ARTICLES
Back to Basics: The Benefits of Paradigmatic International Organizations
by Kristina Daugirdas and Katerina Linos
In the early 2000s, small “coalitions of the willing,” flexible networks, and nimble private-public partnerships were promoted as alternatives to bureaucratic, consensus-seeking, and slow-moving international organizations. The Global Fund to Fight AIDS, Tuberculosis and Malaria was established as an efficient alternative to the lumbering World Health Organization. The Basel Committee, the Financial Stability Forum, and the Financial Action Task Force were lauded as global market regulators. The Pompidou Group, the Dublin Group, and Interpol were touted as effective police networks in the battle against transnational crime.
We systematically reviewed the evolution of these celebrated networks in the ensuing decades by using a broad range of primary legal sources and, to better understand the consequences of institutional design, interviewed a dozen key negotiators and staff members. We document that many networks have pursued paradigmatic international organization features: they have broadened their membership to include dissenting countries and established or expanded independent secretariats. In addition, many networks have secured privileges and immunities agreements to shield their staffs and assets. Some have discussed or made plans to transform into international organizations.
We argue that existing work on international organizations underestimates the benefits of the paradigmatic international organization form. Because international institutions must engage with multiple audiences, including different ministries in diverse countries, other international organizations, and current and future staff members, the tried-and-true package of features international organizations offer retains surprising appeal.
Strict Subordination: The Origins of Civil Control of Private Military Power in State Constitutions
by Alden A. Fletcher
The resurgence of private militias claiming the protection of the Second Amendment raises a startling question: is the United States a country without a legal monopoly on the use of force? Perhaps not. The constitutions of forty-eight states contain strict subordination clauses that declare, in one way or another, that “in all cases the military should be under strict subordination to, and governed by, the civil power.” This strict subordination clause has attracted attention as part of efforts to regulate and prohibit private militias, but it has been largely neglected by legal scholarship. As a result, it remains unclear how well this anti-private militia reading of the clause is supported by legal history. This Article begins the necessary work of tracing the historical origins of civil–military “subordination” and its incorporation into the strict subordination clause. The history uncovered in this Article reveals the clause’s roots in English anxieties over the memory of an independent standing army, its connection to the concept of imperium in imperio in the colonists’ protests against British soldiers, and the unsuccessful push to include the clause in the Federal Constitution. Examining this history alongside the clause’s Founding Era meaning and the Founding Generation’s reaction to historical analogs to today’s private militias confirms strong historical support for the anti-private militia reading. Ultimately, the strict subordination clause is a “sleeping giant” in state constitutions.
by Oona A. Hathaway
The last several decades have witnessed a dramatic decline in the capacity of the U.S. Congress to constrain the president’s unilateral decisions to send the United States to war. That erosion of congressional authority has accelerated since the terrorist attacks of September 11, 2001. Today, Congress’s ability to limit the exercise of presidential decisions to deploy force abroad is highly constrained. Presidents of both parties have expansively interpreted presidential authority to make decisions to use force, and Congress has proven unable or unwilling to insist on playing its formal constitutional role in response. Courts, meanwhile, have stood back and allowed this accretion of power to take place unabated. On the rare occasion that they have been asked to intervene, courts have almost always refused, relying on a variety of justiciability doctrines. As a result, the president today has had unprecedented free reign to decide when, where, and how to deploy armed force on behalf of the United States.
During the last two decades, one of the most notable trends to result from this largely unbridled presidential power over the decision to go to war is an ever-expanding reliance on the principle of “self-defense.” The reliance on self-defense by the president serves two purposes: It allows the president to paper over weaknesses in the congressional authorizations for use of force with a general reference to the president’s Article II powers to defend the nation. It also allows the president to make claims that sound in the register of international law—specifically the Article 51 self-defense exception to the United Nations Charter’s general prohibition on unilateral resort to force by states.
This Article argues that these ever-expanding claims to act in “self-defense” have had the effect, perhaps unintended, of eroding the international law prohibition on the use of force—and not just for the United States. The prohibition on the unilateral resort to force by states under the 1945 UN Charter was designed to be highly restrictive, undergirding the creation of a new legal order in which might no longer made right. Article 51 offered a very limited exception to states to resort to force without Security Council authorization in cases where a state had come under an “armed attack.” Enabled by the loose limits on presidential war powers, the United States has gradually expanded its claims to self-defense under Article 51. The consequence has been not only erosion of congressional authority, but also erosion of the international law limits on unilateral resort to force. After all, the United States, which drafted the UN Charter and holds one of five permanent seats on the UN Security Council, has played an outsized role in the creation and evolution of international law during the entire postwar era. Hence, whenever the United States makes novel or marginal claims to the right to use force under international law in “self-defense” or “collective self-defense” under Article 51, it offers up arguments to other states who may wish to capitalize on the legal space that the United States’ claims create. In this way, the erosion of U.S. law constraining unilateral presidential war power has had a direct effect—and a corrosive one—on the international law constraining the use of force under the United Nations Charter.
The essay begins in Part I by documenting the erosion of U.S. constitutional constraints on the power of the president to wage war. Part II examines the impact of this erosion on interpretations of Article 51 of the United Nations Charter—which provides that states may respond in self-defense or collective self-defense to an armed attack. Part III concludes by calling on Congress to reassert its war powers—not simply to defend its proper constitutional role but also to stem the erosion of international legal limits on the use of armed force.