Representation and power in international organization: The operational constitution and its critics

American Journal of International Law

Volumn 103, Issue 2, 2009, Pages 209-263

  Cogan, Jacob Katz ^a  

^a UNIVERSITY OF CINCINNATI   (United States)

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EID: 68949216284     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/20535148     Document Type: Review

References (430)

1. See Appendix: Evidence of Informal Agreements, infira p. 247, tbl. 1. The author used numerous sources in compiling the tables that comprise the appendix. For each table, the most helpful references are listed, but space does not permit including a comprehensive catalog of all materials consulted. Further, because the author had to consult a wide variety of sources, some of which contradicted each other and some of which did not employ technical terms, some imprecision is unfortunately inherent in the tables. It should also be noted that the titles of some of the positions changed during the period under study. In those cases, the current title is employed.
2. World Bank Board Unanimously Confirms Paul Wolfowitz as 10th Bank President, World Bank Press Release 2005/EXTCC/413 (Mar. 31, 2005).
3. See, e.g., Greg Hitt, Bush Taps Zoellick to Lead at World Bank, WALL ST. J., May 30, 2007, at A2.
4. See Appendix, supra note 1, tbl.2.
5. The agreement stemmed from the perception in 1946 that the president of the bank had to have good relations with Wall Street and Washington. Graham Towers, the Canadian governor of the Bank of Canada, was offered the bank's inaugural presidency, but he declined because, as he put it later, the bank "ha[d] a lot of financing to do in the United States." It was "terribly important that its president should be someone who [was] quite close to the financial community. .. [and] ha[d] a pretty close relationship with the top people... in Washington, and preferably also a good working relationship with the President of the United States." In his view, "a Canadian just [couldn't] have that same contact." DOUGLAS H. FUIXERTON, GRAHAM TOWERS AND HLS TIMES 198 (1986) (quoting an interview with Towers). As John Maynard Keynes reported to the British Treasury: "the Americans ha[d] come to the conclusion that the President of the Bank should be an American on the ground that only in this way could the confidence of the American investment market be secured."
6. John Maynard Keynes to The Treasury, Mar. 7, 1946, in 26 THE COLLECTED WRITINGS OF JOHN MAYNARD KEYNES 211, 213 (Donald Moggridge ed., 1980). And "[s]ince they did not think it would be proper to have Americans as the heads of both bodies," a non-American had to be chosen for the IMF.
7. Id. "At the time, the Fund was preoccupied with the problem of weak European currencies and the feeling was that a European would be more suitable to cure the monetary ills of Europe." 1 DEVESH KAPUR, JOHN P. LEWIS, & RICHARD WEBB, THE WORLD BANK: ITS FIRST HALF CENTURY 911 n.24(1997).
8. IMF Executive Board Selects Dominique Strauss-Kahn as IMF Managing Director, IMF Press Release 07/211 (Sept. 28, 2007).
9. See Editorial, Give Japan a Turn at the I.M.F., N.Y. TIMES, Oct. 27, 1986, at A22;
10. see also Catherine Gwin, U.S. Relations with the World Bank, 1945-1992, in 2 THE WORLD BANK: ITS FIRST HALF CENTURY 195, 246 (Devesh Kapur, John P. Lewis, & Richard Webb eds., 2007);
11. Clyde H. Farnsworth, Bank of America's Chief Chosen by Carter to Head World Bank, N.Y. TIMES, Oct. 31,1980, at 1;
12. Clyde H. Farnsworth, Headhunting at the World Bank, N.Y. TIMES, Oct. 2, 1980, at 1.
13. See infra part III.
14. By small "c" constitutional system I am simply referring to the (mostly) loose arrangement of participants, institutions, practices, and ideas that together constitute the fundamental bases of international organization, such as lawmaking, law enforcement, law interpretation, and state sovereignty. I certainly do not mean to suggest that a capital "C" international constitution exists or anything akin to the governance structures of sophisticated domestic
15. constitutional systems. Thus, I use the term "constitutional system" descriptively, not normatively, and in a weaker sense than commonly maintained. For a critical introduction to the international constitutionalism literature, see Jeffrey L. Dunoff, Constitutional Conceits: The WTO's 'Constitution' and the Discipline of International Law, 17 EUR. J. INT'L L. 647 (2006).
16. See, e.g., DAVID ROTHKOPF, SUPERCLASS: THE GLOBAL POWER ELITE AND THE WORLD THEY ARE MAKING 166-71 (2008);
17. James Traub, Shaking up the Boardroom at World Government Inc., N.Y. TIMES, Jan. 4, 2009, at WK4;
18. Wrestling for Influence, ECONOMIST, July 5, 2008, at 33.
19. 11In international institutional law, "representation" often refers to the decision of an international organization to allow a particular government to act on behalf of its country in the organization. Thus, whether the People's Republic of China or the Republic of Taiwan represented China in the United Nations was a question of representation in the organization. As is apparent, I use the term "representation" here in a different sense to refer to the system by which governmental decision makers are chosen.
20. Occasionally, one might find, in a specialized account of a particular international organization or a general review of informal agreements, an offhand reference to the assumption that a certain country or group of countries chooses a certain official, but there is no comprehensive discussion in the literature of this hidden world of informal agreements concerning representation. By hidden world, I do not mean to suggest that there is anything particularly cloak-and-dagger or devious going on here. Whatever one might think about the merits of informal allocation of top positions to a finite group of candidates based upon nationality, there is no real secrecy, at least not in terms of being confidential or classified. Indeed, people in the business, people in the know (by which I mean certain people who work in and with the relevant international organizations) understand the assumptions very well; indeed, they must understand them if these agreements are to work in practice. But, quite intentionally, they are not publicized. The agreements are, in this sense, hidden in plain sight. Press releases announcing an appointment do not mention any informal agreement that reserves the position only to a certain set of persons, and that information is not publicly disseminated; but it is also not actively covered up. Thus, it is not especially hard to figure out these informal understandings, provided that, first, you know that you should be looking; second, that you know where to look; and, third, that you know what to look for.
21. On this concept, see, for example, EDWIN DEWITT DICKINSON, THE EQUALITY OF STATES IN INTERNATIONAL LAW (1920);
22. ATHENA DEBBIE EFRAIM, SOVEREIGN (IN)EQUALITY IN INTERNATIONAL ORGANIZATIONS (2000);
23. JULES GOEBEL JR., THE EQUALITY OF STATES: A STUDY IN THE HISTORY OF LAW (1923);
24. ROBERT A. KLEIN, SOVEREIGN EQUALITY AMONG STATES: THE HISTORY OF AN IDEA (1974);
25. P. H. KOOIJMANS, THE DOCTRINE OF THE LEGAL EQUALITY OF STATES: AN INQUIRY INTO THE FOUNDATIONS OF I NTERNATIONAL LAW (1964);
26. R. P. Anand, Sovereign Equality of States in International Law, 197 RECUEIL DES COURS 9 (1986 II);
27. Boutros Boutros-Ghali, Leprincipe d'égalité des états et les organizations internationales, 100 RECUEIL DES COURS 1 ( 1960 II);
28. Hans Kelsen, The Principle of Sovereign Equality of States as a Basis for International Organization, 53 YALE LJ. 207 ( 1944);
29. Ulrich K. Preuß, Equality of States-Its Meaning in a Constitutionalized Global Order, 9 CHI. J. INT'LL. 17 (2008);
30. and Herbert Weinschel, The Doctrine of the Equality of States and Its Recent Modifications, 45 AJIL 417 (1951).
31. On differential responsibilities, see, for example, LAVANYA RAJAMANI, DIFFERENTIAL TREATMENT IN INTERNATIONAL ENVIRONMENTAL LAW (2OO6);
32. Philippe Cullet, Differential Treatment in International Law: Towards a New Paradigm of Inter-state Relations, 10 EUR. J. INT'L L. 549 ( 1999);
33. W. Michael Reisman, Towards a Normative Theory of Differential Responsibility for InternationalSecurity Functions: Responsibilities ofMajor Powers, in JAPAN AND INTERNATIONAL LAW: PAST, PRESENT AND FUTURE 43 (Nisuke Ando ed., 1999);
34. W. Michael Reisman, The United States and International Institutions, SURVIVAL, Winter 1999-2000, at 62;
35. and Christopher D. Stone, Common but Differentiated Responsibilities in International Law, 98 AJIL 276 (2004).
36. On regionalism, see, for example, WHAT IS EQUITABLE GEOGRAPHIC REPRESENTATION IN THETWENTYFIRST CENTURY? (RameshThakur ed., 1999), available at ;
37. Sally Morphet, State Groups at the United Nations and Growth of Member States at the United Nations, in THE UNITED NATIONS AT THE MILLENNIUM: THE PRINCIPAL ORGANS 224 (Paul Taylor & A. J. R. Groom eds., 2000);
38. and Benjamin Rivlin, The United Nations and Regionalism in an Era of Globalization, in ENVISIONING THE UNITED NATIONS IN THE TWENTY-FIRST CENTURY (1995), available at .
39. See ALAN BOYLE & CHRISTINE CHINKIN, THE MAKING OF INTERNATIONAL LAW 157 (2007);
40. Mary E. Footer, The Role of Consensus in GATT/WTO Decision-Making, 17 NW. J. INT'L L. & BUS. 653 (1996-97).
41. Although I dividetheworld of international agreements here into these two categories, certainly the real world is messier. Many agreements contain a mixture of constitutive and prescriptive elements. As is evident, I also usetheterm "agreements" fairly expansively and as a synonym for "rules." Moreover, not all constitutive and prescriptive rules appear intheform of agreements, even in this broad sense. Customary law, of course, provides important sources for both. For convenience, however, I will simply refer to prescriptive and constitutive agreements (or rules) categorically.
42. Others use a broader definition of "constitutive." See, e.g., Ernest A. Young, The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda, 10 U. PA. J. CONST. L. 399,400 - 01 (2008) (explaining that constitutions "create the institutions of government... [and] confer rights on individuals to resist action by these governmental institutions" and categorizing "these two constitutional tasks ... as the 'constitutive' function" of constitutions).
43. Of course, such legislation is necessary in many systems. See, e.g., United Nations Participation Aa, Pub. L. No. 79-246, ch. 583, 59 Stat. 619 (1945) (codified as amended at 22 U.S.C. §(2006));
44. International Organizations Immunities Aa, Pub. L. No. 79-291, 59 Stat. 669 (1945) (codified as amended at 22 U.S.C. §(2006)).
45. That is, aside from the general policy that international cooperation in a particular area is a positive good.
46. See KaI Raustiala, Form and Substance in International Agreements, 99 AJIL 581, 600 (2005).
47. Myres S. McDougal, Harold D. Lasswell, & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, 19 J. LEGAL EDUC. 253,260 (1967);
48. see also Michael Reisman, A Theory About Law from the Policy Perspective, in LAWAND POUCY 75,92 (David N. Weisstub ed., 1976) ("What we call a 'constitution' is really a very opaque symbol for a constitutive process in which a variety of groups and individuals drawing on bases of effective power and authority symbols seek to create, sustain or change the fondamental institutions of decision-making in a community.").
49. See Ernest A. Young, The Constitution Outside the Constitution, 117 YALE LJ. 408, 413-14 (2007) (distinguishing between the constitutive and entrenchment functions of constitutions and explaining how constitutive norms can exist outside documents labeled "constitutions");
50. cf. William N. Eskridge Jr. & John Ferejohn, SuperStatutes, 50 DUKE LJ. 1215, 1216 (2001 ) (conceptualizing "super-statutes" as laws that "seek[ ] to establish a new normative or institutional framework for state policy and .. . 'stick' in the public culture such that... [they] have a broad effect on the law-including an effect beyond the four corners of the statute");
51. Daniel A. Färber, Legislative Constitutionalism in a System of Judicial Supremacy, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 431,431 (Richard W. Bauman & Tsvi Kahana eds., 2006) (describing congressional action pertaining to the "fundamental structure of government" as "quasi- constitutional").
52. To the extent U.S. constitutional scholars go beyond formal constitutions, they have focused primarily on constitutive statutes, but informal constitutive rules are also quite important in domestic constitutional systems. See, e.g., Michael E. Solimine, Judicial Stratification and the Reputations of the United States Courts of Appeals, 32 FLA. ST. U. L. REV. 1331,1354 (2005) (describing the nonstatutory traditions that govern the distribution and appointment of federal appellate judgeships in the United States).
53. Of course, scholars from countries with Westminster systems are quite sensitive to informal constitutional regimes. See, e.g., ANDREW HEARD, CANADIAN CONSTITUTIONAL CONVENTIONS: THE MARRIAGE OF LAW AND POLITICS (1991);
54. GEOFFREY MARSHALL, CONSTITUTIONAL CONVENTIONS: THE RULES AND FORMS OF POLITICAL ACCOUNTABILITY (1984).
55. My definition of formal rules includes nonbinding rules that were adopted through formal procedures. Thus, the Helsinki Final Act, a political agreement, is a formal rule. Even though the Helsinki agreement was nonbinding, it was certainly adopted formally. See Conference on Security and Co-operation in Europe, Final Act, Aug. 1,1975, 73 DEP'T ST. BULL. 323 (1975), reprinted in 14 ILM 1292 (1975).
56. This definition accords with the one used by Jacob E. Gersen and Eric A. Posner to define "soft law." Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 STAN. L. REV. 573, 579 (2008).
57. Informal constitutive rules are seldom written or discussed in the international system because making public the content of the rule (conferring and organizing power) could more easily subject it to criticism. As noted below, one of the purposes of informality is to hide the reallocation of power from that provided in formal documents, avoiding any destabilizing effects that might result from publicity. Informal constitutive rules are also typically unwritten because they seldom have to be written for enforcement purposes and because they are typically uncomplicated. That said, in systems where an important impetus for informality is not secrecy, it is possible for informal rules to be in writing and publicly advocated. See Aileen McHarg, Reforming the United Kingdom Constitution: Law, Convention, SoftLaw,l\ MOD. L. REV. 853,855-56 (2008) (discussing a recent British government Green Paper recommending the adoption of new domestic "constitutional conventions" or informal rules).
58. Cf. Thomas C. Grey, Constitutionalism: An Analytic Framework, in CONSTITUTIONALISM 189, 191 (J. Roland Pennock & John W. Chapman eds., 1979) (arraying constitutional norms in a tripartite framework according to status: extralegal, ordinary law, and fundamental law).
59. By legislative body, I mean a body that is authorized-most often by treaty-to make decisions. These can include plenary or nonplenary organs of international organizations, assemblies of states parties, review conferences, and so on.
60. These informal agreements constitute what Michael Reisman calls an "operational code." Reisman uses that term to refer to a system "that tells 'operators' when, by whom, and how certain 'wrong' things may be done." W. MICHAEL REISMAN, FOLDED LIES: BRIBERY, CRUSADES, AND REFORMS 1 (1979);
61. seealsoW. Michael Reisman, War Powers: The Operational Code of Competence, 83 AJIL 777, 777 n.3 (1989).
62. In other words, the "operational code" refers to "the demands and related expectations actually heldby politically relevant strata within the process about who is authorized to make decisions." W. Michael Reisman & Gary J. Simson, Interstate Agreements in the American Federal System, 27 RUTGERS L. REV. 70,71 ( 1973) ;
63. see abo W. Michael Reisman, On the Causes of Uncertainty and Volatility in International Law, in THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW: CONSIDERING SOVEREIGNTY, SUPREMACY AND SUBSIDIARITY 33,42-47 (Tomer Broude & Yuval Shany eds., 2008)
64. [hereinafter Reisman, Causes of Uncertainty]. What I call an operational constitution typically includes an operational code. That code, in turn, renders the corresponding formal component of the operational constitution a "myth system," to use another of Reisman's terms .
65. See REISMAN, supra, at 16.
66. Domestic law, however, may provide some limits on the making of informal agreements. See Duncan B. Hollis & Joshua J. Newcomer, "Political" Commitments and the Constitution, 49 VA. J. INT'L L. 507 (2009).
67. See Richard A. Posner, The Constitution as an Economic Document, 56 GEO. WASH. L. REV. 4, 9 (1987).
68. See, e.g., Raustiala, supra note 21, at 596.
69. On precommitment in constitutional systems, see generally JON ELSTER, ULYSSES UNBOUND: STUDIES IN RATIONALITY, PRECOMMITMENT, AND CONSTRAINTS 88-174 (2000).
70. Cf ANDREW T. GUZMAN, HOW INTERNATIONAL LAW WORKS: A RATIONAL CHOICE THEORY 59 (2008) ("A formal treaty represents the most serious form of commitment not because it is more costly to enter into than other commitments but because it is understood to be a maximal pledge of reputation.") (citation omitted). A rule may also be adopted by formal processes because of convenience.
71. See id. at 28.
72. Particular procedural devices can be created in treaties-for example, escape, exit, reservations, monitoring, amendment, review, sunset, and dispute resolution provisions-that calibrate the degree of commitment made by the parties. See, e.g., RICHARD B. BILDER, MANAGING THE RISKS OF INTERNATIONAL AGREEMENT (1981);
73. GUZMAN, supra note 34, at 131,134;
74. Laurence R. Heifer, Exiting Treaties, 91 VA. L. REV. 1579,1647-48 (2005);
75. Laurence R. Heifer, Nonconsensual International Lawmaking, 2008 U. ILL. L. REV. 71;
76. Frederic L. Kirgis Jr., SpecializedLaw-Making Processes, in 1 UNITED NATIONS LEGAL ORDER 109 (Oscar Schachter & Christopher C. Joyner eds., 1995);
77. Barbara Koremenos, Loosening the Ties That Bind: A Learning Model of Agreement Flexibility, 55 INT'L ORG. 289 (2001);
78. B. Peter Rosendorff & Helen V. Milner, The Optimal Design of International Trade Institutions: Uncertainty and Escape, 55 INT'L ORG. 829 (2001);
79. Edward T. Swaine, Reserving, 31 YALE J. INT'L L. 307 (2006);
80. Alan O. Sykes, Protectionism as a "Safeguard": A Positive Analysis of the GATT "Escape Clause" with Normative Speculations, 58 U. CHI. L. REV. 255 (1991). These devices, though, do not provide the flexibility that the parties seek when there is uncertainty about the content of the legal rule, because of either ex ante disagreement regarding the rule itself or ex ante anticipation that the rule will need to be revised in response to anticipated changed circumstances.
81. Cf. Timothy Meyer, Soft Law as Delegation, 32 FORDHAM INT'LLJ. 888, 892-93 (2009).
82. The preference for informal agreements will differ depending on the nature of the agreement. I refer here solely to preferences for informal constitutive agreements. For general discussions of the advantages of informal agreements, both constitutive and prescriptive, see, among others, BOYLE & CHINKIN, supra note 16, at 214;
83. Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT'L ORG. 421 (2000);
84. and Hartmut Hillgenberg, A Fresh Look at Soft Law, 10 EUR. J. INT'LL. 499, 501 (1999).
85. See Charles Lipson, Why Are Some International Agreements Informal? 45 INT'L ORG. 495, 500 (1991).
86. See id.
87. See Mary Ellen O'Connell, The Role of Soft Law in a Global Order, in COMMITMENT AND COMPLIANCE: THE ROLE OF NON-BINDING NORMS IN THE INTERNATIONAL LEGAL SYSTEM 100, 110 (Dinah Shelton ed., 2000).
88. Cf. Raustiala, supra note 21, at 599 (noting that "change in the legality, substance, and structure of agreements" is a consequence of the ability-the "veto power"-of certain necessary participants in agreement making to consent).
89. See, f.£.,jAN KLABBERS, THE CONCEPT OF TREATY IN INTERNATIONAL LAW 29-33 (1996);
90. Upson,supra note 37, at 500;
91. Raustiala, supra note 21, at 597;
92. cf. Oona A. Hathaway, Treaties'End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L.J. 1236 (2008).
93. See Christoph Schreuer, Die innerstaatliche Anwendung von internationalem "soft law" aus rechtsvergleichender Sicht, 34 ÖSTERREICHISCHE ZEITSCHRIFT FÜR ÖFFENTLICHES RECHT UND VÖLKERRECHT 243,243 (1983),
94. cited in KLABBERS, supra note 41, at 28.
95. The Organization for Security and Co-operation in Europe (OSCE) and other organizations, such as the Financial Action Task Force, that were established through political commitments are not to the contrary, as they do not have international legal personality. See, e.g., Legal Status and Privileges and Immunities of the OSCE, OSCE Ministerial Council Decision 16/06 (Dec. 5, 2006) (deciding to continue work on finalizing a draft treaty on the "international legal personality, legal capacity, and privileges and immunities of the OSCE").
96. See Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361,366 (2004).
97. Although in accord with Gersen and Posner, who anticipate that "the relative importance of soft law to hard law. .. will rise as the formalities for creating hard law become stricter," as well as "in periods of uncertainty," the above goes beyond their hypothesis by looking to the conditions that may overcome (or not) the formalities for creating rules. Gersen & Posner, supra note 25, at 620-21.
98. See, e.g., Eric Rosand, The Security Councilas "Global Legislator": Ultra Vires or Ultra Innovativem FORDHAM INT'L LJ. 542, 575-76 (2005) ("The prevailing practice of seeking consensus or near-unanimity to adopt a convention has not only led to drawn-out negotiations, but also to highly ambiguous or empty provisions...."). I am not suggesting that informal agreements-in the form of institutional practice, for instance-can override formal rules or might serve as the definitive interpretation of official rules.
99. For a discussion, see Jose E. Alvarez, Constitutional Interpretation in International Organizations, in THE LEGITIMACY OF INTERNATIONAL ORGANIZATIONS 104, 117-21 (Jean-Marc Coicaud & Veijo Heiskanen eds., 2001).
100. Following Ernest Young, one might more precisely describe these nontreaty agreements as serving five functions: "implementation, specification, supplementation, supersession, and entrenchment." Young, supra note 23, at 443.
101. See Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733, 1739 (1995) (including in the category of "incompletely theorized agreements" those in which "people who accept the principle need not agree on what it entails in particular cases");
102. see also id. at 1746 (explaining that incompletely theorized agreements "have the large advantage of allowing a convergence on particular outcomes by people unable to reach anything like an accord on general principles" and "enable people to live together, and. .. permit them to show each other a measure of reciprocity and mutual respect") (footnote omitted).
103. As noted, delegation is a tendency. Certainly, not every constitutive issue is delegated, and even when there is delegation, it does not necessarily appear at each of the three levels.
104. The rules described are a sample designed to elaborate, as fully as possible, the contours of the operational constitution of representation. There are, of course, many other rules, both formal and informal, even within the organizations I canvass.
105. See INIS L. CLAUDE JR., SWORDS INTO PLOWSHARES: THE PROBLEMS AND PROGRESS OF INTERNATIONAL ORGANIZATION 123 (4th ed. 1984).
106. See, e.g., Charter of the Organization of American States, Arts. 56,71, Apr. 30,1948,2 UST 2394,119 UNTS 3 (General Assembly and Permanent Council);
107. Constitution of the Food and Agriculture Organization, Art. Ill, Oct. 16,1945,12 UST 980 (Conference);
108. Constitution of the United Nations Educational, Scientific and Cultural Organization, Art. IV(C), Nov. 16, 1945, TIAS No. 1580, 4 UNTS 275 [hereinafter UNESCO Constitution] (General Conference);
109. Constitution of the Universal Postal Union, Art. 14, July 10, 1964, 16 UST 1291, 611 UNTS 7 (Congress);
110. Constitution of the World Health Organization, Art. 59, July 22, 1946, 62 Stat. 2679, 14 UNTS 185 [hereinafter WHO Constitution] (World Health Assembly);
111. Constitutive Act of the African Union, Arts. 6, 10, July 11, 2000, 2158 UNTS 3 (Assembly and Executive Council);
112. Convention on International Civil Aviation, Art. 48, Dec. 7,1944,61 Stat. 1180,15 UNTS 295 (ICAO Assembly);
113. Convention on the Organisation for Economic Co-operation and Development, Arts. 6(2), 7, Dec. 14,1960,12 UST 1728,888 UNTS 179;
114. International Convention for the Regulation of Whaling, Art. Ill, Dec. 2, 1946, 62 Stat. 1716, 161 UNTS 72 (International Whaling Commission);
115. Statute of the International Atomic Energy Agency, Art. V, Oct. 26,1956,8 UST 1093, 276 UNTS 3 [hereinafter IAEA Statute] (General Conference).
116. See generally Joseph Gold, Weighted Voting Power: Some Limits and Some Problems, 68 AJIL 687 (1974);
117. C. Wilfred Jenks, Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organisations, in CAMBRIDGE ESSAYS IN I NTERNATIONAL LAW: ESSAYS IN HONOUR OF LORD MCNAIR 48 ( 1965) ;
118. Elizabeth Mclntyre, Weighted Voting in Intemational Organizations, 8 INT'LORG.484 (1954);
119. Stephen Zamora, Voting in International Economic Organizations, 74 AJIL 566 (1980).
120. See, e.g., International Bank for Reconstruction and Development, Articles of Agreement, Art. V(3), opened for signature Dec. 27,1945, 60 Stat. 1440, 2 UNTS 134, as amended, 16 UST 1942,606 UNTS 294 [hereinafter IBRD Articles];
121. International Development Association, Articles ofAgreement.Art. VI(3), Jan. 26,1960,11 UST 2284,439 UNTS 249;
122. International Monetary Fund, Articles of Agreement, Art. XII(5), opened for signature Dec. 27, 1945, 60 Stat. 1401, 2 UNTS 39 [hereinafter IMF Articles];
123. International Finance Corporation, Articles of Agreement, Art. IV(3), May 25, 1955,7 UST 2197, 264 UNTS 117;
124. see also Agreement Relating to the International Telecommunications Satellite Organization (INTELSAT), Art. LX, Aug. 20,1971,23 UST 3813,1220 UNTS 21 (allocating seats on the Board of Governors and voting according to "investment share");
125. Convention on the International Maritime Satellite Organization (INMARSAT), Arts. 13-14, Sept. 3,1976,31 UST 1,1143 UNTS 105 (same);
126. Agreement Establishing the International Fund for Agricultural Development, Art. 6, June 13, 1976, 28 UST 8435, 1059 UNTS 191 (allocating votes, in part, by financial contributions and, in part, by category of states).
127. See.e.g., Grains Trade Convention, 1995,Art. 12,Dec.7,1994,1882 UNTS 195;
128. International Coffee Agreement, 2001, Art. 12, Sept. 28, 2000, 2161 UNTS 308;
129. International Sugar Agreement, 1992, An. 11, Mar. 20, 1992,1703 UNTS 203;
130. see also International Tropical Timber Agreement, 2006, Art. 10, Jan. 27,2006, UN Doc. TD/TIMBER.3/12 (allocating votes among producers by region as well).
131. See generally B. S. CHIMNI, INTERNATIONAL COMMODITY AGREEMENTS 93-97 (1987).
132. Montreal Protocol on Substances That Deplete the Ozone Layer, Art. 10(9), asamended june 29,1990, Doc. UNEP/OzL.Pro.2/3, Annex II ( 1990);
133. see also id., Art. 10(5) (stating that the representation on the Executive Committee shall be "balanced" between developing and industrial countries).
134. Sřf Convention on the Intergovernmental Maritime Consultative Organization, Art. 17,Mar.6,1948,9UST 621, 289 UNTS 48;
135. Convention on International Civil Aviation, supra note 52, Art. 50(b);
136. see also IAEA Statute, supra note 52, An. VI(A)(I) (providing seats on the Board of Governors to, inter alia, the "ten members most advanced in the technology of atomic energy including the production of source materials").
137. Constitution of the International Labour Organization, An. 7(2),Treaty of Peace with Germany (Treaty of Versailles), pt. XIII, June 28, 1919, 49 Stat. 2712, 2 Bevans43, available as amended at .
138. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruaion, An. VIII(C)(23), Jan. 13,1993, S. TREATY DOC. NO. 103-21 (1993), 1974 UNTS 45.
139. Statute of the International Tribunal for the Law of the Sea, Art. 3(2), United Nations Convention on the Law of the Sea, Annex VI, opened for signature Dec. 10,1982,1833 UNTS 397 [hereinafter ITLOS Statute];
140. see also IAEA Statute, supra note 52, An. VI(A)(2).
141. See, e.g., Constitution and Convention of the International Telecommunication Union, Art. 9, Dec. 22,1992, S. TREATY DOC. NO. 104-34 (1996), 1825 UNTS 330;
142. WHO Constitution, supra note 52, Art. 24;
143. UN Charter, Art. 23(1) (Security Council).
144. There are few exceptions to the rule against specifying nationality for nonpolitical positions. The Statute of the International Tribunal for the Law of the Sea requires that there be no fewer than three judges from each UN geographic group. See ITLOS Statute, supra note 60, Art. 3(2).
145. The European Convention on Human Rights gives each of its contracting states a judge on the European Court of Human Rights. Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 22, Nov. 4,1950, Europ. TS No. 5,213 UNTS 221.
146. The treaties establishing what is now the European Union give each member state at least one commissioner on the European Commission. See, e.g., Protocol on the Enlargement of the European Union, Treaty of Nice, Art. 4 (amending Art. 213(1) EC), Feb. 26, 2001,2001 OJ. (C 80) 49. And the holders of the presidencies of the African Development Bank and the Asian Development Bank must come from a regional member.
147. See Articles of Agreement Establishing the Asian Development Bank, An. 34(1), Dec. 4,1965,17 UST 1418,571 UNTS 123 (providing that the bank's president must be a "national of a regional member country");
148. Agreement Establishing the African Development Bank, Art. 36, Aug. 4, 1963, 510 UNTS 3 (providing that the president "shall be a national of a member State," which, at the time, could only include African states), as amended May 7,1982, Art. 36,1276 UNTS 3 (providing that the president "shall be a national of a regional member State," which includes only African states). These provisions were designed to secure the banks' independence from nonregional powers.
149. See generally STEPHEN D. KRASNER, STRUCTURAL CONFLICT: THE THIRD WORLD AGAINST GLOBAL LLBERAUSM 160-63 (1985);
150. KAREN A. MLNGST, POLITICS AND THE AFRICAN DEVELOPMENT BANK 13-14, 54-58 (1990);
151. Multilateral Development Bank Lending for Africa: Hearings Before the Subcomm. on International Development Institutions and Finance of the House Comm. on Banking Finance and Urban Affairs, 99th Cong. 49 (1986) (statement of Donald R. Sherk, then U.S. director of the African Development Bank).
152. Statute of the International Court of Justice, Art. 2 (emphasis added) [hereinafter ICJ Statute].
153. IBRD Anieles, supra note 54, An. V §
154. IMF Articles, supra note 54, Art. XII §
155. See UN Charter, Art. 97.
156. See, e.g., ICJ Statute, Art. 2;
157. Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 13, SC Res. 827, annex (May 25, 1993), 32 ILM 1203 (1993) [hereinafter ICTY Statute];
158. Statute of the International Tribunal for Rwanda, An. 12,SCRes.955,annex(Nov.8,1994),33ILM 1602(1994) [hereinafterICTR Statute].
159. Rome Statute of the International Criminal Court, Art. 36(3)(a), July 17,1998,2187 UNTS 90 [hereinafter Rome Statute].
160. Id, Art. 36(3)(b). The statute also requires that judges have an "excellent knowledge of and be fluent in at least one of the working languages of the Court."
161. Id., Art. 36(3)(c).
162. See, e.g., ICJ Statute, Art. 9;
163. International Covenant on Civil and Political Rights, Art. 31, Dec. 16,1966,999 UNTS 171 (Human Rights Committee);
164. UN Convention on the Law of the Sea, supra note 62, Annex II, Art. 2 (Commission on the Limits of the Continental Shelf);
165. ICTY Statute, supra note 67, Art. 13;
166. ICTR Statute, supra note 67, Art. 12.
167. Rome Statute, supra note 68, Art. 36(8).
168. Treaty of Cooperation Between Denmark, Finland, Iceland, Norway, and Sweden, as amended, Art. 61, Mar. 23, 1962, available at .
169. Second Draft Statute of the International Renewable Energy Agency, Art. X (Aug. 2008) (explanatory note) (on file with author).
170. See, e.g., IMF Articles, supra note 54, Art. 111(2). This process is somewhat complicated by provisions that allow countries to prevent a decrease in their quota.
171. See id., Art. III(2)(d).
172. Seegenerally JOSEPH GOLD, VOTING AND DECISIONS IN THE INTERNATIONAL MONETARY FUND (1972).
173. See ITLOS Statute, supra note 60, Art. 3(2).
174. I am unaware of any post-Charter organization that has given permanent, preferential status to specific countries, by name, in its formal constitution. In the years immediately prior to the Charter, at least two organizations included permanent members. The Agreement for United Nations Relief and Rehabilitation Administration, Nov. 9, 1943, 3 Bevans 845, established a Central Committee whose membership was restricted to China, the Soviet Union, the United Kingdom, and the United States. Later, Canada and France were added to the committee's membership as a result of an amendment to the Agreement.
175. See C. Wilfred Jenks, Some Constitutional Problems of International Organizations, 1945 BRIT. Y.B. INT'L L. 11,28 n.6. Similarly, the Agreement on Principles Having Reference to the Continuance of Co-ordinated Control of Merchant Shipping, Aug. 5,1944,61 Stat. 3784, established the United Maritime Executive Board, which was composed of the Netherlands, Norway, the United Kingdom, and the United States. Of course, earlier, the Covenant of the League of Nations, Article 4, recognized the permanent membership in the League's Council of the "Principal Allied and Associated Powers"-France, Italy, Japan, the United Kingdom, and the United States. The Covenant also provided for the addition of permanent members, and two were added: Germany and the Soviet Union.
176. See UN Charter, Arts. 23 ( 1 ), 27(3). The permanent five are also made permanent members of the Trusteeship Council.
177. Id., Art. 86.
178. Id, Art. 97.
179. Id, Art. 4(2).
180. ICJ Statute, Art. 4(1).
181. UN Charter, Arts. 108-09.
182. See, e.g., Director-General: Nomination for the Post, Note by the Legal Counsel, app. 2, Res. EB97.R10, para. 1(1), WHO Doc. EB119/INF.DOC./1 (Sept. 6, 2006).
183. Statutes of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal, GA Res. 63/253, Annex I, Art. 4(3), & Annex II, Art. 3(3) (Dec. 24, 2008) (the latter requiring fifteen years of experience);
184. see also, e.g., Statute of the International Law Commission, Art. 2(1), GA Res. 174 (II), annex (Nov. 21,1947);
185. cf. GA Res. 60/251, para. 8 (Mar. 15, 2006) (establishing the Human Rights Council and providing that in elections for seats "Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto").
186. The UN Peacebuilding Commission, which was established by joint resolutions of the General Assembly and the Security Council in December 2005, is an exception. In accordance with those resolutions, seats on the commission's Organizational Committee are allocated to the Economic and Social Council, the General Assembly, the Security Council, the top financial contributors to the UN budget, and the top providers of military personnel and civilian police to UN missions.
187. See SC Res. 1645 (Dec. 20, 2005);
188. GA Res. 60/180 (Dec. 20, 2005);
189. see also UN Doc. A/60/PV.66 (Dec. 20, 2005) (statements made in the General Assembly upon consideration of the resolution). The seats allocated to the Economic and Social Council and the General Assembly were subsequently distributed by these bodies by region.
190. See GA Res. 60/261 (May 8,2006);
191. ECOSOC Res. 2006/3 (May 8,2006). The Security Council's seats were given to the P-5 and two nonpermanent members. See SC Res. 1646 (Dec. 20,2005)-
192. 85 See GA Res. 1192 (XII) (Dec. 12,1957);
193. GA Res. 1990 (XVIII) (Dec. 17, 1963) (General Assembly presidents, vice presidents, and main committee chairs);
194. GA Res. 33/138 (Dec. 19,1978) (General Assembly presidents, vice presidents, and main committee chairs);
195. GA Res. 48/264 (Aug. 17,1994) (General Assembly main committee chairs).
196. See GA Res. 36/39 (Nov. 18,1981);
197. UN Doc. A/56/117(June21,2001)&Corr.l,paras.6-8(July 3,2001);
198. GA Decision 56/311 (Nov. 7, 2001).
199. See GA Res. 57/20 (Nov. 17, 2002);
200. GA Res. 3108 (XXVlII) (Dec. 12, 1973);
201. GA Res. 2205 (XXI) (Dec. 17, 1966).
202. See GA Res. 2997 (XXVII) (Dec. 15, 1972).
203. See GA Res. 48/162, Annex I (Dec. 20, 1993) (UNICEF, UNDP, and WFP Executive Boards).
204. See GA Res. 1991 A (Security Council) and GA Res. 1991 B (XVIII) (Dec. 17,1963) (ECOSOC);
205. GA Res. 2847 (XXVI) (Dec. 20, 1971) (ECOSOC).
206. The Human Rights Commission was reconstituted as the Human Rights Council, a subsidiary body of the General Assembly. Human Rights Council membership is allocated by region in accordance with General Assembly Resolution 60/251, supra note 83.
207. See ECOSOC Res. 1147 (XLI) (Aug. 4,1966) (Human Rights Commission, Commission for Social Development, Commission on the Status of Women);
208. ECOSOC Res. 1979/36 (May 10,1979) (Human Rights Commission);
209. ECOSOC Res. 1989/45 (May 24,1989) (Commission on the Status of Women);
210. ECOSOC Res. 1990/48 (May 25, 1990) (Human Rights Commission); ECOSOC Res. 1996/7 (July 22, 1996) (Commission for Social Development).
211. See FAO Conference Res. 16/77, in Report of the Conference of the FAO-Nineteenth Session, ch. VII, para. 291 (1977);
212. FAO General Rules of the Organization, RuIeXXII (2008), available at 〈http://www.fao.org/docrep/ 010/kl713e/kl713e00.htm〉;
213. see also Regional Distribution of Council Seats, FAO Doc. CL 115/INF/18 (Nov. 23-28, 1998).
214. See Rules of Procedure of the General Conference, app. 2, in UNESCO, BASIC TEXTS 64 (2008).
215. Article V(A)(3) of the UNESCO Constitution, supra note 52, simply states: "In electing Members to the Executive Board, the General Conference shall have regard to the diversity of cultures and a balanced geographical distribution."
216. International Criminal Court, Assembly of States Parties, Res. ICC-ASP/3/Res.6 (Sept. 10, 2004). The Assembly of States Parties evidently believed that the resolution was implementing Article 36(8) (a) of the Rome Statute, which provides: "The States Parties shall, in the selection of judges, take into account the need, within the membership or the Court, for:... [e]quitable geographical representation ...."
217. Resolution C 19/1994,paraphrasedin UNIVERSAL POSTAL UNION, CONSTITUTION [AND] GENERAL REGULATIONS, at B.11 (2005);
218. see also UPU General Regulations, Art. 104,
219. id. at B.13-B.14 (allocating twenty-four seats in the Postal Operations Council to developing countries and sixteen seats to developed countries).
220. See Decision on the Allocation of Seats on the Commission on the Limits of the Continental Shelf and the International Tribunal for the Law of the Sea, UN Doc. SPLOS/182 (July 9,2008). The states parties to the Law of the Sea Convention have not been able to agree on a long-term allocation of seats. Their decisions, to date, have been temporary and based on a compromise reached during the election of the tribunal's first judges.
221. See Repon of the Fifth Meeting of States Parties, para. 15, UN Doc. SPLOS/14 (Sept. 20,1996);
222. UN Doc. SPLOS/L.3/Rev.l (July 31, 1996). A more permanent allocation is scheduled to be determined at the Nineteenth Meeting of States Parties in June 2009.
223. See, e.g., Security Council Report, Special Research Report No. 2: UN Security Council Elections 2008 (Aug. 29, 2008), available at 〈http://www.securitycouncilreport.org〉.
224. Christoph Schreuer, Regionalism v. Universalism, 6 EUR. J. INT'L L. 477, 481 (1995).
225. How regions are defined typically depends on the purpose of the organization. Regions in the United Nations differ from those in the World Meteorological Organization, which differ from those in the World Health Organization and the Universal Postal Union. See HENRY G. SCHERMERS & NIELS M. BLOKKER, INTERNATIONAL INSTITUTIONAL LAW: UNITY WITHIN DIVERSITY 220-21 (4th rev. ed. 2003).
226. See supra text at notes 71-72.
227. On informal international agreements generally, see, among others, Anthony Aust, The Theory and Practice of Informal International Instruments, 35 INT'L & COMP. L.Q. 787 (1986);
228. Pierre Michel Eisemann, Le gentlemen's agreement comme source du droit international; 106 JOURNAL DU DROIT INTERNATIONAL 326 (1979);
229. Lipson, supra note 37;
230. and Oscar Schachter, The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977).
231. I refer here, as elsewhere in this article, to agreements that provide actual membership or office. It is wonh remembering, however, that formal membership or office holding does not exhaust the ways that states can influence the decisions of international organizations. As Ian Hurd notes in the context of the Security Council, the "institutionalized practice of consultation" with certain states or groups of states can be just as significant and may amount to "a kind of de facto membership." Ian Hurd, Security Council Reform: Informal Membership and Practice, in THE ONCE AND FUTURE SECURITY COUNCIL 135,136 (Bruce Russen ed., 1997). Further, informal groups of states can act when formal bodies cannot.
232. AJOCHEN PRANTL, THE UN SECURITY COUNCIL AND INFORMAL GROUPS OF STATES 9 (2006).
233. Useful exceptions include L. C. Green, Gentlemen's Agreements and the Security Council, 13 CURRENT LEGAL PROBS. 255 (I960);
234. and E. Lauterpacht, Gentleman's Agreements, in INTERNATIONAL LAWAND ECONOMIC ORDER 381 (Werner Flume et al. eds., 1977). Also helpful is MILES KAHLER, LEADERSHIP SELECTION IN THE MAJOR MULTILATERALS (2001), which focuses on the IMF, the World Bank, and the WTO.
235. See Appendix, supra note 1, tbl.3.
236. Article 34(1) of the Agreement Establishing the Asian Development Bank, supra note 62, while providing that the bank's president must be a "national of a regional member country," does not specify which regional member country.
237. See Appendix, supra note 1, tbl.4. Article 30 of the Agreement Establishing the European Bank for Reconstruction and Development, May 29, 1990, 1990 O.J. (L 372) 4, does not contain any nationality requirements. The first two presidents of the EBRD, Jacques Attali and Jacques de Larosière, were French nationals, but France had two presidents in succession only because Attali was forced to resign and, as a condition of his resignation, France insisted that another French national be appointed to complete "its" term. On the choice of Jacques Attali as the first EBRD president, as well as his firing and replacement, see ADAM BRONSTONE, THE EUROPEAN BANK FORRECONSTRUCTIONAND DEVELOPMENT73 (1999);
238. and PAULA. MENKVELD, ORIGIN AND ROLE OFTHE EUROPEAN BANK FOR RECONSTRUCTION AND DEVELOPMENT 66-67 (1991). By the same informal agreement that allocated the EBRD presidency to France and Germany, the United Kingdom withdrew any potential claim to the presidency in exchange for the decision to locate the bank's headquarters in London.
239. See Editorial, Presidential Powers: Choose EBRD Chief on Merit, and Surprise the World, FIN. TIMES (London), Mar. 3, 2008, at 8.
240. See Appendix, supra note 1, tbl.5. Article VIII, section 5 of the Agreement Establishing the Inter-American Development Bank, Apr. 8, 1959, 10 UST 3029, 389 UNTS 69, does not contain any nationality requirements.
241. E. PHIUP ENGLISH & HARRIS M. MULE, THE AFRICAN DEVELOPMENT BANK 45-46 (1996).
242. See Appendix, supra note 1, tbl.6.
243. See id, tbl.7. Prior to 1994, there was only a single deputy managing direaor, who went by that title. The designation "First Deputy Managing Direaor" came with the addition of two deputy-managing-direaor positions.
244. See id., tbl.8. On the designation of the EBRD vice presidency as a U.S. position,
245. see MENKVELD, supra note 106, at 84.
246. See Appendix, supra note 1, tbl.9.
247. See id., tbl. 10. The bank created a second vice presidency for the United States in 1978. There are now four vice presidents of the Asian Development Bank.
248. For the European vice presidents, see id, tbl. 11. Jin Liqun was the Chinese vice president from 2003 to 2008. He was replaced by Zhao Xiaoyu.
249. See ADB Appoints Zhao Xiaoyu as Vice-President (Aug. 14, 2008), available at 〈http://www.adb.org/media/Articles/2008/12568-adb- managements-appointments/〉.
250. ENGLISH & MULE, supra note 108, at 47.
251. See id. ; Appendix, supra note 1, tbl. 12.
252. It is clear, as well, that the four largest euro countries (France, Germany, Italy, and Spain) have, de facto, a reserved seat on the Executive Board of the European Central Bank. See Francesco Giavazzi & Charles Wyplosz, Selection of the Central Bank Board Is a Fait Accompli, FIN. TIMES, Feb. 10, 2006, at 13;
253. Jean Pisani-Ferry, There Is Room fir Improvement in the Appointment of ECB Executive Board Members (May 30,2006), reprinted in BRUEGEL POLICY CONTRIBUTION, NO. 2, May 2006, available at 〈http://www.bruegel.org/Public/PublicationPage. php?ID=1171〉.
254. In contrast, the president of the World Bank is traditionally (though not always) a product of Wall Street. See 1 KAPUR, LEWIS, & WEBB, supra note 5, at 915.
255. It is said that, in exchange, the P-5 countries agree not to seek the chair of any of these bodies. See Colum Lynch, Bolton Plans to Restart Stalled Efforts to Restructure UN, WASH. POST, Jan. 2, 2006, at A7 (quoting John Bolton). That deal clearly does not apply to P-5 nationals when serving in their independent capacities, as they have held, for example, the chairmanship of the International Law Commission and the presidency of the International Court of Justice. The following discussion is based upon the sources noted, as well as UNITED NATIONS HANDBOOK, 2008-2009 (2008);
256. Note Verbale dated 24 June 2005 from the Permanent Mission of Costa Rica to the United Nations Addressed to the Secretary-General, UN Doc. A/59/856 (2005);
257. and Letter Dated 15 September 1995 from the Permanent Representatives of Finland and Thailand to the United Nations Addressed to the President of the General Assembly, UN Doc. A/49/965 (1995).
258. The UN General Assembly recognized the People's Republic of China (PRC) as the representative of China in 1971. GA Res. 2758 (XXVI) (Oct. 25,1971 ). Other UN organs and agencies soon followed the General Assembly's lead. See 1971 UN Y.B. 126-37.
259. See generally Emmanuel Bello, Chinese Representation at the United Nations, 50 REVUE DE DROIT INTERNATIONAL, DE SCIENCES DIPLOMATIQUES, POLITIQUES, ET SOCIALES 44 (1972);
260. L. C. Green, Representation Versus Membership: The Chinese Precedent in the United Nations, 1972 CAN. Y.B. INT'L L. 102. That said, and as the evidence demonstrates, it does not follow that the PRC immediately accepted or sought all the privileges to which it was entitled as a member of the P-5. Indeed, the PRC only gradually and selectively took on the positions it was due.
261. See, e.g., Martin Saunders, The 1971 Elections of the International Law Commission, 66 AJIL 356, 357-58 (1972) (noting that the PRC declined the secretary-general's invitation, made shortly after the General Assembly's action, to submit nominations "more particularly of a Chinese national" for membership on the ILC).
262. U.S. Dep't of State, Instruction to Certain Diplomatic Missions (Oct. 17, 1956),
263. reprinted in [1955-57] 11 FOREIGN RELATIONS OF THE UNITED STATES 119 (1988).
264. See Appendix, supra note 1, tbls.13-17.
265. See id., tbl.l8. The tribunals' statutes effectively prevent one country from having a judge on each court at the same time. The United Kingdom did not nominate a candidate for an ICTY judgeship in 1993, when the first judges were elected, apparently because of the Conservative government's diplomatic approach to the conflict in the Balkans. British policies changed with the election in 1997 of a Labour government, which nominated one of its own nationals for an ICTY judgeship at the first opportunity. A list of candidates for judges of the ICTY in 1993 is available in UN Doc. A/47/1005 (Aug. 26, 1993). On the British approach to the ICTY in the 1990s,
266. see The International Criminal Tribunal for the Former Yugoslavia 36-37 (Salzburg Seminar) (John B. Allcock ed., 2006) (on file with author). Russia put up a candidate for an ICTY judgeship in 1993 who, not surprisingly, was not elected. UN Doc. A/47/PV.111 (Sept. 30, 1993). Subsequently, a Russian national was one of the first judges elected to the ICTR; a Russian national has held a judgeship on that court ever since.
267. See UNITED NATIONS HANDBOOK, supra note 119. Interestingly, though members of the World Health Organization Executive Board can be reelected, the United States has historically not stood for reelection, instead choosing to opt out of a term before running again. That practice may be changing, however, as in the 2006 cycle, the United States ran for reelection for the first time (and won). Other P-5 members have maintained a more continuous presence, and their election on a "semi-permanent basis" has occasionally been raised as a concern.
268. See Review of the Constitution and Regional Arrangements of the World Health Organization: Repon of the Special Group, WHO Doc. EB101 /7, para. 18 ( 1997). Though rarely, the United States has occasionally opted not to seek a seat on a UN body. The Human Rights Council is a well-known recent example, though the current administration changed previous policy and declared its candidacy for the next election. The resolution establishing the council is interesting because it imposes term limits, which will effectively act as a check, albeit a limited one, on the P-5 convention in that body.
269. See GA Res. 60/251, supra note 83.
270. See KURT WALDHEIM, IN THE EYE OF THE STORM: THE MEMOIRS OF KURT WALDHEIM 47 (1985). Though beyond the scope of this study, P-5 preferences have also extended to the lower levels of the UN Secretariat. See THEODOR MERON, THE UNITED NATIONS SECRETARIAT: THE RULES AND THE PRACTICE (1977);
271. Theodor Meron, "Exclusive Preserves"and the New Soviet Policy Toward the UN Secretariat, 85 AJIL 322 (1991).
272. See Appendix, supra note 1, tbls.21-25. During the first years of the United Nations, the title was assistant secretary-general; only later was it redesignated as under-secretary-general. Earlier studies include MERON, supra note 125, at 93-98.
273. MARRACK GOULDING, PEACEMONGER 6 (2002).
274. The same arrangement exists in the Organization of American States, where a U.S. national has headed the secretariat for administration and finance (formerly, management) since 1994, and other international organizations.
275. See Appendix, supra note 1, tbl.26. On informal regional rotation of the position of UN secretary-general,
276. see Colin Keating, Selecting the World's Diplomat, in SECRETARY OR GENERAL? THE UN SECRETARY- GENERAL IN WORLD POLITICS 47, 58-60 (Simon Chesterman ed., 2007).
277. See also GA Res. 51/241, para. 59 (July 31, 1997). It is also said that the director-general of UNESCO is rotated among regions. See Controversy in Upcoming UNESCO Election, UNELECTIONS MONITOR, No. 93, Mar. 3, 2009, available at 〈www. unelections.org〉.
278. See UN Doc. A/CN.9/638/Add.2, para. 32 (2007).
279. See Appendix, supra note 1, tbl.43.
280. See id, tbl.27;
281. see also EDWARD MCWHINNEY, JUDICIAL SETTLEMENT OF INTERNATIONAL DISPUTES 101-06 (1991);
282. Edward McWhinney, Law, Politics and "Regionalism" in the Nomination and Election of World Court Judges, 13 SYRACUSE J. INT'L L. & COM. 1 (1986);
283. Edward McWhinney, "Internationalizing" the International Court: The Quest for Ethno-Cultural and Legal-Systemic Representativeness, in 1 ESSAYS IN HONOUR OF JUDGE TASLIM OLAWALE ELIAS 277 (Emmanuel G. Bello & Bola A. Ajibola eds., 1992).
284. GA Res. 1991 A (Dec. 17, 1963) (providing for five seats for Africa and Asia together, one seat for Eastern Europe, two seats for Latin America, and one seat for the WEOG).
285. See, e.g., African Union, Executive Council, Decision on African Candidatures for Posts Within the International System, para. 3(v), Doc. EX.CL/DEC.453 (XIII) (2008) (endorsing the candidacy of Abdulqawi Ahmed Yusuf for the International Court of Justice).
286. See 1 SHABTAI ROSENNE, THE LAWAND PRACTICE OF THE INTERNATIONAL COURT, 1920-2005, at 383 (4th ed. 2006).
287. See Appendix, supra note 1, tbl.28.
288. See id., tbls.30, 32, 31, respectively.
289. See id., tbls.29, 27, respectively.
290. When the WTO was first established, Canada was a member of the Quad and received preferences accordingly, such as the directorship of the Appellate Body secretariat.
291. See Appendix, supra note 1, tbl.34. This arrangement was part of an informal understanding that gave other deputy positions to developing countries.
292. See KAHLER, supra note 104, at 55. The second-ranking position in the GATT was on occasion the "assistant director-general" until the early 1970s.
293. William J. Davey was director from 1995 until 1999. S. Bruce Wilson has been director since 2002. Pieter Jan Kuijper, who held the post in the interim, has been the only non-American director.
294. See Appendix, supra note 1, tbl.35.
295. Understanding on Rules and Procedures Governing the Settlement of Disputes, Art. 17(3), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 UNTS 401.
296. 5«-Victoria Donaldson, The Appellate Body: Institutional and Procedural Aspects, in 1 THE WORLD TRADE ORGANIZATION: LEGAL, ECONOMIC AND POLITICAL ANALYSIS 1279, 1285 & n.39 (Patrick F. J. Macrory, Arthur E. Appleton, & Michael G. Plummer eds., 2005).
297. See Appendix, supra note 1, tbl.36.
298. The new ASEAN Charter formalizes this practice. See Charter of the Association of Southeast Asian Nations, Art. 11(1) (2007).
299. See Ian R. Kenyon, Establishing the Preparatory Commission and Creating the OPCW Technical Secretariat, in THE CREATION OF THE ORGANISATION FOR THE PROHIBITION OF CHEMICAL WEAPONS: A CASE STUDY IN THE BIRTH OF AN INTERGOVERNMENTAL ORGANISATION 31, 51 (Ian R. Kenyon & Daniel Feakes eds., 2007).
300. See GLAN LUCA BURCI & CLAUDE-HENRI VLGNES, WORLD HEALTH ORGANIZATION 45-46 (2004);
301. WHO, World Health Assembly, Summary Records of Committees, Fifty-eighth Sess., at 16, UN Doc. WHA58/ 2005/REC/3 (May 16-25,2005) (adoption by the General Committee of the World Health Assembly of a list of names of members who would be entitled to designate a person to serve on the Executive Board). As with other regionally based representational schemes, the assembly appears to give informal deference to the candidates nominated by regional committees.
302. Until the current incumbent-Néstor Osório of Colombia-was selected, the International Coffee Organization's executive directors had all been Brazilian nationals. This is but one example of the elaborate balancing between importers and exporters in international commodities organizations.
303. See Permanent Court of Arbitration, Secretary-General, at 〈http://www.pca-cpa.org/showpage.asp? pag-id= 1272〉 (listing PCA secretaries-general);
304. ICTY, Registry, at 〈http://www.icty.org/sid/10〉 (listingICTY registrars).
305. See Appendix, supra note 1, tbl.37. Other positions in the NATO international staff, such as those at the assistant-secretary-general level, as well as the strategic commands, are informally allocated among member countries.
306. See NATO, Principal Officials of the NATO Staff, at 〈http://www.nato.int/cv/is/index.html〉; Principal Officials at the NATO International Staff, at 〈http://www.nato.int/cv/is/home2. htm〉; Senior Officials in the NATO Military Structure, from 1949 to 2001 (Dec. 5, 2000), at 〈http://www.nato.int/cps/en/natolive/who-is- who.htm〉.
307. Article 221 of the Consolidated Version of the Treaty Establishing the European Community, 2006 OJ. (C 321 ) E/37, sets the number of judges on the ECJ as equal to the number of member states, but Article 223, which stipulates judicial qualifications, does not distribute judgeships by nationality.
308. See Appendix, supra note 1, tbls.38, 39, 40, respectively. Recently, Japan has also had a lock on one of the deputy-secretary-general positions at the OECD.
309. See id., tbl.41.
310. Both the United States and the Soviet Union/Russia have continuously held deputy-director-general positions (or, in the case of the United States, that of director general) at the IAEA since its founding. See PAUL C. S ZASZ, THE LAW AND PRACTICES OF THE INTERNATIONAL ATOMIC ENERGY AGENCY218 (1970);
311. IAEA, IAEA Management Team, at 〈http://www.iaea.org/About/ leadership.html〉.
312. Thus, the United States has been quite influential in the appointment of the NATO (who is, by tradition, a European national) and OAS secretaries general (who are, by tradition, not U.S. nationals). That authority is informal.
313. See generally G. JOHN IKENBERRY, AFTER VICTORY: INSTITUTIONS, STRATEGIC RESTRAINT, AND THE REBUILDING OF ORDER AFTER MAJOR WARS (2000).
314. WALDHEIM, supra note 125, at 48.
315. Judith Miller, Outgoing U.N. Development Chief Berates U.S., N.Y. TIMES, May 1, 1999, at A4.
316. See NLHAL KAPPAGODA, THE ASIAN DEVELOPMENT BANK38(1995);
317. THANT MYI NT-U& AMY SCOTT, THE UN SECRETARIAT: A BRIEF HISTORY (1945-2006) 26 (2007);
318. Ngaire Woods, The United States and the International Financial Institutions: Power and Influence Within the World Bank and the IMF, in US HEGEMONY AND INTERNATIONAL ORGANIZATIONS: THE UNITED STATES AND MULTILATERAL INSTITUTIONS 92, 109 (Rosemary Foot, S. Neil MacFarlane, & Michael Mastanduno eds., 2003).
319. In 1988, for instance, the United States insisted on James Conrow's appointment as executive vice president of the Inter-American Bank, which led to the resignation of the bank's president, Antonio Ortiz Mena. Ortiz Mena's successor, Enrique Iglesias, appointed Conrow. See Paul Blustein, IDB President's Resignation Spotlights Strain over Control, WASH. POST, Dec. 20, 1987, at K5;
320. Nancy Dunne, An Ambitious Sense of Purpose Returns, FIN. TIMES, Apr. 5, 1991, at 30;
321. see also BARBARA UPTON, THE MULTILATERAL DEVELOPMENT BANKS: IMPROVING U.S. LEADERSHIP 54-55 (2000) (discussing insistence of the United States on the appointment of a particular individual to its Asian Development Bank vice presidency despite the opposition of other countries). States can also insist on the resignation of"their" officials.
322. See Judith Miller, U.S. Studies Latin Bank Role, N.Y. TIMES, July 23, 1981, at D12 (discussing the Reagan administration's request for the resignation of the American executive vice president of the Inter-American Development Bank).
323. See David Peretz, The Processfor SelectingandAppointing the Managing Director andthe First Deputy Managing Director of the IMF 4, IMF Independent Evaluation Office Background Paper, BP/07/01 (July 11, 2007).
324. The United States was again elected to the commission the following year. See Barbara Crossette, For First Time, U.S. Is Excluded from UN. Human Rights Panel, N.Y. TIMES, May 4, 2001, at Al ;
325. Sean D. Murphy, Contemporary Practice of the United States, 96 AJIL 718 (2002);
326. id, 95 AJIL 877 (2001).
327. Interview by author with UN official (July 2007).
328. Id. In 2003 U.S. candidates for the Inter-American Commission on Human Rights and the Inter-American Juridical Committee were similarly rejected by the OAS General Assembly.
329. See Organización de los Estados Americanos, Asamblea General [OEA, AG], Actas y documentos, 33d Sess., at 143-45 (2003), available at 〈http:// www.oas.org/consejo/GENERAL%20ASSEMBLY/actas.asp〉. Some argue that this was because of U.S. Latin American policy, though an equally plausible case can be made that it was due to the unpopularity of the U.S. invasion of Iraq.
330. See Larry Rohter, O.A.S. Votes Against U.S. Candidatefor Human Rights Group,N.Y. TIMES, June 12, 2003, at Al 1 ;
331. Michael Shifter, A Policy for the Neighbors, N.Y. TIMES, July 17,2003, at A27. Until 2003, the United States had continuously had a national on both the commission and the committee. The point having been made, U.S. nationals were again elected to those bodies at the next regularly scheduled elections in 2004 and 2005.
332. See OEA, AG, Actas y documentos, 34th Sess., at 176 (2004), available at 〈http://www.oas.org/consejo/GENERAL %20ASSEMBLY/actas.asp〉;
333. id., 35th Sess. at 186 (2005),
334. available at id.
335. See Reisman, Causes of Uncertainty, supra note 29, at 44 (noting that a "myth system ... affirms values that continue to be important socially and personally... [and that] the myth system may yet influence decision-making").
336. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984);
337. Todd E. Pettys, The Myth of the Written Constitution, 84 NOTRE DAME L. REV. 991 (2009) (noting the myth of the written U.S. Constitution and the advantages of retaining that myth).
338. Cf. Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GA TT/WTO, 56 INT'L ORG. 339,360-65 (2002) (explaining that one of the benefits of consensus decision making to powerful countries is that it provides legitimacy to outcomes).
339. Cf LLOYD GRUBER, RULING THE WORLD: POWER POLITICS AND THE RISE OF SUPRANATIONAL INSTITUTIONS (2000). In referring to powerful states or groups of states, I also include those that have negotiating power within the confines of a particular organization or are otherwise important to its success.
340. Cf. Frieder Roessler, Law, de Facto Agreements and Declarations of Principle in International Economic Relations, 1978 GERMAN Y.B. INT'L L. 27,53 (noting that formal arrangements dictate formal equality of status in part because of domestic sentiment).
341. See, e.g., David M. Malone, Eyes on the Prize: The Quest for Nonpermanent Seats on the UN Security Council, 6 GLOBAL GOVERNANCE 3 (2000) (describing the jockeying for nonpermanent Security Council seats in 1996 and 1998).
342. See, e.g., Catherine Senf Manno, Problemsand Trends in the Composition ofNonplenary UN Organs, 19 INT'L ORG. 37 (1965);
343. Norman J. Padelford, Politics and Change in the Security Council, 14 INT'L ORG. 381 (1960);
344. Egon Schwelb, Amendments to Articles 23, 27 and 61 of the Charter of the United Nations, 59 AJIL 834 (1965);
345. Stefan Talmon, Participation of UN Member States in the Work of the Organization: A Multicultural Alternative to PresentDay Regionalism? in MULTICULTURALISM AND INTERNATIONAL LAW: ESSAYS IN HONOUR OF EDWARD MCWHINNEY 239 (Sienho Yee & Jacques-Yvan Morin eds., 2009);
346. Zamora, supra note 53, at 567. On the conflict between North and South generally during this period,
347. see KRASNER, supra note 62.
348. For example, the Security Council was enlarged in 1965, the Economic and Social Council was enlarged in 1965and 1973, the International Law Commission was enlarged in 1956,1961,and 1981, and the Council of the International Maritime Organization was expanded four times, in 1964, 1974, 1979, and 1993. For a discussion of the IMO, see Convention on the International Maritime Organization, at 〈http://www.imo.org/Conventions/ mainframe.asp?topic-id=771〉. On the ILC,
349. see GA Res. 1103 (XI) (Dec. 18,1956); GA Res. 1647 (XVI) (Nov. 6, 1961);
350. and GA Res. 36/39 (Nov. 18, 1981). On the Economic and Social Council and the Security Council,
351. see EDWARD C. LUCK, REFORMING THE UNITED NATIONS: LESSONS FROM A HISTORY IN PROGRESS 7-1 I (2003).
352. Nonpermanent seats on the Security Council and membership on the International Law Commission were, at first, informally distributed by region. See Report of the Sixth Committee, UN GAOR, 11th Sess., 2 Annexes, Agenda Item 59, UN Doc. A/3427 (Dec. 5,1956) (noting a "gentlemen's agreement" allocating seats in the International Law Commission by region);
353. Memorandum by the Secretary-General, UN GAOR, 16th Sess., 1 Annexes, Agenda I tern 17, UN Doc. A/4779 (June 16,1961 ) (same) ;
354. Report of the Sixth Committee, UN GAOR, 16th Sess., 3 Annexes, Agenda Item 77, UN Doc. A/4939 (Oct. 26, 1961) (same);
355. REPERTORY OF PRACTICE OF UNITED NATIONS ORGANS, Art. 23 (2OO3), available at 〈http://www.un.org/law/repertory/〉 (describing informal allocation of nonpermanent seats on the Security Council until 1965);
356. SYDNEY D. BAILEY & SAM DAWS, THE PROCEDURE OF THE UN SECURITY COUNCIL 141-53 (3d ed. 1998) (same);
357. HERBERT W. BRIGGS, THE INTERNATIONAL LAW COMMISSION 33-42 (1965). Those informal agreements were later formalized by General Assembly resolutions.
358. See Andrew H urrell, Hegemony, Liberalism and Global Order: What Space for Would-Be Great Powers? 8 2INT' L AF F. 1 (2006) ;
359. Paola Subacchi, New Power Centres and New Power Brokers: Are They Shapinga New Economic Order? 84 INT'L AFF. 485 (2008);
360. Daniel Dombey, Krishna Guha, & Andrew Ward, Talks Challenge Club of Rich Countries, FIN. TIMES, NOV. 17, 2008, at 6.
361. See Zheng Lifei, Crisis May Increase China 's Role in IMF, CHINA DAILY, Dec. 22,2008 ("The BRICs [Brazil, Russia, India, and China] ... could leverage their huge foreign exchange reserves to demand quotas and voting weight increases if they are to contribute more fund[s] to the IMF." (quoting Zhang Ming));
362. Mark Landler, Rising Powers Challenge U.S. on Role in I.M.F. as Obama Moves to Fortify It, N.Y. TIMES, Mar. 30, 2009, at A15 ("[0]fficials of China and other developing countries have served notice that they are reluctant to make comparable pledges [to contribute to the IMF] without getting a greater say in the operations of the fund . . . .").
363. See Ariana EunjungCha, China Uses Global Crisis to Assert Its Influence, WASH. POST, Apr. 23,2009, at Al;
364. Bob Davis, Zoellick Fights for Relevance of World Bank, WALL ST. J., Oct. 9,2007, at Al ;
365. Patrice Hill, World Bank, IMF Face Competition in China, Russia, WASH. TIMES, Oct. 19, 2007, at Al.
366. For helpful discussions of Security Council reform efforts, see, among others, BARDO FASSBENDER, UN SECURITY COUNCIL REFORM AND THE RIGHT OF VETO (1998);
367. Yehuda Z. Blum, Proposals for UN Security Council Reform, 99 AJIL 632 (2005);
368. Jonas von Freiesleben, Security Council Reform, in MANAGING CHANGE AT THE UNITED NATIONS 1 (2008);
369. and Mark W. Zacher, The Conundrums of International Power Sharing: The Politics of Security Council Reform, in THE UNITED NATIONS AND GLOBAL SECURITY 211 (Richard M. Price & Mark W. Zacher eds., 2004).
370. For a critical exploration of legitimacy language in the context of Security Council reform, see Ian Hurd, Myths of Membership: The Politics of Legitimation in UN Security Council Reform, 14 GLOBAL GOVERNANCE 199 (2008).
371. See GA Res. 47/62 (Dec. 11, 1992). This topic was on the General Assembly's agenda from 1979 to 1991, but was not debated during this period.
372. See 1979 UN Y.B. 435-36;
373. Von Freiesleben, supra note 177, at 3.
374. See GA Res. 48/26 (Dec. 3, 1993).
375. UN Doc. A/62/PV.48, at 14 (Nov. 12, 2007).
376. Id. at 25 (statement of the Pakistani representative).
377. See UN Doc. A/62/PV.48, at 1-2 (Nov. 12,2007) (statement of the Angolan representative on behalf of the African Group).
378. Unfortunately, the reports, policy papers, and commentary are too numerous to list here.
379. IMF Board of Governors Approves Quota and Related Governance Reforms, IMF Press Release 06/205 (Sept. 18,2006).
380. IMF Executive Board Recommends Reforms to Overhaul Quota and Voice, IMF Press Release 08/64 (Mar. 28,2008);
381. IMF Board of Governors Adopts Quota and Voice Reforms by Large Margin, IMF Press Release 08/93 (Apr. 29, 2008).
382. IMF Press Release 08/64, supra note 186.
383. See, e.g., Ming Jirwei, Reforming International FinancialOrganizations ShouldBe on G20's Must-Do List,~XLNHUA GEN'L NEWS SERV., Mar. 15,2009;
384. Paul Taylor, New Economies Want Power Before Paying, REUTERS, Nov. 18, 2008;
385. Lesley Wroughton, Washington Economists Press Geithner on IMF Reforms, REUTERS, Jan. 27, 2009;
386. IMF Governance Renovations: Fresh Paint While Foundations Rot (Apr. 1, 2008), available at 〈http://bretton woodsproject.org/art-561041 〉.
387. World Bank Governors Approve Governance Reforms, Adding Board Seat for Africa, World Bank Press Release 2009/220/EXC (Feb. 11, 2009).
388. Leaders of the Group of Twenty, The Global Plan for Recovery and Reform, para. 20 (Apr. 2,2009), available at 〈http://www.londonsummit.gov. uk/resources/en/PDF/final-communique〉
389. [hereinafter Leaders'Statement]. The statement set specific deadlines for achieving representation reforms.
390. See Ngaire Woods, From Intervention to Cooperation: Reforming the IMF and the WorldBank 10(2008), available at 〈www.policy-network. net〉.
391. For one recent paper arguing for comprehensive changes in representation to take account of the current world dynamics, see Enrique Rueda-Sabater, Vijaya Ramachandran, & Robin Kraft, A Fresh Look at Global Governance: Exploring Objective Criteria for Representation (Center for Global Development, Working Paper No. 160, Feb. 2009).
392. Indeed, there is evidence that similar arguments are being made in other organizations. See, e.g., Bertrand Benoit, Guy Dinmore, & Stefan Wagstyl, Succession Row Casts Shadow over EBRD, FIN. TIMES, Mar. 19, 2008, at 4.
393. Final Report of the External Review Committee on Bank-Fund Collaboration at 6 (Feb. 23,2007), available at 〈http://www.imf.org/external/np/ pp/eng/2007/022307.pdf〉.
394. IMF, INDEPENDENT EVALUATION OFFICE, GOVERNANCE OF THE IMF: AN EVALUATION 22 (2008).
395. Communiqué, Meeting of Ministers and Governors in Melbourne at 4 (Nov. 18-19, 2006), available at 〈http://www.g20.org/pub-index. aspx〉;
396. see also Communiqué, Meeting of Finance Ministers and Central Bank Governors in Xianghe, Hebei, China, at 2 (Oct. 15-16, 2005), available at id.;
397. Communiqué, Meeting of Ministers and Governors in Kleinmond, South Africa, at 5 (Nov. 17-18, 2007), available at id.
398. Reform of Process for Appointment of World Bank President, Treasurer of the Commonwealth of Australia Press Release 045 (May 27, 2007), available at 〈http://www.treasurer.gov.au/tsr/content/pressreleases/2007/045. asp〉.
399. Clare Nullis, Finance Minister Criticizes Western Domination of World Bank, AP FIN. WIRE, June 6, 2007, available in LEXIS, News Library, Wire Serv. Stories File.
400. Letter to NGOs from the UK Treasury, IMF Managing Director Selection (July 19, 2007), available at 〈http://www.ifiwatchnet.org/?q=en/ node/2905 〉.
401. Id.
402. Norway Calls for Open World Bank Chief Selection, REUTERS, June 14, 2007.
403. Oxfam Calls for Next World Bank President to Be Appointed on Merit, Oxfam Press Release (May 21, 2007), available at 〈http://www.oxfam.org/ en/node/155〉.
404. CENTER FOR GLOBAL DEVELOPMENT, THE HARDEST JOB IN THE WORLD: FIVE CRUCIAL TASKS FOR THE NEW PRESIDENT OF THE WORLD BANK 26 (June 1, 2005), available at 〈www.cgdev.org/files/ 2868-file-WBWG-Report.pdf 〉.
405. Mark Malloch Brown, Op-Ed., After Wolfowitz, L.A. TIMES, May 18, 2007, at A23.
406. José E. Alvarez, Noblesse Oblige at the World Bank, IL.POST, June 7, 2007, available at 〈http://www.asil.org/ ilpost/president/pres070607.html〉.
407. NGAIRE WOODS, THE GLOBALIZERS: THE IMF, THE WORLD BANK, AND THEIR BORROWERS 207 (2006).
408. Editorial, Pickinga World Bank President, N.Y. TIMES, May 19, 2007, at A12.
409. Sadly, the posts have been removed. These sites-〈http://www.dsk-imf. net/〉 and 〈http://www.dsk-fmi. net/〉-now advertise skin care products and vacation packages. A predecessor site-〈http://www.blogdsk. net/〉-is still up.
410. Leaders' Statement, supra note 190, para. 20.
411. Robert O. Keohane & Joseph S. Nye Jr., The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy, in EFFICIENCY, EQUITY, AND LEGITIMACY: THE MULTILATERAL TRADING SYSTEM AT THE MILLENNIUM 264 (Roger B. Porter et al. eds., 2001).
412. The move to formalize appointments processes includes, among others, measures to define the qualifications of officeholders, to establish selection panels that recommend and vet candidates, and to create opportunities for comment on candidates.
413. See generally JACQUELINE BEST, THE LIMITS OF TRANSPARENCY: AMBIGUITY AND THE HISTORY OF INTERNATIONAL FINANCE (2005);
414. Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885 (2006).
415. For recent critiques of informality in international law generally, see Eyal Benvenisti, Substituting International Law, 100 ASIL PROC. 289 (2006);
416. Eyal Benvenisti & George W. Downs, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 STAN. L. REV. 595 (2007); and
417. Nico Krisch, International Lawin Times of Hegemony: Unequal Power and the Shaping of the International Legal Order, 16 EUR.J. INT'LL. 369, 371 (2005). I should quickly add that, for some states, the interest in doing away with the IMF and World Bank informal leadership agreement has less to do with the principles of transparency and merit than with an interest in having a greater influence themselves on the appointments. The successful elimination of the IMF-World Bank agreement thus is not necessarily an unqualified endorsement of these principles.
418. On a formalist international rule of law, see Jacob Katz Cogan, Noncompliance and the International Rule of Law, 31 YALE J. INT'L L. 189, 191-92 (2006). On greater accountability,
419. see, for example, Ruth W. Grant & Robert O. Keohane, Accountability and Abuses of Power in World Politics, 99 AM. POL. SCI. REV. 29 (2005);
420. Joseph S. Nye Jr., Globalization's Democratic Deficit: How to Make International Institutions More Accountable, FOREIGN AFF., July/Aug. 2001, at 2; and
421. Ngaire Woods, Holding Intergovernmental Institutions to Account, 17 ETHICS & INT'L AFF.69 (2003).
422. See, e.g., Daniel W. Drezner, The New New World Order, FOREIGN AFF., Mar./Apr. 2007, at 14.
423. In the GATT and the OECD, the understandings were that the director-general and the secretary-general, respectively, would come from a "smaller industrialized country." KAHLER, supra note 104, at 55, 58.
424. See Procedures for the Appointment of Directors-General, WTO Doc. WT/L/509 (Jan. 20, 2003);
425. Selection of a New Secretary-General (Nov. 24, 2005), available at 〈http://www.oecd.org/〉 (follow "Secretary-General" hyperlink; then follow "Selection process and former Secretaries- General" hyperlink).
426. Steinberg, supra note 167, at 361.
427. On vote trading generally, see, for example, Ofer Eldar, Vote-Trading in International Institutions, 19 EUR. J. INT'L L. 3 (2008);
428. Ilyana Kuziemko & Eric Werker, How Much Is a Seat on the Security Council Worth? Foreign Aid and Bribery at the United Nations, 114 J. POL. ECON. 905 (2006); and
429. Axel Dreher, Jan-Egbert Sturm, & James Raymond Vreeland, Global Horse Trading: IMF Loans for Votes in the United Nations Security Council (unpublished ms. 2008) (on file with author).
430. Reisman, supra note 22, at 92.