative actions, such as establishing war crimes tribunals.

ii humanitarian intervention: a new era for

international organizations?
JMC: Would you say that the post-Cold War era – the 1990s and the 2000s –
introduced qualitative changes in the nature and work of international
organizations, especially the United Nations?
JA: Absolutely. In the immediate wake of the Cold War there was what some
people have called “UN-euphoria,” an optimism that a new world order was
being born, as was suggested by Secretary-General Boutros-Ghali in his
Agenda for Peace.4 Belief that things had completely changed was
encouraged by the Council’s coming together to get Iraq out of Kuwait. For

4
Boutros Boutros-Ghali, An Agenda for Peace: Preventive Diplomacy, Peacemaking, and Peace-
Keeping: Report of the Secretary-General Pursuant to the Statement Adopted by the Summit
Meeting of the Security Council on 31 January 1992 (New York: United Nations, 1992).

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 International Organizations and Global Justice 257

some, that successful resort to Chapter VII action indicated that the collective
security scheme was finally working as intended. Many thought, naively, that
this meant that in the future there would be no exercise of the veto – that
peacekeeping would become robust and that states would finally begin to
agree in advance to provide peacekeeping forces under the standing
arrangements as anticipated by article 47 of the Charter.
That post-Cold War euphoria ended in the wake of a number of UN
embarrassments, including its inability to prevent killings in Rwanda and
Srebrenica, its Oil-for-Food scandal, and a debacle involving peacekeep-
ing post-Somalia.5 Today, no one really expects easy consensus among
the Council’s Permanent Members. The Council obviously remains
unable to respond to many critical threats to the international peace,
from those between Israel and Palestine to humanitarian crises too
numerous to mention. After 9/11 we entered another period of uncertainty
where the Charter’s security apparatus seems ill-suited to intrastate con-
flicts and threats posed by non-state terrorist actors. Some argue more
broadly that IOs, established by states to respond to interstate functional-
ist needs, now confront a paradigm shift where much of the action
needing attention requires the participation of non-state actors, including
multinational corporations and prominent members of international civil
society. How interstate organizations adapt to a world where states are far
from the only relevant actors may be the most significant challenge they
currently face.
JMC: While the 1990s was an eventful period in terms of legal developments
within the UN, haven’t legal developments since been less significant?
JA: I don’t think keen observers of the organization would agree. While
perhaps there have been fewer innovations as dramatic as the Council’s
seizing the reins of transitional justice in places like the Former Yugoslavia
and Rwanda, the current period has seen more subtle legal innovations.6 The
Council’s invocations of the responsibility to protect (R2P) principle with

5
See, e.g., Summary of the Independent Inquiry into the Actions of the United Nations During
the 1994 Genocide in Rwanda, UN Yearbook (1999); Summary of the Report of the Secretary-
General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, UN
Yearbook (1999). In October 1993 the United States authorized a special ops mission supported
by the United Nations Operation in Somalia (UNOSOM) II in Mogadishu, Somalia, to arrest
two top lieutenants of warlord Mohammad Aidid. The mission led to an unexpected battle and
eighteen US soldiers were killed and seventy-three wounded in action.
6
See generally, Sebastian von Einsidel, David M. Malone, and Burno Stagno Ugaret (eds.), The
UN Security Council in the 21st Century (New York: The International Peace Institute, 2016).

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 258 José E. Alvarez

respect to Libya,7 for example, or its creative adaptation of the “reverse veto” to
implement the deal with respect to Iran’s nuclear weapons program,8 may,
over time, prove to be even more significant than the Council’s role in
reanimating hopes for international criminal justice by establishing war
crimes tribunals.
JMC: Do you believe that there is a viable responsibility to protect in the sense of
a new duty on states to protect their own populations and perhaps a duty on the
international community to engage in humanitarian intervention if they do not?
JA: I am very doubtful about the latter but more hopeful about the former.
The human rights revolution – and the rise of states’ acceptance of a multitude
of human rights obligations – makes it increasingly difficult for states to deny
that they owe human rights duties to those within their territory. But the fact
that states have duties to prevent human rights atrocities does not mean that
the Security Council will act consistently when states fail to do what they
should. The Council’s inability to date to engage in or authorize humanitarian
action in Syria9 may indicate that the Council’s invocation of R2P was merely
a politically expedient label – to be used when convenient – but not a new
legal principle that would be consistently applied.
JMC: Libya is an exception rather than the triggering of a new rule?
JA: I suspect that it is. Nor should we assume that the Libyan operation was
either wise or legal. While the Security Council has the power to authorize
states to use force, whether it authorized the kind of force that led to the
collapse of the Gaddafi regime and Gaddafi’s death is debatable. Certainly,
some members of the Council who voted in favor of the limited Libyan
operation were surprised by the extent of the actual NATO operation that
followed, as well as its consequences. Apart from legality, given the outcome of
the operation – including the killing of civilians and what has emerged since
the demise of Gaddafi – there is surely a question about whether bringing
down the regime without having something (or someone) to replace it was
wise. A resolution, ostensibly based on protecting civilians, that authorizes

7
See Security Council Resolution 1973 (Mar 17, 2011) (authorizing in para. 4 “necessary
measures … to protect civilians” in Libya and citing in its preamble, Libya’s “responsibility
… to protect the Libyan population”).
8
See Jean Galbraith, “Ending Security Council Resolution,” 109 AJIL 806 (2015) (discussing the
innovations of S.C. Res. 2231 of July 20, 2015).
9
Referring to the ongoing Syrian civil war, which erupted with pro-democracy protests against
the Assad regime beginning in March 2011.

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 International Organizations and Global Justice 259

only aerial action but not military occupation, may not be the best tool to
protect civilians over the long term.
JMC: Why does the text of Security Council Resolution 1973 authorizing the
use of force in Libya make you nervous?
JA: Because I am not sure what it means to say when it seeks to protect civilians
but only to this extent. The compromises made to adapt this resolution led to
disputes among NATO countries and others with respect to what was
permitted: What kind of force? To what end? Does it permit or anticipate
Gaddafi to stay in power even if civilians continue to be threatened? Is the real
aim to remove him from power?
JMC: Yet, if we had answered all these questions it is quite probable that the
resolution would not have been approved.
JA: All the more reason to question the ambiguous resolution that was
adopted. When you authorize force – the most significant power any IO
has – you should be absolutely clear what force is being authorized and
for what purpose. As Colin Powell noted long ago, this kind of clarity is
needed not only for the soldiers ordered to use force but also to give clear
notice to those against whom they are fighting. Peoples’ lives are at stake
on all sides. You should also be clear about what it is you are trying to
achieve. Are you trying to eliminate a regime or just trying to protect
civilians from a specific threat for a specific period of time? Do you have
a plan in place if you wound or kill Gaddafi about how the territory will
be governed so that more people won’t be killed in the aftermath of the
conflict than before it? We rightly expect a lot from people who authorize
killing others, even for noble reasons.10
JMC: And you did not foresee the Council taking similar action in Syria?
JA: Not without a considerable shift in alignment of the underlying political
interests, including of Russia and the Assad regime. There is nothing in the law –
or in the UN Charter – that requires the Council to authorize force consistently
in response to comparable threats to the peace. The UN Charter drafters
intended the Security Council to act for political reasons, whenever they
secured enough votes to authorize action.

10
In the course of the Libyan civil war, deposed leader Muammar Gaddafi (in office 1969–2011)
was captured and killed on October 20, 2011.

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 260 José E. Alvarez

iii on global governance

JMC: To go back to some of the themes which are at the core of your work on
international organizations, it seems that global governance has become a
central notion when talking about international affairs and the management
of the international system. So, do you feel that such a notion – which is quite
vague and ambiguous – is appropriate and do you think that it can be used
appropriately as a way to describe the role of international institutions in terms
of managing the international system?
JA: Global governance is a vague concept, but we need some term to
describe what is going on that is not “government.” What a nation-state
exercising control over law in its territory does constitutes a government.
The world does not have an executive branch, a legislature, and courts.
We do not have and probably do not want a world government. But we
need a term to describe the complex interrelationships among states,
international organizations, other hybrid (public/private) institutions,
and NGOs that, in effect, govern the world. State and non-state actors
are now deploying legal tools – soft and hard – that affect how states
behave both inside their own territories and outside them. Whether you
call that global governance or something else matters less than
recognizing that it exists and that it needs to be closely examined and
evaluated – as we do in all forms of law-making.
Global governance is not limited to actions by classic IOs like those of the
UN system. It includes actions taken by the World Bank and the International
Monetary Fund (IMF) that might be compared to how domestic adminis-
trative agencies regulate.11 But what some call Global Administrative Law
(GAL) includes much more, such as the regulatory impact of private non-state
business actors and hybrid public/private institutions. Classic IOs do not
regulate the Internet, ICANN does. Of course, there are different ways to
describe these realities. The impact of public and private forms of governance
can be described in terms of network effects, systems analysis, transnational
forms of ordering, or even forms of constitutionalism.12 The last seems espe-
cially apt when these transnational norms are enforced, as they increasingly

11
See, e.g., Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of
Global Administrative Law,” Law and Contemporary Problems (vol. 68, 2005), p. 15.
12
For a survey of distinct frameworks for understanding international organizations, see Alvarez,
n. 3. See also Terence C. Halliday and Gregory Shaffer, (eds.) Transnational Legal Orders
(Cambridge: Cambridge University Press, 2015); Jan Klabbers, Anne Peters, and Geir Ulfstein,
The Constitutionalization of International Law (Oxford: Oxford University Press, 2009).

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 International Organizations and Global Justice 261

are, by a proliferating number of international courts or tribunals.13 Other

scholars, more normatively inclined, argue that these adjudicative bodies are
helping to reshape international law into a species of “humanity’s law.”14 On
this view, transnational judicial communication among the world’s adjudica-
tors – including regimes such as trade and investment and not only human
rights venues – is increasingly human rights discourse.
JMC: So, you are telling us that global governance corresponds to something
which is real; it corresponds to a need which has to be filled and you feel that
international organizations are really playing a strategic role in this arena of
global governance. They are not being marginalized?
JA: Make no mistake: States are still the primary law-makers in the world and
sometimes they marginalize IOs that they feel are not acting in their interests.
But states and IOs are no longer (if they ever were) the only relevant actors in
governance. There are lots of other players. These include individuals – such
as those who serve as international judges or arbitrators, those who are now
entitled to bring disputes before regional human rights courts or UN human
rights treaty bodies, or investors able to bring an investor state dispute to the
World Bank’s International Center for the Settlement of Investment Disputes
(ICSID). All of these are now involved in developing a kind of “jurisprudence
constante” that may have an impact not just on the interpretation of a
particular treaty but on customary international law. If we did not have a
term like global governance to describe these complex legal effects we would
have to invent one.
JMC: Is global governance enough for the needs that we have at the global
level? More and more we begin to hear about the notion of global policy, or of
global public policy. In fact the European Union itself is an exercise of global
policy at the regional level. Does it make sense to think that perhaps global
governance is not thick enough, is not really fulfilling all the needs that we have?
Beyond global governance should we think about global public policy? If so,
how do you see the role of international institutions in this new landscape?
JA: The global governance that exists is indeed fragmentary and rudimentary.
Many lawless gaps exist. But, as a lawyer, I am skeptical of any claim that the
law can be distinguished from policy. It is a manifestation of public policy;

13
See Karen J. Alter, The New Terrain of International Law (Oxford: Oxford University Press,
2014).
14
Ruti G. Teitel, Humanity’s Law (Oxford, UK: Oxford University Press, 2011); Ruti Teitel and
Robert Howse, “Cross-Judging: Tribunalization in a Fragmented but Interconnected Global
Order,” NYU Journal of International Law & Politics (vol. 41, 2009), p. 41.

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 262 José E. Alvarez

indeed, that is why it can be changed – as policies change. Many of the gaps in
governance are reflections of public policy; that is, they exist because powerful
stakeholders do not want them filled. But if the implication of your question is
that interstate organizations, such as those of the UN system, have to be made
more powerful in order to deal with existing challenges, I would not agree.
The world that I see reaches for a variety of public and private forms of
governance, that is, a mix of different and rather eclectic approaches for
exercising policy judgments (whether or not in the form of international
law). In a world that increasingly relies on forms of democratic governance
at home, I think that a pragmatic approach – where some things are left to the
local and are not internationalized – is not a bad thing. Democracies do not
want and probably do not need all-powerful international organizations or
international courts with hierarchical authority – and they certainly show no
inclination to establish only one such institution over themselves or all other
organizations. And if the implication of your question is that we increasingly
need hard law enforced by courts that can authorize credible sanctions, the
turn to forms of “informal law” despite the proliferation of international courts
casts doubt on that.15

iv global governance and the international criminal

court
JMC: Do you feel that there is a need to go one step further or one step higher in
terms of institutionalizing the sense of what we could call shared vulnerability?
We hear this all the time in terms of trying to tackle issues having to do with
development and environment and clearly the way things are working at the
moment is not very satisfactory. So, do you think this is a sensible idea?
JA: No one disputes that some global commons issues require global – in the
sense of universal – solutions. You need the cooperation of every state from the
US to China to resolve something like climate change. But such issues do not
require the establishment of a new multilateral organization or court.
Institutionalization should not be the go-to solution for global challenges.
Nor do I think – despite the great clamor for greater transparency and
participation – that resolving such issues necessarily requires the voice or
participation of every major player. Even global commons issues may begin
to be resolved regionally, and there is room for bottom-up action (as by

15
Joost Pauwelyn, Ramses A. Wessel, and Jan Wouters, (eds.), Informal International
Lawmaking (Oxford, UK: Oxford University Press, 2012).

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 International Organizations and Global Justice 263

provinces within states or even municipalities) – especially when innovative

solutions are sought. In my own scholarship, I have been skeptical that
international crimes need to be dealt with at the international level, by a
single International Criminal Court (ICC).16 Even as an adviser to the first
Prosecutor of the ICC, I urged resort to “positive complementarity” – where
the shadow of the ICC inspires local efforts to prosecute international crimes
and where the ICC succeeds by being only a court of truly last resort. Ideally,
perpetrators of international crimes should be prosecuted where they commit
their crimes, that is, in local court: Where their victims can see justice being
done.17
JMC: It seems that most of the cases in the ICC are coming from developing
countries, possibly because in these countries the resources to prosecute are weak.
As such, in the public opinion, at times, especially in developing countries, there
is a perception of lack of balance. How should we address this problem?
JA: As Mr. Ocampo, the former prosecutor of the ICC, said on more than one
occasion, it should not surprise anyone if the ICC does what it is supposed to
do – that is, prosecute the most serious international crimes. Nor should
anyone be surprised if those atrocities occur most often in countries that
have the most serious rule of law problems. But the fact that the ICC has
singled out African countries for prosecution and has managed to indict only
sitting African leaders has created a serious problem of backlash, within the
African Union. Of course, to the extent African prosecutions have emerged
because of the Security Council’s referrals of the situations in Libya and
Sudan, the ICC should not be blamed. Apart from pursuing truly unbiased
preliminary investigations – and of warranted prosecutions – anywhere that
these are warranted, the ICC needs to embrace, more than it has, Mr.
Ocampo’s notion of positive complementarity. The ICC is supposed to step
in only when states are unable or unwilling to do so. Unfortunately, the ICC’s
statute did not anticipate technical or other assistance to states to convince or
enable them to prosecute in lieu of the Court. The Court lacks mechanisms to
make this happen. At present the ICC is just a court; it exercises some leverage
over states by threatening to prosecute but does not house mechanisms for rule
of law assistance to enable positive complementarity to take root.

16
José E. Alvarez, “Alternatives to International Criminal Justice,” in A. Cassese (ed.), The
Oxford Companion to International Criminal Justice 25 (Oxford: Oxford University Press,
2009), pp. 365–480.
17
See, e.g., José E. Alvarez, “Crimes of States/Crimes of Hate: Lessons from Rwanda,” Yale J.
Int’l L. (vol. 24, 1999), p. 365.

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 264 José E. Alvarez

JMC: Following up on this issue of the ICC and based on its now rather
significant experience, do we have ways through which we could somehow
improve the situation or is it too late?
JA: Other institutions have adapted to changing needs. The World Health
Organization’s (WHO) adoption of its International Health Regulations
signals a real change in an organization that once avoided regulating
anything other than certain specific diseases, for example. In a world that is
now subject to increasing transnational health threats, including those posed
by the intentional transmission of pathogens, that organization has had to
adapt and become, in part, a security organization. A court is harder to change
but even there the Assembly of State Parties exists precisely to enable
adaptation over time. Whether the political will exists to enable the ICC to
change its procedures – including on when and where it initiates a preliminary
investigation – is another question entirely.
JMC: Why is a court harder to change?
JA: An international criminal court is designed to do one thing well: prosecute
someone when it has jurisdiction to do so and provide a fair trial leading to a
conviction or an acquittal. The ICC, unusually, has a second mandate: to
assist victims through some forms of reparation. It is not clear that the ICC can
ever accomplish this second goal, given the thousands of victims that may
demand compensation in some cases and the scarcity of available resources. In
the absence of unprecedented reforms undertaken by the ICC’s Assembly of
States Parties and a willingness to find additional resources for this effort, it is
hard to see how the ICC can take on a third mandate: to become an engine to
institutionalize, in fragile states, the rule of law.

v on horizontal, vertical, and ideological critiques of

international organizations
JMC: Since you have dedicated much of your scholarship to international
organizations one would assume that you see international organizations
essentially in positive terms, but in fact your book provides a more balanced
picture. On one hand you of course highlight the positive dimensions of
international organizations, but on the other hand you also caution us
against the dark side, if you will, of international organizations. Tell us a bit
about why this is so.
JA: Early in my book International Organizations as Law Makers I rely on
Robert Keohane for the proposition the study of international organizations

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 International Organizations and Global Justice 265

should never ever be confused with their celebration.18 If you are an honest
scholar you look at the phenomenon under study without blinders and try to
appreciate its pros and cons. Only then can you provide credible prescriptions
for change. My book describes the horizontal, vertical, and ideological
critiques these organizations have faced.19
The horizontal critique rests on the accusation that even though organiza-
tions like the UN are premised on sovereign equality, they do not really put all
their members on the same plane. States are not equal members in most IOs
and not only in the obvious ways (as with respect to the UN Security Council
or the weighted voting procedures within international financial institutions).
Even our “impartial” international courts or tribunals tend to privilege richer
and more powerful states – if only because these nations have access to more or
better lawyers. While IOs – like the WTO – are often established to “level the
playing field,” that field remains horizontally challenged.
JMC: Do you think greater equality would be a plus?
JA: Yes, overall, if we believe that states should be treated at least under the law
on an equal basis. Equality of arms should indeed be the rule within
international courts and tribunals in practice and not just formally. Even the
perception that a Court like the ICC is biased is a serious problem. Courts
need to avoid even the appearance of partiality. IOs face a legitimacy deficit to
the extent they continue to face critiques from the Global South that
intentionally or not they are tools of hegemonic power.20
But a second legitimacy deficit is the complaint, heard most loudly, but not
only, in democracies, that rule by IOs suffers from a vertical disconnect. The
problem is that law or norms imposed from above at the international level are
not subject to the legislative or other procedures that legitimize national rules
or norms from below. Even IOs that engage in law-making only through the
route of traditional treaties that require state ratification are not immune from
this critique insofar as treaty-making itself is seen as an initiative that inordi-
nately privileges executive branches within governments and rarely involves
the full transparency and consideration accorded to the making of national
laws. This “democratic deficit” is all the more true with respect to less formal
forms of IO governance not involving treaties. There is a perception that what
happens in IOs, like what happens in Las Vegas, stays in IOs and is rarely

18
See Alvarez, n. 3, at xix.
19
Ibid., at 627–645.
20
Ibid., at 199–217; 643–645.

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 266 José E. Alvarez

exposed to full public view, much less the checks and balances associated with
democratic governance.
The final critique is one of ideology: The complaint that these organizations
are pursuing certain normative agendas that reflect cultural, economic, or
other ideologies preferred by some states or national elites. A common exam-
ple is the contention that, at least in the immediate wake of the Cold War,
international financial institutions like the IMF were bent on promoting the
Washington Consensus approach to governance and economic development.
The perception that some IOs were (and possibly still are) elevating the need
to deregulate, protect property rights, and promote free flow of goods and
capital above other goals de-legitimizes these institutions and undermines
them.21
JMC: What about the lack of normative or cultural universality from which
international organizations suffer? Professionally, I spent quite a bit of time in
Asia and I came to realize that, in addition to essentially being a Western
creation, international organizations tend to put forward a Western agenda;
they often reflect a dialogue between Americans and Europeans that does not
reflect the whole world. Don’t IOs evince a kind of truncated universality?
JA: That critique combines the horizontal and ideological critiques noted
above. Chinese scholars in particular are becoming much more vocal about
the fact that China and other Asian states have been, for too long, rule-takers
and that it is time for them to take charge and lead IOs in new directions. We
may be seeing that happening sooner rather than later, especially with respect
to trade and investment issues. There is no question that much of international
law, including international organizations, is a Western construct. It is
impossible to deny that the US, Russia, Britain, and France were the
principal drafters of the UN Charter and much of the post–World War II
IOs that we have been addressing. It is an ongoing project to try to make all of
these organizations more representative. It is a scandal that the IMF and the
World Bank should be headed by Europeans and Americans. That is a
colonialist holdover not required by any law.
JMC: Will the rise of China and others affect the nature and functions of
international organizations and for that matter international law going
forward? Do you think that in the future we are going to be practicing
international law differently? Does a global law program like NYU’s need to
be internationalized?

21
Alvarez, n. 3, at 640–645.

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 International Organizations and Global Justice 267

JA: International law needs to be internationalized. The functions of IOs will

change as a result of the rise of the BRICs and new forms of organizations are
already emerging that may eventually displace (or complement) the ones that
we have. Whether replacing the United States with China as the world’s
“indispensable nation” for achieving global governance is a desirable
change, however, I am not so sure.
With respect to your question about international legal education: Making
a single international law program, even one located in a cosmopolitan city
within the United States, truly international is a real challenge – and not only
because of language and resource constraints. No single institution, even one
as relatively well off as NYU, can possibly involve persons from all over the
world, but the resources of the web including social media make it easier to try.
But the difficulties NYU faces pale in significance as compared to a law school
located in Kuala Lumpur. How the world will train the kind of cosmopolitan
international lawyers that it needs is a daunting challenge. We increasingly
need to devote resources to the comparative study of international law.22 We
need more attention to understanding how international law is being received
and implemented around the world. This is harder than it once was insofar as
international law has expanded to become a curriculum. Increasingly, inter-
national lawyers have become specialists in particular regimes – such as the
WTO – and it is easier to focus on the parts over the trees. Fewer people pay
attention to how trade law is being implemented around the world. I suspect
that if we actually took a close look, we would find that there is no one trade
regime but many. Just as we are likely to find that different countries take
different approaches to what the World Bank calls corruption. In all these
regimes, we pretend that there is a single treaty text and a single best inter-
pretation of it, but the truth is more complicated – and culturally determined.
JMC: In a sense you are telling us that not only is the law that we teach not the
law which in fact exists but also it is not the law that perhaps we should be
teaching?
JA: It is actually even more complicated. While some scholars have indeed
paid attention to how international law “trickles down” and penetrates into
different national legal orders so that, as translated, it becomes something
different in practice,23 this assumes that we know what objective international
law actually is – and can tell when national implementation efforts get it

22
See, e.g., “Symposium: Exploring Comparative International Law,” 109 AJIL 467 (2015).
23
See, e.g., Karen Knop, “Here and There: International Law in Domestic Courts,” NYU
Journal of International Law & Policy (vol. 32, 2000), p. 501.

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 268 José E. Alvarez

wrong. But in reality some countries’ particular views of international law

“trickle up.” Some national adaptations of international law affect, sometimes
dramatically, the meaning of international law, especially if the country is
powerful enough to assert its views like the United States or China. The
United States has managed to expand the powers of states to respond to acts
of terrorism through the use of force and through some influential Security
Council resolutions since 9/11.24 Similarly, China’s current actions relating to
the South China Sea and islands therein seem directed at changing the rules
of the game.

vi reform of the international system: balancing power

and principles
JMC: The generic problem seems to be the relationship between power and
principles. Ideally, you would want to have principles being put at the service of
power. But very often it is the other way around. So how do we connect law and
justice so that actors identify the right principles and put law at their service?
JA: The connection between law and justice is quite complicated. We are now
conducting this conversation in an office once occupied by Thomas Franck,
who devoted his life to legitimacy and questions of fairness and justice. And
Tom first approached it, as you well know, as a problem of legal legitimacy and
said that fairness had to be left for a second day.25 And then he tackled
fairness.26 That proved to be a much more difficult proposition because
when we try to achieve fairness or justice we need to bring people other
than lawyers into the room.
JMC: So you need to bring in philosophers and practitioners?
JA: And anthropologists and economists and many other disciplines. We have
learned, thanks in part to lawyers’ efforts to promote sometimes overly narrow
views of what the rule of law demands, that achieving the good life requires
attention to the diverse needs of people – and not only to securing the civil and
political rights associated with Western rule of law states. Achieving
sustainable welfare is a broad political project requiring the efforts of many
others apart from lawyers.

24
José E. Alvarez, “Hegemonic International Law Revisited,” AJIL (vol. 97, 2003), p. 873.
25
Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford: Oxford University
Press, 1990).
26
Thomas M. Franck, Fairness in International Law and Institutions (Oxford: Oxford University
Press, 1998).

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 International Organizations and Global Justice 269

JMC: Would you say that bringing more nonlawyers to the table is one of the
key agendas of the future?
JA: Well, all too often the error is that too few lawyers are consulted
before action is taken, but you are correct insofar as some matters are
erroneously seen as exclusively the domain of lawyers. Consider the topic
of bringing IOs to account for their mistakes. An age that increasingly
expects governments to be accountable is bound to expect the same with
respect to any other entity that purports to exercise governance. UN
peacekeepers, whether engaged in rape or spreading cholera in Haiti,
need to be held accountable – despite the immunity accorded to the UN
in national courts.27 Making sure that organizations like the UN – which
purport to be spreading the rule of law to others – are themselves subject
to it is going to be high on the agenda for UN reformers. But achieving
accountability is not just about making sure IOs are subject to sanctions
and forced to pay damages for violating the law. Making IOs responsible
also requires serious efforts to address their horizontal, vertical, and
ideological deficits discussed earlier. We have only begun to address
some of the more obvious horizontal/vertical defects such as the lack of
transparency or the need to correct weighted voting schemes (as within
the IMF). Much more needs to be done.
JMC: Up until now we could afford to be thinking and acting under the
delusion that Western law was the whole of law and that somehow the
Western view was the whole of law. It is less and less possible, so wouldn’t you
say that somehow we have to revisit what law is?
JA: Absolutely. I have suggested that one of the core challenges that IOs will
need to address in the near future is the very nature of the “law” that they are
propounding.28 This is why your original question about governance is so
important. Once we start talking about “governance” and once we start taking
seriously the fact that IOs are indeed “law-makers” (albeit creative ones), we
are already taking a step outside the European–American legal positivist
mindset that says all international rules have to take the form of the legal
sources enumerated in Article 38 of the Statute of the ICJ. I have argued that
while one could try to fit all forms of governance into the traditional boxes of

27
José E. Alvarez, “International Organizations and the Rule of Law,” New Zealand Journal of
Public and International Law (vol. 14, 2016), p. 3.
28
José E. Alvarez, The Impact of International Organizations on International Law, at 398–420
(Leiden: Brill/Nijhoff, 2016).

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 270 José E. Alvarez

treaty-custom-general principle, doing so misses much about how states,

businesses, and individuals are indeed regulated by IOs.
JMC: So you want an opening up of the sources of law?
JA: That is already happening whether I want it or not. But some legal
positivists argue against “de-formalizing” legal ascertainment.29 For some
people, IOs are merely the repositories of states; IOs are merely their agents
and have no real agency of their own and it would be a mistake to elevate IO
actions short of treaty-making to the status of “law-making.” As noted, I agree
that states remain the principal law-making actors. Indeed, some international
legal regimes appear to be subject to a historical dialectic whereby once they
appear to threaten some state prerogatives, state forms of backlash emerge to
restore some of that lost clout.30 States retain many tools – including defiance
of what IOs do – to protect their sovereign rights. But, at the same time, IOs
and actors associated within them – from UN special rapporteurs to
international judges – still exercise some relative autonomy. Indeed, as we
discussed in terms of functionalism, IOs and persons associated with them
were meant not to be wholly subject to state control. Moreover, collectivities of
state representatives – such as those within the UN General Assembly – have
the power to take action that is denied to any one of them. The United States
could not prevent the Assembly from recognizing Palestine as an observer-
state – or from the obvious consequence of that initiative, namely the ICC’s
acceptance of Palestine as a state party.31 Of course, the actions of the
collective are not always progressive or good.
JMC: All these questions are really big questions and they have to do with the
reform of the international system and the reform of international institutions.
Are you comfortable with the nature of the debates taking place on the reform of
the international system and international institutions?
JA: No. Reform agendas within IOs are still relatively narrow. Security
Council reform generally has consisted of different proposals to tinker with
the numbers of permanent members with or without the veto. Few people

29
See, e.g., Jean d’Aspremont, Formalism and the Sources of International Law (Leiden: Brill/
Nijhoff, 2011).
30
“Is Investor-State Arbitration ‘Public’?” (forthcoming Journal of International Dispute
Settlement); also available as NYU IILJ Working Paper 2016/6, at www.iilj.org/docu
ments/Alvarez_IILJ_2016_6_GAL_final.pdf. See also José E. Alvarez, “The Return of the
State,” Minnesota Journal of International Law (vol. 20, 2011), 223.
31
See, e.g., Alvarez, n. 29, at 185–189 (discussing the consequences of G.A. Res. 67/19 determin-
ing that Palestine is an “observer state”).

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 International Organizations and Global Justice 271

really have any hope of deep reform of that body. A genuine reform
conversation would be more expansive. It would consider, for example, what
kind of collective security arm do we really want in the age of non-state threats
to the peace? What ought to be the relationship between the Security Council
and the General Assembly or other regional or security organizations (such as
NATO)? It would consider more seriously the overlapping jurisdictions of our
existing IOs and the prospects for forum-shopping between them or other
forms of collaboration. We should be discussing these questions within these
organizations and not just in academe.
JMC: So things are not really moving ahead?
JA: Some of the most serious forms of governance reform are occurring
outside traditional IOs, not within them. International lawyers are partly to
blame. International legal advisers, in government or IOs, tend to have narrow
views of what is relevant or safe to discuss. They are likely to treat some things
as sacred. They would be the first to suggest, for example, that the ICJ should
not be reexamined – even if it seems to have a relatively small docket, it has
difficulty handling fact-intensive cases, and still gives the Permanent Members
of the Security Council exalted status. Lawyers’ caution about establishing a
precedent concerning the UN’s liability is surely part of the reason why the
UN took an unconscionably long time to issue an apology – albeit an
ambiguous one – with respect to its responsibility for spreading cholera in
Haiti.32 Despite their ostensible commitment to the rule of law, the lawyers
inside IOs are not likely to be leading the charge in favor of recognizing that
the victims of IO malfeasance are owed a legal remedy as much as any other
human rights victim.
JMC: But in fact what you allude to here is the difficulty for international law,
for international lawyers, to conceptualize and to bring about change. Why is
that?
JA: As we discussed, the UN system is essentially a recent, post–World War II
product. Some of those present at its creation are still with us today. It is not
surprising that we are still living in the shadow of those who believe that these
institutions were (and remain) great (but still fragile) institutions to secure the
collective against abusive state power. There is still great sensitivity to
undermining these “progressive” efforts. The perception persists that these

32
See Report of the Special Rapporteur on Extreme Poverty and Human Rights, UN Doc. A/71/
367 (August 26, 2016).

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 272 José E. Alvarez

are our babies and we should not criticize them before they are fully grown
and can take care of themselves.
JMC: It seems that more often than not, if it were not for diplomats acting as
decision-makers, change in the field of international law would not happen.
Would you agree that all the changes that have happened in the field of
international law in the 1990s have mainly taken place out of diplomatic
activism, decision-makers’ activism, and were not necessarily initiatives started
by international lawyers?
JA: Yes and no. International lawyers tend to enable initiatives started by
others. They facilitate and enable the change the policy-makers want. At the
same time, certain visionary lawyers, including those present at the creation,
were change agents. This often happens, at least within academe, when
lawyers are exposed to other disciplines. That is why I applaud
interdisciplinary efforts between say political scientists and lawyers. I think
that those collaborations may enrich both sides: The political scientists will
realize that law exists and can be made to matter, but the lawyers realize that
what they are doing is politics in another guise.
JMC: What about philosophy and law?
JA: The same potential for beneficial collaborations exists. One of the positive
things about the US legal academy is its strong tradition of hiring onto faculties
of law those with doctorates in philosophy, economics, or other fields. We tend
to hire more interdisciplinarians than others do in our law schools.

vii on the international investment regime

JMC: Changing a bit the topic, you have published two books dealing with the
international investment regime and are about to publish a third.33 This is not a
new interest for you since, more than twenty years ago, you started your career
working on these issues both as a legal scholar but also as a practitioner. Why
return to these issues and why is it that you feel that these issues are particularly
important today?

33
José E. Alvarez, Karl Sauvant, Kamil Gerard Ahmed, and Gabriela del P. Vizcaino (eds.), The
Evolving International Investment Regime: Expectations, Realities, Options (Oxford: Oxford
University Press, 2011); José E. Alvarez, The Public International Law Regime Governing
International Investment (Leiden: Brill/Martinus Nijhoff Publishers, 2011); José E. Alvarez (ed.),
American Classics in International Law: International Investment Law (Leiden: Brill/Martinus
Nijhoff Publishers, 2017).

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 International Organizations and Global Justice 273

JA: The international investment regime interests me because it is one of the

most active in terms of producing law. It is not just that over 3,000
international investment agreements (IIAs) exist but hundreds of arbitral
awards are now producing a kind of case law rarely evident in international
law. There is considerable investment governance going on – and
considerable sovereign backlash in its wake. The regime highlights the
vertical, horizontal, and ideological critiques of governance. It also interests
me insofar as it is a regime that has been deeply influenced by US ideas and
power – which go back to the earliest days of the United States as a nation. The
United States is not party to many international courts and rarely permits
supranational supervision over its laws but thanks to the NAFTA’s investment
chapter, the United States has become one of the leading respondent states
before ICSID. This exposure to investor-state claims has generated buyers’
remorse. The United States is having second thoughts about a regime that it
once foisted on the world. It is now backtracking on providing investor
protections in its more recent IIAs, and the US, along with many other
states, is trying to restore more of its sovereign policy space. The regime is a
perfect example of a system that has encountered challenges, is undergoing
change, and happens to involve a leading economic player.
JMC: The field as it is now is very different from what it was twenty years ago?
JA: Absolutely. There is much more law – customary and treaty – to discuss
than in the early days when the only game in town were the decisions rendered
by the Iran–US Claims Tribunal and a handful of other rulings. In addition,
for a regime that lacks an overarching multilateral bricks and mortar
institution comparable to the WTO in Geneva, the investment regime offers
much to students of IOs. It consists of more than bilateral investment treaties
(BITs). The IMF, for example, is an investment regulator, as is, to an extent,
the WTO itself and the OECD. In addition, there are many participants in the
market who rank countries based on their investment risk and are de facto
enforcers of the regime. States that expropriate or otherwise mistreat foreign
investors are likely to face market backlash.
JMC: So you are building on your established expertise but you are also
expanding expertise out of all these changes that have taken place in the last
twenty years?
JA: The investment regime is an example of governance without government
that also happens to operate without an overarching international
organization dominating it.

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 274 José E. Alvarez

JMC: All this assumes that legal regimes are self-contained and that it is
possible for them to continue to work in a self-contained fashion. But in a
world which is more and more globalized, in one which is more
interdependent, is this the right assumption?
JA: No. I agree with Bruno Simma, who says that most of these regimes are
probably not self-contained and should not be so treated.34 We have rules that
enable an investor-state arbitrator to draw from general public international
law in interpreting a BIT. The Vienna Convention on the Law of Treaties
itself says that you can refer to relevant rules of international law among the
parties. Simma has argued in favor of using that rule to bring human rights
issues into investor-state arbitrations.35 Such cross-referrals are in fact
happening. But I am skeptical that this will produce the “progressive” results
intended. In my view, unless you change the investor-state arbitral system itself
by changing who the arbitrators are, who can bring cases, the standing of
others affected to participate – unless you change all of those things I am not
sure that we can expect “humanity’s law” to emerge from rulings issued by
commercially trained arbitrators.
JMC: Do you think that these kinds of changes are likely to happen? One would
assume that it is necessary to really have these changes taking place so that
global governance become more effective?
JA: Earlier I referred to Ruti Teitel’s and Rob Howse’s view36 that there are
commonalities among these international adjudicators – whether in trade,
investment, or international criminal courts; they argue that all these
adjudicators reach for human rights values and therefore increasingly
contribute to a more coherent “humanity’s law.” I am not as optimistic as
they are because I think that the background of arbitrators or judges matter. I
do not think that the background of, say, a judge on the ICJ or a judge on the
European Court of Human Rights is the same as the background or training of
an arbitrator in one of these investor-state disputes. The broader point has been
captured beautifully in the critical scholarship of David Kennedy, who argues
that international law has come to be dominated by narrowly grounded experts

34
Bruno Simma and Dirk Pulkowski, “Of Planets and the Universe: Self-contained Regimes in
International Law,” in European Journal of International Law (vol. 17, 2006), p. 483.
35
Bruno Simma and T. Kill, “Harmonizing Investment Protection and International Human
Rights: First Steps Towards a Methodology,” in C. Binder et al. (eds.), International
Investment Law for the 21st Century: Essays in Honor of Christoph Schreuer (Oxford, UK:
Oxford University Press, 2009).
36
See Footnote 14.

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 International Organizations and Global Justice 275

handicapped by disciplinary tunnel vision.37 This means that where Teitel

and Howse see the prospect for “humanity’s law,” others see “fragmented” law
among international regimes, including international courts, as the more
likely outcome.

viii accountability and legitimacy

JMC: You have served as a special advisor to the prosecutor of the International
Criminal Court. What was your role in this function and why did you decide to
take on this additional responsibility?
JA: Mr. Ocampo was very persuasive. I was also honored to join his other
advisors at the time: Catherine MacKinnon on gender and Juan Mendez on
humanitarian issues. I advised the prosecutor on public international law
matters that he brought to my attention. He sought my advice, for example,
with respect to an initiative being taken by the Assembly of State Parties
directed at the accountability of the Prosecutor’s Office. As I have suggested
elsewhere, I found that the proposal posed some conflicts with the Rome
Statute’s goal of establishing a truly independent Office of the Prosecutor.38 It
was an important example of how difficult it may be to achieve accountability
without undermining the goals of these organizations. That particular
example made me humble about how little international lawyers have
contributed to the accountability debate.
Nor do I think that the International Law Commission (ILC) has made
sufficient progress on this issue, despite their release of its Articles on the
Responsibility of International Organizations.39 I do not think that you can
wave a magic wand and resolve this by simply declaring that IOs are suffi-
ciently like states that we can replicate what the ILC has done in its entirely
more successful Articles of State Responsibility. As the ICJ has told us, each
international organization is a creature of its own charter. It is a legal person
only insofar as those characteristics are needed to fulfill its function.40 The
legal personhood of the IMF or the OECD or the OAS may be different than

37
David Kennedy, “Challenging Expert Rule: The Politics of Global Governance,” Sydney Law
Review (vol. 27, 2005), p. 2.
38
José E. Alvarez, “The Proposed Independent Oversight Mechanism for the International
Criminal Court,” in Richard H. Steinberg and Fatou B. Bensouda (eds.), Contemporary Issues
Facing the International Criminal Court (Leiden: Brill/Nijhoff, 2016), p. 143.
39
International Law Commission, Draft Articles on the Responsibility of International
Organizations, with commentaries, 2011, in ILC Report on its 63rd Session, UN Doc. A/66/10.
40
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949
ICJ 174 (Apr. 11).

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 276 José E. Alvarez

the personhood or the responsibilities of the UN. The responsibility owed by

each needs to be resolved organization by organization. In addition, account-
ability is not reducible to “legal responsibility.” Sometimes IO accountability
may require court-ordered legally binding remedies comparable to those
applied to states, but sometimes accountability may be satisfied by turning
to, for example, an ombudsperson approach (as the Security Council has done
with respect to some of its sanctions programs in the wake of the critical Kadi
ruling by the European Court of Justice).41 Sometimes IO accountability may
mean creating other bodies within an organization that can check, through
political action, the organ in question. Sometimes we can expect an interna-
tional or even national court to act or engage in forms of “judicial review” over
IO organs (even if without the possibility of enforceable sanction).42 And some
parts of an IO, such as the prosecutor of the ICC, were intended to be largely
insulated from the possibility of state “corrective” action.
JMC: And to the extent that we continue to ignore these demands for
accountability, where warranted the legitimacy of these organizations will be
all the more put in question?
JA: Yes. The backlash against the investment regime provides an example.
Ignoring or diminishing the need to make investor-state arbitrators more
accountable has not made the problem go away. It has led for calls for
changes in how those arbitrators can be challenged for conflicts of interest
and proposals for codes of conflict to encourage more ethical behavior. There
are rules about avoiding conflicts of interest and the appearance of impropriety
when it comes to national judges as well as with respect to lawyers in a national
context. To date, we generally have no such rules for international judges or
arbitrators generally and no single coherent set of ethical rules apply to
international lawyers, apart from the disparate ones that may apply to them
at the national level. These are accountability and legitimacy issues that are
very likely to become prominent over the coming years. Even the way
international judges are selected is likely to merit increased scrutiny. While
we like to pretend that these judges are above politics, the ways that they are
selected suggests that this is not the case.43 We like to pretend that our judges,

41
Joined Cases C-402 and C-415/05P, Kadi & Al Barakaat Int’l Found. v. Commission (Kadi I),
2008 ECR I-6352; Joined Cases C-584, C-593, & C-595/10P, Commission v. Kadi (Kadi II), July
18, 2013.
42
José E. Alvarez, “Judging the Security Council,” American Journal of International Law (vol.
90, 1996), p. 1.
43
See, e.g., Ruth Mackenzie, Kate Malleson, and Penny Martin, Selecting International Judges:
Principle, Process, and Politics (Oxford: Oxford University Press, 2010).

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 International Organizations and Global Justice 277

including on the ICJ, are selected on a purely meritorious basis, but

candidates for the ICJ have to campaign – as do the governments that
nominate them – within the UN’s system of regional blocs. Whether the
result are the best candidates for the job remains to be seen.
JMC: And the same applies to heads of international organizations?
JA: Of course; as is true of those selected to become part of the international
civil service. Only some IO positions – such as the head of the World Bank or
the UN Secretary-General – get public scrutiny. We rarely examine closely
less transparent appointments processes, such as those involving the selection
of adjudicators for our twenty-four international courts or tribunals.

ix the future of international organizations

JMC: Turning to the future, how do you see international organizations twenty
or thirty years from now? Will they be more important or less important?
JA: I suspect that the growth period of traditional IOs with universalist
aspirations is at an end. For one thing, the proliferation of IOs and other
groupings of actors (e.g., the G20) that make governance claims on states poses
the issue of overload. We have created a world where we are demanding
almost too much from states, even in the form of reports or information. The
UN human rights system alone demands so many reports from so many
different bodies of a single state that it creates a substantial bureaucratic and
logistical burden even for a country with the resources of the US. One can only
imagine the burdens imposed on a state that has fewer lawyers or fewer
resources. As is well known, states are notoriously late in providing reports to
either UN human rights treaty bodies or comparable entities in the ILO. This
in turn produces considerable cynicism about the credibility of human rights/
labor enforcement – and helps to explain NGO resentments toward the
relatively more efficacious trade and investment regimes. The legitimacy of
IOs and international law is not furthered when one can say, with some justice,
that the single most effectively protected human right today is the right to hold
property (thanks to investor-state arbitration). As noted, one solution to this
dilemma is to fold labor, human rights, and environmental into more
“enforceable” regimes, such as trade and investment. That said, resistance
by states is more likely to lead to another solution to the overload problem:
Consolidation. Thus, some have argued for consolidating all human rights
treaty bodies. But that solution creates its own set of problems. We established
a distinct committee under the Convention on the Elimination of All Forms

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 278 José E. Alvarez

of Discrimination Against Women (CEDAW) to handle gender-related

complaints because, while gender discrimination was already part of the
mandate of the UN Human Rights Committee under the International
Covenant on Civil and Political Rights (ICCPR), that committee rarely
addressed such issues and historically was dominated by men.
Nonetheless, we are likely to see efforts to consolidate the work of IOs in the
future in response to the demands of states. On the other hand, we are also
likely to see devolution of what some global IOs now do to more regional
groupings, particularly if the global IO appears to be incapable of responding
to regional needs. We are seeing such devolution occurring with respect to the
trade regime, in the wake of the demise of the Doha round, and some see
forms of devolution to regionalism occurring with respect to peacekeeping.
JMC: So consolidation, devolution, and also diversification perhaps?
JA: All three. And this includes international courts. I foresee more
experimentation with different forms of international adjudication. I, for
one, never expected the ICC to fully displace alternative forms of making
perpetrators of international crimes accountable.44 International criminal
justice is likely to see more experimentation over time. Since the 1990s, we
have gone from two ad hoc war crimes tribunals enjoying primacy with respect
to jurisdiction to hybrid tribunals subject to differing jurisdictions and
compositions. The Lebanon Tribunal’s jurisdictional mandate is quite
different from the one for Cambodia, for example. We have come to realize
that truth commissions – which themselves come in different flavors – fulfill
some functions that international and national criminal courts cannot and
that these courts may need to work alongside such commissions to achieve the
diverse goals sought for transitional justice. As noted, we are also coming to
realize that the ICC cannot achieve the exalted goals of some of its advocates
and that it too needs to be supplemented by other efforts, including national
and possibly regional criminal courts, even with respect to states that are
parties to the Rome Statute. International criminal justice will, I suspect, be
an exception to any trend toward consolidation or merger of IO functions and
there are likely to be others. Of course, this means that those who are
threatened by the existing forms of fragmentation among IO regimes and
courts will not be pleased.
JMC: So the future is relatively open.
JA: Yes and it may not be pretty.

44
See Alvarez, n. 16.

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 International Organizations and Global Justice 279

JMC: Finally, what is your advice for emerging scholars in the field of justice?
JA: Question everything – including whether turning to law furthers justice.
Try to see law and its institutions from the perspective of nonlawyers,
including from the perspective of victims of the law and lawyers. Law does
not displace politics, economics, anthropology, or sociology; it is all of those.

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