Constitutional Theories of International Organisations: Beyond the West

The Joint Statement by the Foreign Ministers of China and Russia on Certain Aspects of Global Governance in Modern Conditions of 23 March 2021 calls for “the establishment of a fairer, more democratic and rational multipolar world order.” The paper inquires how constitutional theories of international organisations have in the past and present sought to contribute to world order. It identiﬁes three waves of such theory since the 1960s. Looking in more detail at the ongoing third wave, it identiﬁes and seeks to pull out further a constitutional model which upscales the proto-democratic practices in international organisations by strengthening forums for participation and contestation, which rectiﬁes to the north-south imbalance inter alia rooted in the colonial heritage by involving more actors from the global south, and which tackles the global social question upfront.


I. The malaise of global governance
1.The 2021 Chinese-Russian Statement "on Certain Aspects of Global Governance in Modern Conditions" is no legally binding instrument but a political text.It is nevertheless relevant for international law which is intensely shaped by the political power constellation and by political agendas.As a joint statement by two potent States whose domestic government is non-liberal and non-pluralist-democratic, the text at least symbolically manifests the "multipolarity" of the world order it itself invokes.
2. The statement does not use the word "international organisation" but speaks of "multilateral platforms". 1 This seems to include the full spectrum of collective actors ranging from formal international organisations with international legal personality 2 to groups such as the G20. 3 All of those actors constitute the professedly imbalanced global governance system.As defined for the purposes of international responsibility in art.2(a) of the ILC Articles on the Responsibility of International Organizations (ARIO), GA Res 66/ 100 (9 December 2011), ILCYB (2011), vol.II, Part Two, 39-104.This paper mainly deals with those formal international organisations.I occasionally draw on the EU whose "supranational" features do not categorically kick it out of the world of international organisations.3 When the Yearbook of International Organizations mentions 5000 international organisations, this number must include many non-personified actors, see Union of International Associations (UIA), vol. 3 Yearbook of International Organizations 2020-2021: Guide to Global Civil Society Networks (2020), XXXV.See for a broad concept of international organisations including atypical entities which enjoy some quantum of autonomy and pursue a global public interest: Angelo Golia & Anne Peters, The Concept of International Organization, in: Jan Klabbers (ed.),The Cambridge Companion of International Organizations (2022), forthcoming.
3. In order to rectify the perceived "imbalances", the Sino-Russian Statement calls for more cooperation, more fairness, and more democracy.Dismissing the text as purely cynical and strategic would fall short, even if it surely also has a strategic function and breathes some cynicism.As legal scholars, we need to take seriously the possible legal implications of such language against which the two speakers' behaviour could be assessed. 4This analysis could guide the way forward for the development of the law of international organisations.
4. This paper seeks to prepare the ground for addressing the normative challenges of fairness, democracy, and rationality (as the 2021 Joint Statement put it) with the help of constitutional theory.To that end, the paper traces (after a due clarification of key concepts such as constitution and constitutional theory, section II), through the evolution of the law of international organisations, three waves of theorising on international organisations.The first wave revolved around small-c constitutions of international organisations in a more neutral sense (section III).The second wave postulated constitutions "with a capital C" that embody constitutionalism (section IV).In the current constellation of a global shift of power and ideology, a third model for constitutions of international organisations is emerging, and this deserves to be pulled out into the light (section V).It is submitted (in the concluding section VI) that the latter model should be fleshed out further.It should on the one hand not fall back on the small-c constitution and on the other hand should take on board new principles, notably social transnational solidarity and contestatory democracy.

II. Response by Constitutional Theories of International Organisations
5. The malaise manifested in the Chinese-Russian statement on global governance can be cured only by practical reforms, but these need a convincing intellectual basis.Theorising about international organisations which are the most important components of global governance is therefore warranted.Such theorising involves both a reflection about constitutions generally (their function, their significance, their meaning) and a presentation of specific models or types of constitution for a given polity.In the law of international organisations, both dimensions are underdeveloped.There is neither a discrete discipline called "constitutional theory of international organisations", nor are there generally recognised models of constitutions for these organisations.
6.The resulting dual gap shall be addressed by, first, thrusting light on the existing but hidden constitutional theories of international organisations, and, second, by proposing a model that fits our time.The premise of the paper is that it makes sense to speak of constitutions and constitutional law in the context of international organisations.Exactly this premise has been denied by parts of scholarship and legal practice which have been either indifferent or have found the constitutional paradigm for international organisations to be descriptedly false 5 (analytically worthless or legally "impossible"), 6 or normatively undesirable. 7. Against these voices, the paper's premise is that international organisations have constitutions-more precisely: that the founding documents can be "re-characterised" as constitutions. 8This premise seems justified by political practice.Notably the early founding instruments were officially designated as "constitution". 9The question what this means (if anything) needs to be 5 The WTO dispute settlement bodies have normally not engaged in the debate, and only at two occasions specifically rejected the conceptualisation of the WTO agreements as being constitutions: "The WTO Agreement is a treaty-the international equivalent of a contract.It is self-evident that in an exercise of their sovereignty, and in pursuit of their own respective national interests, the Members of the WTO have made a bargain.In exchange for benefits they expect to derive as Members of the WTO, they have agreed to exercise their sovereignty according to the commitment they have made in the WTO Agreement."Japan-Taxes on Alcoholic Beverages, WTO AB Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R (4 October 1996), at 15. "[T]he GATT/WTO did not create a new legal order the subjects of which comprise both contracting parties or members and their nationals See, e.g., the ILO (1922), UNESCO (1945), WHO (1946), and FAO (1946).
reflected exactly by constitutional theory, especially because the term "constitution" is so ambiguous, loaded, and contested.8.A preliminary point is that modern constitutional theory deals with "constitution" mostly in a normative sense.It is not overly concerned with "constitution" as a descriptive term, in the sense of: "The organisation is constituted by (consists in) a secretariat and an assembly".Speaking of constitutions as normative (prescriptive) texts, we need to distinguish between constitutions that foresee whatever institutions, procedures, and principles on the one side, and the subgroup of "more ambitious" constitutions that specifically embody the principles of constitutionalism on the other side. 10Both types of constitutions contain provisions about the mission or mandate of the organisation, about the organs/bodies and their competences, and also regulate the relationship between the organisation and those who are legally subjected to it.Both types of constitutions function as a legal basis for the organisation (they "constitute" it) which at the same time determines the scope of the organisation's activity, and they give some sense of purpose and guidance.But only the smaller subgroup of constitutions imbued with constitutionalism 11 ("with a capital C") enshrine the constitutionalist "trinity": rule of law, human rights, and democracy. 129.It is submitted that constitutional theory (as a discipline) can contribute to a deeper understanding of the workings and the problems of international organisations, both in analytic and normative terms.The theories (models) are useful heuristic devices for explaining and for evaluating extant legal rules, procedures, and bodies inside international organisations.Constitutional theory notably lays the groundwork for consistent answers to the fundamental (and hence "constitutional") questions that the phenomenon of international organisation throws up: First, in whose name does the organisation act? 10 See on the concepts of constitution, constitutionalism, and constitutionalisation and their application to the international sphere: Anne Peters Second, which laws must it respect, which legal limits does its action find, to which legal rules is it bound?Third, how can it be held accountable in case of a violation of these rules?13 10.The identification of three waves of theorising international organisations, as proposed here, is of course a simplification of more than 70 years of debate and practice.It is hoped that the inevitably artificial periodisation of both the evolving practice and the flow of scholarly arguments offers analytic and normative orientation in the field.That is all the more important as the Sino-Russian Statement stands in an overall context of withdrawals, blockades, cut-backs of funding, and open noncompliance with the decisions of international organisations.These pushbacks do not come only from specific groups of States but from all kinds of actors, and have diverse, often overlapping and blurry causes and motives.Like the Chinese-Russian Statement, the talk and accompanying walk are often a mix of political (notably populist) rhetoric, sometimes coupled with a desire to escape the unwanted legal consequences of membership in a given organisation, and legitimate concern over the effectiveness or legitimacy of organisational action, often relating to competence creep (real or alleged "ultra vires" action), or all together. 14No constitutional theory of international organisations can prevent or reverse pushbacks against them.It can, however, show the direction for alleviating legitimate concerns, and contribute to uncovering the pretextual character of others.

III. First wave constitutional theory
11.The first wave of constitutional thought about international organisations was not inspired by constitutionalism in the "Trinitarian" sense. 15However, it qualified the organisations' founding documents as constitutions and attached a legal significance to this quality.The approach was more a constitutional imagery or a mere portrayal of the founding document rather than a full-fledged theory.The doctrinal bases for the special, "constitutional", quality of the founding document had been erected around the turn of the 19 th /20 th century.They drew inspiration from the 19 th century German theory on the creation of the Reich which had framed the founding act as a "Gesamtakt" (joint act)-as opposed to a meeting of the minds of Statesover and above the States' "will".Along this line, the organisations' founding document was conceptualised-in contrast to a treaty-as a "lawmaking agreement" ("rechtssetzende Vereinbarung") that was able to bring about a "common will" ("Gemeinwillen") and capable of producing "objective law" ("objektives Recht"). 16A different strand of ideas was the (muddled) theory of the institution that elaborated the dichotomy between contract on the one hand and "constitution"/"institution" on the other hand.17III.A. Constituting and enabling international organisations 12.The first generation's qualification of the organisations' founding document as a constitution gave rise to the extreme view that the document was no international treaty at all. 18The later, more moderate doctrine framed the founding instruments as Janus-faced documents, i.e. as "constitutional treaties" or "treaty-constitutions". 19 They were, in other words, treaties in form, but constitutional in substance. 20The ICJ described these documents' hybridity as follows: "From a formal standpoint, the constituent instruments of international organizations are multilateral treaties [. ..].But the constituent instruments of international organizations are also treaties of a particular type." 21The aborted "Treaty Establishing a Constitution for Europe" of 2004 captured the hybridity in its official name. 223.Despite the lack of normative ambition in the sense of liberal constitutionalism, the term "constitution" evoked (as a minimum) the "constitutive" (i.e.positively constructive) function of a constitution.More specifically, the c-word had a number of interrelated and overlapping legal implications.The first implication was the existence of legal patterns in the institutional set-up of actors which were in fact hugely diverse; the doyen of the discipline, Henry Schermers, called this "unity within diversity". 234.The second consequence was that the founding act constituted a "living" (i.e.dynamic) entity. 24Put differently, the c-word undergirded the framing of an international organisation as an institution, understood as a stable and relatively autonomous set of legal structures and processes.For example, Judge Alvarez, in an ICJ advisory opinion on the UN, stressed "that an institution, once established, acquires a life of its own, independent of the elements which have given birth to it, and it must develop, not in accordance with the views of those who created it, but in accordance with the requirements of international life." 25 The acceptance of an organisation's "life of its own" then has (or can be argued to have) numerous legal consequences.It encourages a more dynamic interpretation of the founding document, it suggests that the organisations' institutions might be allowed to engage in certain types of revisions of the founding document, it provides an argument for reliance on majority voting, and has various other more technical implications. 265.The third consequence of the constitutional quality of the founding document was that the secondary law produced by the organisation became a special body of law, possibly outside public international law. 27It, fourthly and overlappingly, gave rise to a new (and possibly autonomous) legal order.These effects were called "institutional" or "constitutional" effects of the organisations' foundation and work. 28Fifth and relatedly, the constitution led to the "autonomy"29 of the organisation and/or of its legal order, autonomous both from the members and from ordinary public international law: "[I]l apparaı ˆt que le syste `me juridique des organisations internationales est donc bien autonome de celui des autres Etats et du syste `me international."30With regard to the EU, the ECJ spoke of a "new legal order of international law" (Van Gend & Loos, 1963). 31In Costa v. ENEL (1964), the ECJ stated: "By contrast with ordinary international treaties, the EEC Treaty has created its own legal system." 326.The organisations' legal order is "new" (or "autonomous"), because its basis is no longer the treaty but the "original" public authority of that entity.Hans Peter Ipsen famously spelled this out for the European Community: "A line of continuity between founding treaty on the one side, and constitution 26 Anne Peters, above n.19,1-57.27 Cf.Ralph Zacklin, The Amendment of the Constitutive Instruments of the United Nations and Specialized Agencies (1968), 199: "At its present stage of development, it is probably best to regard the constitutional law of international organizations as a branch of international law proper but the possibility would not appear to be excluded that it might eventually develop into a separate system of law." 28 Denys Simon, L'interpr etation judiciaire des trait es d'organisations internationales (1981), 474, speaking of an "ensemble normatif qualitativement diff erent"; "relationnel et institutionnel".
of the Community and legal order of the Community on the other side, does not exist."3317.All these mentioned legal implications had as a motive or consequence to explain and justify the empowerment of international organisations and even their expansion.A famous illustration for the unleashing potential of the constitutional framing is the former World Bank President Ibrahim Shihata's analysis of the Bank's founding document as a constitution.34Shihata's key concern here was flexibility and adaptability to changing circumstances ("living instrument").He advocated for a dynamic interpretation of the Bank's Articles of Agreement while avoiding an illegitimate over-reach on the other hand.Along a similar line, a senior legal counsellor of the WTO praised the "[i]nnovative analytical approaches" which bolster the organisations' "successes in moving beyond the legal and policy frameworks originally imposed on them". 358. Concomitantly, the founding States were seen to suffer a transformation: from contractors to members of the new institution.The States thus cease to be the "masters of the treaty". 36Rather, they are subdued to the organisations which are enabled, by their "constitution" to keep the members in check.This has been most visible for the WTO Agreement, which, conceived as a constitution, functions as a constrainer of protectionist measures adopted by members whose parliaments and executives are excessively lobbied by rent-seeking societal groups.By virtue of its constitution-based powers, incarnated in the judicialised dispute settlement system whose bodies engage in balancing (which is seen to be a constitutional type of reasoning), the WTO is able to rectify the distortions of the democratic processes in the members' trade policies. 379.Along this line, the International Criminal Court (ICC) (an atypical international organisation which is in functional terms a court) has also been described as performing "quasi-constitutional functions as a last resort in States in which the rule of law is not well-functioning" by restraining powerful State actors (political and military leaders) from committing worst abuses. 38The imagery of the organisations' "constitution" bears a family resemblance with the political-science-driven theory of functionalism for international organisations. 39Both approaches mainly seek to make the organisations work.And this is exactly their problem, too.
III.B. Critiques 20.We have seen that the constitutional framing was used by its protagonists (rightly or wrongly) for justifying a dynamic interpretation of the organisations' founding document.It was thus complicit in what has been blamed as "mission creep".Critics therefore rejected the constitutional imagery in order to denounce any undue expansion of the organisation's activities.They decried the "radical expansion" of powers, falsely justified by "the metaphor of constitutional growth". 40Philipp Dann has deplored the World Bank's lawyers' "strategic mix of flexibility and rigidity", as being "a mix of constitutionalism and formalism in the interpretation of institutional law"."Northern lawyers", as Philipp Dann calls them (for example the General Counsel of the World Bank, Aron Broches, who was also the designer of ICSID), "were very discriminatory treatment, economic welfare, and poverty reduction across frontiers-reflect, albeit imperfectly, basic principles of justice."See, with a focus on diverse "constitutional" features of the WTO: Deborah Z. Cass, Constitutionalization of the WTO (2005) clever (and shameless) in mixing styles of argumentation, while hypocritically accusing others of doing so." 41 21.The dark side of the constitutional language's empowering effects came to light once the activity of international organisations was stepped up and began to be felt in earnest both by States and by affected individuals.It then became obvious that the talk of constitution was prone to furnish a veneer of false legitimacy to organisational overreach.The critique emerged that the "use of the constitutional metaphor-and the legal hermeneutic it impliedpresent perhaps an extreme demonstration of how little the constituent instruments of international organizations have acted as any kind of constraint upon their expansion." 42The need for "constraint" then motivated a revision of the constitutional theory of international organisations.
IV. Second wave constitutional theory 22.In 1989/1990, the change of the geopolitical situation and the "victory" of market-economy and capitalist economic policy beliefs were symbolised by the fall of the Berlin wall and by the Washington consensus. 43This twinned political and economic shift gave rise to a new dynamism in the practice of international organisations.That activity boost then triggered a turn in the theory, shifting the focus of attention from constituting to containing international organisations.With this move, the constitutional theory of international organisations transformed itself into constitutionalism whose traditional objective has been the constraint of governmental power. 44 Philipp Dann, The World Bank in the Battles of the "Decolonization Era", in: Philipp  25.All these activities have deployed tangible effects for the lives of many persons directly addressed, blacklisted, prosecuted, or indicted.Additionally, the measures regularly produce negative externalities.The resulting harm may be wanted or unwanted, foreseeable or unforeseeable (see for some examples below section IV.C)).Once such effects were felt and harms materialised, it is unsurprising that the weak "legitimacy" of international organisations was raised as a problem and that "accountability" became the new buzzword. 45ward N. Zalta (ed.),The Stanford Encyclopedia of Philosophy (Spring 2018 ed.).45 cf.Jean-Marc Coicaud & Veijo Heiskanen (eds.),The Legitimacy of International Organizations (2001).
26.The second wave of constitutional theory was an attempt to close the accountability gap.It sought to apply the "trinity" of constitutionalism (rule of law, human rights, and democracy) 46 to international organisations.The most intense theorising, reconstructing the relevant founding documents as capital C-constitutions, focused on the United Nations, 47 the WTO, 48 and the EU. 49In its Rule of Law Declaration of 2012, the UN General Assembly affirmed that "human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations", and-importantly-that these values also apply at "the international level". 50In line with the mentioned political and economic developments of the 1990s and early millennium, the revised constitutional theory of international organisations was "liberal" in a political and an economic sense; it breathed the spirit of both Wilhelm von Humboldt 51 and the Washington consensus. 52.B. Containment through rule of law and institutional balance 27.Officials of international organisations, notably the UN, claim that international organisations are themselves under the international rule of law. 53In practice however, this commitment is barely honoured.Firstly, it is not even entirely clear which laws bind the organisations.The ICJ has stated that international organisations are international legal persons which are, generally speaking, "bound by any obligations incumbent upon [them] under general rules of international law". 54But this dictum leaves open which obligations are "incumbent" on the organisations. 55While obligations flowing from treaties concluded by a given organisation are fairly straightforward, the organisations' subjection to customary law is less clear.Schermers and Blokker opine that international organisations are "in principle" bound by customary international law, unless the concrete rule is not "suitable" for application to international organisations. 56It must therefore always be examined which norms are "suitable".This legal uncertainty is not conducive to the rule of law.Secondly, the legal consequences of organisational actions violating international law are spelt out only in a nonbinding text, the 2011 ILC Articles on the Responsibility of International Organizations. 57All these problems are well known and well-rehearsed.
28.I would like to focus on a less discussed aspect, the separation of powers which was in 18 th century constitutionalism seen as the most important device for safeguarding liberty. 58During much of the 20 th century, the political and legal clout of international organisations has been so modest that their containment did not seem necessary.In fact, international organisations have historically been set up to support the work of one single national branch, the executive. 59They were initially conceived as "administrative unions".But this October 1995, paras.26-28for the UN Security Council.See on the "progressive expansion" of the concept of the rule of law in the UN  historical origin did not preclude their factual and conceptual transformation into more-than-administration, namely into institutions of global governance in a more complex sense.And with their growing power (however weak still in comparison to States), the need for checks has come up.Just as the Federalist Papers put it in their discussion on the "partition of power among the several departments", "[t]he provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." 6029.In order to make the benchmark "commensurate" to international organisations, whose organs and bodies clearly do not mirror the legislative, executive, and judicial branches in States, the guideline should be reformulated as a quest for an "institutional balance", to use the term as coined by the ECJ. 61The idea is transferrable to other international organisations. 620.The assignment of different functions to different organs and bodies not only supports the smooth and effective work of international organisations but in some cases also facilitates mutual checks and balances.For example, the control of compliance with the judgments of the ECtHR is assigned to the Committee of Ministers, the more "political" branch in the system. 63n the ICC, the prosecutorial discretion is checked by the pre-trial chamber which needs to authorise investigations. 64In the United Nations, the General Assembly may not make a recommendation with regard to a dispute or situations with which the Security Council is dealing. 65The Security Council can also block the General Assembly's admission of a new member State 66 and the election of a judge to the ICJ. 67International legal practice has occasionally denounced the encroachment of one organisational body on the competences of another body as "ultra vires". 681.It is submitted that such an analysis makes sense and could be stepped up as a matter of principle.The rationale of the separation of powers applies to international organisations just as it applies to States.Ordinary people cannot check the powers themselves und must therefore delegate this function to the organs.The "vertical" separation of powers between the organisations and the member States is no functional equivalent and does not obviate any need for additional "horizontal" checks and balances, because the purpose and practice of these member States' checks do not primarily protect the liberty of those substantially affected by organisational action. 69Rather, member States refuse to give consent chiefly in the pursuit of narrow national interests.They do normally not pay attention to negative externalities on a broad front, including human rights violations of persons at different parts of the globe and damage to the environment.
The upshot is that systematic attention could be paid to "horizontal" checks and balances inside international organisations.Respect for and reenforcement of a separation of functions in international organisations through interpretation, practice, and procedural rules might contribute to containing organisations where necessary.This could help to distinguish sweeping "ultra vires"-allegations from legitimate concerns.

IV.C. Human rights and remedies
32.The next limb of the constitutionalist trinity is human rights.The enjoyment of human rights may be undermined by the intensified activity of various organisations, either by design or by operational mistakes.Economic sanctions imposed by the UN might interfere with social and economic rights such as the right to life-saving medicine as a part of the right to health, or the right to food. 70Targeted sanctions against individual persons risk infringing procedural rights, access to the judiciary, and property rights.UN peacekeepers have contaminated the Haitian population with cholera 71 and have committed sexual abuse notably in missions in Africa. 723.The International Financial Institutions (World Bank Group and International Monetary Fund) use a gamut of instruments (including conditionalities) in the context of project financing and debt restructuring.Some empirical studies have suggested that the structural measures to which the recipient countries commit, e.g., concerning privatisation, price deregulation, and public sector employment, may have detrimental effects on the bureaucracies of the receiving States, often situated in the global South. 73oreover, the required budgetary discipline and administrative reforms, including the reduction of social services and benefits, may directly and indirectly interfere with the exercise and enjoyment of a wide range of human rights, ranging from property (entitlements or legitimate expectations to pensions or other State payments) over housing to social security. 744.Trade liberalisation under the auspices of the WTO and investment protection in the ICSID-framework under the auspices of the World Bank may frustrate a gamut of rights ranging from indigenous rights to the land over freedom of religion up to labour rights.A well-known example is the management of the TRIPS agreement by the WTO which seeks an effective protection of intellectual property but results in restrictions of access to medicine which hinders the full enjoyment of the right to health in poorer, nonproducing countries. 75The insertion of Art.31bis into TRIPS which entered into force in 2017 seeks to remove the detrimental effect of intellectual property protection on poor States.It allows the exportation of drugs that have been produced under a compulsory licence. 76  35.All these scenarios have triggered the quest for human rights protection against international organisations.This quest has been honoured to some extent.Despite reluctance of the organisations themselves, especially the international financial institutions, 79 an overall factual trend towards improved human rights protection against international organisations is discernible. 80he doctrinal questions such as the source of obligations, the personal and territorial scope of the obligations (in the absence of a clear concept of "jurisdiction" of organisations), the rights' contents in the respect-protectfulfil framework, and the legal possibilities for the lawful curtailment of human rights by the organisations are under intense juridical scrutiny and debate. 816.However, the lack of access to remedies for human rights violations committed by international organisations or by State and non-State actors in complicity with international organisations remains a serious problem.3 However, all these mechanisms remain isolated, are only moderately effective, and certainly do not amount to a de facto judicial review.The situation is better for employees of the organisations.Internal complaint mechanisms in form of administrative tribunals have been improved in the past decade. 847. To wrap up, second wave liberal constitutional theory has contributed to the understanding that human rights can and must be applied to international organisations.It has made clear that human rights have become "part of a script for legitimate IOs". 85The approach has moreover offered the tools for nuancing the intensity and scope of the human rights obligations.The constitutionalist mind-set has finally thrust a spotlight on the paucity of remedies against international organisations.Further reflection along those lines might contribute to further reforms.
IV.D. Democracy: deliberation, participation, and transparency 38.The third limb of the constitutionalist trinity is democracy.Democracy as a normative ideal means that "all" concerned by a governance decision ("quod omnes tangit [. ..]") should have a say in it. 86But once we move beyond the firm contours of the nation-State and its citizens, the circumscription of those groups who should ideally be "enfranchised" (that is participate directly or through representatives in decision-making), becomes difficult. 87Third wave liberal constitutional theory has established that all those potentially substantively affected by a governance measure should somehow participate.On that basis, the democratic principle is a relevant benchmark for the activity of international organisations.The debate has shown that the idea of democratic procedures in international organisations does not face principled and absolute obstacles (such as the absence of a unified global demos).However, the democratisation of the activity of international organisations must cope with eminently practical problems, notably with the sheer size and diversity of the democratic constituency, and the two-level governance structure of organisations and their member States. 889.Assuming that (only) those potentially substantively affected by a political measure need to be involved in deciding on such a measure, not all activities of all international organisations need to be fully democratised.The proper degree of democratisation depends on how intensely the activity of a given organisation affects people on the ground.This in turn hinges on the substance, the reach, and on legal and factual impacts of the concrete governance measure in question. 89Along this line, the quest for more democratic decision-making has been rightfully addressed most of all at the Security Council's sanctions (trade embargoes, travel bans, asset freezes) and at various measures by the Word Bank, IMF, and the WTO which have intense financial and economic repercussions on countries and their populations (see the examples given in section IV.C)).
40.But even for those high-intensity organisations, the democratic yardstick may legitimately be adjusted.Democratic theory has developed variations which are suited to be applied in the international realm.A first and important insight in this context is that a mediated or transitive democratic foundation of the international organisations' action does not work.By transitive democracy I mean the idea that a degree of democratic legitimacy is conferred on international organisations through the member States' democratic procedures.But this transmission belt-like idea of democracy does not hold for at least three reasons.First, there is no chain of election and recall running from citizens through their governments to the State delegates which will take the political decisions in the various forums of the organisations.Second, many member States of international organisations do not allow for free elections of their governors, and do not act for their citizens in a democratic sense.Thirdly, the actions and omissions of non-universal organisations may produce externalities (military, economic, or financial consequences) for persons who are not citizens of that particular organisation's member States and are thus not represented by them.41.Given the thinness and disruptions of a putative democratic transmission belt via the member States, various conceptions of deliberative democracy have been developed and applied to the procedures inside the international organisations directly.In those conceptions, formal votes and elections do not play an indispensable role for democracy, but rather deliberations.This allows the proponents to qualify the practice of hearings of "stakeholders" in international forums as a kind of "non-electoral" democracy. 902.I have proposed a "dual" or two track-model of democracy for global governance which combines a range of improvements in member States' democratic procedures regarding the international organisations (first track) with direct citizens' engagement on the international level, in the workings of the organisations themselves (second track). 91The first track requires to involve the national parliaments in the decision-making of the international bodies and to empower the organisations' parliamentary assemblies which are composed of members of national parliaments, too.The second, more "directly" democratic or at least proto-democratic or "ersatz" mechanisms are the participation of civil society organisations and the transparency of meetings and documentation of the organisations.43.Empirically speaking, the above-mentioned ersatz features have been intensified.Thereby, the international organisations' decision-making rules "move closer to democratic models". 93International organisations have become more participatory and transparent, notably since 1990 as a turning point. 94Increasing involvement of civil society organisations, new accreditation schemes, and new rules of procedure in organisations and conferences (mainly during the reform era of 1990-2005) 95 have consolidated a "participatory status" of civil society organisations which gives them a voice but not a vote. 96Recent reforms include the creation of a Civil Society Mechanism in the Committee on Food Security in FAO (since 2010, in response to the world food price crisis), 97  introduction of voting for non-State actors in UNITAID (hosted by the WHO). 99Examples for an increase of transparency are the 2015 process of selection of the UN Secretary-General, "guided by the principles of transparency and inclusiveness" 100 and the access to information policies of many organisations. 10144.However, both transparency and participation is underdeveloped in the more powerful organisations (in the field of finance and security), and also less developed in the more consequential phases of activity (notably in decision-making) than in the phase of monitoring. 102Moreover, the options for participation are often shallow.Civil society actors seem to recognise their ineffectiveness and do not necessarily use them well. 103Another problem is that business actors tend to have in fact more entry points for participation than civil society groups which creates a real risk of the international organisations' capture by profit interests. 104Finally, the overall intensity of transparency and participation of civil society actors (hearings, deliberations, access to documents) in the work of international organisations is still low, compared to States.
45.This low intensity of the said practices, in combination with the breadth and near-emptiness of the term "democracy" has led to divergent assessments.It remains disputed whether such practices can be properly called "democratic" at all or whether they do not deserve the label of democracy.IV.E.Critiques of second wave constitutional theory 46.The second wave of constitutional theory has usefully placed accountability problems of international organisations on the table and has furnished a lens for analysis and constructive criticism.It has meritoriously introduced the principles of rule of law, human rights, and democracy to the sphere of international organisations and is seeking to apply them, albeit with due modification.This theory has laid open that the trinitarian principles have so far not been sufficiently implemented in the everyday functioning of international organisations.The constitutionalisation of international organisations has thus been rather "shallow" 105 if not "hollow". 106Therefore, the second wave constitutional demands have by no means been satisfied.This observation has long fed the pragmatic criticism which does not call into question the value of the aspiration but asserts that the classic objectives of liberal constitutionalism (laudable as they may be) remain unattainable for the workings of international organisations. 107A variant of this pragmatic and realist critique is that those objectives are valid only for States but do not fit for international organisations.My response to these types of criticism is that the need to apply the liberal principles (in proper adaptation) has been acknowledged and has in fact motivated the practice recounted in the prior sections of the paper.It is an open question whether the reforms in the direction of more transparency, participation, and ultimately accountability of the organisations will go on, come to a halt, or be reversed.
47. Another line of critique has been that the constitutionalist paradigm gives undue attention to various types of "soft" norms and standards that make up the normative web of the organisations' activities, instead of sticking to the traditional sources of international law firmly rooted in sovereignty.My response here is that the practices of participation and transparency have furnished a modicum of procedural legitimacy to the governance-output of international organisations which does not fall under one of the traditional sources of international law.They thus alleviate the concern that this output is not legitimated through State (and popular) sovereignty.In other words, the legitimacy deficit created by the looseness (or absence) of any links between the decisions taken and the norms adopted by international organisations on the one side and domestic procedures on the other side can be-to some extent-mitigated by the said exercises of participation and transparency.These exercises tear down the conceptual and normative firewall between ultimately State-based hard international law and the organisational secondary law.It is no longer only the former type of law which can be said to enjoy "full" legitimacy (flowing from sovereignty, ideally undergirded by popular sovereignty). 1088.Finally, the most radical line of critique of the second wave liberal constitutional theory has attacked the underlying liberal constitutionalism at its core.The deep question has emerged whether the second wave's demands remain relevant in the current global constellation or whether the liberal constitutionalist benchmark and guideline is wrong in the first place.The radical critique assumes that the direction has been erroneous altogether.It claims that far from contributing to more global justice, liberal constitutionalism, as applied to international organisations (and the capital-C-constitutional theory of international organisations going with it), has cemented and deepened global injustice. 109It is this radical challenge that the third wave of constitutional theory needs to address.

V. Third wave constitutional theory
49.The fundamental critique directed against second wave constitutional theory is related to changes in the real world that are economic, ecologic, psychological, and political.The fallouts of ruthless economic globalisation are ecologic disaster, impoverishment, and emotional and intellectual disorientation of large groups of people, and unbearable suffering of billions of animals.On top, democratic procedures are being eroded in various ways: by globalisation (which de facto disempowers national parliaments), by the dismantlement of democracy inside superficially democratised States, and by the rise of undemocratic States.
50.Champions of second-wave constitutionalism have contributed (consciously or not) to the alignment of globalised neo-liberal legal, political, and economic structures and to the entrenchment of a basically neoliberal international legal order. 110Given this intellectual contribution, it falls in the promoters' responsibility to refocus the theory.This section identifies some lines of thought which seem to go in the right direction and which deserve to be pulled out more.Four specific issues need to be more thoroughly addressed by the emerging third wave of constitutional theory.
51. First, the theory needs to revisit liberalism's focus on the "unencumbered self" (to use Michael Sandel's phrase) 111 and the concomitant rise of human rights in international law in general and in the law of international organisations more specifically (section A).Second, the theory needs to address the challenge of an allegedly pernicious "legalism".This requires more work on the development of the democratic ("political") side of the constitutional theory, involving the establishment of global forums for political opposition and procedures of collective self-determination that would allow to regularly reverse the organisations' power-holders.Such work is often called "politicisation" (section B).Third, the renewed theory needs to address the neo-liberal tilt of constitutional theory, its lopsidedness towards the so-called "first generation" rights which served as a justification for a strong protection of property and investment unaccompanied by social cushioning (section C).Fourth, it needs to address the colonial legacy (section D).
V.A. Individualism: rights and responsibilities 52.A growing strand of international legal scholarship is highly critical towards international law's imbuement with human rights.This critique needs to be addressed by the constitutional theory of international organisations.
The reproaches are that the "righting",112 or "rightsification"113 of international law-as manifest in the application of human rights to international organisations (section IV.C.)-breathes possessive individualism, overstates human rationality (epitomised in the image of homo economicus as the rational benefit-maximiser), and falls too short for tackling inequities in the world order. 1143.Against this critique, I submit that the focus on individuals as the ultimate normative point of reference should not be given up in the law international organisations.The expansion of the scope of the legal analysis to individuals, as opposed to focusing exclusively on the relationship between the organisation and its members, is a lasting achievement of both waves of constitutional theory.Already the initial constitutional imagery took individuals in its purview.This has been explicitly stated only for the EU: in the leading case Van Gend & Loos, the ECJ held that the "subjects" of the Community legal order "comprise not only member States but also their nationals." 115The direct legal relationship between the organisation and natural persons is often considered to be a hallmark of the EU.I submit that, beyond the EU, individual human beings are the stakeholders (besides the member States) of all international organisations because their wellbeing is the true justification of both the organisational activity and ultimately of their States, too.This fact needs to be recognised in law. 116Jan Klabbers has put it as follows: "[T]he exclusive link with member States must be broken, in that international organizations have many constituencies, all of which can make justifiable demands concerning both the everyday guidance and its accountability." 11754.Along this line, second wave liberal constitutionalism has placed the individual squarely on the centre-stage.It has rejected the view that individuals are entirely and properly "mediated" (i.e.completely represented) by their home States in international organisations. 118The principal normative reason for looking beyond member States is the fact that the military, economic, financial, and legal effects of organisational behaviour are relevant for the satisfaction of needs, for the realisation of interests, and for the enjoyment of rights of human beings.As mentioned, UN sanctions have penalised men and starved children, UN peacekeepers have raped women and infected entire populations, KFOR has destroyed houses and neglected mine-clearing, and so on.The organisations (acting through their organs and bodies, in combination with member States) thus shape the humans' normative situation, and as a matter of principle independently from the concerned persons citizenship in a member State.From the point of view of constitutional theory, this constellation calls for some form of accountability towards those who are substantially affected. 1195.Such accountability can be (simplistically) schematised as comprising "legal" mechanisms (access to justice) and "political" mechanisms (appointment and recall of office-holders).With regard to the first "legal" accountability, mediation does not work.The legal protection of individuals against international organisations through the member States is insufficient because diplomatic protection is discretionary and selective, and because it does not help nationals of non-member States who may likewise be substantially affected by an organisations' activity.With regard to "political" accountability, I have shown that the idea of transitive democracy is not convincing (section IV.D.)).
56.For these reasons, a direct legal and political relationship between the organisations and individual human beings needs to be worked out more.Such mechanisms should take into due account the individual's embeddedness in a social community, the relational nature of individual rights, and the bounded rationality of humans.It should also insist on political and legal responsibilities of individuals that must accompany the exercise of rights.Such a redirection is needed not the least for accommodating a range of cultural, political, and legal traditions (often non-Western ones) which cherish the values of community and duties.But this nuancing does not imply that the law of international organisations should remain exclusively focused on the relationship between the organisation and the member States.Because of the mentioned normative deficits of the "mediation" of the individuals' concerns through the interposition of their States, the reference point of the individual human being should not be given up in the course of revision.The individual must remain in the centre of a constitutional theory of international organisations.Individual rights, directly opposable to international organisations, would seem to be an indispensable ingredient of the theory.
V.B. Democracy 57.Current political trends underscore rather than question the relevance of a further democratisation of international organisations.
V.B.i.Current challenges against the democratic organisation of international organisations 58.Any theory about democracy in the workings of international organisations must face four current challenges.
59.The first challenge is the power gain of nondemocratic States and reversal of democracy in numerous States.This backsliding risks leading to a further weakening of organisation-internal quasi-democratic procedures. 120It has already been shown that new organisations sponsored and shaped by China are less participatory and transparent than the older Westerndominated organisations.The Asian Infrastructure Investment Bank (AIIB)'s and the New Development Bank (NDB)'s internal procedures display less transparency and participation than the procedures gradually established in the World Bank. 121Facing this trend, the normative commitment should be to at least uphold the degrees of transparency and participation reached in international organisations.60.The second challenge is exit from international organisations that claims to strengthen democracy but is unable to effectively do so.For example, the Brexit was directed against the fact that EU membership curtails British popular sovereignty.The official documents justifying the British withdrawal do not condemn any specific failure or illegitimacy of the EU but merely point to "national self-determination" and to the "democratic decision" in the UK, 122 and express the people's desire to "take back control of their money, their borders, their laws, and their waters and to leave the European Union."123However, under conditions of global interdependence, national control (which is ostensibly more democratic) is often undercut.After Brexit, the British parliament may take more decisions but these will become less relevant for the British people because important decisions affecting their lives are taken elsewhere.This fact reduces the output dimension of democracy. 124In the end, exit from an international organisation only superficially satisfies the quest for democracy but cannot bring about broad and deep democratisation without a parallel democratisation of the work of international organisations themselves.
61.The third challenge is the highjacking of the language of democracy for other agendas which contributes to conceptual confusion.The quest for "more democratic" international organisations has often been voiced by States not belonging to the Western world.When the Chinese-Russian declaration of 2021 reclaims a "more democratic" world order, it asks for the inclusion of all States in the decision-making of international organisations.In that terminology, "democracy" is the antidote to an inter-State oligarchy and decidedly not a call for direct citizens' participation in the working of international organisations (see in detail below section V.D.ii.).
62. I submit that the agenda of full inclusion and State equality is important, but should for reasons of analytical clarity not be pursued under the heading of democracy.The reference point of democracy should be natural persons (human beings), not States.The ambiguities and the risk of confusion of the concept of democracy must be squarely addressed.Against the current rise of illiberal democracies, we need to be clear about what is meant when speaking of democracy. 1253.The fourth challenge is resignation.Practical experience with hearings and deliberations (mentioned above in section IV.D.) shows that the actual capacity of these participatory and deliberative schemes to allow for any meaningful influence by citizens on the course of the organisations is limited.Moreover, these exercises have provoked conceptual objections against the deliberative theorists' distortion of the idea of democracy.Arguably, deliberations without voting rights are a cry from the core idea of democracy which is to enable the governed to install and remove the governors.
V.B.ii.Response: Contestation, politicisation, and participation 64.The mentioned challenges should motivate adaptations in democratic theory and practice in international organisations rather than giving up the goal altogether.The democratisation strategy is supported by State practice.The majority of States at least pays lip service to the idea that individuals (not their States) are entitled to participate in the decision-making of international organisations.In the latest global South-sponsored resolutions on the democratic and equitable international order, the UN-General Assembly "affirms that a democratic and equitable international order requires, inter alia, [. ..] [t]he right to equitable participation of all, without any discrimination, in domestic and global decision-making". 1265.In order to satisfy this quest voiced by States, the third wave of organisational constitutional theory can and should develop three strands of democratic thinking.The first strand of "contestatory democracy" pays attention to alternativity and reversibility of governance on the international level.The quest is that international organisations should much more actively give a platform to the radical opposition and should institutionalise ongoing contestation and conflict. 1276.An overlapping debate applauds the ongoing "politicisation" in the work of international organisations, as processes through which certain issues become objects of public contention and debate. 128Because politicisation introduces new demands for resources, justice, or recognition, the process is inevitably contestatory.
67. Third, these new ideas do not obviate the need to upstep participation and transparency. 129Although the involvement of civil society actors in the work of international organisations also has a functional purpose, namely to tap the expertise of specialised civil society organisations, 130 their participation is an indispensable pre-condition for a deeper democratisation of the international organisations themselves.The threshold criteria that the organisations need to apply when admitting groups and organisations (or their representatives) for participation in their work (meetings, hearings, exchange of information) are not easy to determine. 131The criterion of "all affected" seems too broad, because in a globalised world, a very large and indeterminate number of persons may be affected by many measures taken by various international organisations.In political philosophy, Nancy Fraser coined the "all-subjected principle". 132The "joint subjection to a structure of governance, which sets the ground rules that govern their interaction" would on this view trigger rights to political participation.Importantly, "governance structures" are not restricted to States but "also comprise non-State agencies that generate enforceable rules that structure important swaths of social interaction".Here Fraser lists the World Trade Organization, the International Monetary Fund, "transnational agencies governing environmental regulation, atomic and nuclear power, policing, security, health, intellectual property, and the administration of civil and criminal law.In so far as such agencies regulate the interaction of large transnational populations, they can be said to subject the latter". 133But this conceptualisation over-estimates the formal competences and factual powers of international organisations.Because most international organisations cannot take legally binding decisions and have no territorial jurisdiction, it is unclear how they might "subject" anyone under their authority.
68.More in line with the conventions of juridical language, the criterion for acknowledging constitutional demands (also in form of rights) opposable to international organisations might be formulated as potential substantial affectedness. 134This criterion will need more refinement in further research and practice.This threshold would guide the identification of groups which the international organisations need to involve in their decision-making.Participatory, and thus proto-democratic, procedures involving representatives of groups who are potentially substantially affected by the work of a given organisation might even compensate for the erosion of democratic procedures in States.
69.Although we have seen that the AIIB and NDB are less transparent and participatory than their "Western" counterparts, it is remarkable that these institutions pre-emptively established such mechanisms in the first place (even if weaker), before facing legitimacy challenges at all. 1350.To conclude, the revision of the democratic theory and a reflection about more democratic practices inside international organisations need to go on.Schemes of participation and transparency, ideally accompanied by more contestatory devices and "politicisation", are necessary pre-conditions for collective self-government on a global level.For the time being, these schemes are second-best surrogates for currently unfeasible fully democratised decision-making in international organisations.
V.C.The global social question as a task for international organisations 71.Another ongoing revision of global constitutional thought (both on the macro-level and as applied to international organisations) is the espousal of a welfare dimension.International organisations need to work more than ever towards improving the material living conditions of humans and mitigate poverty and inequality of wealth and income.This revision has become necessary for coping with the "groundswell of discontent" with globalisation, as the former managing director of the International Monetary Fund, Christine Lagarde, put it. 1362.In a 2005 study, the World Bank has acknowledged that "the distributive effects of trade liberalization are diverse, and not always pro-poor."The Bank also found that "the preservation and expansion of the world trade system hinges on its ability to strike a better balance between the interests of industrialized and developing nations", because "the world trade system is still biased against the poor." 137C.i.WTO reform 73.More attention to the social limb of global governance would thus notably require reforms of the WTO.Such reforms are demanded by States of the Global South and by China.138 74.To the extent that social policies and social rights are missing or are being dismantled in the domestic sphere, "trade policy needs to assume these protective functions."139 Under the heading of a "Geneva Consensus", then Director-General of the WTO, Pascal Lamy, stated in 2006 that "we have not yet completed the economic decolonization."He urged the negotiating WTO-members "to continue the rebalancing of our rules on favour of developing countries."140 The WTO, founded in the heyday of neo-liberalism, has to some extent failed to honour its professed commitment to embedded liberalism.141 Although the preamble of the WTO-constitution of 1994 caters (more explicitly than the GATT preamble of 1947) to the social needs of developing States and acknowledges the need for positive action in their favour, 142 the implementation of the WTO regime has neglected the distributive effects of trade liberalisation and has arguably deepened problems of food insecurity and scarcity of pharmaceuticals in the global South.143 The current paralysis of the WTO (the stalemate of the institutional reform debate and the side-lining of the organisation by bilateral and regional trade agreements) is largely owed to the unwillingness or inability of the members to agree on the mentioned welfarist demands.
75.WTO constitutional theory has addressed these issues.James Thuo Gathii has proposed a reconceptualisation of the WTO constitution with social issues squarely inside the organisation's mandate, because "the peripheral place of social issues, like labour, within the framework of the WTO is [. ..] neither warranted by the ongoing constitutionalisation of the GATT/WTO regime nor by its legislative commitments and history." 144Andrew Lang has convincingly pointed out that the WTO cannot resolve its legitimacy crisis through further "thin proceduralisation" but only by "the exercise of public power in international trade governance in pursuit of a collectively defined legitimating purpose, and a form of governing which does not shy away from the experience of moral responsibility for the full range of outcomes it produces", notably the social, distributional, and ecological ones. 145It is submitted that the identification of such a "public purpose", the analytical attention to the social consequences of the WTO-rules, and the acknowledgment of responsibility for these effects would be facilitated on the basis of a constitutional vision of the WTO.
V.C.ii.New institutions for a " new" NIEO 76.A new, more social constitutional theory for international organisations can learn from the failures and deficiencies of the historical blueprints such as the post-World War II embedded liberalism and the 1970s New International Economic Order (NIEO).Both agendas had sought to mitigate material inequality among States and individuals on a global scale."Embedded liberalism" was the term John Ruggie coined for the conceptual linkage between trade liberalisation and welfare States. 146But embedded liberalism was a faulty compromise among like-minded and like-situated industrialised States that unfairly excluded the agriculture and textile sectors.These sectors, which form the assets of the global South, were not to benefit from the liberalisation schemes. 147Moreover, the complete relegation of the welfare task to the nation States did not work for at least three reasons: First, already in the immediate post World War II world, the goals of full employment and social stability could not have been approximated without the international organisations and bodies such as the ILO, the ECOSOC, the projected International Trade Organisation and later UNCTAD, and the international commodity agreements with their managing bodies. 148Second, many States (mostly the global South) were not able to create social security programmes for their populations.Third, when the political preferences of the Northern States changed in a "neo-laissez faire direction", 149 they were no longer willing to cushion the social hardships created by trade liberalisation.The old idea of embedded liberalism should therefore not be resuscitated without conceptual modifications.
77.The NIEO was problematic for different reasons.Proposed in the 1970s by the post-colonial States of the South, the NIEO had initially found some support in the Northern States, too. 150The NIEO was essentially supposed to be a global welfarist constitution.As Bert Ro ¨ling then put it: "The guiding concepts in a NIEO are in many respects of the same character as the guiding principles which were accepted in domestic law.In both fields of law the question was whether a law of liberty should be replaced by social law [. ..].It meant the universalisation of principles that were already applied in the 'welfare state'." 1518.Today, a strand of literature tries to define the contours of a "new and fair NIEO". 152Also the UN GA rediscovered the NIEO during the global financial crisis of 2008.While the quests for the NIEO have to some extent been absorbed by the Agenda 2030, the UN General Assembly continues to adopt resolutions calling for a NIEO, most recently in 2018. 153Renewed attempts for strengthening the social dimension of the constitutions of international organisations need to overcome the normative deficiencies of the historic models, notably the lack of attention to human rights. 154.C.iii.Social human rights and transboundary solidarity 79.Constitutional theory for international organisations must integrate social human rights and the principle of transnational solidarity.
80. It can build on various features of current international law which are the following: a transnational legal responsibility of States for the welfare of individuals, the international anti-poverty regime, new standard procedures such as social due diligence and social impact assessments, and notably the rise of international social human rights.International social human rights have become operational through various legal techniques ranging from human rights due diligence to the concept of human development.Social rights have only in the last decades been actually applied as a yardstick of legality of State action by courts and monitoring committees, increasingly even in an extraterritorial fashion. 155Most of these trends are relevant for international organisations.For example, international social rights have been so far mainly operationalised in political and economic conflicts involving international organisations. 156Social human rights should, along this line of development, be made opposable to international organisations as a matter of principle.
81. Next, the international legal principle of transnational solidarity is a component of a revamped constitutional theory of international organisations. 157his principle is firmly rooted in the constitutional vocabulary of nation States. 158It is also a constitutional principle of the EU that entails a general obligation, for the EU and the member States, to always "take into account the interests of all stakeholders liable to be affected, by avoiding the adoption of measures that affect their interests, [. ..] and to do so in order to take into account of their interdependence and de facto solidarity." 1592.On the global level, especially the Covid-19 pandemic has motivated international organisations such as the UN and the WHO to appeal to "solidarity". 160This new talk (some might say "cheap talk") on global solidarity can build on a pre-existing norm-textual basis which has however not given firm contours to the concept. 161But despite this vagueness, solidarity has been identified as a structural principle of international law. 1623.The uptake of the welfare dimension in the constitutional theory of international organisations is necessary for salvaging the paradigm from its neoliberal entrapment.At the same time, the invigoration of the welfare and solidarity principle accommodates the preferences of the populations of the global South and non-Western world and thus fits in the current post-colonial constellation.
V.D. A postcolonial sensibility 84.The constitutional theory of international organisations (just as global constitutionalism in general) must increase its post-colonial sensibility. 163D.i.Post-colonial international legal theory 85.Third world approaches to international law (TWAIL) have identified political, cultural, and economic bias inscribed in the international legal order and its institutions, including international organisations.They call for a better attunement of the operation of international organisations "to those sites and subjects that have been traditionally positioned at the receiving end of international law," typically in the global South.164 TWAIL has allied with postcolonial studies and both have given rise to post-colonial legal theory.In the words of Luis Eslava and Sundhya Pahuja, "the 'post' of a postcolonial international law is [. ..] a marker of the continued, yet spectral, presence of 'colonialism', and of the way its 'history' is still with us in discursive, ideological and material terms."165 A post-colonial theory of international organisations might identify elements of colonial discourse and structures that have outlived the formal end of colonial rule but arguably continue to influence the words and deeds of the international organisations.The theory would maybe uncover neo-colonial mechanisms of rule and inclusion in current organisational practice.And finally, it would offer a tool to combat re-colonisation.166 86.The heightened postcolonial sensibility in the international legal discourse is probably not mainly the result of a turn to morals and a bad conscience on the part of the West but also expresses the increased political and economic clout of so-called developing States.The rise of China is surely an important factor here that functions not only as a power shifter but also as a discourse-shifter, and which gives the global South greater leverage.China insists on its position as "the largest developing country in the world".It also proclaims to be the "key contributor of South-South cooperation" which is, according to China, "essentially different from North-South cooperation".167 With all due caution against instrumental and cynical employment of the post-colonial vocabulary by rising and potentially neo-colonial actors such as China, 168 the shift of perspective is a welcome development which merits reinforcement.
V.D.ii.Applied to international organisations 87.Global constitutionalism needs to concretely address the colonial legacy and its repercussions in the working of international organisations.This legacy consists in organisational designs, processes, and outcomes that reflect the political and economic interests and normative preferences of the rich States of the North more than those of the poorer and less industrialised States of the South.The fundamental asymmetries of political and economic power are not sufficiently accommodated by the formal principle of State equality in the diverse bodies, and of course also shine up in those important organisations and organs which formalise unequal legal positions such as the international financial institutions and the UN Security Council. 1698.A key demand of the third wave of constitutional theory is therefore the inclusion of the so-far underprivileged member States and civil society organisations of the South.As mentioned, this inclusion is currently reclaimed by the States of the South under the heading of "democracy".For example, the 1994 Agenda for Peace states that "Democracy within the family of nations [. ..] is a principle that means affording to all States, large and small, the fullest opportunity to consult and to participate." 170Applied to international organisations, it has for example been argued that the admission of more States to the UN Security Council would make that body "more democratic". 171The UN General Assembly has been regularly adopting resolutions on the "promotion of a democratic and equitable international order" which convey this inter-State meaning of democracy, and regularly against the votes of the member States of the global North. 172These resolutions ask for reforms of the international organisations in the direction of a "full and equal participation" of States of the global South in the decision-making mechanisms. 1739.The insistence for the inclusion of all States in the work of international organisations in the sense of dismantling State oligarchies is justified.The discernible trend in that direction is laudable.An example is the transformation of the prior Governing Council of the UN Environment Programme, which was a club of only 58 member States, into an UN Environmental Assembly with universal State membership in 2010. 1740.Importantly, such inclusion cannot be fully realised through formal legal equality but additionally needs some forms of positive action that create material pre-conditions to enable the underprivileged member States to exercise their membership rights, and possibly additional compensatory preference schemes.The slogan of a "democratic and equitable legal order" 175 alludes to this aspect by replacing the term "equal" with "equitable".In nuce, such positive action schemes already exist, such as the principle of common but differentiated responsibility in the climate regime, the WTO Enabling Clause, and the principle of "in egalit e compensatrice" in the law of development cooperation.These legal institutions would need to be stepped up further and expanded.Otherwise, the hearings and deliberations conducted under the headings of transparency and participation remain largely empty rituals. 176E.The third wave summed up 91.The emerging third wave of constitutional theory for international organisations builds on the second wave (with regard to the legal status of individuals and concerning democratic procedures), it supplements it by insisting on the social welfare dimension, and it corrects it by fighting against Eurocentrism.The third wave needs to accommodate the genuine and legitimate interests of non-Western States and should avoid any idealisation and naı ¨ve romanticism of the Western-dominated international legal order that has arguably suffered from corporate capture.The new theory of international organisations needs to be post-colonial and more social.It can obviously not simply transfer the legal instruments of the Western welfare State onto international organisations but needs to design new legally embedded strategies to tackle the global social questions (ranging from robust international health regulations over an international standard for human rights due diligence by business actors up to corporate tax reform and harmonisation) that can be applied by and through organisations (and States).Finally, and importantly, the emerging third wave of constitutional theory for international organisations needs to retain the rethought elements of liberal internationalism, with a strong emphasis on contestatory democracy and social human rights, cutting back neoliberal excess.
92.On a more abstract level, the bracket spanning together the four features of the third wave constitutional theory for international organisations (embedded individualism, contestatory democracy, transnational social solidarity, postcolonial sensibility) is an "antagonist" and "radical" constitutionalism, 177 a "constitutionalism of dissent". 178These conceptual variants of constitutionalism rely on contestatory theory, 179 and to some extent draw inspiration from political philosophies of "republicanism" 180 and a more "political constitutionalism" 181 but without sharing those theories' statism.
93.The mentioned intellectual strands share the basic idea that constitutionalism should no longer be primarily about containment (as in classic liberal constitutionalism 182 ) but more about the facilitation of political action ("politicisation").The main function of these types of constitutionalism is to channel and institutionalise the possibility of permanent political controversy.From that perspective, all processes and institutions must be designed so as to encourage dissent, and should actively grant space to opposing voices (not only to the moderate civil society organisations prone to co-optation in the business of global governance).By foregrounding contestation and conflict, the political character of decision-making in global governance is uncovered. 1834.The mentioned conceptions were mainly developed for accommodating the often violent anti-globalisation protests.They can be applied to respond to the alienation and frustration of both State and non-State actors of the global South.At the same time, developing international organisations into an "additional institutional framework, which enables, allows, and encourages dissent and contestation" 184 might help to mitigate the rise of authoritarianism on the level of the nation States.

VI. Conclusions
95.International organisations are here to stay, next to States.States' withdrawals from international organisations will probably not only reverse welfare gains but will also fail to deliver democratic and rights-abiding outcomes.The reason is that our globalised condition will continue to undermine the problem-solving capacities of nation States.Political and regulatory options of States are deeply structured and constrained by international economic forces and by the extant international economic and financial organisations and regimes. 1856.The ongoing Covid-19 pandemic illustrates this well.Although nation States are the key actors to design and implement the health policies and health care systems (including containment measures, vaccination, and treatment), all States depend on transnational supply chains and foreign production sites, for example for the vaccines. 186States of the South additionally depend on the donations by the industrialised States through the COVAX facility.Attempts to reach "autarchy", even on simple items such as sanitary masks, are doomed to fail. 187In the end, no one is safe from the virus if not everyone is safe.And this global safety can be reached only through collective action.
97.An updated constitutional theory of international organisations can make an intellectual contribution to designing both legitimate and effective collective action.The challenge remains to design a theory that on the one hand does not simply duplicate State-bound forms of legitimacy but on the other hand does not re-invent the wheel either.
98. Concerning the legitimacy of organisational behaviour, constitutional theories are a reservoir of legal ideas that can stimulate a re-interpretation or even reform of the relevant secondary law and internal procedures of the organisations, ranging from transparency schemes over a differentiated application of human rights up to access to remedies.Such legal analysis might, in the middle run, contribute to the acceptability of the work of the organisations and might unveil purely opportunistic and pretextual attacks against them.For example, a separation of powers analysis-under due account for the character of the organisational constitution as a "living instrument"helps to dissect summary political allegations of "multilateral overreach".99.Next, the effectiveness of the work of international organisations can be secured by drawing on a constitutional analysis that sketches out feasible procedures.For example, constitutional theory can broaden the focus of the democracy debates by breaking up the fixation on national parliaments as the sole true locus of democratic legitimacy for the workings of the organisations.
100.In the end, a constitutional approach (i.e. the re-construction of the law of international organisations as being governed by a constitution) can refute the bland accusations about ideological leanings of the organisations.It does so by integrating the political element into the legal analysis, because constitutions are the quintessential linkage between the legal and the political realm.A constitutional register brings to light this political element and opens space for political contestation-as opposed to pretending that the international organisations' activity is purely technical.
101.That said, we cannot expect any theory to "resolve" the problems that international organisations face today.Intellectual paradigms can offer only a rough guideline, and are no mathematical model or rigid recipe.They are no conditio sine qua non for pragmatic reform but an argumentative option.And finally, the constitutional (as any legal) analysis cannot in itself prevent or undo the divergence between the constitutional principles on paper and the lacking, possibly slackening implementation in the changing ideational world climate.
102.In order to make the mentioned, however soft, contributions, the relevant constitutional theory needs constant monitoring and revision.The analysis has shown that the discourse on the constitutionalisation of and constitutionalism in international organisations has in fact continuously changed.In the face of multilateral saturation and potential overreach, the purely "constitutive", first wave constitutionalism that disregarded the containment of international organisations has become untenable.
103.But also the second wave liberal constitutionalism has turned out to be partly flawed.I have argued that the main problem of second wave liberal constitutionalism is not its ostensible human rights overreach, and that the current intellectual assault against rights is overdrawn.Rather, rights (when social rights are included) remain, I submitted, an indispensable building block of constitutionalism, including in its application to international organisations, and should be retained in the third wave of constitutional theory.A bigger problem seems to be the underdevelopment of democratic, politicised, and contestatory processes inside international organisations.These have so far only been prepared by transparency and participation schemes.Further deep problems of the second wave are the almost total neglect of the social dimension of constitutionalism and its Eurocentric and colonial baggage.
104.For these reasons, a third wave of a constitutional theory for international organisations needs to upscale the quasi-democratic procedures, rectify to the North-South imbalance that is inter alia rooted in the colonial heritage, avoid the pitfalls of lopsided political-human-rightism, and tackle the global social (and ecological188 ) questions upfront.Embedded individualism, contestatory democracy, social solidarity, postcolonial sensibility are the key elements of what I called the third wave that I see rising and deem worth building up.
105.The already ongoing and laudable revisions of the constitutional theory of international organisations will build on "islands of the constitutional"189 in international law.The so-called crisis of multilateralism will not render the constitutional analysis of international organisations obsolete, not the least because the current degree of high institutionalisation prevents the easy dismantlement of existing constitutional features in the structures and proceedings of international organisations.190But however sticky the institutions are, it is not warranted to "return to the business of global constitutionalism as usual, whatever this is assumed to have been" in the early millennium. 19106.The third wave of constitutional theory has only been developing recently and is still quite vague.It must pay attention not to become too abstract or thin for deserving the label of an "alternative" constitutional theory that is capable of inspiring legal reform discussions.Buzzwords as used in the Sino-Russian Joint Statement of 2021, including human rights, democracy,

1
Joint Statement by the Foreign Ministers of China and Russia on Certain Aspects of Global Governance in Modern Conditions of 23 March 2021, point 4. 2 ) and peace missions with broad mandates ranging from repatriation of refugees to election monitoring.The Security Council also engaged in quasilawmaking with resolutions on financing terrorism (Res.1373 (2001)), on weapons of mass destruction (Res.1540 (2004)), on "Foreign Fighters" (Res.2178 (2014)), and more.It established criminal tribunals (the ICTY and ICTR).Finally, between 1990 and 2011 (until the alleged overstepping of the mandate for the protection of civilians in Libya marked a turning point), the Security Council recurrently authorised military interventions under Chapter VII.
The detrimental repercussions for the well-being of targeted and otherwise affected persons, in the case of Iraq the entire population, soon became visible.The same is true for the gamut of robust measures undertaken or authorised by the UN, such as the territorial administration of entire countries (e.g., by UNMIK and Eulex in Kosovo Charter: Bardo Fassbender, "What's in a Name?: The International Rule of Law and the United Nations Charter", 17 Chinese JIL (2018), 761-797.54 ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt advisory opinion, ICJ Reports 1980, 72, para.37.55 See for a general discussion Kristina Daugirdas, How and Why International Law Binds International Organizations, 57 Harvard JIL (2016), 325-381.56 Henry G. Schermers & Niels M. Blokker, International Institutional Law (6 th ed., 2018), §1579.57 See ARIO, above n.2.58 French Declaration of the Rights of Man and Citizen (D eclaration des droits de l'homme et du citoyen), 26 August 1789, Art.16: "A society in which the observance of the law is not assured, nor the separation of powers defined, has no consti- tution at all".59 Jochen von Bernstorff, Authority Monism in International Organisations: A Historical Sketch, in: Joana Mendes & Ingo Venzke, Allocating Authority: Who Should Do What in European and International Law?(2018), 100.
Miriam Cullen, Separation of Powers in the United Nations System?Institutional Structure and the Rule of Law, 17 International Organizations LR (2020), 492-530.But see critically on the vagueness of that principle with the suggestion to substitute it by a proper separation of powers paradigm: Gerard Conway, Recovering a Separation of Powers in the European Union, 17 European LJ (2011), 304-322.63 Art.46(2) ECHR.The rationale of this division of labour which leaves compliance control to a kind of "peer review" is subsidiarity and thus ultimately respect for the sovereignty of the member States.See Raffaela Kunz, Securing the Survival of the 60 Alexander Hamilton, James Madison & John Jay, The Federalist: or the New Constitution, No. 51 (Hamilton or Madison), edited by Max Beloff (2 nd ed., 1987), 264.61 ECJ, Case 70/88 (European Parliament v. Council) 22 May 1990, ECR 1990, I-02041 ["Tschernobyl"], paras.23,31.See also more recently ECJ (GC), Case C-284/ 16 (Slovak Republic v. Achmea BV), 6 March 2018, para.32,recalling that "an international agreement cannot affect the allocation of powers fixed by the Treaties or, consequently, the autonomy of the EU legal system, observance of which is ensured by the Court" (emphasis added).62 Cf.System-The legal and institutional architecture to supervise compliance with the ECtHR's judgments, in: Rainer Grote, Davide Paris & Mariela Morales (eds.),Research Handbook on Compliance in International Human Rights Law (2021) 14, 16.
However, that provision arguably does not help enough, notably because the licensing State still has to remunerate the patent owner, 77 and because it does not alter the fact that global South States lack production facilities.Against this background, TRIPS members are currently negotiating a waiver of patent protection for COVID-19 vaccines. 7873 Bernhard Reinsberg et al., The World System and the Hollowing Out of State Capacity: How Structural Adjustment Programs Affect Bureaucratic Quality in Developing Countries, 124 American Journal of Sociology (2019), 1222-1257.74 See, for an empirical study of the effects of IMF conditionality on public sector wages and health systems, Thomas Stubbs, Bernhard Reinsberg, Alexander Kentikelenis & Lawrence King, How to Evaluate the Effects of IMF Conditionality: An Extension of Quantitative Approaches and an Empirical 78 Statement from US ambassador Katherine Tai of 5 May 2021.See for the legal framework: Henning Grosse Ruse-Khan, Access to Covid-19 Treatment and InInternational Intellectual Property Protection, EJIL: Talk! (15 April 2020) two parts.79 Then General Counsel to the IMF squarely denied the bindingness of social human Through the projects it finances, and in a manner consistent with its Articles of Agreement, the World Bank seeks to avoid adverse impacts and will continue to support its member countries as they strive to progressively achieve their human rights commitments" (footnote omitted, emphases added).80 Monika Heupel & Michael Zu ¨rn, Protecting the Individual from International Authority: Human Rights in International Organizations (2017).81 See for the financial institutions: Sigrun I. Skogly, The Human Rights Obligations of the World Bank and the International Monetary Fund (2001); Mac Darrow, Between Light and Shadow: The World Bank, the International Monetary Fund and International Human Rights Law (2003); Willem van Genugten, The World Bank Group, the IMF and Human Rights (2015).82 Even in the EU, which forms the sole exception, the CJEU has only a limited juris-organisations, much weaker complaint mechanisms, short of judicial remedies, have been offered to natural persons or groups.Examples are the World Bank inspection panel (since 1993), the United Nations Mission in Kosovo (UNMIK) Human Rights Advisory Panel (HRAP) (since 2007), the European Union Rule of Law Mission in Kosovo (EULEX) Human Rights Review Panel (HRRP) (since 2010), or the ombudsperson for the Security Council's 1267/1989/2253 Al Qaeda (later "ISL/Al'Daesh") sanction regime.
rights for the IMF, mainly by denying their status as general international law: Franc ¸ois Gianviti, Economic, Social and Cultural Human Rights and the International Monetary Fund (undated working paper) 43, para.5643; the working paper is referred to in CESCR, Report on the 25th, 26th and 27th Session 2001 UN Doc.E/C.12/2001/17(2 June 2002) 145.See for the World Bank: Environmental and Social Framework Setting, Environmental and Social Standards for Investment Project Financing of 4 August 2016: A vision for sustainable development, 5, para.3:"[T]heWorld Bank's activities support the realization of human rights expressed in the Universal Declaration of Human Rights.dictionfor proceedings brought by individuals against legal acts issued by EU institutions themselves under fairly narrow conditions, see Art. 263(4) TFEU.several the adoption of a new Framework for Engagement with Non-State actors in the WHO in 2016, 98 and the 93 Alexandru Grigorescu, Democratic Intergovernmental Organizations?Normative Pressures and Decision-Making Rules (2015).94 Jonas Tallberg, Thomas Sommerer, Theresa Squatrito & Christer Jo ¨nsson, The Opening up of International Organizations: Transnational Access in Global Governance (2013), 12; Alexandru Grigorescu, above n.93,277.See also Thomas D. Zweifel, International Organizations and Democracy: Accountability, Politics, and Power (2006).The author finds a positive "democracy score" only for the EU and the ICC, 176-177.Both are atypical organisations.95 See, e.g., WTO, Guidelines for arrangements on relations with Non-Governmental 167 China's International Development Cooperation in the New Era-The State Council Information Office of the People's Republic of China, Third White Paper on China's Foreign Aid (10 January 2021), n.p. 168 Although some observers characterise China as a neo-colonial power, the assessments of Chinese investment notably in Africa are mixed.
169See, for the inequality of States and other actors in international organisations and the organisations' "closure", Lora Anne Viola, The Closure of the International System: How Institutions Create Political Equalities and Hierarchies (2020), notably chapter 5 on international organisations.
175 See, besides GA Res 75/178, above n.173, the activity of the Human Rights Council.It established the mandate of an Independent Expert on the promotion of a democratic and equitable international order, HRC Resolution 18/6 (29 September 2011), which was last renewed in 2020.See also the Note by the Secretary-General, Promotion of a Democratic and Equitable International Order, UN Doc.A/70/285 (5 August 2015).176 Sigrid Boysen, Die postkoloniale Konstellation (2021), 315.