Introduction

Having analyzed governance structure and processes in integration organizations, this chapter focuses on the legal mechanisms and instruments that drive the development of international regimes, their institutional features and their functioning.

Therefore, the aim of this chapter is twofold. First, it purports to outline and critically describe the typology of international organizations and their regimes, to identify common themes and illustrate the main legal techniques of governance. To this end, the analysis will cover not only regional organizations, but other international institutions too, of both an intergovernmental (such as the World Trade Organization (WTO), the World Health Organization (WHO) or the International Labour Organization (ILO)) and a hybrid public–private nature (such as the International Organization for Standardization (ISO) and the Internet Corporation for Assigned Names and Numbers (ICANN)). Second, this chapter aims to provide a comparative toolbox of legal instruments that can assist determining which solutions may be more or less effective in processes of regional integration; this will also enable verifying which legal technique is adopted more often, and why, in a given model of integration, amongst those outlined in Chapter 1.

Sharing the assumption that integration is a “formal process,” the perspective adopted here is essentially a “managerial” one, which seeks to avoid bias connected to any given political objective. The latter may of course significantly influence the preference for one solution or another (for example, the establishment of an international parliament or court within a given regime, or of a requirement that each Member State within the entity create a domestic terminal entrusted with ensuring the implementation of the policies set by the international organization).

However, this chapter seeks to adopt a neutral approach, investigating the common threads in the development of international regimes by examining mainly how they work towards their objectives. International regimes have increasingly been using accountability mechanisms, but principally to ensure their own efficiency and effectiveness rather than to address any democratic gaps. In other words, the need to enhance the legitimacy and accountability of IOs has a functional reason; this is confirmed by the fact that all regimes tend to adopt similar mechanisms, regardless of the degree of “democracy” they may present.

States formalize their cooperative relations with the aim of providing, together, certain public goods that they cannot provide in isolation. The range of these goods is greatly varied, encompassing security, identity and religion; and development, infrastructure and regulatory frameworks for trade, labor or air transport, for instance. To this end, States accept to be bound by formal arrangements whereby they commit to deliver these goods, but also to respect the agreements concluded. Formal institutions respond precisely to these needs for provision and commitment.

Globalization has underlined the inability of States to provide goods in isolation and has hence accelerated legal integration at international and supranational levels: the number of international institutions – now over 60,000 – began growing after the Second World War and is still rising; the relations between State administrations and international institutions are becoming ever more numerous; forms of regional organization have been spreading; new forms of global networks and global “administrations” have been developing. As a consequence, scholars worldwide have devoted themselves to studying global governance, international organizations and regionalism. From these various perspectives, what has emerged clearly is that a mono-disciplinary approach is not capable of capturing all the implications related to these issues, which means that it becomes crucial to combine different fields of research. In this context, the use of concepts derived from both political science and law has turned out to be extremely effective, such as in the case of regime theory being used to explain the formation of global regulatory systems. This is why this book presents these two perspectives jointly, in its endeavor to define models of international and supranational legal integration.

Our aim, therefore, is threefold. First, we map and outline models of regional integration by studying their institutional design and processes of governance. Second, we extend our analysis to IOs and other international regimes, to identify which techniques are capable of governing complex global legal systems. Third, we offer a toolbox of institutional processes and legal mechanisms, which may be adopted by current or new projects of international and supranational integration, such as ASEAN. We address these aims in two chapters, both based on the idea of integration as a formal process.

Introduction

Secretariats are the central organs of modern international organizations, so much so that they are often mistaken for the organizations themselves. At times referred to as “bureaus” or “commissions,” they are in fact the permanent administrative bodies of such organizations, primarily responsible for coordinating their day-to-day work and executing much of their will. Although the international secretariat is, indeed, only one component of a broader institutional set-up created by the enabling agreement that is reached among the relevant parties (most often, States), it is “the organizational glue that holds the actors and parts of a treaty system together.” With multilateral responsibility as the principle underlying its work, the secretariat is ultimately a “guardian of the agenda” adopted by the founding or controlling State actors, providing the international organization with continuity and a consistent, recognizable profile in the global arena. Traditionally, the role of secretariats has been limited to performing tasks of a technical-clerical nature, in particular facilitating the creation of the new international regime of which they form a part; mobilization of information; internal management; norm enforcement (through compliance monitoring); and direct service provision. In the modern era, however, secretariats commonly perform policy-related functions as well, increasingly exerting influence and employing technocratic expertise. Rather than merely executing the agenda of the international regime that they serve, they are now often asked to take a substantive part in shaping it.

The gradual rise in the importance of secretariats within many international organizations has led to a greater focus on their role as “public nonstate actors” whose work is a form of “invisible governance.” After decades of being widely perceived as a minor feature of international cooperation and attracting only a marginal interest of scholars, secretariats are now of growing significance to international relations theory, international institutional law and political science at large, having won recognition as international actors in their own right, who, “rather than acting like a concierge, are more like the managers of the hotel, still concerned with the comfort of guests but also with turning a profit.” Their sharper visibility has also prompted a debate on whether, and to what extent, secretariats are vital to the effective functioning of international regimes.