Art historians have pinpointed that Vermeer painted A View of Delft from the upper storey of a building on the Schieweg […] but the final composition is not a “photographic” representation of the view from the window on the Schieweg. He reorganized reality, changed perspective, and tonal contrast […] Legal theories are like this: their authors decide the aspects of law they want to discuss and in highlighting some, they downplay or ignore others.
Seeing Like an International Institutional Lawyer: The Ethos and Pedagogy of a Subdiscipline
What do international institutional lawyers see when they peek out from a window? If, as Kennedy argues, public international lawyers see a “world of nation-states and war” while trade lawyers see “a world of buyers and sellers,”Footnote 1 it is likely that international institutional lawyers see a world of delegated competences. They dream of interstate cooperation – and they fear the nightmare that might come with the abuse of institutional power.Footnote 2 Indeed, for the mainstream international law scholarship (MILS) on international organizations (IOs),Footnote 3 these institutions represent one of the highest summits in the history of the rational organization of global life in the “long march of mankind from the cave to the computer.”Footnote 4 Accordingly, the subdiscipline has been organized around a series of fixed dichotomies and research questions that frame its field of vision.
For instance, the mainstream international legal inquiry into IOs is usually restricted to a fixed list of topics (legal personality, membership, financing, external relations, legal status of normative outputs, application of international law, etc.) and methods (interpretation of IOs’ constituent instruments, the study of rulings of international and domestic courts, etc.).Footnote 5 Functionalism, as the dominant theoretical lens of lawyerly inquiry into IOs in international law, “has been developed by practitioners, responding to practical challenges, often in piecemeal fashion and through mimicry or comparison.”Footnote 6 In fact, much of the subfield has developed in the form of the endless commentaries on a series of landmark rulings by international courts and arbitration bodies on the competence and legal personality of certain international institutions.Footnote 7
In other words, a pragmatic and practice-oriented lens, underpinned by a particular understanding of the legal scholar’s craft, has come to dominate the international legal inquiry into institutions. As such, the IOs’ law ethos, pedagogy, and intellectual framework has remained committed to a monodisciplinary outlook.Footnote 8 A clear example of that can be found in the syllabi and textbooks that deal with the law of IOs, written often by MILS lawyers (many of them associated with the legal offices of IOs themselves) with the aim of training new generations of future IO law practitioners. As a result, “doing” IOs law has overshadowed “thinking” about international institutions. Indeed, not much has changed since Chimni wrote in 1999 that
[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. While international law experts have concerned themselves with international institutions, the discussion has largely been confined to the rules of law which govern their legal status, structure and functioning, with matters of power and influence left to political scientists.Footnote 9
As John Berger noted, the “relationship between what we see and what we know is never settled. Each evening we see the sun set. We know that the earth is turning away from it. Yet the knowledge, the explanation, never quite fits the sight.”Footnote 10 With this in mind, Ways of Seeing International Organisations seeks to disrupt this state of disciplinary complacency. It is time, we argue, for the discipline to start seeing IOs differently. For the MILS, lenses reveal as much as they obscure. While the functionalist window has placed “norms” and “authority” at the forefront of its concerns, it has seldom interrogated IOs as sites of socio-technical struggles, or as vessels of visions of world ordering. More dramatically, the MILS perspective has settled itself with a reified set of issues or questions that “naturally” belong within “the providence of jurisprudence determined.”Footnote 11
Conversely, our volume challenges the premise that “looking” at international institutions is a neutral operation. Instead, it problematizes and pluralizes our “ways of seeing” IOs. In particular, it opens vistas to four core issues that have been overlooked (to different degrees) in the MILS literature: expertise, structures, performances, and capital.Footnote 12 To do so, we bring together voices from international law’s neighboring disciplines in conversation with the heterodox traditions that have developed within the legal discipline itself. With the former, we refer to International Relations (IR),Footnote 13 history,Footnote 14 and anthropology,Footnote 15 among others. With the latter, we allude to perspectives from the so-called New Stream;Footnote 16 the Feminist;Footnote 17 the Third World Approaches to International Law;Footnote 18 and the Global Administrative Law (GAL) scholarly movements.Footnote 19 By putting these two stands of literature in conversation, our edited volume pushes for an interdisciplinary opening of international institutional law that not only blurs the external boundaries of the field but also challenges some of its key internal tenets. Our goal is not only to promote diversity in the methods and methodologies used to study IOs,Footnote 20 but to actively challenge the current “common sense” way of doing things within the subfield of international institutional law.
“Must Do Away with All Explanation”: International Institutional Law beyond Problem Solving
Our volume is not the first – and hopefully will not be the last – call for the reimagination of the law of IOs (and international law more broadly).Footnote 21 Indeed, it builds upon – but it also departs from – the legacy of the previous attempts to renew or re-theorize the study of international institutions, from Constitutionalist approaches to the aforementioned GAL movement. Our invitation to see IOs differently, however, differs insofar as we challenge the dominance of “problem-solving thinking” in the study of international institutions in international law. For all of their intellectual innovations, Constitutionalist perspectives and GAL were also fixated on providing solutions to an increasingly complex global order through the language of European Public Law.Footnote 22 Here, again, drives for renewal may risk becoming repetitions.Footnote 23 We argue that the job of international institutional law scholars should not be reduced to merely finding “legal” answers to “legal” questions – we can perhaps leave that to judges and practitioners.Footnote 24 Instead, we investigate the ways in which IOs serve as sites of struggle for remaking the world order. In this way, Ways of Seeing International Organisations goes beyond the limited theoretical debate between advocates of liberal constitutionalism and those who remain faithful to functionalism.Footnote 25
The dominance of “problem-solving thinking” is not exclusive to international law. In the 1980s, Robert Cox wrote extensively about the tendency in the IR neorealism of Hans Morgenthau and Kenneth Waltz, where the role of the discipline was portrayed as identifying “variations on always recurrent themes.”Footnote 26 Emerging from the assumption that “the past repeats itself” based on a quantifiable rationality, theoretical frameworks such as game theory shed historicism to give way to claims of scientific prediction. Ahistoricism, abstraction, and the production of binaries lie at the core of problem-solving theories in both IR and international law. As Cox noted, a problem-solving theory “takes the world as it finds it, with the prevailing social and power relationships and the institutions into which they are organised […] The general aim of problem-solving is to make these relationships and institutions work smoothly by dealing effectively with particular sources of trouble.”Footnote 27 At the core of such theories is the division of social reality into “spheres or aspects of action,” chief among them separation between the realms of “politics” and the “economy.”Footnote 28 This, in turn, entails a categorization of actors into “public” and “private”; “state” and “non-state.”
Similar to IR neorealism and liberal institutionalism, MILS studies global processes within the confines of regime-complexes. In this sense, doctrinal international law in general – and international institutional law in particular – remains structurally ahistorical and regime-oriented. It does not take interest in the study of historical change, nor does it interrogate how social orders emerge in the first place. The turn to social sciences in international law has not drastically changed the “problem-solving nature” of the international legal inquiry either. Over the last thirty years, the reign of the neoliberal international legal education geared towards training corporate practitioners to match the demands of global capitalism has exacerbated disciplinary and epistemological biases. The ultimate goal of teaching and research in international law programs – and in law courses on IOs, for that matter – remains finding “solutions” to “global challenges” within the existing order(s). The ideological stance that “one should know what’s inside the box before embarking on out-of-box thinking,” or that “theory is abstraction from experience or action,”Footnote 29 has eventually resulted in sidelining questions of capitalism, colonialism, everyday practices, expertise, and ideology in the day-to-day making of the “international.”
For that reason, our volume does not offer a blind celebration of interdisciplinary thinking. As we have argued earlier in relation to the dominance of “problem-solving theories,” realist and liberal institutionalist IR share many assumptions and shortcomings.Footnote 30 While we remain committed to interdisciplinary dialogue, we do not presume that other disciplines can simply “correct” limitations of MILS by merely adding different “methods” or “perspectives” and stirring. At the same time, in a moment of disciplinary “turf wars,”Footnote 31 calls for “counterdisciplinarity,”Footnote 32 and celebrations of narrow understandings of lawyers’ métier (even among critical legal scholars),Footnote 33 the contributors to our edited volume remain convinced that our field has much to learn from its peers in the social sciences and the humanities.
What is more, we also envision such interdisciplinary dialogue as a two-way street.Footnote 34 As such, we hope that the increased use of social science methods in international law might also offer relevant insights on questions of law, justice, regulation, and rights for our colleagues in other departments. In this sense, we build on the burgeoning literature on the intersections of international law and history,Footnote 35 anthropology and international law,Footnote 36 and IR and international law,Footnote 37 while adding a layer of specific engagement with IOs and institutional legal questions, across these conversations. Ultimately, our volume not only promotes cross-fertilization between disciplinary departments but argues for an increasing destabilization of the intellectual boundaries that delimit the intellectual spaces we inhabit.Footnote 38
In sum, our aim is to question and reimagine our ways of seeing IOs in international legal scholarship in general – and of international institutional law in particular. To do so, we propose a departure from finding “solutions” to global challenges, in a way doing “away with all explanation,”Footnote 39 and instead seeing what we have already grasped with new eyes. The volume invites the international law academy to reflect on world institutions in a multidimensional perspective and foregrounds questions of expertise and knowledge production; material and social structures; practices and performances; capital and classes. While our volume has no aspirations of comprehensiveness (as it cannot realistically cover all IOs, nor does it provide space for every discipline or perspective), it provides both experts and newcomers with a compelling overview of what interdisciplinary and critical methods can bring to the study of the “international” – a tentative map of the everyday struggles that are waged within IOs to make and contest world orders.
In this sense, we also depart from a robust tradition of critical social theory, which has interrogated the relationship between international institutions, knowledge production, and the making of the material world. In this sense, Marxist–Gramscian theories have been reappropriated and reinterpreted by international lawyers to explain the processes of capitalist expansion, the labor division among different international institutions, and the mechanisms used to contain antisystemic movements.Footnote 40 Post-structuralism and post-poststructuralism have also offered methods for the uncovering of the trajectories of international civil servants as “people with agenda,”Footnote 41 or the intellectual history of international institutions, forging the path to more historical and multifaceted views of the “international,” its making, and its contestation. Derridean, Bourdieusian, Foucauldian, or Latourian modes of deconstruction of the “social” have borne interesting insights for the language, authority, and material performance of technocratic governance.Footnote 42 As some of the chapters in this volume attest, approaches that focus solely on either the “macro” or “micro” scales of critique have limitations in their understanding of global processes and institutions. The same is true for the dichotomy between “internal” and “external” modes of critique, as Chimni argues in Chapter 3. In this vein, this volume invites readers to engage dialectically with both the “micro” and “macro” critique and the “internal” and “external” critique to interrogate the “international” forces of stability and change in the world order. By putting various modes of critique in conversation, our volume seeks to highlight the significance of methodological curiosity and of a diversity of positionalities in the scholarly inquiry into international institutions.
Volume Overview: New Questions and Methods for the Study of IOs
Ways of Seeing International Organisations puts forth proposals for a decidedly non-doctrinal approach to the study of the “institutional” dimension in international law.Footnote 43 It brings together a diverse and balanced cast of scholars from international law, the social sciences, and the humanities to reflect on promises and perils of transdisciplinary methods for the study of IOs. It would not be coherent with the destabilizing ethos of our volume, however, to focus merely on intergovernmental organizations created by states through a formal constitutive instrument – as the traditional literature often does. Instead, our volume seeks to interrogate transnational institutions that actively shape the “global.” For that reason, our volume also includes chapters on the role of international courts and tribunals (and, specifically, their secretariats), and certain nongovernmental organizations with transnational regulatory aspirations. Indeed, we hope our volume not only challenges the atheoretical and procedural focus of the mainstream literature on international institutional law but also disrupts – even if momentarily – the monopoly of knowledge production in this field, which has long been dominated by male European scholars, many of whom have been affiliated with IOs.Footnote 44 Indeed, that has been the motivation behind our initial sets of conversations both in person and in print, in which we sought to bring together scholars from a variety of vantage points as a way to push the line of vision of our field further ahead.
In line with its objectives, the volume is structured in two parts. The next two contributions in this part (Part I) shed light on the past and present of international institutional law and the implications of different theoretical frameworks for the “institutional” dimension of international law. For all their differences, these two authors share a concern about the limitations of the traditional ways of seeing IOs and put forward alternative ways of thinking about the role of these institutions in global governances. B. S. Chimni ponders on what critical theory can bring to the study of IOs – and vice versa. His call for a dialectic between internal and external critiques, in many ways, sets the stage for the subsequent theoretical or empirical interventions of our volume. Jan Klabbers, in turn, questions mainstream approaches to international institutions in the discipline of international law and in IR. Instead, he proposes a supra-functionalist approach that highlights distributive implications of global processes.
Part II, in turn, interrogates four different constellations of research themes that have been and continue to be out of the ambit of inquiry in the mainstream literature on international institutional law. For each cluster of research themes, the volume puts three chapters in conversation to ask our authors to explore different aspects of international institutions in an oscillation between what to study (objects of inquiry) and how to study (method/approach/perspective). By bringing together three different, but not necessarily divergent, perspectives, the four sections seek to open space for interdisciplinary dialogue. In all of the sections, we have included authors who were trained as lawyers, placing them in conversation with those who hail from other disciplines – and others who may feel uncomfortable with such disciplinary boundaries in the first place. The common thread that brings these sections together is that all of the contributions invite the reader to see the “international” in a different light.
The section “Expertise, Authority, and Knowledge Production” begins with a chapter by Annabelle Littoz-Monnet where she discusses the processes of production and circulation of knowledge through expert groups, academia, high-level commissions, or advisory committees within IOs. Richard Clements interrogates the case of the Independent Expert Review of the International Criminal Court, conceptualizing internal reform as a method of world ordering. Juanita Uribe studies the case of hidden hunger and how various UN agencies came to transform it into a governable object for policymaking. She explores how these agencies problematize the world, by aggregating knowledge through bureaucratic procedures.
The chapters in the section “Structures, Spaces, and Jurisdictions” revolve around material and normative structures within which IOs function. Some of these structures are shaped by organizational culture, some by the materiality of space, and others by constructed legal and jurisdictional boundaries. Tommaso Soave enquires into the institutional practice of international lawyers in international adjudicative settings, focusing on the ways in which legal operators function in the space between the structure and agency set by not only elastic norms but also socio-professional modalities. Kiri Olivia Santer offers an ethnographical account of how IOs and states raise claims over contested jurisdictions in cases of transnational legal conflicts, focusing on the involvement of the European Union and International Maritime Organization in the patrol of the Central Mediterranean. Daniel R. Quiroga-Villamarín concludes this section, focusing on the eminently material structures that constrain the “everyday geographies” of international ordering. To do so, he uses archival research to show what a material approach to international legal history can reveal about the interim headquarters of the League of Nations and the United Nations.
While the section “Expertise, Authority, and Knowledge Production” probes into questions of expertise and knowledge production, and the section “Structures, Spaces, and Jurisdictions” engages with material and discursive practices involved in the making of international order, the section “People, Practices, and Performance” zooms in on the quotidian experiences of international lawyers, civil servants, and independent experts within international bureaucracies as questions of gender, ideology, and professionalization in international institutions. Jan Eijking opens this section with an intervention that draws from a growing tradition of biographical and sociological approaches which sits at the crossroads of IR and international history. In particular, he focuses on the 1865 founding conference of the International Telegraph Union to understand the union from the perspective of its making. Miia Halme-Tuomisaari, in turn, follows with a reflection on what anthropology can offer to the study of international institutional law, focusing on the everyday performances of the UN Human Rights Committee. Dimitri Van den Meerssche introduces us to the Latourian critique of the lawyerly practice in international institutions. Focusing on the World Bank’s legal office, he invites us to look for sites of political agency and intervention within “the situated, material, and embodied life of international law.”
The section “Capital, Class, and Political Economy” explores the intertwined life and functioning of global institutions and the capitalist mode of production. It explores the ways in which international bureaucracies and their experts reconfigure production relations, integrate spheres of production and exchange, and depoliticize racial capitalism. Negar Mansouri argues that the history of the world order since the rise of capitalism to an overarching force of socio-political ordering in late seventeenth-century England has been a history of struggles between the organization of production relations by the market (laissez-faire capitalism) and organization of such relations by the bureaucratic vanguards (state capitalism). She subsequently engages with the dynamics of such struggles in three historical developments in the post-World War II global economy. Subsequently, Claire Cutler explores the notion of “resilience” as an adaptation strategy in the disciplinary operations of global neoliberal imaginaries. In particular, she studies how “resilience” is operationalized by a plethora of international institutions ranging from the World Bank and the Organization for Economic Cooperation and Development to the International Committee of the Red Cross and the UN. By drawing attention to the question “who gets what” from the resilience talk, Cutler introduces a critical political economy approach to the language of resilience in global governance. Last but not least, Daniel R. Quiroga-Villamarín offers a historical account of Ethiopian sovereignty within two key international institutions of the first half of the twentieth century: the League of Nations and the United Nations. He situates the case within the broader racial hierarchy embedded in European international legal imaginary and the United States’ reaction towards it in the post-World War II era.
The volume concludes with a contribution by Guy Fiti Sinclair, in which he takes stock of the opportunities and the limitations of interdisciplinary and critical approaches to the study of international law and its institutions. He draws together some of the common threads of the volume to ponder on what the future of international institutional law might look like. Ultimately, we hope that the volume might open new ways of seeing the role of IOs in global governance – and, as such, that it offers more questions than answers for a field in need of a profound reimagination.
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