Manley O. Hudson Medal Lecture.

Author:Weiss, Edith Brown
Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law
 
FREE EXCERPT

The lecture began at 4:15 p.m., Friday, March 26, and was given by Edith Brown Weiss, of Georgetown University Law Center.

ON BEING ACCOUNTABLE IN A KALEIDOSCOPIC WORLD *

By Edith Brown Weiss

It is a great honor and pleasure to deliver the Manley O. Hudson Lecture to this distinguished audience of colleagues and friends from across the world. In this presentation, I want to explore the concept of accountability in the changing world in which international law operates, and to draw upon my own recent experience chairing the Inspection Panel at the World Bank. In doing so, I want especially to recognize the concerns of poor people and bring their plight into the discussion of accountability.

The world today differs sharply from that when the United Nations was formed, some 65 years ago. In that world, there were only 51 states, (1) few international organizations, a nascent global civil society, only 2 billion people, (2) many of whom lived under colonialism and in poverty, an emerging recognition of human rights, and the glimmerings of globalization. International environmental law, for the most part, did not exist.

Today we have 6.8 billion people, (3) 192 states, (4) nearly 30,000 active international organizations and another 30,000 inactive ones, (5) many transnational networks, innumerable corporations that produce globally, and a thriving, networked civil society. Many of our problems are inherently global, such as climate change, health and disease, and financial stability. Poverty is one of the most pressing problems. More than 1.4 billion people exist on less than $1.25 per day, and another 1.2 billion people exist on less than $2.00 per day. (6)

THE KALEIDOSCOPIC WORLD (7)

International law has developed in the context of states, and, more recently, via transnational actors and networks. In contrast, the context for international law today can be represented by a kaleidoscope. The dictionary defines kaleidoscope, a Greek word in origin, as "a continually shifting pattern, scene, or the likes." (8) (I have a lovely Japanese kaleidoscopic with me, for those who may not be familiar with a kaleidoscope, and an electronic one is on the large screens.) The kaleidoscopic dimension of the international system is informal. The actors and coalitions are constantly changing. Developments are often rapid, as in the financial crisis in late 2008 and 2009, and often unforeseen. International institutions may be established informally rather than by treaty, as, for example, the Financial Stability Board. (9) And legal instruments may be non-binding to address new problems that emerge and need immediate attention. This more complicated world offers both challenges and opportunities for the development and implementation of international law.

David Held has written about cosmopolitan multilateralism, in which there are multiple forms of citizenship, anchored in clear and general rules and principles. (10) In a kaleidoscopic world, states continue to be important, but there are many different informal citizenships, and the anchors are not as solid or clear.

Information technology facilitates the rise in the power of informal groups, ad hoc coalitions and associations, and individuals. Coalitions can form instantaneously on the Internet, and dissolve as quickly. Many advocacy campaigns now take place on Internet sites that allow users to collaborate across time and place, such as Facebook, YouTube, blogs, and Twitter. Mobile phones help in organizing instant coalitions. Some of these campaigns translate into direct action, including the "Pink Chaddi" campaign in Bangalore, (11) which was started with Facebook, or the high-profile protests in London against alleged indiscriminate shelling of Tamil civilians in Sri Lanka, (12) which was started with Facebook and mobile texting, and the Internet campaign in the United States for equal pay for men and women. (13) Within 72 hours, a small coalition in the western United States was able to organize 300,000 phone calls to Congress on a climate bill. (14) There are many other international examples, including the campaign to ban land mines, (15) and the so-called color and velvet revolutions in Ukraine and other parts of Central and Eastern Europe. (16)

Blogs have become important means for communicating ideas and influencing others, both locally and globally. As of October 2009, the blog search engine Technorati had tracked more than 133 million blogs. (17) Three hundred forty-six million people globally read blogs published in 81 different languages, and 900,000 unique blog posts are generated in an average 24-hour period. (18) The use of Twitter is also increasing. (19) As of May 2009, the number of unique users of Twitter was reported to be 19.7 million. (20) During the 2008 attacks in Mumbai, eyewitnesses reportedly sent 80 tweets every five seconds as the tragedy unfolded. (21)

Some governments have also begun to use blogs and Twitter. These include China, the European Union, Iran, the United Kingdom, and the United States. (22) The president of the European Union, for example, maintains a blog to inform people about developments and issues arising in the Union. (23)

While most people do not yet have access to communications technology, access is rising sharply. This is especially true for cell phones, where the rates of access in Africa and in South and Southeast Asia, for example, have risen dramatically, especially during the last few years. (24) Greater access to communications technology makes it easier for individuals and groups (both formal and informal) to influence the development, interpretation, and implementation of international law.

These developments may be characterized as "bottom-up empowerment." If taken to the fullest extent, this empowerment could mean the democratization of the world. In practice, the scenario unfolding in several parts of the world is a tug of war between government authorities who want to control access and those users of the technology who figure out ways to outsmart whatever controls are put on access, or between groups of users who try to outsmart each other. (25) Some governments are marshaling the tools as a means to monitor and squelch communications among dissident movements.

This stage in the evolution of the international system is kaleidoscopic. More than ever, international law will need to be viewed as legitimate, both in the eyes of those who create and implement international law, and in the eyes of those affected by it. Being accountable is a key aspect of being legitimate.

ACCOUNTABILITY IN INTERNATIONAL LAW

In French, the word "responsibilite" includes a concept of accountability. An actor has certain responsibilities that are defined as positive legal rules, which if breached, may trigger certain consequences.

In the English language, the distinction is often made between the responsibility or obligation, and the accountability of the actor for carrying out the obligation. My remarks focus on the latter--the "accountability" aspect--and suggest that we will need a new legal paradigm for considering accountability in the context of a kaleidoscopic world.

Since the term "accountability" has sensitive political connotations, some colleagues may be wary of focusing on it. Moreover, if one has not had a role in developing the international standards for which one will be held accountable, then being accountable can be seen as inflicting yet another inequity in the international legal system. In discussing accountability, the trans-civilizational context offered by Y. Onuma in his lectures at the Hague Academy of International Law (26) is relevant. This context is based on the plurality of civilizations in which cultural or civilizational assumptions are considered as changeable and functional variants. The development and implementation of accountability must be sensitive to the historical context of international law and to the diverse cultures in our world.

Traditionally, international law has addressed the need for accountability through the doctrine of state responsibility. The International Law Commission's 2001 Articles on State Responsibility for Internationally Wrongful Acts (27) implicitly addresses accountability by states to other states on the basis of positive international legal rules and the consequences from breaching them. The International Law Commission is now using a conceptual framework for international organizations that is similar to that used for state responsibility. (28)

While the work of the International Law Commission on State Responsibility is excellent, in the new kaleidoscopic world the concept of accountability in international law needs to be viewed through a broader and more encompassing lens. I call this the kaleidoscopic lens on accountability. In addition to the changing array of individuals, informal coalitions, and ad hoc groups that we have earlier identified, there is also a burgeoning and changing menu of soft-law norms, informal standards and good practices, and informal institutions established in response to rapid changes.

The work by Brunnee, Curtin, Nollkaemper, and other authors in the 2005 Netherlands Yearbook of International Law recognized that we need a broader conception of accountability than that provided by state responsibility. (29) Both the International Law Association's 2004 Berlin Conference Report, Accountability of International Organisations, (30) and the United Kingdom's One Worm Trust 2006 Global Accountability Report, which covered selected international institutions, multinational corporations, and international nongovernmental organizations, (31) look toward a more expansive view of accountability.

How do we define accountability? Webster's dictionary defines accountable as "being obliged to account for one's actions, i.e. to give satisfactory reasons." (32) A number of scholars use the term to mean that there are actors who can hold...

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