Representation and Power in International Organization: The Operational Constitution and Its Critics
The informal method of selecting the heads of the IMF and the World Bank has become a focal point because it is indicative of how the international system operates at the constitutive level. Nothing is more fundamental to a constitutional system than the techniques it adopts and employs for the selection of its governmental decision makers, be they executive, legislative, or judicial officials. In this way, the criticisms of the IMF/World Bank deal-articulated typically, though not exclusively, in the language of transparency, meritocracy, and legitimacy-go to the most basic notions of how contemporary international decisions are made; that is, who should have the power in the international system to decide (either directly or by proxy) matters that range from the allocation of resources to the interpretation of law. The attack on the informal system of selection, then, relates as much to the public values of international organization as to the private control of particular institutions. Together with the questioning of formal rules that give preferential treatment to certain countries, this challenge to informal arrangements forms part of what might be called a contemporary constitutional crisis in the international system, as the representational schemes characteristic of international organization are increasingly and vigorously questioned.
This article seeks to understand this crisis and what is at stake. Part I begins this process by providing a theoretical explanation of the advantages and disadvantages of formal and informal international agreements concerning constitutive matters and why decision makers may prefer one kind over the other, or their combination, in particular circumstances. These dynamics establish the multilevel governance system that this article calls the operational constitution. Part II applies this framework to representation by examining current and past practices. Part III canvasses the current critique of this operational constitution. It is being assailed on its own terms as unrepresentative of contemporary power dynamics. Challenges to the composition of the Security Council and pressure to reallocate voting rights in the IMF and the World Bank are the best examples of this. It is also being criticized on a more fundamental level by those who would eliminate informality and preferences altogether. Part IV concludes by considering the future of the operational constitution in light of these challenges.
Jacob Katz Cogan, Representation and Power in International Organization: The Operational Constitution and Its Critics, 103 Am. J. Int'l L. 209 (2009).