The future of international law in its administrative mode.

• Author: Nafziger, James A.R.

1. INTRODUCTION

   Thinking about the future of international law, as an authoritative process, all but requires us to identify its functions in global society. A key function in the future will be its management of transnational administrative activity, itself organized on a functional basis. Of course, projecting trends of any sort to forty years from now--a biblical-sounding span of time, to be sure--borders on pure speculation. (1) Still, such ambitious forecasting can help reveal the evolving reality and breadth of international law in its administrative mode, (2) fresh ways of defining it, and the options for improving it.

   Exactly forty years ago, two proponents of the transnationalist approach to the study of international relations urged "[s]tudents of international law and organizations ... [to] become involved in the study of transnational relations not merely for the sake of understanding reality, but also in order to help change reality." (3) How true that still is!

   During the past forty years, the international (or, if you will, transnational) legal system has expanded substantially beyond traditional nation-state relationships, including those within intergovernmental organizations ("IGOs") such as the United Nations and its specialized agencies. The growing democratization and, with it, pluralization of civic society has necessitated that development. Most spectacularly, the individual, only recently endowed with legal personality, has assumed a primary role on the global stage, particularly in the context of human rights. Less visibly, some nongovernmental organizations ("NGOs") have also acquired a limited measure of international legal personality. Countless other NGOs have joined the supporting cast of these international legal actors by initiating international legislation, lobbying within IGOs, interpreting international law, serving as amici curiae, and promoting state compliance with international obligations. (4)

   The resulting complex of communication channels, specialized fora, decision-making bodies, and tribunals for resolving disputes is almost mind-boggling--so much so that considerable attention has been lavished on problems of overlapping and sometimes conflicting legal authority (5) and tribunals. (6) The aspirations for a neat, federalized world, universal collective security, and highly centralized socioeconomic cooperation--as in the original design for the United Nations--are largely gone, as are the aesthetic and therapeutic virtues of simplicity and centrality in the international system. The system is messier than it was forty years ago, but perhaps also more promising.

   The promise of international law will lie in its capacity to fit within the contours of the messy, complex global society based on, but transcending, the traditional nation-state framework of governance. The international legal system will therefore need to be cosmopolitan and capable of productively coordinating public and private processes. In keeping with democratic and egalitarian values, these processes will need to be transparent and closely attuned to basic human needs.

   Today, efforts are underway to remap an international system left incomplete by Rand McNalley and GPS devices. Nation-states and IGOs are no longer the only pieces in the global puzzle. Instead, for reasons of convenience, budgetary restrictions, lack of expertise and otherwise, governments and IGOs have designated, deferred to or co-opted a broad range of NGO and other private entities to manage important transnational activities and the issues and disputes they generate. These activities range from utilities, postal service, and banking to humanitarian relief, sports, and arbitration of commercial disputes. The consequential growth of a "global civil society" (7) is not so much an instance of "privatization" as it is a sensible redeployment of expertise and administrative competence in public-private partnerships.

   Forty years ago, the indispensable role of functional NGOs within the international system had already become apparent. (8) Even earlier, in the immediate aftermath of the First World War, the tripartite structure of the new International Labor Organization enabled representatives of labor unions and management to join governments in the initiation, drafting, and supervision of international social legislation. After the Second World War, several studies highlighted the emergence of functional organizations in the new world order and forecast a robust role for them. (9) These organizations included public international utility corporations with limited international legal personality such as the Scandinavian Airlines System ("SAS"), the Basel-Mulhouse Airport, the Franco-Ethiopian Railway Company, the International Moselle Company, and the Central African Power Corporation. A leading international law scholar observed as follows:

   Post-war developments have clearly demonstrated that such progress as the nations have achieved towards cooperation for common purposes and objectives have overwhelmingly occurred on the functional level, i.e., by the establishment of specific--bilateral or multilateral--institutions and organizations for defined purposes, rather than by general constitutional transfers from national to international sovereignty. (10) During the last forty years, several significant NGOs have acquired a limited measure of international legal personality. These include, for example, the International Committee of the Red Cross, a Swiss corporation charged with responsibilities under the Geneva Conventions of 1949 (particularly under Common Article 3); the Olympic Movement, also Swiss-based, as the core family of institutions in the organization of international sports with evolving responsibilities that extend far beyond the quadrennial Olympic Games; and the institutes that serve as surrogates for governments in conducting diplomacy and normal relations with Taiwan. These NGOs, as well as others with or without international...