Interactions between Regional and Universal Organizations: A Legal Perspective

Abstract

Regional organizations are an important part of everyday international life. Newspapers in the fall of 2019 would comment on—to name a few organizations—the Southern Common Market (MERCOSUR for its Spanish initials) and the possible trade deal with the EU; the Asian Infrastructure Investment Bank created in 2015 as an alternative to the Asian Development Bank; the Amazon Cooperation Treaty Organization and its dispute with U.S. online retail company Amazon over the new internet space “amazon”; and the European Union and the intricate Brexit crisis, which has been attracting global attention since 2016. Still, regional organizations appear to have a modest role in the narrative of international law and international organization(s), and as such they are infrequently the object of legal study. The modest role of regionalism is at least partly explained by the counterforce of two discourses on which international law has traditionally relied in response to unilateralist tendencies, the discourses of universality (or the normative variant “universalism”) and of function (or the normative variant “functionalism”). These also have been undercurrents for much of the thinking about international organizations as international actors. Function is commonly taken as the key defining principle and basis for authority of international organizations, and contrasted with territorial sovereignty of states. International organizations are set up with functionally limited competences within an (in principle) unlimited territory, rather than with unlimited competences with a (in principle) limited territorial scope. For this functional foundation, organizations for a long time were pictured as inherently neutral and less susceptible to the snares of individual state interest and sovereign conflict. The discourse of universality revolves around a universal foundation or scope of the law. Indeed, the appeal of international organizations often seems linked to a picture of universal membership—which in a sense offers, within the boundaries of a particular issue area, a form of political organization alternative to the state. This image is epitomized by the United Nations with its semi“monopoly” on the use of force (even if exercised through authorization) granted by the Charter system. The universality and functionality discourses with respect to international organizations have come together in the idea of an institutional-normative sphere next to classic interstate law. Thus, in the 1970s the notion of an “international superstructure” emerged, referring to the layer of institutional arrangements “over and above” states.1 Clearly, regional organizations defy both the vision of a universally applicable normative framework and the vision of a deterritorialized world in which authority is divided by issue area or “function.” Regional organizations elude the territory-function dichotomy that some scholars have developed as a basis for explanatory models.2 And in the everyday practice of international life, regional organizations may be perceived as problematic as they seem to undercut the unity of international normative regimes. Inis Claude Jr. in his seminal work on international organization spoke squarely of “the problem of regionalism.”3 A recent study has identified the phenomenon of “non-democratic