If our aim is to pluralise the ‘subjects, methods, and aims’ of the academic study of international organisations,Footnote ¹ then one fairly obvious route to follow is the route of historicisation. But what exactly does historicisation entail, and what added value can it bring to the study of international organisations? This is not always clear. Historians of international organisations have elected a variety of avenues to relate the creation and the design of international institutions to the industrial-capitalist functions they were intended to serve,Footnote ² the diplomatic crises they were intended to solve,Footnote ³ the technocratic intellectual legacies of their emergence,Footnote ⁴ and their continuities with imperial forms of governance.Footnote ⁵ Methodologically, accounting for its breadth and strength, this work is characterised by eclecticism and diversity rather than uniformity.Footnote ⁶

The present chapter aims in this context to illustrate the distinctive contribution of historicisation to our understanding of international organisations. I follow the overall impetus outlined by the editors in two ways. On the one hand, the chapter offers another tool to the methodological toolkit on display across the present volume; on the other hand and more specifically, I want to think about what international organisations are from the point of view of their making. To do so, I zoom in on one important moment in the history of modern international organisations: the 1865 commission whose chief purpose it was to determine, at the International Telegraph Conference (ITC) in Paris, the scope and purpose of the first formal and permanent international organisation, the International Telegraph Union (ITU).

Building on previous histories of international organisations, I approach this case through the lens of micro-politics, combining biographical and sociological methods. Methodologically I study international organisations by means of biographical membership analysis; theoretically I argue that international organisations cannot be fully understood in separation from the situated political motives of their makers. Below I first outline what a lens of micro-politics entails, and what its methodological consequences are. Second, I sketch out the historical context of mid-nineteenth-century technical international cooperation. Third, I present a micro-political analysis of the 1865 commission. I conclude with some observations for the study of international organisations more broadly.

Micro-politics and Commissions

International commissions, if understood as prototypical international organisations, can be thought of as performances of global governance avant la lettre: their choices about membership, qualifications, and the output they generate all reflect certain historically specific understandings of what kinds of social capital are politically valuable, what symbols reflect status, and what acts and actions require special legitimation for whom. We can therefore study them in terms of who lays claim to what, who such a claim is addressed to, and what form of political action gets legitimised as a result. In order to study these inherently subjective influences upon the scope and authority of international organisations, however, extant approaches largely based on rationalist and critical varieties of functionalism are insufficient. Instead I wish to foreground the contingency involved in the making and situating of new organisations, in a space as indeterminate and contested as ‘the international’. To do this I argue that we need to pay attention to and indeed follow the individual practitioners concretely invested in the institutionalisation of particular modes of governance.

Attention to practitioners is largely in line with relatively recent trends in the study of international organisations, in both international law and international relations. Scholars from both disciplines have participated in a ‘practice turn’, which emphasises the performative work at the heart of claims to authority within and between institutional contexts. Vincent Pouliot, for example, applies theoretical insights from the work of Pierre Bourdieu to the study of performed hierarchy and status behaviour in the context of international organisations.Footnote ⁷ Marieke Louis and Lucile Maertens develop a similarly sociological analytical framework for studying the depoliticising work of international organisations.Footnote ⁸ Annabelle Littoz-Monnet makes a strong case for zooming in on the concrete interventions of expert actors operating in delineated policy fields within international organisations.Footnote ⁹ All four scholars share reservations about functionalist conceptions of international organisations, their scope, and their political authority. I build on their work and characterise the underlying orientation as ‘micro-political’. Micro-politics is a relatively under-conceptualised shorthand for small-scale political behaviour that gets overlooked for various reasons, whether methodological or theoretical.Footnote ¹⁰ In the case of international organisations, we may for instance overdetermine the functional purpose apparently fulfilled by an institution and therefore pay little attention to the political contestation involved in defining and prioritising this purpose.

For this chapter I define micro-politics as interpersonal instances of contestation, whether performed through speech, disruptive action, repetition, or otherwise. A micro-political study of international organisations demands that we zoom in on individual practitioners, their backgrounds, experiences, and preferences, as well as the social networks they are a part of. The key assumption of a micro-political lens is that identifying the characteristics and emphasising the conditional agency of practitioners working for international organisations allows for inferences about the character and scope of such organisations. Sociological analysis of practices and networks, but also biographical information about individual trajectories followed by practitioners, then provides significant clues about two central questions for non-functionalist work on international organisations: (a) what international organisations are, other than responses to functional need and (b) how international organisations produce authority relations.

Following the practitioners through a micro-political lens can go different ways; for purposes of clarity I distinguish three. First, sociological international-relations scholars have studied the intra-institutional activities, initiatives, and interventions of individual policy-makers, lawyers, civil servants, advisors, and others working for international organisations. Here we can trace, as Marieke Louis and Lucile Maertens have recently done, the distinct pathways and strategies followed by permanent and non-permanent staff dealing with problems of international cooperation.Footnote ¹¹ This option is particularly well-geared towards contemporary research and works well with e.g. ethnographic methods such as participant observation. Second, we might want to look for the past socialisation that individual practitioners bring to the governance process: the extent to which, for instance, a practitioner’s education affects their policy preferences and strategies they later adopt once working for an international organisation. This avenue is popular among sociological work deploying social network analysis, but for obvious reasons also works well for historically oriented scholarship.Footnote ¹²

A third option is to apply the second approach to a separate moment in the life of an institution: its inception. Here we are able to connect biographical backgrounds, intellectual formation, and political context in order to draw some – if limited – inferences about the contestation, political ambitions, and expectations involved in the establishment of a given organisation. Jens Steffek’s recent intellectual history of modern international organisations is a good example here, and indeed there is much that students of international organisations can learn from intellectual-historical methods more generally. By tracing the careers of individual thinkers and practitioners, Steffek is able to tell us how the intellectual influences and previous practical engagements of individual pioneers in international organisations have shaped their technocratic preferences and as such significantly influenced modern conceptions of the scope and authority of international organisations more widely.Footnote ¹³

The third avenue thus invites us to combine biographical and sociological intuitions about the micro-politics of international organisations. I pursue this avenue for two main reasons. On the one hand, empirically we simply know more about the inner life of a fully fledged international organisation than we do about those early founding moments. On the other, our conceptual, analytical, and theoretical horizons are affected by this empirical basis: currently a rational-functional understanding of institutional design and creation dominates scholarship. If we wish to historicise this literature we need to relax our assumptions – my approach, as I aim to show in the remainder of this chapter, is able to do so.

A micro-political approach also has consequences for how we conceptualise authority. While there is disagreement as to how exactly authority and legitimacy relate,Footnote ¹⁴ for present purposes I pragmatically define international authority as ‘power taken to be legitimate’.Footnote ¹⁵ This places emphasis on recognition and audiences and takes no stance on how successful a given claim to legitimacy may be. I adopt a relational position that sees authority as an ever-contested relationship arising from interaction.Footnote ¹⁶ On this view authority needs to be produced in the first place, meaning it is historically contingent.Footnote ¹⁷ Julia Costa Lopez notes the central role of ‘constant (re)authorization’ in this context. On her view, authority relies on semantic fields that get deployed to ‘reauthorize authority’ – ‘these categories and their variability are central to understand the production and evolution of authority itself’.Footnote ¹⁸ A relational view is a useful starting point for thinking about how authority relations are produced.

Zooming in on the micro-politics of historical international commissions – of their composition and of their interventions – puts processes of legitimation centre-stage. Methodologically, to foreground the social production of authority relations inherent in decisions about institutional design, rather than study design at an abstract level I combine biographical and sociological methods. This allows me to zoom in on membership composition as a particular aspect of institutional design.

Telegraphs in the Nineteenth Century

Building upon recent work on nineteenth-century international organisationsFootnote ¹⁹ I examine how, and in response to what historical currents, the ITC assumed the specific shape it did. The nineteenth century is crucial here as a period during which technical international institutions proliferated in parallel to the acceleration of industrial capitalism, imperial expansion, and technocratic conceptions of political institutions. Let me briefly outline this historical context in more detail before I turn to the ITC as a key example of that context.

In 1837, the first overland electric telegraph line was laid from London to Birmingham, replacing the optical telegraph system of semaphores with a more efficient and less easily sabotaged means of communication. During the second half of the 1840s, lines proliferated and interconnected at dizzying speeds. The demand for administrative integration grew: in 1848, Prussia alone had to conclude a total of fifteen conventions with other German states just to link Berlin’s cables to its own borders. Telegraph standards were multilaterally negotiated at the Austro-German Telegraph Union (AGTU), created in 1849, and the French-led Western European Telegraph Union (WETU), created in 1855. In 1864 the French Imperial Government invited all countries with a telegraph administration (excluding those, like Britain, where telegraphs were in private hands) to settle international telegraphic standards. Twenty countries confirmed their attendance, including the Austrian, Ottoman, and Russian Empires. Representatives gathered in Paris to vote on a proposal, put forth by a Commission of Special Delegates, for a single ITU. The conference set technical standards for telegraphs including Morse code, uniform instructions for cable operation, common tariff rates, accounting rules, pricing units, or the maximum length of a word. The convention came into effect on 1 January 1866; two years later, a permanent International Bureau in Bern completed the creation of an international telegraph regime. The world’s first formal international organisation, still in existence today, provided a blueprint that many others followed.Footnote ²⁰

The ITU is a significant case for two main reasons: first, it was the first-ever formal international organisation, and thus marked a formative stage in the institutionalisation of global governance practices. Second, the technical management of international telegraphy was a striking pathway in parallel to the proliferating capitalist and imperial competition for its control. The 1860s international telegraph regime thus seemed to endow telegraph cooperation with substantial autonomy and independence from political interference, effectively reinforcing the hierarchies this arrangement denied – a surface appearance that rested on the ‘universal but not global’ scaffolding of a world structured by empire and capitalism.Footnote ²¹

The 1865 Commission

Against the historical background sketched out in the previous section, let me now zoom in on the practitioners involved in the micro-political thick of telegraph cooperation. My analysis proceeds in two steps, asking how and for whose benefit the international telegraph regime assumed the shape that it did. In each subsection I highlight the agency of practitioners and their motives, and the resulting legitimation of cable-laying as a political intervention. To do so, I first contextualise the political undercurrents of the diplomatic and technical negotiations prior to 1865: Austro-Prussian competition, French imperial expansion, and the question of who should be invited to Paris were, contrary to functionalist portrayals, controversies with which architects of the ITU had to deal. Second, I present my biographical membership analysis to draw inferences based on individual members’ backgrounds, socialisation, and political preferences.

Conclusion

After the 1865 Paris conference, the ITU went on to convene on a regular basis in the capitals of its member countries. What characterised its activity during the last three decades of the nineteenth century was a resolute refusal to become a forum where the intense military and economic rivalries surrounding the technology would be on display. Instead, the institution managed to refine its standards and regulations, and its delegates managed to reach agreements and make compromises despite the considerable tensions between its member governments. This was tied to the ITU’s emerging self-understanding, on the one hand, and shifts in its institutional design, on the other. The ITU’s self-understanding that I have examined here later turned into an inalienable global governance standard. The 1875 St Petersburg conference determined that henceforth ITU conventions would be held by Special Delegates only. What resulted was ‘a more precise definition of the conference as “meetings of experts”’, now explicitly defined as ‘intelligent men, ready to be enlightened by discussion and to modify their opinion according to the considerations that they hear being developed’.Footnote ⁴⁹

The case of the ITC, I have argued, illustrates the consequences of adopting a micro-political approach in the historical study of international organisations. So, to return to the initial question of this chapter: what then is the distinct value that historicisation can bring to the scholarly aims of this volume? The approach followed in this chapter invites us to think, through a micro-political lens, about what international organisations are from the point of view of their making. Empirically I zoomed in on one important moment in the history of modern international organisations: the 1865 commission whose chief purpose it was to determine, at the ITC in Paris, the scope and purpose of the first formal and permanent international organisation, the ITU.

In the introduction to this chapter I defined micro-politics as interpersonal instances of contestation, whether performed through speech, disruptive action, repetition, or otherwise. The key assumption of this approach, I argued, is that identifying the characteristics and emphasising the conditional agency of practitioners working for international organisations allows for inferences about the character and scope of such organisations. Sociological and biographical analysis of individual trajectories then provides clues about two central questions: (a) what international organisations are, other than responses to functional need and (b) how international organisations produce authority relations. Let me return to each of these aspects.

Unpacking instances of contestation requires that we know about individual commissioners’ backgrounds, experiences, and preferences, as well as the social networks they are a part of. Of course this is limited: as can be seen in the biographical table presented in the previous section, information is incomplete where archival data is not available. This real practical limitation is further complicated by an analytical limitation: from a historical point of view we will never know actors’ real preferences or private reasons for joining a particular enterprise or undertaking. Yet if we consider individual backgrounds of ITC members – the ‘international’ portfolio they share in common, and the technical knowledge they do not – alongside the political tensions to which the ITU had to respond by design, then we actually gain important insights about the making of international organisations.

First, we get to say something new about what international organisations are, if not straightforward responses to naturally arising functional needs. Rather than a mechanism to overcome obstacles to international cooperation, by telegraph standardisation say, the ITU in this chapter appears much more as a focal point of contestation about political orders. ITC negotiations granted countries such as Switzerland and Belgium ‘middling’ status on the important issue of tariff revenue. This has had repercussions for the general position of both countries in the European international order, both at the time and for decades to come. Further, at the ITC negotiations, national standards as such collided and had to be reconciled. Nationhood was perhaps the greatest European political concern at the time, and so the ITU was an expression of a particular understanding of national autonomy and its limits. In sum then, identifying commissioners as individuals with particular loyalties and interests, rather than servants of a predetermined common cooperative goal, puts the resulting international organisation into perspective as a political intervention.

Second, we get to say something new about how international organisations produce authority relations. Specifically in this case, I started from a conception of authority as the inchoate and reiterative process of authorisation: authority is never entirely there as an analytical given but rather requires constant performance and relational production. On this understanding, the ITC as a unit can be understood as a political performance whereby actors are authorised as ‘international commissioners’ by virtue of cohering in and representing something that gets labelled and then institutionalised as an international organisation. This was, in the middle decades of the nineteenth century, revolutionary – the label of ‘internationality’ was still in its infancy at the time, and attaching it to institutional entities was a novelty. As we have seen in my discussion in this chapter, this label had powerful effects where it was invoked to signal autonomy from the political currents ‘outside’ of the world of telegraphs. Authorisation then, in this context, extended from a move of separating telegraph standards from political purpose.

This chapter zoomed in on the micro-politics of the creation of the first formal, modern international organisation: the ITU. In so doing I have on the one hand tried to make the case for a biographical-sociological approach to examining the role of individual commissioners; on the other hand, I have presented a non-functionalist case study of institutional design. If historicisation is a promising avenue for the study of international organisations, it is especially so because it allows us to trace them back to their beginnings. This helps us learn something about their character, shape, and scope from the political context they responded to. In conclusion, the micro-politics of international organisations can be studied with a potent combination of biographical and sociological analysis, allowing us to gain some distance from functionalist overdetermination. Rather than see international organisations through the lens of foregone conclusions – the functions they are to serve – historicisation leaves the ‘point’ of international organisations open. Instead we can then look for the aims, partial interests, and political preferences that the makers of these institutions bring to the drafting table: when institutional design actually happens, we can then ask, what non-technical, non-functional considerations play a role? Social networks, loyalties, allegiances, and past performances on vaguely connected matters, as discussed in this chapter, all play into the process.

In the post-World War II era, international lawyers have occupied the front seat in studying not only international organisations (IOs) but human rights as well. Thus, it is both understandable and sensible to frame insights from international law as dominant, and those from other disciplines as offering alternative, perhaps somewhat subordinate viewpoints. During the past decade, this disciplinary hierarchy has grown to feel increasingly unsatisfying, including to an increasing number of international lawyers who are ‘losing faith’ in their discipline, both as an analytical framework and as a tool for world improvement.Footnote ² From the perspective of empirical reality, this disciplinary hierarchy has likewise outlived its usefulness: in the continued proliferation of IOs accompanied by various regulative frameworks, mandates, and normative orders, what exactly makes them ‘legal’ has grown increasingly unclear.

In this chapter, I enter the debate using perspectives from my ethnographic fieldsite, namely, the UN Human Rights Committee,Footnote ³ embedding my discussion in a decade of anthropological work on IOs.Footnote ⁴ One of ten treaty bodies monitoring state compliance with the main UN human rights covenants, the Human Rights Committee monitors how states comply with the obligations they have assumed by becoming parties to the International Covenant on Civil and Political Rights (ICCPR). In the continued – and perhaps permanent – absence of an international human rights court operating under the UN, the committee is often called the most ‘lawlike’ and authoritative of all the UN human rights monitoring mechanisms.Footnote ⁵ At the same time, the Human Rights Committee, similarly to other UN treaty bodies, suffers from under-reporting and lacks influence, raising concerns over whether the committee’s work really matters.Footnote ⁶

This chapter anchors its inquiry in an ethnographic glimpse from 2013 when the committee first held a Constructive Dialogue session ‘with itself’ concerning the state report of Belize, a small state bordering Mexico. Belize’s initial report to the committee was due circa fifteen years before Belize finally submitted it in 2013, but then it did not send a state delegation to the committee’s session as is the usual practice. The committee has since examined a great number of reports in abstentia. These sessions form a noted contrast to the expectation that processing state reports constitutes an active verbal exchange between members of the international community, that is, Human Rights Committee members and state representatives. These sessions offer an illuminating vantage point for reflecting on the diverse ways in which IOs’ forms and practices ‘keep up standards’ for a better world.

Klabbers notes the dominant idea is that ‘international organisations are apolitical and cost-effective, doing things states cannot do on their own (or are reluctant to do on their own)’.Footnote ⁷ Further, ‘while apolitical, they nonetheless contribute to world peace or, at the very least, the “salvation of mankind”’.Footnote ⁸ Hence, IOs are widely perceived as ‘inherently good and benign, and their functioning should accordingly be facilitated – they form the benevolent alternatives to nasty states’.Footnote ⁹ Particularly in the past decade, questions have increasingly arisen as to whether IOs are realising these expectations and whether international law is actually effective.Footnote ¹⁰

One recurring source of criticism is that, instead of actually acting in the world, IOs ‘generate documents that heighten obscurity, while producing ideas and policies behind closed doors’.Footnote ¹¹ Frequently, the generation of ‘obscure’ documents seems to ‘hinder’ IOs doing things that actually matter and which IOs should be doing. In part, these accusations can arise from IOs leading a ‘life of their own, distinct from that of their member states’.Footnote ¹² In this ‘life of their own’, talking appears to have replaced doing, and meetings have increasingly become a substitute for action. What were supposed to be the means to an end seem to have become the end in itself.

People working in IOs take these criticisms seriously. Many actively question the direction and continued legitimacy of their operations and invite anthropologists to conduct ethnographic studies of their organisational cultures.Footnote ¹³ Some IOs revisit their foundational visions and significantly revise them to remain relevant in a rapidly changing world. One example of this is Amnesty International’s increasing shift towards ‘sustainability’, a new concern in the field of human rights.Footnote ¹⁴

In this chapter, I engage with these criticisms and ask: can we find another perspective from which to assess effectiveness? What happens if we stop investing our analytical attention in what we think IO operations and their desired ‘impacts’ should be? What kind of insights can we gain from non-normative inquiries into what IOs actually do? I reflect on these questions by asking: What can we learn about IOs’ visions if we focus on the legal technicalities and practical materialities that define their operations and the ‘mundane forms through which these work’,Footnote ¹⁵ the seemingly ‘thin’ documents and the ‘boringly, even achingly, familiar routines’?Footnote ¹⁶ I link these questions to ethnography by asking: According to what kind of logic does it make sense for a high-profile UN human rights monitoring body to have a ‘dialogue with itself’?

The Flourishing Anthropology of IOs

Since 2010, the anthropology of IOs has grown into a vibrant field of research. Anthropology was once characterised by geographically distant, elusive fieldsites and the study of exotic tribal customs. This created an inevitable division between those who did the studying and those who were studied, a distinction graphically captured by the still-circulating images of Bronislaw Malinowski, often called the founder of ethnography, clad in impeccably white attire amongst his ‘natives’, inhabitants of Trobriand Island.Footnote ¹⁷ Much of early anthropological work was embedded in the kind of evolutionary thinking likewise characteristic of international law: for example, many early works in legal anthropology were premised on ‘advancement’ from informal modes of dispute resolution to formal law.Footnote ¹⁸ The distinction between the western ‘civilised’ ethnographer and the ‘savage’ subjects of inquiry created a legacy that the discipline has attempted to reckon with, even if not with completely satisfactory results.Footnote ¹⁹

Simultaneously anthropology has a long tradition of ‘studying up’,Footnote ²⁰ generating ethnographies of organisations. The result is a rapidly growing body of research analysing different UN entitiesFootnote ²¹ and international law.Footnote ²² These include ethnographies of international courts,Footnote ²³ including the European Court of Human RightsFootnote ²⁴ and the International Criminal Court,Footnote ²⁵ and of truth-and-reconciliation commissions.Footnote ²⁶ Anthropological work focuses on the UN Human Rights Council’s Universal Periodical ReviewsFootnote ²⁷ and treaty bodies, including the Committee on the Elimination of Discrimination against Women,Footnote ²⁸ and the Convention against TortureFootnote ²⁹ and the Human Rights Committees.Footnote ³⁰ Studies of the World BankFootnote ³¹ complement ethnographies of human rights activities, including failures in diverse local settingsFootnote ³² and their links to global networks, and research on expert techniques,Footnote ³³ transnational activist and expert networks.Footnote ³⁴ Together this scholarship documents the growing influence of independent expertsFootnote ³⁵ and their influence on transnational legislation,Footnote ³⁶ EU policymaking,Footnote ³⁷ and informal law-making.Footnote ³⁸

In fact, it may be easier for anthropologists to study and theorise IOs than it is for international lawyers, for whom the multiplicity of IOs presents a significant hurdle. How does one arrive at satisfactory legal definitions or theorisations when the concrete incarnations, criteria for membership, and scopes of operations differ so greatly?Footnote ³⁹ Yet, where international lawyers perceive troubling differences, anthropologists see significant sameness. First, there is IOs’ community of practice, the (permanent) staff of which share great similarities. With rare exceptions, they all belong to the same transnational elite possessing similar educational backgrounds and work experiences.Footnote ⁴⁰

Sameness likewise characterises their professional endeavours. When IO staff produce and process human rights reports, they generally do so using similar knowledge practices and legal technicalities, no matter where in the world they are located.Footnote ⁴¹ Thus, sameness unites the international human rights and humanitarian sector: it matters little whether the documents are processed by the UN Human Rights Council, the Human Rights Committee, or a regional human rights monitoring body, or whether the individuals processing documents are UN secretariat members, state delegates, or NGO staff.

An inductive field of research characterised by ‘pre-theoretical commitments’,Footnote ⁴² anthropology has a proclivity for theorising from the ground up, in stark contrast to law, which is both deductive and normative. For example, when examining IO operations, a legal inquiry commonly commences with a distinct fiction regarding what constitutes an IO and its mandate, followed by assumptions about the impacts IOs should have.

Inductive theorisation, however, begins with IOs’ inner logic and operations, which anthropologists observe, participate in, and hear our interlocutors describe. It portrays IOs as ‘social worlds with distinct characters, influenced by their connections with civil society, states, transnational corporations, and publics’.Footnote ⁴³ It reveals how ‘international organisations involve collective and individual actors in their policy-making, absorb critique, attempt to neutralise political conflict, and create new political fields in competition and collusion with local actors and national governments’.Footnote ⁴⁴ It further highlights the ‘affective lives of bureaucracies’, and ‘how actors maintain a sense of purpose and agency in spite of the tedious and burdensome nature of the administrative procedures in which they take part’.Footnote ⁴⁵

After sufficient analysis, an ethnographically grounded, theoretical understanding emerges that transcends the borders of formality and legal fiction, encompassing the informal, the improvised, the unexpected, and the irrational. In my own work, inductive theorising generated a description of the UN human rights monitoring framework as a formidable ‘apparatus’. This conception borrows from Foucault, who describes the apparatus, aka, the dispositive, as a ‘heterogenous ensemble consisting of discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific statements, philosophical, moral, and philanthropic propositions – in short, the said and the unsaid’.Footnote ⁴⁶

I complement this description with ice as a metaphor for describing the complexity of organisational inner contours.Footnote ⁴⁷ Ice is likewise an apt metaphor for illustrating the ‘fuzzy logic’ of the UN human rights apparatus. ‘Fuzzy logic’ is borrowed from Bourdieu, who used it to underline the exaggeratedly rigid nature of ‘system’ or ‘structure’ as analytical concepts, by emphasising the indeterminacy of the rules diverse agents mobilise in practice, as well as to highlight the creative gap between ‘habitus and institutional structure’.Footnote ⁴⁸

Examining UN operations using inductive fuzzy logic captures an interesting paradox that evades deductive inquiries. One of IOs’ cardinal values is that their operations should be transparent. Yet, the very documents such organisations produce may in fact create confusion and obfuscation. This outcome may partly be due to specialised jargon and procedural complexity. Indeed, rather than constituting a problem or shortcoming, fuzziness or partial opacity may be a desired element for seasoned insiders. A UN treaty bodies example clarifies this. The mandate of human rights treaty bodies is based on covenant provisions. For example, the basis of the Human Rights Committee’s operations is stated in Article 36 of the ICCPR.Footnote ⁴⁹ Yet, these provisions leave the scope of operations for the treaty bodies themselves to define.

Over the past decades, the committees and the UN have determined many elements of what the treaty bodies do and how. One example of this is the role NGOs play in Human Rights Committee sessions. Although formally only states and treaty bodies participate in Constructive Dialogues about state reports, NGOs have extensive opportunities to voice their views by submitting ancillary reports, contributing to the Lists of Issues on the basis of which Constructive Dialogue takes place. In addition they are able to share their views immediately before the Constructive Dialogue in the lunch-time briefing sessions open only to NGO delegates and committee members.

Moreover, the scope of treaty body operations has expanded, as illustrated by the UN Human Rights Committee processing state reports in the absence of state parties. The expansion does not please all states, giving rise to aspirations to curb treaty body operations.Footnote ⁵⁰ Expansion has been largely made possible by the UN human rights apparatus’s ‘fuzzy logic’, which allows seasoned insiders to manoeuvre in diverse, subtle ways. Yet, both the manoeuvring and its consequences would be lost in accounts emerging from deductive, formal, normative theorising about IOs.

Anthropologising Impact

Chimni notes how ‘[i]n the corpus of literature which constitutes international legal studies, there is little reflection on the role of international institutions in sustaining a particular vision of world order’.Footnote ⁵¹ Billaud and Cowan echo this when they point out how seldom bureaucracies, national or international, are viewed as the site of visions, let alone utopias. Instead, they note, ‘classic representations tend to describe bureaucratic formations as “rationality machines”, administrations as homogeneous black boxes and bureaucrats as individuals working “without hatred or passion” to implement a broader vision of which they remain largely ignorant’.Footnote ⁵²

International legal scholarship, particularly human rights scholarship, may be illuminative when it comes to grasping underlying visions, for instance, in Paul Lauren’s The Evolution of International Human Rights: Visions Seen.Footnote ⁵³ In his sweeping exploration of the origins of human rights thinking in various global regions, Lauren also depicts a world on a steady march away from superstition and moving toward rationality, human rights, and rule of law.Footnote ⁵⁴

In legal scholarship, the most common criticism of UN treaty bodies realising their underlying vision to improve human rights in the world is that their efforts are legally non-binding, and hence, ineffective. Indeed, the Human Rights Committee can only produce documents with authoritative significance, and some scholarship suggests minimal impact, when assessed via criteria such as including Committee Concluding Observations in legislative debates, court proceedings, or parliamentary debates.Footnote ⁵⁵

Yet, anthropological insights reveal alternative paths of influence. Riles examines how individual documents and sessions can form a seamless cycle to constitute human rights dialogue. The significance of such dialogue originates in its capacity to link seemingly disparate events – such as processing an individual state report by a UN treaty body – into meaningful continuities. Together, these continuities form trajectories that apparently embody progress, as illustrated by changing the language in UN documents from ‘sex’ to ‘gender’ in the early 1990s.Footnote ⁵⁶ Another avenue explores the informal influence that treaty body proceedings have. This may happen when a state civil servant picks up a UN treaty body report condemning the state’s practices towards minorities. The civil servant may use the report to argue for increased resources, thus ideally improving the position of minorities, while also advancing human rights.Footnote ⁵⁷

There is a third avenue, which directs an analytical gaze on the ‘mundane forms through which (IOs) work’,Footnote ⁵⁸ the ‘boringly, even achingly, familiar routines’.Footnote ⁵⁹ Helpful here is Riles’ work on legal technicalities, ‘those aspects of legal practice that cannot be reduced to norms, trust or other sociological concepts’.Footnote ⁶⁰ One tangible example is the ‘routinised pathways of thought’ via which lawyers approach legal documents. This manner of approaching documents constitutes ‘a profoundly aesthetic practice’ ‘of fidelity to proper form’. The ‘legitimacy of law inheres in its aesthetic dimensions and practices’,Footnote ⁶¹ which becomes ‘a script for a particular kind of collaboration’.Footnote ⁶² In the following ethnographic vignette, I elaborate upon the significance these insights offer for understanding the role of ‘lawlike’ organs like UN treaty bodies, including the values that they uphold in their operations.

Dialogue with Ourselves

It was an irregular UN Human Rights Committee session in Geneva at the Palais Wilson, the headquarters of the UN High Commissioner for Human Rights. For the first time, the seats state representatives customarily occupied at the front of the spacious conference room were empty. In all other respects, the stage was set for the undoubted culmination point of this high-profile, international gathering, the Constructive Dialogue, which is UN treaty body work’s most treasured component. Committee members were seated in their places and ready for action; the interpreters were in their glass booths; members of the UN Secretariat were there, as were UN Conference services members and several NGO representatives, interns, and other observers. Press secretaries were ready to record the events, and the webcam a Geneva-based NGO operated was prepared to start transmitting ‘to the world’. Only the lead character in this scene – the state – remained conspicuous by its absence.

The session that followed testified that the situation was novel for everyone involved. Committee members asked numerous times why there was no delegation from Belize. UN secretariat member responses suggested the reason might be financial, or as one committee member candidly stated, the state was ‘broke’. Another committee member noted, had the session occurred at UN headquarters in New York – as one in every three Human Rights Committee sessions had prior to 2013 – Belize could simply have sent a staff member from its permanent mission. As committee sessions are now held exclusively in Geneva, where Belize has no permanent mission, this was not an option. Other committee members questioned this reasoning: ‘Just because a state says something does not mean you should believe it.’

As the session wore on, the committee members’ frustrations became palpable: several said it was a shame there was no delegation from Belize to respond to the numerous questions the committee had regarding implementation of the ICCPR. However, the committee members did not slack off: despite the absence of a respondent, they followed the usual session choreography by posing pointed questions regarding Belize’s inaction regarding the ICCPR. The longest monologue by an individual committee member lasted almost forty minutes.

Constructive dialogue is a curious phrase. Dialogue is a staple of the UN treaty body operations and draws from the rhetoric of ‘dialogue’ prevalent in international collaboration. Yet, neither constructive dialogue nor dialogue have clear-cut definitions or distinct statuses in international law. In pragmatic terms, UN committees’ Constructive Dialogues are highly orchestrated exchanges that usually last six working hours per state, consisting of formal opening statements read out by the heads of state delegations, followed by questions posed by committee members, mostly concerning compliance with the ICCPR, a round of answers by state representatives usually after brief preparation time, then follow-up questions by the committee, and, time permitting, a final round of answers by states.

Although accompanied by an air of spontaneity, in reality, all the elements of dialogues are carefully prepared in advance, requiring jointly months of labour. The questions committee members pose are based on extensive background research, as are the answers state representatives offer. More often than not, both questions and potential answers have been written down prior to sessions.Footnote ⁶⁴ Significant labour accompanies the most important ‘shadow actions’ of the public performance, namely, the ancillary reports national and international NGOs prepare, submit, and present to the committee in sessions closed to state representatives.

From Savage to Civilised via Human Rights Reports

What is the relevance of Constructive Dialogues? What really happens during them and according to what logic does it make sense to have one with oneself? Officially, Constructive Dialogues are moments for sharing factual information. Elsewhere, I challenge this, arguing that, in addition to, or perhaps instead of, exchanges of factual information, they entail significant hidden communications connected to tensions over who is a legitimate representative when it comes to providing information on behalf of a population.Footnote ⁶⁵ In this chapter, I want to propose another answer by focusing on the importance of the seemingly insignificant and even banal: the forms and practices of Constructive Dialogues; in other words, the fact of their occurrence.

I thus ask the following: What if part of UN treaty bodies’ relevance hinges on the very fact that UN expert bodies process documents called ‘state reports’ in elaborate, ritual sessions called ‘Constructive Dialogues’? What if, by extension, the legitimacy of IOs and the means for them to realise their visions lie in ‘aesthetic practices’ embedded in ‘fidelity to proper form’,Footnote ⁶⁶ which bestow upon these documents and practices – in the words of Jessie Allen – ‘legal magic’.Footnote ⁶⁷ To unpack these assertions, it is useful to take a momentary detour to explore the notion of the ‘standard of civilisation’, a notion for which, despite inspiring vast scholarship,Footnote ⁶⁸ we lack agreed-upon definitions. However, the link between civilisation and international law appears uncontested: as Obregon summarises, ‘international law carries the weight of being pronounced as the ultimate product of civilisation, making it into an utopian ideal of a transnational organised legal system that would bring progress and peace to the world’.Footnote ⁶⁹

Obregon connects this assertion to Kant’s Perpetual Peace, in which he states that the difference between ‘savage’ and ‘civilised’ rests on insistence on a constitution and a preference for ‘rational liberty’ as opposed to a ‘savage state of lawlessness’.Footnote ⁷⁰ Tzouvala echoes this characterisation, arguing that the civilised standard became ‘a way of systematising and legitimising a wide range of juridical practices’.Footnote ⁷¹ These practices were ‘justified with highly moralising references to civilisation’,Footnote ⁷² amounting to a ‘logic of improvement’.Footnote ⁷³ Parfitt echoes these thoughts, noting that ‘only those political communities that had been successfully interpellated as modern, bureaucratic and juridically separate from society and economy, were deemed to be civilised and, therefore, full subjects of international law’.Footnote ⁷⁴ As Koskenniemi and Anghie, among others, illustrate, the standard of civilisation formed grounds for exclusion, conquest, and colonisation of peoples and states by ‘those who thought themselves civilised or at least “more civilised”’.Footnote ⁷⁵ Thus, the standard of civilisation creates ‘a conundrum between exclusion and conditional inclusion’.Footnote ⁷⁶

Today, the standard of civilisation is increasingly seen as synonymous with ‘metrics, indexes and “best practices” that give contemporary iterations’.Footnote ⁷⁷ It is moreover embodied by the human rights system’s expansion,Footnote ⁷⁸ with the consequence that states which do not conform to this standard risk being ‘exiled from the inner core of international society’.Footnote ⁷⁹ The idea of meeting a standard of civilisation depends on fulfilling metrics determined by human rights reporting obligations, accompanied by quantified indicators.Footnote ⁸⁰ This resonates with Mbembe’s observations regarding postcolonial relations, according to which power works ‘in its minute details’, on ‘the principles of assemblage which give rise to its efficacy’ together with ‘types of institutions, knowledges, norms, and practices that issue from it … as well as the light that the use of visual imagery and discourse throws on the nature of domination and subordination’.Footnote ⁸¹

Adhering to human rights reporting obligations often suffices for acceptance into the international community, or at least it is the only remaining, uniformly expected – or promised – action that the contemporary human rights regime offers. As Donnelly notes, ‘(t)he international community still refuses to act before ethnic conflict erupts into widespread bloodshed, or even to develop early warning systems’.Footnote ⁸² This inaction is problematic: as many noted regarding the Bosnian War, among others, military action justified in the name of human rights often causes as many problems as it solves. There is an indisputable sense of disappointment when confronted with this reality: just as with Belize’s state report, the UN Human Rights Committee, like other UN treaty bodies, usually continues its diligent examination of documents accompanied by carefully choreographed Constructive Dialogues, even when, for example, military actions or terrorist attacks have taken place.

Sitting in the calm conference room of the Palais Wilson, the voices of children playing in the adjacent schoolyard entering through the windows, this situation may seem downright ludicrous. Proceeding with the calm processing of documents through ‘UN reality’ may feel like the last thing that should happen in the face of severe wrongdoings. Yet, this is what the committee does, and further, what it has been mandated to do by the covenant it monitors. With these observations, we return to Downton Abbey’s grand mansion. This time, we find ourselves at the upstairs dinner table – for which location Mr Carson, the butler, fervently polished the silverware. The crystal glassware and porcelain serving dishes are matched by the elaborate detail on the ladies’ dresses. The men are impeccably dressed in white ties. After some polite chitchat, an exchange ensues. Participating are Mr Branson, the chauffeur who became Lord Grantham’s son-in-law, and Lord Grantham’s mother, Lady Grantham, a true specimen of old British noblesse.

With this statement, our circle is complete. We find ourselves, quite unexpectedly, drawn back to the remote and exotic, both the islands of the Pacific and the small coastal states of Central America. Yet, in this instance, it is not the anthropologist’s whites that separate the civilised from the savages. Nor is it the silverware that, via feverish polishing according to vigilant standards, communicates to the brute Germans that they have not conquered civilised Britain. Instead, the separation between ‘civilised’ and ‘savage’ is created and maintained by aesthetic practices concerning documents and meetings that demonstrate ‘fidelity to proper form’ – just as the vigorously examined documents and carefully choreographed rituals in the main conference room of the Palais Wilson do.

In all simplicity, this means that part of the ‘civilising mission’ is embedded in the very fact that IOs exist. By extension, a core part of their importance is embedded in the very materiality of their work. In the field of human rights, ‘fidelity to proper form’ refers to the continuous proliferation of different ‘units’, ‘policies’, ‘programmes’, ‘committees’, and ‘rules’. Thus, in 2018, when Belize sent a state delegation to participate in the proceedings, the Human Rights Committee framed the matter in praise of progress, which it included in its finally adopted Concluding Observations.Footnote ⁸⁴ Indeed, the significance of such forms and practices is not determined by their impact or effectiveness, but rather by their mere existence.

This example elucidates that, in the human rights field, the very production of infinite numbers of ‘lawlike’ documents, as well as the elaborate practices according to which these documents are processed, form the civilised standards for a better world. When examined from this perspective, more important than whether or not such documents have binding legal force, or even what they contain, is that they convey their messages by means of appropriate organisational aesthetics, including covenant-like paragraphs and sub-paragraphs that rely extensively on individual pieces of legislation, court rulings, policies and action plans, and ritualised meetings. It is the legal technicalities that give these forms and practices their ‘legal magic’ and by extension their legitimacy. Their existence comes to embody a vision of a better world characterised by technicalities and proper aesthetic practices, and by extension, the values of rationality, transparency, and the rule of law.

Conclusion

In this chapter, I highlighted the alternative approaches that anthropology may offer to the study of IOs in international law. These include insights into the effects that IOs may exert on today’s world order and the mechanisms via which this occurs. Focusing on legal technicalities and materiality offers new analytical avenues for reflecting on the relevance and consequences of IOs’ operations. Such a focus also offers insights into the historical continuities characterising both IOs and international law. To date, such continuities have been largely overlooked in scholarship on IOs.

This approach opens fresh avenues for considering the future of IOs and their visions, allowing us to ask whether IOs still have utility. The world depicted in Downton Abbey started to vanish soon after the historical moment described at the beginning of this chapter – although not because of the war with the Germans and definitely not due to lacking standards where polishing silverware was concerned. Since the start of the COVID-19 pandemic in early 2020 we have seen again how quickly and unexpectedly the world can change. We have experienced how fast the life that seemed normal to us to can be turned upside down.

We have likewise experienced how quickly new standards for a better world can be introduced, whether they are the face masks we began to wear or the COVID-19 vaccination certificates we became accustomed to showing to enter airplanes, hotels, and restaurants – all things that just a few years prior would have felt impossible to imagine. We do not yet know how permanent these new standards will be or when the subsequent waves of pandemics or other world crises will occur that will upend what we know as proper procedures. These changes, however, make apparent how much the world has changed since the inception of IOs decades ago, when global concerns were very different from those we face today. What will happen to IOs in the future, and whether they will be able to adapt to everchanging world situations, we do not yet know. What remains certain is that to understand this future – the impacts and effects of IOs operations, as well as the diverse roles legal technicalities, materialities, and aesthetics play – sustained interdisciplinary debate remains essential.

Thus, anthropology offers to the study of IOs insights into the effects that IOs may exert in today’s world order, as well as the mechanisms via which they do so. It also provides alternative means for considering the legitimacy of IOs and the historical continuities that accompany the ‘civilising mission’ that they embody.

Introduction

When Roberto Dañino, former General Counsel at the World Bank, arrived in the institution, he found a department perceived to be at the verge of ‘marginalisation’ – a dire state he diagnosed and soon attributed to the rigid ‘culture’ of legal practice. In tracing Dañino’s efforts to ‘make the department relevant again’, we get a glimpse of the situated, material, embodied institutional life of international law: the changes Dañino instilled were manifested not in formal legal sources but in the introduction of new cultural codes, professional prototypes (the ‘how to’ lawyer), and technical routines of risk management. In the domain of international institutional law – often oriented towards abstraction, comparison, or aspiration – such prosaic legal practices tend to be underplayed. If we want to perceive or evaluate changes in the cultural technique of international law(yering) such as those sparked by Dañino, I argue, we need to redirect our attention to ‘that which lies at the edges of conventional international legal sightlines’, as Johns argued – to focus not on ‘grand designs’ but on ‘lived practices and techniques’, in the words of Riles. This chapter signals two productive entry points for such a turn to practice: (i) a focus on the shared and contingent criteria of competence – the ‘social grammar’ – that mark professional postures and performances and (ii) a heightened attention for the practices of relationality, translation, and materiality through which law is composed – the string of ‘people and things’ that it assembles. This methodological orientation to professional scripts and material routines also offers a perspective on ‘critique’ that differs from the familiar structuralist modes of analysis and intervention. What might legal ‘critique’ become if, with Levi and Valverde, we were to trade the ‘abstracted view of “structure” [for] the empirical work of studying action, actors, communication, imitation and translation, networks, knowledge flows and the continual process that constructs society itself’? If we associated the ‘critical’ gesture, in Latour’s terms, with ‘multiplication, not subtraction’ – with more, not less? If the direction of ‘critique’ were not away from its objects (a flight into their social or political conditions of possibility) but ‘toward the gathering’? If the ‘critic’ were not ‘the one who debunks, but the one who assembles’? Perhaps it is in tracking and tracing, mapping and multiplying, and not in the stylized posture of scepticism that ‘critique’ might regain potential?

‘I Wanted to Make the Legal Department Relevant Again’

When Roberto Dañino – former Peruvian Prime Minister and ambassador to the United States – was appointed as the World Bank’s General Counsel in 2003, he felt he arrived at a department in disarray. Only a few years after Ibrahim Shihata’s departure – Dañino’s illustrious predecessor whose presence still lingered in the organization and who, according to Dañino, had ‘very much exercised the power of the office’ – he perceived that the legal department had now become ‘marginalised’.Footnote ¹ There was a decline in requests by the World Bank’s Board of Executive Directors for formal legal opinions, and lawyers present at that time expressed that they were increasingly kept at a certain distance from the organization’s transactional process. Experiencing an expanding distrust of the institution’s political Board, a lingering discontent of its operational branches, and a diminishing esteem for the department, Dañino framed this dire state as the result of a particular ‘culture’ in the legal department.Footnote ² The issue, as he construed it, was that too many lawyers displayed their power by saying ‘you cannot do this … this is wrong’.Footnote ³ While the institution’s senior management demanded ambition and agility in the face of new global challenges, a close ally of Dañino lamented, the law had become ‘fossilized’.

In articulating his strategy to instil a new ‘paradigm’ of legal practice in the Bank, Dañino categorized this ‘old type’ of lawyer as the ‘why not’ lawyer.Footnote ⁴ ‘My strategy for making the LEGAL VPU [Vice Presidency] more relevant and better positioned to meet the needs of the Bank’, he stated early in his tenure, is to ‘change our attitude from “why not” to “how to”. We cannot just be policemen, blindly enforcing the rules. We need to go beyond that and provide … value-added to our clients’.Footnote ⁵ This was the time of the Millennium Development Goals and the Comprehensive Development Framework. A time of radical expansion, moral reinvigoration, and institutional growth led by James Wolfensohn – probably the most ambitious Bank president since McNamara.Footnote ⁶ This was not the time to slow down the grinding mills of global liberal reform by adopting a principled posture of legal formalism.Footnote ⁷

To make the department ‘relevant again’, Dañino perceived that it was necessary to rewrite the script of legal practice in the Bank and articulate a new ideal-type for the international institutional lawyer: the creative and client-oriented ‘how to’ lawyer. The ‘cultural’ clash caused by this new professional prototype escalated in a discussion over the legality of the Bank’s engagement with criminal justice and security sector reform in developing countries. For Shihata – and the conservative lawyers still clinging to his scriptures – this area was categorically off-limits. Several years before Dañino arrived, a legal memorandum had been drafted that argued that police power was an expression of the sovereign power of a state, and that, consequently, the financing of police expenditures would not be consistent with the organization’s Articles of Agreement.Footnote ⁸ The World Bank, it underlined, should not be seen as a ‘world government’ with an unlimited mandate and should only engage with those tasks specifically included in its constituent charter.Footnote ⁹ This position epitomizes the ‘old approach’: its methodology is formalistic, its principled logic produces clear legal boundaries, and its legal conclusion urges rigidity and restraint. In this ‘old approach’, ‘sovereignty’ figures as a central pivot: since the World Bank is not a ‘world government’, as Shihata would consistently reiterate, its legal competences are both constituted and constrained by the codified exercise and expression of state consent.Footnote ¹⁰ This mode of legal practice reflects a familiar functionalist imaginary: the idea that the mandate and competences of the organization resulted from an act of attribution from a collective principal (the member states) to an agent (the World Bank) in the form of a multilateral treaty – the Articles of Agreement. In this sense, the principled policing of legal boundaries and the World Bank’s prohibition to engage with ‘politics’, for Shihata, ultimately echoed the principle of state sovereignty and sovereign equality.Footnote ¹¹

This imaginary had limited not only the organization’s engagement with criminal justice reform but also its involvement in situations of conflict and its interventions in the sphere of governance reform more generally. In the former case, Shihata had made an appearance before the Board, where he articulated a number of central legal principles, described as ‘either self-evident or dictated by the Articles’.Footnote ¹² ‘The first principle’, he stated, is that the World Bank ‘is not a world government … with an unlimited mandate. It is an international organization with a mandate defined in its Articles of Agreement’.Footnote ¹³ In the latter case, the ‘world government’ trope returns: ‘it is perfectly clear that the Bank’s purpose is not to substitute itself for the peoples and governments of its borrowing member countries in deciding how these countries are to be governed. This might be a task for a world government, not the World Bank’.Footnote ¹⁴ Furthering the vision that the institution has limited competences, attributed in the Articles, Shihata argued that it ‘cannot venture to act beyond its purposes and statutory obligations without the risk of acting ultra vires’.Footnote ¹⁵ The ultra vires concept is tied to ‘the basic principle of pacta sunt servanda, the cooperative nature of the Bank and the consensual basis of its actions’.Footnote ¹⁶

Importantly, however, Dañino ascribed the dire state of the legal department not to the application of particular theories or doctrines, but to the prevalence of a specific professional ‘culture’. Shihata had, indeed, consciously cultivated an ‘attitude’ or ‘posture’ of liberal legalism inside the department and the institution more generally. ‘I believe in discipline’, he noted in an interview at the turn of the millennium, ‘[a]nd, you have to respect the rule of law because you cannot advocate it and not respect it, internally’.Footnote ¹⁷ This was tied to a specific vision of the role of the lawyer in safeguarding the thriving and survival of the World Bank (and the system of global governance more broadly): ‘[i]gnoring [the limitations of the Articles] can work only to the detriment of the Bank and, in the long run, of all its members’, Shihata responded to his critics at American Society of International Law in 1988.Footnote ¹⁸ This principled posture was not only instrumental in nature but also related to a specific social trusteeship ideal of the legal profession. Even as Director General at the OPEC Fund, Shihata noted: ‘I did a great deal of the technical legal work myself, mainly out of concern for my own profession. I don’t consider management a profession’.Footnote ¹⁹ This ‘concern’ for the international legal profession expressed itself in performances of detachment and an iconology of constraint: ‘I have not acted simply as the spokesman for Management’, he later recalled, ‘I have acted as the spokesman for the law’.Footnote ²⁰ This liberal promise of speaking truth to power, for Shihata, reflected varying ‘cultures’ in the ‘attitude of lawyers depending on [their] background’: the ‘typical practicing lawyer in a law firm [who] is driven by the interest of the client’, he argued, acts ‘very different [to] a law professor who cares for what he thinks is legally correct’.Footnote ²¹ This ‘care’ and ‘commitment’ was portrayed to verge on heroism: ‘not everyone has it in himself to [take these positions]’, Shihata observed, ‘because many people want to continue in their job and feed their children which is legitimate, and I am not blaming them. Other people [referring to himself] are not like that, however … [T] hey feel strongly about principles and they act accordingly no matter what happens to them’.Footnote ²² This cultivated posture was, of course, not idiosyncratic but aligned with a particular ideal of international liberal legalism shared by many in Shihata’s personal and professional milieu. It is reflected, for example, in Bedjaoui’s identification of the ‘frustrating tyranny of a certain praetorian subjectivism’ at the ‘margin of indeterminacy’ – a ‘crushing responsibility’ he faced ‘anxiously’ and ‘humbly’.Footnote ²³ These specific professional ideals were reflected inside the World Bank not only in the restrictive reading of the Articles of Agreement, as pointed out earlier, but also in how the department was organized. There was a hierarchical culture where only Shihata formally published legal opinions or academic writings. These opinions entail thick webs of references (to travaux préparatoires, judicial precedents, VCLT provisions, or classic constitutional authorities) assembled in a dense textual form and legalist style. Management often lamented that Shihata drafted not legal opinions but constitutional edicts. When he was asked about his views on demands for decentralization, he cautioned that a ‘lawyer in the field is not like a lawyer here because he doesn’t have the same institutional support, and he may tend to become overwhelmed by the context of where he is’.Footnote ²⁴ This, he feared, would promote a ‘culture in the attitude of lawyers driven by the interest of the client’, which was antithetical to his ‘commitment’ to the ‘rule of law’.Footnote ²⁵

Upon Dañino’s arrival, he (and those close to him) quickly recognized this professional culture – with its centralized structure, principles borderlines, legalist style, and outdated social trusteeship ideals – as a ‘conservative course’ that was preventing the institution from being an innovator or pioneer, and from playing a leading role in non-traditional domains of development practice (such as criminal justice or security sector reform). ‘I didn’t want lawyers’, Dañino later observed, ‘who always said: “you cannot do this”, but lawyers who could tell you how to do things in a legal way’.Footnote ²⁶ Aware of the need for a professional change in the department, he recalls: ‘I came up with a motto … going from the “why not” to the “how to” lawyer’.Footnote ²⁷ The introduction of the ‘how to’ lawyer entailed a change in both the purpose and the instruments of legal practice. On the first level, the ‘how to’ lawyer, for Dañino, had to be a profoundly pragmatic and goal-oriented professional with the capacity to ‘fix’ problems and, in doing so, provide a ‘value added’ to the organization’s mission.Footnote ²⁸ This lawyer would be a welcome actor in the day-to-day operational processes of the Bank (as opposed to the ‘why not’ lawyer, who frustrates the operational process by producing rigidity and formal barriers). In order to achieve these goals, lawyers need to display ‘creative thinking’ and an ability to design ‘tailor-made’ solutions for problems at particular levels. On the second level, this change in the practice of lawyering demanded a new set of material tools of legal practice. In this context, Dañino introduced a ‘doctrine’ for legal practice that would replace formal ‘judgments’ with a ‘risk-analysis approach’. This transformation was associated with the introduction of a set of novel bureaucratic techniques, (visual) heuristics, and managerial expert committees geared towards a more efficient measurable evaluation and assessment of operational needs. Ingrained in the shift from the ‘why not’ to the ‘how to’ lawyer, in short, was the introduction of a deeply deformalized and multidisciplinary language of legality.

Capturing this shift in the ‘culture’, ‘philosophy’, and ‘mindset’ of lawyering, Dañino’s legal opinion on criminal justice applied the ‘risk-analysis approach’ to matters of operational expansion.Footnote ²⁹ Rather than a ‘blanket prohibition’ on engagement in this sector, the opinion argued, that for many of those projects of criminal justice reform that pose some risk of political interference, that risk could be ‘managed’.Footnote ³⁰ This ‘risk management’ approach relied on managerial processes of ‘consultation’ and ‘systemwide diagnostic analysis’ as well as the creation of an ad hoc ‘special review mechanism’.Footnote ³¹ This departure from the Shihata doctrine demanded a completely different professional orientation and a new set of decision-making tools. The shift to ‘risk management’ implied a mode of evaluation that did not need to be ‘binary’ (legal/illegal): by adopting a new range of managerial heuristics – case-by-case diagnostics, tailored involvement, risk mitigation measures, and compliance tools built around indicators, safeguards, or monitoring devices developed by ad hoc task teams – the prohibitive binary approach that had marked Shihata’s tenure would be traded for an enabling framework of contextual, non-binary risk assessment. The new policy was to identify the ‘green lights, yellow lights and red lights’ within those operational domains that Shihata had previously considered as part of the sovereignty function of the state and beyond the legal mandate of the Bank. The ‘risk management approach’ was framed as a ‘process-based solution’ instead of one that would categorize specific activities as permissible or impermissible. This radical change in approach expressed in this process-based solution would evolve into a new set of heuristics and bureaucratic techniques for legal practice: ‘risk assessment templates’, an online ‘risk portal’ for adaptation at the project level, ‘rules-of-thumb’, ‘roadmaps’, and ‘colour codes’ for risk evaluation and mitigation, as well as the reallocation of roles and responsibilities in ‘special review mechanisms’ built for ‘dynamic’ forms of ‘risk management’.Footnote ³²

The heuristic of the ‘how to’ lawyer hereby appears as rationalization for a thoroughly deformalized mode of legal practice inscribed within bureaucratic processes of decision-making operating on the basis of risk scores, indicators, managerial mechanisms, informal guidelines, and exogenous forms of expertise (indeed, lawyers would not need to play a central part in the committee in charge of the risk management process). None of the aims sought to be achieved through these processes are immanent to the ‘rule of law’ itself: the teleology of the ‘how to’ lawyer is client satisfaction, the reduction of transaction costs, and managerial effectiveness. Yet, it is important to note that this transformation occurred in conjunction with a more ‘holistic’ approach to development issues – as expressed in the Comprehensive Development Framework of Wolfensohn and the diagnostic instruments this entailed – as well as the embrace of risk analysis in public governance more widely.Footnote ³³ The shift in ‘doing law’ from the ‘why not’ to the ‘how to’ lawyer thus entailed a move away from the coordinates of public international law thinking (with the associated functionalist constraints of intergovernmental consent) to a mode of lawyering fine-tuned to the exigencies and ambitions of a growing global bureaucracy.

In trading practices of formal treaty interpretation and the policing of boundaries for such adaptive, creative, and client-oriented forms of risk management, Dañino asserted that lawyers could become ‘agents of change’, which would make ‘the legal department relevant again’ in an institution marked by rapid operational expansion.Footnote ³⁴ This ideal of change – and the deformalizing drift that it entailed – was inspired by a cosmopolitan vision of global governance no longer constrained by the shackles of sovereignty – a vision inspired by those reformers who, Dañino felt, ‘really make a difference in the world’.Footnote ³⁵ Cosmopolitan commitments were attuned to corporate scripts of legal practice in an effort to counteract the lingering constitutional sensibilities and prohibitive interventions by the remaining ‘conservative’ lawyers in the Bank.Footnote ³⁶ As formal treaty interpretation was displaced by routines of risk assessment, some in the legal department protested and qualified these new standards as unlawyerly. While Dañino wanted ‘jurisprudence’ to be made ‘at the level of the lawyers’ in a decentralized and deformalized fashion, he experienced ‘a lot of pushback inside the legal department itself’: ‘changing culture’, a former lawyer close to Dañino observed, ‘is just the most difficult thing in an institution like this’.Footnote ³⁷ In navigating these tensions, Dañino immediately saw the need for internal administrative reform: he launched an ‘aggressive decentralization strategy’, created the ‘legal and judicial reform unit’ with an explicit operational mandate, put forward a ‘simplification and streamlining’ of ‘legal services’, changed the department’s recruitment policies (targeting young lawyers who still ‘wanted to change the world’), and distributed working papers, guidance notes, and brainstorming memos aimed at rewriting the scripts of legal practice, and persuading those still committed to old routines.Footnote ³⁸

By the time Dañino left the Bank, the standards of professional practice had significantly shifted. A new legal imagination had gained ground – a bricolage of reformist ambitions, managerial modes of public sector governance, corporate ideals of lawyering, and tropes of moral universalism that were drawn from Dañino’s prior professional life as politician, entrepreneur, and investment banker.Footnote ³⁹ This new way of ‘doing legal knowledge’ had profound political effects: the role of the ‘how to’ lawyer was no longer to draw legal boundaries but to enable a smooth operational expansion, safeguard ‘client satisfaction’, and contribute to Dañino’s ambitious agenda of global legal and judicial reform.Footnote ⁴⁰

How does change in international law occur? How does international law obtain meaning and political substance? How does it channel and mediate social and institutional relations? This account displayed that international law’s politics and pathways to change are not (only) expressed in grand legislative interventions, not (only) in its semantic twists and turns or in its deeply embedded ‘structural biases’, not (only) in its theoretical reconfigurations, (neo)colonial codes, or the capricious choices of solitary giants. It is in the mundane and material – the risk-based colour code, the new professional prototype, the habits and routines, the tools and templates, the cultural criteria of competence – that we see the life of international law change course (a change, of course, interwoven with and interweaving broader patterns of socio-political transformation). As a skilled ‘navigator’, Dañino changed the course of law in the World Bank in precisely this manner; not as a doctrinal architect of international (institutional) law but through the gradual cultivation of a new material practice and professional performance.

Pluralizing Our Ways of Seeing International Organizations (Law)

This brief vignette, I believe, signals several challenges of methodological and political significance to the discipline of international organizations law. While it shows salient changes in the orientation and organizational effects of legal labour, these changes prove difficult to articulate with reference to the doctrines, archives, and sources that shape this field of literature.Footnote ⁴¹ Oriented towards abstraction, comparison, or aspiration, intellectual interventions in international institutional law tend to underplay (or ignore) the importance of prosaic legal practices and the performative effects that they engender in concrete institutional spaces. I therefore subscribe wholeheartedly to this volume’s aim of studying international organizations at ‘sites of socio-technical struggles’, and to pluralize and politicize the subjects, methods, and aims of international institutional law in a non-doctrinal fashion.Footnote ⁴² If we want to perceive and possibly problematize shifts in the ‘cultural technique’ of international law(yering) of the type sketched out earlier,Footnote ⁴³ we need to redirect our attention to ‘that which lies at the edges of conventional international legal sightlines’,Footnote ⁴⁴ as Johns has argued – to focus not on ‘grand designs’ but on ‘lived practices and techniques’.Footnote ⁴⁵ The brief empirical exploration in the previous section shows two particularly productive socio-legal entry points, I believe, for what such a ‘turn to practice’ could entail.

First, as Dañino’s efforts clearly testify, I see a need to focus on the changing ‘role of the lawyer’ and the professional scripts that shape how legal norms are being enacted.Footnote ⁴⁶ Koskenniemi’s indeterminacy thesis, which strongly influenced the trajectory of ‘critical’ international law, points to the ‘gap’ between ‘legal materials (rules, principles, precedents, doctrines) and the legal decision’.Footnote ⁴⁷ It is in this ‘gap’ – and not in the substance of the (inherently indeterminate) legal institution – that the ‘politics’ of international law is purportedly performed.Footnote ⁴⁸ For Koskenniemi, this indeterminacy ‘gap’ is a space of freedom and responsibility: if every opposing political position can plausibly be articulated in the language of international law, he argues, any legal ‘choice will be just that – a “choice” that is “grounded” in nothing grander than a history of how we came to have the preferences that we have’.Footnote ⁴⁹ Yet, while this view of the ‘law-applier’ as the final site of normative agency, imaginative possibility, and political responsibility might be suitable for the ‘solitary giants’ on which Koskenniemi’s historical writings tend to focus, it misses out on the shared social practices that constitute and condition the meaning of these interventions.Footnote ⁵⁰ If we want to situate the ‘politics’ of law(yering) in international institutions, it is necessary to focus on the ‘social grammar’ of legal practice – on the professional roles, institutional scripts, and ‘feel for the game’ that shape ‘the conditions of … law’s production and existence’,Footnote ⁵¹ and determine what can be qualified as a ‘competent performance’.Footnote ⁵² This is reflected in the ‘culture’ that Dañino encountered upon his arrival and which he sought and struggled to change – understanding that any ‘choice’ that he would make in defiance of these professional standards would lack traction.Footnote ⁵³

In short, if the life of international law is not exhausted by its formal grammar (but shaped by a much thicker ‘social grammar’), critical interventions should focus not only on the biases of solitary ‘people with projects’ but also on how their professional postures and routines – their modes of ‘doing’ legal knowledge – are shaped by shared criteria of competence.Footnote ⁵⁴ At the pivotal juncture in legal practice described earlier, we observe precisely this struggle between competing actors to assert proper social criteria of competence in the practice of lawyering. The contestation voiced by the ‘conservative’ lawyers in the department was not that the legal claims in Dañino’s opinion were flawed (according to internal standards of legal validity), but that the adopted way of reasoning was ‘unlawyerly’ – that it contradicted the immanent ‘rules of the game’ that structured their professional activity. What we witness at this juncture is not a clash of particular legal interpretations or a set of attempts to alter the legal norms through which the institution is governed, but a contentious encounter between diverging ‘communities of practice’ who compete over the culture of norm-use in an institutional setting.Footnote ⁵⁵ It is in these shifts in the logic of practice and the social grammar shaping the professional performance of international law, that we can observe and critically evaluate changes in international organizations law. The account provided earlier, in this sense, ties in with wider professional transformations at the intersection of cosmopolitan enthusiasm and corporate dynamism that demand critical scrutiny. It is precisely in these professional shifts, I argue, that we see the advent of a neoliberal legal practice – a disenchanted register of expertise (as expressed in forms of ‘risk analysis’) attuned to the exigencies of competitive market behaviour.Footnote ⁵⁶

Second, inspired by Science and Technology Studies (STS) and Actor-Network Theory (ANT), the ‘turn to practice’ can be enriched by exploring the technical and material qualities of lawyering, and showing how objects, rules-of-thumb, textual references, and templates of analysis or documentation mark and mediate the politics of international law.Footnote ⁵⁷ In tracing the messy practices of relationality, translation, and materiality through which law is composed – the string of ‘people and things’ that it assembles – we can find new pathways for analysis and critique.Footnote ⁵⁸ Recent writing by Riles, Johns, Hohmann, and others displays the rewards of a relational, materialist approach to the study of legal expertise and authority as outcomes of ‘how heterogeneous practices and techniques are woven together in ways that produce new relations, actors, and forms of power’.Footnote ⁵⁹ If we want to grasp the changing politics of law in the brief vignette set out earlier, for example, we should appreciate how the material templates of risk management shape what matters and what is excluded from mattering.Footnote ⁶⁰ How does the material shift from the textual templates of legal judgment to the adaptive managerial metrics and colour codes of ‘risk analysis’ alter the law’s promise as a form of constraint or contestation?

‘Toward the Gathering’

These methodological invitations reflect a radical approach to what a ‘turn to practice’ could entail – an approach where practices are not studied as specific instantiations of the law (subject to positivist empirics) but as performative enactments where law’s boundaries are drawn and its politics enacted. Yet, the invitation to study professional scripts and material routines is aimed not only at enriching our methodological approach to international law as a specific cultural technique, but also at offering different entry points into the vexed question of what constitutes ‘critique’. I expect this point to be somewhat polemical. If anything, would the endless tracing of networks and translations not erode the potential for a ‘critical’ intervention?Footnote ⁶¹ Is Latour’s flat relational ontology – his scathing take on ‘structuralism’ and ‘critical’ sociology – not the epitome of postmodern delight and depoliticized drift?Footnote ⁶² Where do we find sites of political agency or intervention in these layered networks of material entanglement?

One particularly salient strand of ‘critique’, especially in work on the law of international institutions, situates the politics of the ‘international’ in the ‘structural bias’ – the ‘deeply embedded preferences’ – of specific regimes.Footnote ⁶³ Such ‘biases’ would explain the consistency in law’s distributive outcomes despite the inherent indeterminacy of its grammar. The role of the ‘critic’, from this vantage point, is both to detect the tectonic ‘structural’ forces that determine law’s direction, and to diagnose their historical origins and political pathologies. In this vein – and to a great effect – scholars have identified the ‘deeply embedded’ neo-colonial hierarchies and innate logics of ‘liberal reform’ that are inscribed in the law of international organizations.Footnote ⁶⁴ Yet, as the ‘old nemeses’ of critical international law have ‘learned some new steps’,Footnote ⁶⁵ as Johns observed, perhaps we might revisit Latour’s polemical question: ‘has critique run out of steam?’Footnote ⁶⁶ What would it mean to describe Dañino’s efforts in terms of ‘deeply embedded’ causal forces hidden ‘behind’ or ‘underneath’ his expressed motives?Footnote ⁶⁷ What do we learn about law’s changing composition and performative politics by ‘rel[ying] on players or phenomena somehow already present in the interstices of history’ – do we thereby not ‘end up assuming exactly what needs to be explained’?Footnote ⁶⁸ Would we not subtract from the multiplicity of agential elements in law’s emergence – from the effects it engenders and the networks that it ties together – if we portray the legal form merely as the passive carrier for forces emanating elsewhere?Footnote ⁶⁹ If we, yet again, reduce law’s institutional role to being the bearer of static neoliberal projects? Can law be more than merely a clumsy disguise? The critic more than an archaeologist of powerful pre-existing social, structural, deeply embedded forces?

What might ‘critique’ become if, in the words of Levi and Valverde, we were to trade the ‘abstracted view of “structure” [for] the empirical work of studying action, actors, communication, imitation and translation, networks, knowledge flows and the continual process that constructs society itself’?Footnote ⁷⁰ If we associated the ‘critical’ gesture with ‘multiplication, not subtraction’ – with more, not with less?Footnote ⁷¹ If the ‘critic’ were not ‘the one who debunks, but the one who assembles’ – ‘not the one who lifts the rugs from under the feet of the naïve believers’, but who offers ‘arenas in which to gather’?Footnote ⁷² If the direction of ‘critique’ were not away from its objects (a flight into their ‘social’ or ‘political’ conditions of possibility) but ‘toward the gathering’?Footnote ⁷³ What might we see and what might become possible if salient forces (empire, capitalism, patriarchy, etc.) were not wielded as causal explanations lingering in the deep down below – as ‘social’ explanations wielded in the practice of ‘critique’ – but traced as material assemblages that are entangled with and extended by varying forms of legal labour (which are themselves relationally enacted through evolving cultural scripts, institutional forms, and mundane bureaucratic techniques)?Footnote ⁷⁴ Perhaps it is in tracking and tracing, in mapping and multiplying, and not in the stylized posture of scepticism that spaces of action and resistance open and that ‘critique’ might regain potential?Footnote ⁷⁵

This call to dwell on relational entanglement – to ‘stay with the trouble’ in Haraway’s terms – might trouble not only structuralist modes of ‘critique’ but also our commitments to the concept of ‘law’ as a stable social category. Perhaps to some disciplinary dismay, inquiries starting from materiality itself, as Pottage argued, might very well ‘lead to the dissolution of law as a social instance’.Footnote ⁷⁶ The aim is not to materialize law but to see how legal forms are made, displaced, or metabolized in emergent dispositifs.