Hidden figures: how legal experts influence the design of international institutions

Date01 March 2024
Author
E
JR
I
https://doi.org/10.1177/13540661231210931
European Journal of
International Relations
2024, Vol. 30(1) 52 –77
© The Author(s) 2023
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DOI: 10.1177/13540661231210931
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Hidden figures: how legal
experts influence the design
of international institutions
Nicole De Silva
Concordia University, Canada
Anne Holthoefer
Saint Anselm College, USA
Abstract
Whose preferences influence the design of international institutions? Scholarship on
the legalization of international politics and creation of international legal institutions
largely adopts a state-centric perspective. Existing accounts, however, fail to recognize
how states often delegate authority over institutional design tasks to independent legal
experts whose preferences may diverge from those of states. We develop a principal–
agent (PA) framework for theorizing relations between states (collective principals) and
legal actors (agents) in the design process, and for explaining how legal actors influence
the design of international institutions. The legal dimensions of the PA relationship
increase the likelihood of preference divergence between the collective principal and
the agent, but also create conditions that enable the agent to opportunistically advance
its own design preferences. We argue that the more information on states’ preferences
the agent has, the more effectively it can exploit its legal expertise to strategically
select and justify design choices that maximize its own preferences and the likelihood
of states’ acceptance. Our analysis of two cases of delegated institutional design
concerning international criminal law at the United Nations and the African Union
supports our theoretical expectations. Extensive archival and interview data elucidate
how agents’ variable information on states’ preferences affects their ability to effectively
advance their design preferences. Our theory reveals how independent legal experts
with delegated authority over design tasks influence institutional design processes
and outcomes, which has practical and normative implications for the legalization of
international politics.
Corresponding author:
Nicole De Silva, Department of Political Science, Concordia University, 1455 de Maisonneuve Boulevard
West, Montreal, Quebec, H3G 1M8, Canada.
Email: nicole.desilva@concordia.ca
1210931EJT0010.1177/13540661231210931European Journal of International RelationsDe Silva and Holthoefer
research-article2023
Original Article
De Silva and Holthoefer 53
Keywords
Institutional design, international law, non-state actors, principal–agent theory,
delegation, international criminal law
Introduction
The broad trend toward the legalization of international politics has prompted questions
about factors influencing the creation of international legal institutions. These institu-
tions range from non-binding “soft law” to binding “hard law” in the form of treaties that
may have third-party monitoring and dispute settlement mechanisms (Abbott and Snidal,
2001; Koremenos, 2016). Existing scholarship considers the design of international legal
agreements, or “international legal design” (Abbott and Snidal, 2013), a largely state-
driven enterprise (Voeten, 2019). This state-centrism reflects international law’s depend-
ence on state consent, where intergovernmental processes are typically the most visible
aspects of the institutional design process. Recent scholarship recognizes the participa-
tion and influence of non-state actors in the design process. Intergovernmental organiza-
tion (IGO) secretariats (Johnson, 2014; Johnson and Urpelainen, 2014; Johnstone, 2013;
Pollack, 2003), nongovernmental organizations (NGOs) (Charnovitz, 2006; Glasius,
2002; Struett, 2008), epistemic communities (Rietig, 2014), and other non-state actors
may set the agenda for states to develop an international institution and may advocate for
particular design choices. We assert that states’ delegation of authority over design tasks
to non-state actors with legal expertise is significantly different from such non-state actor
participation in design (Boyle and Chinkin, 2007; Bradley and Kelley, 2008; Grant and
Keohane, 2005; Liese et al., 2021). This article investigates how these non-state legal
actors’ distinct preferences matter for institutional design processes and outcomes.
States’ use of non-state legal actors for drafting international agreements is a wide-
spread but understudied phenomenon. Major IGOs, such as the United Nations (UN),
Organization of American States, and African Union (AU), have institutionalized bodies
of legal experts that are mandated to provide member states guidance on the develop-
ment of international law and design of international institutions.1 States may also seek
guidance on a more ad hoc basis from, for example, special rapporteurs or expert work-
ing groups. These actors are “non-state,” as they do not represent a particular state’s
interests. They are “legal,” as they have recognized expertise in international law. They
may be corporate actors (e.g. a body of legal experts) or individual legal professionals
(e.g. special rapporteurs). States assign legal actors design tasks ranging from research-
ing issues surrounding the prospective institutional design to drafting a proposed legal
agreement. This phenomenon deserves attention because the design preferences of these
“hidden figures” may diverge from those of states and influence institutional design.
Existing interdisciplinary scholarship on international relations (IR) and international
law (IL)—whether state-centric or inclusive of non-state actors—has not systematically
investigated how non-state legal actors with delegated advisory roles influence interna-
tional legal design. We fill this gap by theorizing the interactions between states and legal
actors in the design process as a principal–agent (PA) relationship. We argue that legal
dimensions of the PA relationship not only increase the likelihood of preference

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