Scholars often conflate the concepts of pooling (how states make collective decisions) and delegation (authorizing an international body to act) in examining the authority of intergovernmental organizations (IGOs). We clarify the difference by showing how states “soft pool” decision-making through informal intergovernmental organizations (IIGOs) without creating legal obligations or delegating authority. IIGOs such as the G-groups are growing in prevalence and importance because soft pooling allows states to make collective decisions that are politically binding in nonlegal ways. We examine organizational characteristics of IIGOs that allow states to minimize sovereignty costs while cooperating through soft pooling – including the use of consensus to express shared expectations through declarations and memoranda of understanding and administrative structures such as rotating chairs to avoid delegating to an independent secretariat. We review these understudied organizational alternatives, explaining how soft pooling makes IIGOs authoritative even as states retain sovereignty.

The prime ministers all play chess on a multi-dimensional board, prey to challenges that vary in type and intensity over time, some of which are new and growing, and others constant. The most skilful negotiate their way through these constraints, turning them to their advantage, and refuse to be defined by adversities. The least able are swallowed up by them. We first consider institutional restraints, the checks and balances they face, some dating back to 1721, before considering variable constraints, which have made and destroyed premierships, and have rendered even the best-qualified incumbent a cornered animal.

Not all prime ministers are equal. Not remotely – which is why books taking one prime minister after the other can only ever tell a partial story. In this chapter, we consider the other seven (after Walpole and Pitt the Younger) who defined the office as ‘agenda changers’. They are the creators of the (still evolving) office of prime minister. All nine – two in the eighteenth century, three in the nineteenth, and four in the twentieth – carved out what the office of prime minister means, and shaped the office in their own image. After these ‘agenda changers’ ceased to be prime minister, their successors over the years that followed either tried to be like them, or tried deliberately to distance themselves from them: but none could escape their long shadow. They took advantage of wide-ranging historical or consensus change and moulded the office and country to their will.

Chapter 1 begins with the Fable of the Belly, a foundational myth of civic organization that Roman thinkers dated to the Conflict of the Orders. Naturalizing the hierarchical distribution of power between the senate and people, the fable identified concord as the basis of civic health. Late Republican thinkers used this metaphor to explain the problem of discord, which seemed akin to the splitting or doubling of the res publica. While writers like Cicero, Sallust, and Varro crafted such imagery to lament the loss of civic unity, Catiline used it to justify the acquisition of personal power. Describing the senate and people as separate bodies with little in common, he proposed reworking the Republican constitution to better reflect their divide. He then laid claim to the role of the caput populi, which confirmed his aspirations to tyranny. His conspiracy would be put down in a matter of months, but the language he used to articulate his ambitions proved more difficult to extinguish.

Hobbes condemns liberty of conscience by stressing its incendiary repercussions on social stability and political sovereignty. Religious dissenters fashion themselves as sovereigns, emboldening them to do whatever they want rather than obey the state. For Hobbes, invocations to conscience are mere assertions of opinion – deeply held and felt, such that individuals insist on acting in accordance with them, but opinions nonetheless. While Hobbes anticipates the danger of liberty of conscience, he also offers a potential solution to this very problem – civic education – and invites us to reflect on how we might cultivate consensus through attempts to shape the conscience of dissenters. The possibility of peaceful co-existence becomes, at some point, about the project of persuasion, for Hobbes, such that invocations of conscience will abate over time and the threat of liberty of conscience to political authority may be tamed.

The pronounced uniformity of learning in the natural sciences is a symptom of the relatively high propensity of natural science disciplines to strive for and achieve consensus on matters of scholarly concern. The culture of consensus that pervades the natural sciences has significant effects on the prospects for scientific knowledge. Indeed, owing to the socially infused conception of scientific knowledge that has become increasingly influential in the last few decades, many scholars have begun to embrace the idea that consensus is an essential component of scientific knowledge — that is, that what it means for knowledge to be scientific is, in part, for it to be an object of consensus among relevant members of the scientific community.

The author examines the interplay between the individual and collective dimensions of treaty-based law-making and standard-setting processes in the United Nations climate regime. The reason why the author attempts to do so is that multilateral treaties have been the main anchors for international environmental law-making. In this context, State consent not only has individual effects, but also feeds into a collective process. The chapter begins by exploring the United Nations Framework Convention on Climate Change and the Kyoto Protocol. It then turns to the Paris Agreement and the shift to what has been described as a ‘bottom-up’ approach. The perhaps most striking feature of this approach is its reliance on non-binding, ‘nationally determined contributions’ (hereafter NDCs). From the vantage point of State consent, the most significant consequence of the Paris Agreement’s NDC approach is a shift away from the anchoring of consent to climate action in treaty-based processes, and hence from the linkages that adoption and entry-into-force requirements establish between multiple parties’ individual expressions of consent.

The third chapter draws upon the procedures of ordinary language philosophy discussed in Chapter 2 to offer a critique of contemporary democratic theory. A significant point of contention between deliberative and agonistic democratic theorists is over the purpose of political argumentation. While deliberative democrats maintain that the goal of political debate is to reach agreement, many agonistic democratic theorists claim that arguments can foster relations of adversarial respect. This chapter demonstrates how the deliberative versus agonistic democracy debate is operating at cross-purposes. Behind this debate is the skeptical concern that if political argumentation cannot come to an agreement, then the enterprise is either irrational or prone to relativism. Drawing upon Cavell’s insight that human understanding rests upon agreement in forms of life, I examine how democratic discourse involves agreements at two levels: at the level of opinions and at the level of the discourse itself. This chapter clarifies what is at stake in the deliberative-agonistic democratic theory debate. Cavell helps us reimagine democracy by fostering a culture in which minority communities do not have to phrase their grievances within the language of hegemonic cultures.

The Convention contains an inherent tension between, the one hand, the aim to provide effective protection of Convention rights and, on the other hand, the need for the ECtHR to allow sufficient freedom to the States and respect their special abilities and powers to make choices and decisions, also in light of the inherent indeterminacy of the Convention provisions. It is against this backdrop that the Court has developed its famous yet complex margin of appreciation doctrine, on which this chapter is focused. Insight is given into the development of this doctrine in the Court’s case law, its main rationale and functions, and the types of cases where the doctrine is (and is not) applied. In addition, the main factors determining the scope of the margin and their interaction are explained (common ground facter, better placed factor, nature and intensity of the interference). Finally, some attention is paid to the difference between doctrine and reality in the Court’s case law.

This chapter examines how different democratic decision-procedures – voting, majority rule, compromise, consensus, and public deliberation – relate to claims for recognition and democratic respect. Via a contrast with Rousseau and an explication of majority rule as a principle that regulates political decision-making over time, the chapter challenges the common view that populism is characterized by its unequivocal adherence to democratic principles of popular sovereignty and majority rule. The second part of the chapter discusses compromise as an attitude one can take when making decisions with one’s fellow citizens. Populists regard compromise as a form of betrayal, weakness, and defeat, while this chapter defends it as an important aspect of democratic respect. Political theorists have discussed whether the reasons for compromise are only pragmatic or whether they can also be principled. Populism’s principled rejection of compromise shows why our defense of this practice must be principled. The last part of the chapter connects the spirit of compromise to the notion of solidarity sketched in Chapter 2 and argues that compromise can be seen as a form of solidaristic inclusion of people with whom one profoundly disagrees.

The notion of a “separable” arbitration agreement--- presuming that the validity and ambit of an arbitration clause are to be judged independently from that of the overall contract between the parties---is the cornerstone of the arbitration law of virtually every state. Such a rule functions to protect the agreement to arbitrate from assertions (often raised in bad faith and for purposes of delay) that the overall agreement is subject to some infirmity that necessarily “taints” the submission to arbitration as well; the impact of the rule is that such assertions fall to be decided, not by courts, but by the arbitral tribunal itself.Despite frequent objections that this allocation of authority is not “logical”---that every part of a contract must stand or fall together---the rule of “separability” is best understood as a sensible default rule respecting the probable expectation of contracting parties (who were unlikely to have contemplated that a claim, say, of fraud, and a claim going to the merits of a cause of action, would fall to be adjudicated by different decisionmakers). Application of “separability” grounded in challenges based on fraud is in fact entirely intuitive; other sorts of challenges (perhaps suggesting a failure of any consensus whatever between the parties) may be more difficult.Still, the fil conducteur is clear enough, and jurisprudence across national lines remarkably consistent.

This chapter, while acknowledging that there are certain differences and similarities in how the law treats standards development organizations (SDOs) that develop voluntary standards, offers a holistic analysis of the procedural principles introduced in the WTO, EU, and US regulatory frameworks, namely, transparency, openness/participation, consensus, impartiality, balance, effectiveness, relevance, coherence, coordination, concerns of developing countries, appeal, and access to standards, which this study collectively refers to as “due process” principles. This chapter further explores the relevance and suitability of these principles to the different types of standards bodies and identifies the shortcomings of each of the legal mechanisms with regard to ICT standardization. It concludes that these principles are formulated rather flexible and, to be effective, need further concretization by SDOs.

This chapter analyses the extent to which the legal instruments discussed in Chapters 3, 4, and 5 apply to the examined SDOs. It also evaluates these organizations’ rules and procedures against the due process requirements of the applicable regulatory frameworks discussed in Chapter 6. While acknowledging the heterogeneity of the organizations’ operational frameworks, this chapter also emphasizes that their organizational rules – while designed in self-regulatory processes – should yet be considered within the legal constraints of the applicable regulatory frameworks. Indeed, SDOs enjoy a wide discretion not only to implement the due process requirements, but also to determine what these requirements mean, defining such terms as “consensus,” “openness,” and “balance” in their procedural rules. While observing that there are different ways to implement due process principles into the organizations’ procedures, this chapter notes that the level of procedural guarantees offered during the different stages of decision-making differs per organization, but is often insufficient from the perspective of legitimacy.

In book I of De re publica Cicero famously defined the res publica as res populi, the business or the interest of the people, and then went on to flesh out what we should understand to constitute a people: ‘a collection of a great number of human beings, joined in partnership through agreement or unanimity of law or justice or right (iuris consensu) and through sharing in advantage (utilitatis communione)’. ‘Sharing in advantage’ seems clear enough. But my disjunctive rendering of iuris consensu, with its repeated ‘or’ and unconvincing ‘of’, is intended to give an indication of the difficulty translators and other interpreters have had in grasping what Cicero meant by the expression. This chapter offers a fresh attempt at the problem.