International organisations (IOs), as well as other sites of global governance, make claims to the ‘evidence-based’ or ‘expert-based’ nature of their agendas and policy interventions, whether in health, climate, education, or development aid.Footnote ¹ Global policies and programmes are largely legitimised by reference to their reliance on ‘evidence’, presented as reliable, scientific, and ‘expert’. ‘Experts’ – sitting in IOs, expert groups, academia, high level commissions, or advisory committees of all sorts – indeed abound in global governance forums and produce a plethora of studies, databases, and seminal papers that form the knowledge base in given issue domains. This self-proclaimed rationalisation of the work of IOs largely goes unchallenged in academia.Footnote ² Existing scholarship in International Relations (IR) and International Law (IL) often rehearses a narrative where IOs are seen as relying on scientific expertise to solve global problems. This view is based on two assumptions. First, the expertise of IOs is perceived to be strongly associated with science, and science itself is understood as developed independently of the circumstances of time, place, and social conditions. Second, global ‘problems’ are largely seen as given, existing out there for policymakers, or scholars, to address and solve them with the best knowledge and tools that they have.

Yet, the making of expertise involves decisions regarding what forms of knowledge to include and exclude. It also involves processes of assembling, which give shape to dispersed facts and knowledge and profoundly delineate what emerges as ‘expertise’. Such processes are deeply political; not only are they shaped by and through epistemic controversies and contests, where financial, epistemic, and social resources are all at play, but they are also embedded in time-specific macro-epistemic conditions, which shape the contours of what forms of knowledge count.

Acknowledging that the making of expertise involves political processes of inclusion, exclusion, and assembling also has implications for how we conceive global objects of governance, those ‘matters of concern’, or ‘problems’, that IOs govern. It brings to light that such problems are themselves defined through processes of sense-making, where expertise plays a central role. Objects of governance are, indeed, interpreted and made sense of through and with knowledge and tools seen as ‘expert’ and relevant. Acknowledging the subtle political processes at play in the delineation of objects of governance has implications for scholars in IR and IL, who study objects such as bioethics, the law of the sea, and biodiversity, amongst others. It makes it possible to see these not just as problems in need of solving through the mobilisation of evidence, statistics, or scientific studies, but as complex and ‘wicked’ matters of concern that ought to be made sense of in the first place.

It is, thus, necessary to open up the black-box of knowledge-making processes in global governance and engage with the processes through which IOs produce and stabilise expertise. How do certain forms of knowledge gain the status of expertise? What kinds of evidence come to be seen as valid and relevant for governance purposes? As we know, ‘[e]xpertise is authoritative knowledge at a given decision point’.Footnote ³ This does not imply that ‘anything goes’. Certainly, expertise also consists of substantive knowledge in a given domain.Footnote ⁴ But when a multitude of professional, scientific, or experiential knowledge forms co-exist and struggle for recognition, power dynamics and asymmetries also play out in the delineation of specific knowledge forms as expert. Thus, what is seen as expertise ‘conforms to no transcendent criteria of logic or method, but frequently incorporates popular conceptions (and misconceptions) of relevance and reliability, and all too commonly reflects differences in the social and material positions of disputing parties and decisionmakers’.Footnote ⁵

Thus, in this chapter, I propose some entry points to study the making and stabilisation of expertise in global governance. The approach goes beyond an exclusive focus on IOs, which are understood to be part of a broader machinery of knowledge production that involves a complex web of actors, sites, infrastructures, and power relationships. Taking the study of IOs away from international secretariats, member states, and formal negotiating structures makes it possible to examine how expert groups, think-tanks, professional organisations, large activist organisations, academic research clusters, and private actors, as well as their knowledge techniques and ‘ways of seeing’, participate in the production of ‘expertise’ in global governance.

In a first part, I outline ways in which expertise has been discussed in IR, as well as in Political Science, Sociology, and Science and Technology Studies (STS). In a second part, I shed light on specific and concrete paths through which the politics of expertise can be analysed. I argue that the power–knowledge nexus can be analysed by exploring sites and networks of knowledge production (i), infrastructures of knowledge production (ii), and relations between humans and/or things (iii). In a third part, I propose three potential methodological entry points to study the making of expertise.

IR Scholarship and Expertise

In IR, IL, and Political Science, as well as in policy circles, ‘expertise’ is largely seen as ‘the real and substantive possession of groups of experts’.Footnote ⁶ Experts, thus, distinguish themselves from ‘non-experts’ by their possession of knowledge of facts, theories, methods, and techniques that pertain to a discipline or professional field. Such knowledge can be gained through training and legitimised through the traditional university degree and/or through long-term professional experience in a given domain. According to this view, expertise is also isolated from the social and the political; it is a form of knowledge produced through systematic techniques, which ensure that it is ‘valid’, ‘accurate’, and ‘objective’. This understanding of expertise relies on the assumption that the development of expertise is tied to that of science, and that scientific knowledge is itself developed in isolation from social and political conditions. The prevalence of this view is widely established in governmental spheres, as well as in IR and IL.Footnote ⁷

Thus, if science produces true and valid knowledge, using such knowledge will also produce the right political decisions.Footnote ⁸ This ‘rationality project’ emerged in debates amongst political scientists in the 1950s, when a group of scholars developed hopes that policymakers would advance better policy agendas and programmes if they used sound evidence in the formulation of their decisions.Footnote ⁹ From this perspective, the development of scientific knowledge is driven by the logic of science, which is independent from the circumstances of time, place, and social conditions. If it is possible to understand reality by ‘getting down to the facts’, the application of science-based knowledge would seem, indeed, to be the best way to help solving policy problems. As a result, existing work on expertise is predominantly concerned with the way experts influence or shape policy, based on the assumption that the scientific and the policy spheres are neatly separated and driven by different logics.

The focus on the impacts of expert knowledge in policymaking also prevails in IR. Scholars in the field have argued that, because they deal with highly complex and technical issues, international decision-makers depend on science and technology for determining the risks and consequences associated with political action. As decision-makers seek information to make choices, this enables epistemic communities to provide information that favours or excludes different alternatives.Footnote ¹⁰ This approach has stimulated a research programme that seeks to identify the scope conditions of the influence of research on policy, as well as the obstacles to a better flow of scientific research to policymaking.Footnote ¹¹ Not only does this perspective assume that knowledge and policy are distinct but also that they should be. In the hopes that policymakers advance better policy agendas and programmes, the focus was on enhancing the use of sound evidence in the formulation of their decisions.

Other accounts in Political Science and IR have focused on the mobilisation of knowledge for political purposes. Such perspectives no longer assume that knowledge is valued only as a way of rationalising decisions, but acknowledge its symbolic and legitimising role.Footnote ¹² Existing insights have revealed the way policymakers use expert knowledge selectively, and sometimes misleadingly, in order to back their agendas and programmes, frame issues in a way that pushes the policy solutions they prefer, gain legitimacy, or yet expand their competences.Footnote ¹³ In their work on international bureaucracies, Barnett and Finnemore have revealed that expertise is central to the assertion of IOs’ authority. When ‘emphasising the “objective” nature of their knowledge, staff of IOs are able to present themselves as technocrats whose advice is unaffected by partisan squabbles’.Footnote ¹⁴ While these contributions have pointed to the crucial role(s) of knowledge in politics, they assume either that expertise is externally produced and subsequently enters the political domain, or that policymakers use knowledge to pursue specific interests. Such accounts, which bracket the production of knowledge, do not point to the different forms of enmeshment between knowledge and politics in processes of knowledge-making.

‘De-Blackboxing’ the Making of Expertise

Sociologists of science, scholars in the field of STS, and critical scholars more broadly have problematised the view that expertise is ‘objective’ and ‘neutral’ for decades. The French sociologist Bruno Latour has pointed out that scientific knowledge enjoys no independence or claim to authority beyond the political and economic interests that helped develop the scientific claims.Footnote ¹⁵ From that perspective, science embeds and is embedded in the social and the political. As put by sociologist of science Sheila Jasanoff, ‘[w]hat counts as expertise … frequently incorporates popular conceptions (and misconceptions) of relevance and reliability, and all too commonly reflects differences in the social and material positions of disputing parties and decisionmakers’.Footnote ¹⁶ What counts as expert knowledge can and does change. It is embedded in time and place-specific political circumstances, power dynamics, and conceptions of what is worthwhile, valid, and relevant. The power–knowledge nexus has, of course, consequences for the way governance objects, whether human rights, biodiversity, food, or trade, are seen, governed, and regulated through the norms and practices of IL. Yet, this is often overlooked by scholars who study such issues as unproblematic problems in need of solving.

I propose later that capturing the politics of the production of knowledge and expertise requires paying attention to where and by whom knowledge is produced (knowledge sites and networks), infrastructures of knowledge production (material artifacts), and relations. This approach makes it possible to analyse the way expertise is produced by and through a nucleus of sites, organisations, knowledge techniques, and material artifacts, which operate in a highly enmeshed and mutually reliant space.Footnote ¹⁷

Methodological Entry Points

A number of methodological approaches and techniques provide entry points into studying the making of expertise in global governance. Methods and sources may be eclectic; there is no ‘right’ or ‘wrong’ when it comes to methodology. Engagement with sources can also be polymorphous. In addition, the same sources can be examined, analysed, and interpreted, with and through distinct methods.

Conclusion

Using these methodological entry points makes it possible to reveal the reasons why specific formations are in place and reintegrate power dynamics and hierarchies into the analysis of knowledge-making. Exploring global governance expertise through one of these avenues involves making a shift away from studying formal arenas, mechanisms, and actors of global governance, and instead zoom in on ways of doing politics ‘by other means’.Footnote ⁸¹ The processes of knowledge production discussed here point to the political nature of expertise, and the need to understand its making as a subtle way of governing that takes place beyond the traditional spheres of decision-making. Examining the processes, boundary sites, and infrastructures of knowledge production help us understand how the co-production of science and politics operates in practice. Such enmeshment can be observed in often tangible forms when one engages with the meso- or micro-level study of processes of knowledge production. This enmeshment produces circularity and exclusivity in the making and content of global governance expertise. It thus has exclusionary effects, which cannot be dissociated from those stemming from more structural hierarchies. In addition to financial or material resources, widely accepted norms of validity also structurally delineate what forms of knowledge are seen as valuable in global governance. Certain norms act as markers of what is scientific and what is not, with the effect that knowledge that does not match these criteria tends to be dismissed as anecdotal, inconclusive, biased, or ‘non-expert’. Thus, the concrete micro knowledge-making processes which embed expertise in the political can also intersect with and replicate macro-epistemic structures, both material and ideational, inscribing certain forms of expertise and the power of their protagonists in global governance. This of course has implications for the way global problems are understood and acted upon. Those knowledge forms which count as expert strongly shape how global issues are seen, governed, and regulated by IOs.

Introduction

According to Donna Harraway, ‘[t]here is no unmediated photograph or passive camera obscura in scientific accounts of bodies and machines; there are only highly specific visual possibilities, each with a wonderfully detailed, active, partial way of organizing worlds’.Footnote ¹ In April 2019, four ex-Presidents of the governing body of the International Criminal Court (ICC) machine, the Assembly of States Parties (ASP), published a joint opinion piece in Atlantic Council to mark the twentieth anniversary of the signing of the Rome Statute. As leading figures in international criminal justice, they hoped to capture the ICC in full view, both its successes and, tentatively, its failures.Footnote ² On one account, the ICC had achieved much in its short lifespan: ‘put[ting] on notice’ would-be war criminals and bringing justice to victim communities around the globe, facilitating peacebuilding efforts in Colombia, modelling ‘accountability mechanisms for Syria and Myanmar’, and, ultimately, placing some individuals responsible for the world’s worst crimes behind bars.Footnote ³ With this ‘unmediated photograph’, the authors reaffirm their commitment to the ICC as an institution tasked with closing the impunity gap by prosecuting atrocity crimes and bringing justice to victims.

Yet this image also depicts problems and ‘deficiencies’ hampering the court’s quest for justice as the prompt for the ex-Presidents’ intervention. They highlight a gap between the court’s ‘unique vision’ and its ‘daily work’: cases collapsing due to inadequate case-building and witness protection, judges declining to authorise investigations out of fear for the organisation’s long-term stability, and various ‘management deficiencies prevent[ing] the court from living up to its full potential’.Footnote ⁴ Looking beyond the court’s own work, there is also the fragile political context in which it operates, especially dwindling ‘diplomatic support’ and the sanctions levelled against senior court figures by the first Trump administration.Footnote ⁵ Further afield (though omitted by the ex-Presidents) lie the protracted tensions between the ICC and African states parties over allegations of structural racism and bias, as well as serious resourcing issues resulting from successive zero-growth budgets.Footnote ⁶

After this diagnosis comes the cure: a course of international organisation (IO) reform, via ‘an independent assessment of the Court’s functioning by a small group of independent experts’.Footnote ⁷ This comes after two decades of ICC reform punctuated by recurring cycles of deficiency, improvement, and renewal, ranging from small-scale reorganisations of court organs to institutionalised working groups devoted to studying and streamlining court governance.Footnote ⁸ Yet despite their quiet optimism about past and future reform efforts, the ex-Presidents offer little sense of how reform works beyond self-evident assumptions about its functional effectiveness. In this regard, they join many ICC practitioners and commentators who frequently call for court reform but rarely consider its mechanics or wider distributional effects. This chapter problematises the ‘black box’ of reform to think about what it entails and how it is constructed, experienced, and effected within IOs like the ICC, taking its Independent Expert Review (IER) of 2019–2020 – the follow-up to the ex-Presidents’ proposal – as the expert production of a partial organisational world that entrenches existing arrangements of power among states parties.

At the heart of this discussion lies the notion of expert reform work. This notion seeks to reorient – theoretically and methodologically – the plane on which IOs and their legal landscapes are analysed. The phrase itself hints at its own recalibrations: expert because the experienced, trained professional turns out to be a more important site of institutional innovation than the IO itself or external structural forces; reform because experts’ seemingly mundane tweaking exercises have the power to reconstitute an IO’s contexts, problems, priorities, and future possibilities; and work because the effort of IO reform is an interpretive task performed by experts but is also the many other ideas and materials that craft an institutional reform process.

The notion of expert reform work, which is further fleshed out later, draws on Harraway’s idea of partial worlds, but also actor network theory (ANT) as a lens ‘that attempts to map and understand the relationship and interplay between physical or material objects and concepts’ as not only a semiotic but a ‘material-semiotic method’ concerning ‘the symbiotic relationship between people, things and ideas’.Footnote ⁹ The draw of actor network theory for this study of IOs derives from a ‘central tenet of ANT thinking’, namely that ‘such systems or material-semiotic states are not static or fixed but rather are in a perpetual state of forming and reforming’.Footnote ¹⁰ This chapter attempts to bring this underlying premise of ANT thinking, namely that states (or institutions) are always becoming and re-becoming, to the study of IO reform itself as an expert institutional exercise involving people, documents and sites. As such, the chapter’s focus on IO reform as expert work is an attempt to think through IO change as a perpetual, but no less political or pliable, process of institutional becoming.

Following the likes of Harraway and Bruno Latour, the chapter proposes that expert reform work is neither a rational science of perfectibility nor a ‘god trick’ that creates the organisation from nothing and nowhere.Footnote ¹¹ It is precisely these imaginaries of reform that have led to the predictable yet lacklustre reformism of the past two decades of ICC operations. Instead, reform work often means expertly encountering and mediating myriad textual and non-textual materials, ideas, and structures in ways that allow the expert to do their job to a standard that those with a stake in the outcome deem satisfactory. Studying these encounters allows us to capture the tectonic effects of the seemingly contingent and inconsequential framings that legal reformers bring to their task, as well as the push and pull effect other materials such as institutional documents and position papers have on the process of institutional becoming.

To grasp the mechanics of this expert reform work at the ICC, I begin by summarising key aspects of the IER before centring the expert as an important node in IO reform.Footnote ¹² This differs from other accounts of the expert as rational technician or handmaiden of power, situating them instead as and among a ‘network of relations’ between ideas and practices that rearrange the IO’s context, problems, priorities, and possibilities.Footnote ¹³ From here, the chapter then poses a set of reflections on the IER process to attend to the expert-led and situated institution-making process that is IO reform.

Conditions for Expert Work: The Independent Expert Review

The IER will be our aid throughout. Specifically, the central axis on which this chapter turns is an obscure, yet important concept introduced in the opening pages of the IER experts’ final report, published in September 2020. The concept in question is the ‘three-layered governance model’, a heuristic or interpretive device offered by the experts as a way to understand the ICC’s different functions and how they relate to one another, but also a crucial component in the experts’ re-imagination of the court.Footnote ¹⁴ Before discussing the model, it is necessary to go back several steps, to clarify who these experts are, and why and for whom they were conducting this analysis. In doing so, I begin to flesh out the notion of expert reform work.

In Resolution 18/7 of December 2019, the ICC ASP commissioned a ‘State Party-driven review process’ – the IER – to ‘identify ways to strengthen the ICC and the Rome Statute system’ via ‘concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court’.Footnote ¹⁵ The ASP devised a preliminary document, the Terms of Reference to delimit the scope of the review. It also proposed that a group of nine independent experts be appointed to consider ‘complex technical issues’ under three clusters of ‘governance’, ‘judiciary’, and ‘investigations and prosecutions’.Footnote ¹⁶ The panel was formed of international lawyers such as Richard Goldstone (the panel chair), Mónica Pinto, and Mohamed Chande Othman. Once appointed, the panel of experts commenced a nine-month period of stakeholder consultations and analysis (conducted predominantly online due to the COVID-19 pandemic). The panel’s findings were published in a final report in September 2020, which became the panel’s definitive statement on the conditions, constraints, and prospects for the institution. It proposed 384 recommendations across the court’s organs, processes, and activities that were promptly taken up and evaluated by scholars and court officials including the ICC Prosecutor and the President of the court.Footnote ¹⁷ The ICC itself offered a detailed official response the following year.Footnote ¹⁸

Despite its widespread promotion at the time, IER commentary has been brief. With so many recommendations, it is not surprising that the panel’s findings on workplace bullying and harassment drew most attention, with many other proposals being quickly lumped together, quietly implemented, or forgotten.Footnote ¹⁹ Moreover, many scholars, including several normally critical voices, seemed indifferent to yet another effort to tinker around the edges of a system that, to them, required nothing less than structural transformation.Footnote ²⁰ Only one scholar hinted at the three-layered governance model proposed by the expert panel as ‘a new way of conceptualizing the ICC as a complex institution’.Footnote ²¹

Despite general disinterest, though, studying the conditions and effects of the panel’s work demonstrates why it may be important to take such reform exercises and interpretive devices seriously as recalibrations of institutional power and stakeholder interest. The experts were supposed to identify ways to ‘strengthen’ the ICC and the Rome Statute system, and to do so through proposals that would be ‘concrete, achievable and actionable’. Already in this description, what was deemed organisationally achievable became a key limiting factor for the kind of analysis and proposals the experts could offer to the ASP. Other factors included skill and time: all appointed experts were lawyers and institution-builders and Resolution 18/7 indicates that the experts would begin their work on 1 January 2020, submitting their final report by 30 September 2020. These legal experts had to account for what was ‘concrete, achievable and actionable’ within nine months as criteria directing and limiting their work.

Beyond these factors, the experts also operated in, and reaffirmed, a particular historical moment. As noted at the outset, the IER appears as the latest cycle in a long history of ICC reform efforts largely initiated and justified on grounds of efficiency, effectiveness, and improved performance.Footnote ²² Already during preparatory discussions on a permanent ICC in 1995, the United Kingdom asked whether it was ‘the best use of limited resources to undertake international investigations and prosecutions with all the difficulties and duplication of personnel that that involves’.Footnote ²³ While these kinds of questions did not stop the court from emerging, they set the tone for the infant body: when the ICC began operations in 2002, its first Prosecutor, Luis Moreno Ocampo, stated: ‘I have the chance to build the most efficient public office’ for tackling anti-impunity.Footnote ²⁴

Such managerial concerns are themselves not context-free but were baked in over time. At the ICC, as in other modern IOs, efficiency has been justified as necessary for securing ‘value for money’ for stakeholders, i.e. the court’s funders. Particularly in the wake of the 2008 global recession, western states as the main financial backers have become more vocal about ensuring the court’s cost-effectiveness for the sake of national (read European) taxpayers.Footnote ²⁵ This was soon translated by court leaders into the working practices and culture of the institution. In November 2012, then-ICC President, Sang-Hyun Song, reassured states parties that court officials had become ‘responsible managers of the funds which the States Parties have provided’.Footnote ²⁶ This growing connection between efficiency and the concerns of major donors is not an innate characteristic, then, but a condition that emerged out of the specific political-economic and discursive relations between court officials and states parties since the drafting of the Rome Statute. It is a particular meaning of efficiency that experts, including the IER panel, were inured to and fluent in.

These being some of the panel’s background conditions and ideas, they did not explicitly constrain or determine the panel’s conclusions. Within certain strands of critical scholarship, such wider forces as political or economic capacity are often deemed determinative of institutional outcomes. Yet the expert remains central as mediator: to draw on Duncan Kennedy, such external constraints around the meaning of efficiency produce within them ‘the effect of necessity, the experience of legal compulsion’, leaving them with a sense, though not a ‘reality’, that ‘there is no alternative’.Footnote ²⁷ Background conditions and ideas are thus necessarily mediated by the modalities of expertise itself: its requirements of objectivity, independence, and rational analysis. It is through these modalities that expertise bears the descriptive power to reimagine the institution. While there may be a great many pressures and forces at play during experts’ efforts to reform an IO, how those pressures are assembled and articulated is part of the expert’s objective function.Footnote ²⁸ Taking the expert as a key unit of analysis, as other scholars have done,Footnote ²⁹ thus centres the specific descriptive and imaginative power of experts in IO reform settings.

To elaborate, experts largely rely on the traits of objectivity and the techniques of rational scientific analysis to establish themselves and their findings as authoritative.Footnote ³⁰ As Littoz-Monet acknowledges in this volume, there are multiple uses of expertise beyond its capacity to rationalise decision-making. Yet it is at least these rational claims of experts that necessitate a conceptual break or firewall between those proposing and overseeing reform and those carrying it out (never mind those experiencing its effects). This firewall is familiar not only from scholarship on expertise but also in the literature on the independence of IOs from their members,Footnote ³¹ or judicial independence from state interests.Footnote ³² Similarly, for reformers, their independence from states is deemed crucial for sound decision-making and the legitimacy of institutional processes. It was not for nothing that the ICC reform exercise was branded an independent expert review.

Nonetheless, claims to independence and objectivity have often been branded mere smokescreens for the hegemonic interests that remain hidden behind them.Footnote ³³ These are the dynamics that David Kennedy has described as ‘capture’, or the idea that ‘international policy-making will favour some policies and exclude others, and distribute resources from some groups to others, because the policy-making machinery has been captured by political forces committed to these results’.Footnote ³⁴ At the ICC, capture is often closely linked to global realpolitik, great powers, or global distributions of capital.Footnote ³⁵ Latent in the idea of capture is the assumption that, if kept non-ideological, ‘outcomes will be in some sense neutral or benign’.Footnote ³⁶ Yet to attend to the modalities of IO reform from within means acknowledging its own distributive potential.

This alludes to a second power of expertise, namely its constitutive power vis-à-vis the IO, emphasising the expert dimension of the independent review. Evidently, states parties and other stakeholders have an interest in the outcome of reform exercises given their potential effects on scrutiny of potential crimes as well as budget demands. However, these interests are not directly translatable to the organisational setup given the ‘objective’ expert vocabulary and techniques that exist quite apart from state control.Footnote ³⁷ Not only this, but states would find it difficult to control such reform processes in practice without being condemned by stakeholders for attempting to influence or politicise independent investigations. It is the same logic that has the court maintain such a strict division between its own objective legal functions and the political interests of its states parties, now applied to court governance as opposed to investigations.

At the ICC, states parties already play a large role in managing the court via the ASP and other internal bodies such as the Committee on Budget and Finance. Moreover, as Emma Palmer and Hannah Woolaver have shown, ‘in some instances States Parties have attempted to use the ASP to influence the exercise of judicial and prosecutorial functions in cases where their interests were implicated in ongoing proceedings’.Footnote ³⁸ Yet in reform settings, fears of such assertions of coercive power by states parties distract from the more subtle power of experts and their practices.Footnote ³⁹ As noted earlier, the meaning acquired by efficiency through the discourse of major donor states has placed a premium on reform proposals likely to make the court more cost-effective and therefore more accountable to certain stakeholders. This discourse has since become a central component of the way experts conduct themselves when analysing and offering recommendations, namely to take account of all relevant information as well as the wider realities and challenges facing the court, or in Martti Koskenniemi’s words, to ‘streamline, balance, optimize [and] calculate’.Footnote ⁴⁰ Taking account of such managerial factors is not to be captured by state interests, but to be a competent, pragmatic technocrat. In this way, reform work is itself capable of reconstituting and redistributing an organisation’s resources, values, and power differentials precisely as an act of objective expertise, rather than as a repudiation of it.

This point chimes with the international law literature on expertise. According to David Kennedy, ‘[g]enerating a common vision of a world to be governed is both a communicative and performative work of the imagination and a technical institutional project’.Footnote ⁴¹ This is particularly visible in the context of IO reform, where expert work meets complex bureaucratic machineries. Much of what it means to be an expert concerns the visions of governance that such expert work is capable of producing. International lawyers, diplomats, policymakers, NGOs, legal advocates, and activists produce knowledge as part of their job. Such knowledge constitutes in various ways: framing an organisational context, identifying its problems, establishing narratives of success and failure, establishing ‘realities’ constraining the organisation, and recommending solutions.

IO reformers such as the IER panel are similar to experts and such expert work, with some distinctions. First, given how many obstacles stand in the way of proposals being accepted and implemented, reformers’ recommendations and solutions may be among the least significant of their articulations as far as constituting the IO is concerned. Instead, and second, reformers are often uniquely mandated to make a diagnosis of the IO as a whole, rather than only one of its organs or as an official with a set of bounded tasks. This gives IO reformers a particularly unique opportunity to redefine the entire IO, relying on the ideas, materials, and practices assembled about them in the process without being accused of overstepping their mandate. To understand more concretely how this constitutive work works, I return to the panel’s interpretive device, the ‘three-layered governance model’, to reflect further on the kind of imaginaries experts perform.

Expert Reform Work in Action: The ‘Three-Layered Governance Model’

Putting aside any suggestions of bias or capture, let’s imagine how nine independent experts might have inscribed efficiency – and thereby the preferences of major financial contributors – into the ICC’s organisational form simply by applying their legal knowledge and objective, technical expertise. From the beginning, the expert panel confronts a dilemma. Operating on the basis of their expansive mandate across governance, judiciary, and prosecutions, the panel must reckon with how to fulfil such a mandate despite the judicial and prosecutorial independence that underwrites two of the panel’s focus areas: ‘judiciary’ and ‘investigations and prosecutions’.

As shown earlier, the firewall of independence prevents the experts from simply overriding judicial and prosecutorial independence by assertion: their findings must, after all, satisfy both the requirements of expert objectivity and the expectations of stakeholders such as court officials, state representatives, and NGOs with an interest in upholding the fundamental principles of judicial and prosecutorial independence. Independence therefore becomes a fulcrum on which the panel’s framing of the IO turns. It is for this reason that the expert panel begins its final report by addressing precisely this dilemma. The report begins by recalling that ‘inherent in the structure of any international court or tribunal is the dual nature of the institution: the ICC is both a judicial entity (ICC/Court) and an international organisation (ICC/IO)’.Footnote ⁴² This duality corresponds to the underlying rationale of judicial independence on the ‘ICC/Court’ level and that of state party oversight and accountability on the ‘ICC/IO’ level.

As IO, the ICC ‘does not carry out judicial activity – it indirectly supports it’, with states parties playing a ‘key role’.Footnote ⁴³ As a court, though, the panel offers a further division ‘between justice and the administration of justice’.Footnote ⁴⁴ This further division is also connected to the question of independence. According to the experts, justice as ‘[j]udicial and prosecutorial work (e.g. judgments, deliberations by judges, the prosecutor’s decisions to initiate or pursue a case, investigations) require[s] absolute independence’.Footnote ⁴⁵ Yet this idea of ‘absolute independence’ already suggests its opposite. And indeed, the administration of justice is deemed ‘not [to] necessitate the same degree of independence’.Footnote ⁴⁶ Why? Because ‘the administration of justice is audited in national systems – the same should be the case for the ICC’.Footnote ⁴⁷ To reinforce the point, and the shrinking role of independence in the division of court functions, the panel avers that ‘confidentiality and independence should not be used as a way of deflecting accountability and preventing oversight’.Footnote ⁴⁸ Hence, efficiency, not independence, becomes the vehicle for assessing performance in relation to the administration of justice.

From this reframing emerges the ‘three-layered governance model’, in which each layer is subject to greater degrees of state oversight: a protected inner ‘core’ of judicial and prosecutorial activity, a ‘middle layer’ of partial accountability facilitated by performance indicators and a proposed Judicial Audit Committee, and an outermost layer of IO administration heavily influenced by state oversight. The model is backed up by reference to article 119 of the Rome Statute, as well as a decision of Pre-Trial Chamber II in Prosecutor v. Ali Kushayb, in which it states that ‘the Court’s statutory framework clearly distinguishes the role of the Court, as a judicial institution entrusted with the power to exercise its jurisdiction over persons for the most serious crimes of international concern; the position of the ASP, which is responsible for considering and deciding on the Court’s budget; and the duties of the judiciary and Chambers’.Footnote ⁴⁹ This is taken to affirm the three layers of ICC governance.

What are the experts doing by elaborating this model at the very outset of their report? While the model may be read consistently with the Rome Statute and its case law, those (two) sources say nothing of the efficiency rationale that now underpins the model. These ‘primary’ sources merely refer to a functional division of labour grounded in notions of judicial independence and state party control over budgetary matters. The panel’s reframing is thus facilitated by a professional internalisation of efficiency, after years of efficiency measures and austerity politics, fused to a familiar legal division between Court and IO and backed by the legal framework and its jurisprudence. Collectively, it allows – or demands – that court functions be judged according to an efficiency rather than an independence rationale, altering the power differentials within the court, especially as between the Prosecutor, judges, and states parties.

Yet this work is not the experts’ alone. Beyond the final report itself, this redescription of the ICC’s organisational form along efficiency lines is afforded by three ‘clusters’ of issues first proposed by the ASP in the IER Terms of Reference mentioned earlier, namely ‘(a) governance; (b) judiciary; and (c) investigations and prosecutions’, a triple division which appears to have been copy-and-pasted as the panel’s triple conceptualisation of the court.Footnote ⁵⁰ In keeping with the earlier discussion on the power of experts, a degree of interpretation and translation was required to make these issues commensurable and legible at an organisational level. Yet the Terms of Reference, as a document, directs us to the affordances of many different practices, concepts, ideas, and things in relation to one another.Footnote ⁵¹ It makes reform a much more worthy site of analysis to consider such heterogeneous elements as a Terms of Reference and the situated meaning of efficiency, as affording certain possibilities and impossibilities, rather than as the instruments of a hegemonic apparatus. This applies equally to the other crucial documents of the IER. One is the draft working paper of November 2019 that had already consolidated some issues under ‘clusters’ by posing certain objectives, possible actions, and useful instruments for experts to draw upon.Footnote ⁵² Another is the panel’s own interim report of June 2020 which did not yet offer the three-layered conceptualisation of the final report, but began to situate the work of reform in a longer institutional history of optimisation, creating a placeholder for the final report that would appear three months later.Footnote ⁵³ As Annelise Riles has argued elsewhere, ‘each document – the old and the new – lean on each other to take full effect’.Footnote ⁵⁴ In this way, one can sketch how experts and reformers knit together, both as expert and node, a network of interpretive and material associations.

With this expanded understanding of what such assemblages afford, other important conditions, including time and global events, re-emerge as relevant considerations for why the IER came out as it did. Although approaching the question of legal interpretation from a phenomenological perspective, Duncan Kennedy considers the role of ‘resources, time and skill’ in lawyers’ efforts to make their interpretations stick.Footnote ⁵⁵ Applied to the IER, it was already noted that the panel operated within a tight timeframe of nine months: how would a process twice this length have changed or potentially undermined the chosen governance model? Moreover, their resources, though extensive and well-connected to important figures within the court, were somewhat inhibited by the COVID-19 pandemic and the constraints associated with relying on many online rather than in-person meetings. The materiality – including meeting constraints and technological possibilities – afforded by physical meetings may have caused the governance model to be discounted altogether: a circular room populated by a bank of NGO officials may be somewhat more persuasive than the appearance of individual video profiles isolated from themselves and their colleagues;Footnote ⁵⁶ gaps in connectivity may cause an interruption of conversation and a return to the basic premise of judicial independence without its sub-division into judicial and administration of justice mandates. Lastly, the nine-member panel comprised experienced lawyers and institution-builders within other international criminal tribunals. They did not seek to offer a sociological, economic, or anthropological analysis, but an expertise cognisant of the legal frameworks and constraints of IO reform. This may also have affected the kinds of stakeholders the panel consulted with – court managers and transnational NGOs rather than those directly affected by the court’s work. A lens that is attuned to a wider range of materials and actors, and what these collectively afford, helps to make sense of IO reform beyond theories of rational science and structural determinacy.

Work Effects: Redistributing the ICC

The discussion until now has focused largely on the sociologically enriching potential latent in approaching IO reform exercises through the notion of expert reform work: the constitutive role of experts, but also the assemblages that form them and which they re-form in turn. However, the earlier discussion on efficiency and its meaning-making potential for the ICC also hints at the wider range of distributive effects that can be surveyed when acknowledging the work of reform. This points to the wider stakes of expert reform work. The IER panel was clear about the functional intent of their governance model. Their first recommendation to the court was that ‘the Three-Layered Governance Model should be used as a tool to ensure effective and efficient governance, clarify reporting lines, and improve cooperation among stakeholders’.Footnote ⁵⁷ This narrow reading of the model’s effects as relating only to the specific organisational purposes and components for which it was intended is consistent with the mainstream view of expertise as concerned only with functional effectiveness.Footnote ⁵⁸

The IER complicates this narrow reading of the model’s effects by considering both its unintended consequences and the broader redistributions of meaning, influence, and resources it is capable of effecting across the ICC. These redistributions relate to the context, problems, priorities, and future possibilities of the organisation and are discussed in turn.Footnote ⁵⁹

Context: While experts are often said to operate within a context – ‘the “drivers” that decision makers are said to ignore at their peril: technological, historical, social, economic, or political “realities”’Footnote ⁶⁰ – these realities are also expert articulations that narrate a particular social milieu within which the IO is said to exist, and to which it should be directly responsive. The context of the IER was already outlined by the ex-Presidents, and the expert panel, as they diagnosed the judicial and administrative ‘deficiencies’ of the court and the need to remain efficient and effective in an unstable political landscape. The official context therefore knits together a sense of declining multilateralism with isolated court problems and the scarce resources of an austerity-prone donor community. This (and subsequent organisational imperatives) may have differed had the ex-Presidents and the panel referred to alternative contexts, such as the African Union’s hostility towards the court or the tangibility of justice for victim communities.

Problems: From this context emerges a more tangible set of problems than the ex-Presidents’ references to ‘management deficiencies’. Kennedy reminds us that ‘the idea of a “global problem” is a complex work of imagination’.Footnote ⁶¹ Within IOs, the rendering of an organisational problem is no different, although as we have seen, the remit for expert imagination here may also be conditioned by experts’ mandate, experiences, and time. Indeed, it is part of the power of framing a problem as organisational that it directs concern towards internal structures, workflow issues, personnel, fragmentation, and underperformance. Framing the problem differently, as a problem inherent in the tensions between different visions of global justice, would demand a different analysis and alternative recommendations.Footnote ⁶² So too would framing the problem in terms of leadership, the court’s constituencies, racial bias, or transnational capitalism.Footnote ⁶³ As it happened, these problem frames remained unused.

Priorities: Operating in a fragile global ‘context’ and having identified corresponding organisational ‘problems’, certain activities (and solutions) are prioritised. As a result of the three-layered governance model, those measures that were most likely to deliver efficiencies for the court were prioritised. The increased oversight this model afforded to states also allowed their concerns, specifically those on whom the court financially relies, to take on greater importance. This was already acknowledged at the 1998 Rome Conference, when the conference secretary stressed that ‘to secure the financial health of the Court, the support of major financial contributors was crucial and hence the concerns of the major contributors should be looked at more sympathetically’.Footnote ⁶⁴ The issue becomes more acute when value-for-money concerns begin to funnel resources into constructing a managerial apparatus to oversee the court’s administration of justice functions, including a Judicial Audit Committee and data-collection for performance indicators. These all necessitate the allocation of resources towards some concerns and away from others, including those not seen as real concerns in the first place.

Possibilities: Lastly, the cumulative effect of such contextualising, problematisation, and prioritisation is to further shape the ICC’s conditions of possibility and the very institutional imaginaries that produce the court.Footnote ⁶⁵ Much as Martti Koskenniemi denoted that ‘[t]he concepts and structures of international law… are the conditions of possibility for the existence of something like a sphere of the international’, so too do expert articulations form the conditions of possibility for the organisational sphere.Footnote ⁶⁶ Considering what is easier or more difficult to articulate before and after a reform exercise such as the IER may be a fruitful way of assessing the effects of this discursive work. Although the ICC itself pushed back against some of the panel’s findings, including parts of its model framing, it will certainly be easier for states parties to argue in favour of greater oversight over administration of justice matters given the panel’s reasoning that these are audited nationally. The ICC itself pointed out in its response to the IER final report that the model’s three layers are ‘inextricably linked’ not hermetically closed, meaning that states and other interested actors may become more strategic in seeking to exert influence. For example, efficiency savings in the recruitment and retention of staff may disproportionately advantage those already familiar with the court’s work in the Global North, shaping the types of prosecutorial and judicial activity the court undertakes in the long term.Footnote ⁶⁷ Under such circumstances, it becomes more difficult to justify reforms based on non-efficiency rationales, such as the fairness of proceedings or the court’s practical effect on victims. Together, reform work points to these subterranean effects on the court’s present and future activities.

Conclusion

It perhaps misses the point of re-imagining IO law to spend a chapter on one relatively obscure reform exercise. There are far more pressing issues confronting the ICC than the outworkings of its latest technical tweaking. Yet through this managerial example, I have sought to perform a double take on IO reform as an important site for studying not only how institutions change but via what modalities and materials, by what interpretive devices, and with what redistributive effects institutions like the ICC remain in a perpetual state of becoming. The IER’s contribution was not only to offer a sound, rational basis for court optimisation, nor to act as handmaiden to powerful states. Rather, it was to carry out expert reform work in ways that re-formed the ICC anew by baking efficiency rationales into the division of its judicial and administrative functions.

The notion of expert reform work attends both to the forms of expert knowledge required to carry it out and the additional epistemic labour required to put abstract expectations, constraints, and mandates into organisational action. It offers an account of expert reform beyond positivist ideas of functional optimisation and more structuralist accounts of embedded and instrumentalised hegemony.Footnote ⁶⁸ This also opens up the concept of work to dynamics not limited to experts and their agentic manoeuvring of materials, but also the entanglement of people, ideas, norms, and documents and what these ‘nodes’ afford to one another as part of organisational (re)assembly. Expanding the analytic thus does not negate but enriches the discussion on reform’s distributional effects: the IER having demonstrated how organisational tools, devices, documents, and ideas reshaped the context, problems, priorities, and possibilities of the ICC as an IO. Attending to the granular and the banal is perhaps where alternative IO scholarship will find new modes of engagement and new questions to ask of IOs, offering ‘wonderfully detailed, active, partial ways of organizing worlds’ beyond the imaginaries supplied by ICC ex-Presidents and expert reform panels.Footnote ⁶⁹

Introduction

In the shifting context of global policy-making, International Organizations (IOs) have become powerful sources of expert authority and central sites for the exercise of power in global governance. While we have a clear understanding of how IOs deploy expertise, there has been relatively little effort among legal scholarship and International Relations (IR) to critically examine the processes by which such institutions produce and validate knowledge claims about governance objects and, in doing so, authorize certain solutions as the only ones “viable.” This chapter examines the way in which the World Health Organization (WHO), Food and Agriculture Organization (FAO), and United Nations Children’s Fund (UNICEF) acted as central vehicles in defining the contours of “hidden hunger” as a “matter of fact” – or as a medicalized and economized object of governance. It shows how this problematization largely authorized the prioritization of short-term responses and easily measurable programs such as food fortificationFootnote ¹ and vitamin supplementation in Global South countries. Rather than addressing the underlying socio-economic determinants of the problem, such responses acted as political analgesics providing temporarily relief. In highlighting how IOs’ “ways of seeing” are connected to the practice of governing, the chapter sheds light on the everyday politics of rule-making.

This chapter examines how IO’s knowledge practices stabilize certain “ways of seeing” and acting upon global governance objects. Looking at how IOs delineate the contours of objects allows us to move beyond “problem-solving” perspectives, according to which institutions’ main role is to enable global cooperation and find solutions to global challenges.Footnote ² The work of IOs is profoundly political. They make certain issues knowable and governable and, in doing so, define the world in such a way as to confer authority on some categories, actions, and actors rather than others.Footnote ³ This is especially patent at a time when, in order to make claims valid across jurisdictions, IOs rely on the acquisition and deployment of certain forms of expertise.

International legal scholarship has largely focused on analyzing the formalistic and institutional dimensions of objects of governance, be they climate change, pollution, or health.Footnote ⁴ From such perspectives, objects of governance are exogenous entities to be addressed and regulated through laws, conventions, and standards. However, adhering strictly to a formalistic and legal account of objects fails to capture how given visions and ways of acting upon gain traction at the expense of others. For that, we need a more textured examination of the socio-political processes that shape such objects. I propose to do so by analyzing how IOs define objects as “matters of fact,” to draw on Latour’s term, and how, in turn, this problematization narrows down the possible range of policy solutions.Footnote ⁵ In contrast to “matters of concern,” which are marked by dispute and situatedness, matters of fact appear as ahistorical realities. Nonetheless, matters of fact are just as political as matters of concern; the distinction lies in how institutions approach them and how they are publicly perceived.

Empirically, I focus on the field of global food governance, more particularly on the case of “hidden” hunger, which has been defined and addressed by the international community as a form of undernutrition primarily stemming from vitamin and mineral deficiency. Such forms of hunger are qualified as “hidden” because there are no visible warning signs, so that individuals who suffer from it are not often aware of it. I explore how hidden hunger was problematized as a medicalized problem stemming from “a deficit” of nutrient consumption in Global South countries. Despite being a complex socio-economic and political issue directly linked to factors such as access to food, inequalities, and dominant agroindustrial models, efforts to address hidden hunger have predominantly relied on what I refer to as “political palliatives,” such as food fortification and vitamin supplementation.Footnote ⁶ The chapter mainly focuses on the work of three particular agencies, also known as the bureaucratic machineryFootnote ⁷ of food and agriculture: the FAO, WHO, and UNICEF.Footnote ⁸ While the activities of these agencies were certainly key in mobilizing resources and bringing public attention, this chapter wants to highlight the politics inherent in their knowledge-making practices and highlight that ways of seeing problems always come at the expense of marginalizing others.

The remainder of the chapter proceeds as follows: The first section of the chapter discusses different perspectives that have scrutinized the work of IOs as machineries of social and political ordering. The second section of the chapter introduces the analytical framework of the paper, namely how IOs’ problematization of objects of governance as “maters of fact” restricts the range of possible solutions and political interventions. Sections three to five delve into the empirics by unpacking how WHO, UNICEF, and the FAO delineated the contours of hidden hunger in highly exclusionary ways. On the one hand, they show how, through quantification techniques, laboratory exercises, and statistical instruments, IOs assembled a body of knowledge that defined hidden hunger in medicalized and economized terms, portraying it as an indisputable matter of fact. On the other hand, the empirical sections explore how this problematization marginalized some knowledge forms while simultaneously enabling short-term forms of political action, mainly targeting individuals in the Global South.

The article relies on an in-depth case study. Through immersion in details of the case, I explore the ways in which IOs produced and validated knowledge claims about hidden hunger as an object worthy of global collective attention with consequences for legal outcomes. This was done through an extensive textual analysis of policy documents, reports, and websites from these IOs, as well as of academic publications in nutrition and health journals. I also conducted semi-structured interviews with policy makers and statisticians from the WHO, FAO, and UNICEF, as well as from civil society organizations.

IOs as Machines for Social and Political Ordering

The discipline of IR and some strands of legal scholarship have treated international institutions as “solvers” of different problems, such as international cooperation and information asymmetries, among others.Footnote ⁹ In an attempt to reintroduce the “social” into the analysis, sociological-oriented scholarship has questioned some of these premises by exploring the ways in which IOs do politics.Footnote ¹⁰ These accounts are highly attentive to the role of IOs in shaping intersubjective understandings. Barnett and Finnemore, for example, highlight that IOs are autonomous actors that “both regulate and constitute the world.”Footnote ¹¹ Other accounts have highlighted the different ways in which IOs, as purposeful actors, assemble or mobilize knowledge to achieve certain goals such as expanding their mandate into new areas,Footnote ¹² enacting depoliticization,Footnote ¹³ or becoming policy relevant actors in a given field.Footnote ¹⁴ Approaching IOs as real fields of ethnographic inquiry, scholars have conceptualized them as circuits of power “where normative frameworks are produced and globally diffused, resources are distributed and knowledge circulated through transnational expert networks.”Footnote ¹⁵ Similar claims have been made by international legal scholars, who have examined IOs’ activities and workings in their contingent and historically situated dynamics.Footnote ¹⁶

Following this research tradition, this chapter explores a concrete aspect of the politics of IOs object-making: the knowledge-making practices that they set up in order to problematize objects of governance, and thus govern them. Following Foucauldian-inspired scholarship in international law and IR, I seek to understand how certain practices and modes of treatment are attributed to problems.Footnote ¹⁷ Yet, rather than focusing on how certain issues enter the domain of “thought,” I am interested in exploring how, more concretely, IOs actively participate in exclusionary processes of social and political ordering in the field of global food policy.Footnote ¹⁸

Studying how IOs participate in object-making in the domain of global food governance is of relevance to international law scholarship in two main ways. On the one hand, food governance is an area that is treated as an appendix of trade regimes and where there is a high deference to expert knowledge. Analysis of “technical standards” and trade negotiations tends to overshadow the politics of norm-making.Footnote ¹⁹ As a result, international legal scholarship has often taken food governance standards at face value, ignoring the knowledge that underpins them.Footnote ²⁰ On the other hand, thinking about object-making and its links to knowledge also makes it possible to understand that that “universal” definitions of dietary standards or notions such as hunger often rest in uncertain and elusive grounds, thus indicating that expertise is a space of instability and constant challenge.

IOs’ Power: Knowing and Acting upon Objects of Governance

In global governance, where there is an absence of democratic forms of legitimation, the recourse to knowledge constitutes one of the most advanced sources of authority.Footnote ²¹ Governing, indeed, increasingly takes place “outside the arena of legislative deliberation and democratic decision making”Footnote ²² and relies on claims to expertise rather than those of collective identity value and interest.Footnote ²³ The consolidation of evidence-based modes of decision-making, for example, attests to the fact that governing increasingly rests on claims of efficiency and instrumental rationality rather than those of collective identity value and interest.Footnote ²⁴ This broader turn towards rationalized forms of governance and, more broadly, the scientization of politics is particularly pronounced in policy-making transcending nation states.

In this context, IOs solidify their authority by depicting objects of governance as exogenous entities that are knowable and actionable.Footnote ²⁵ Through the production of global indicators, metrics, rankings, and datasets, or by hiring bodies of experts, IOs strive to insulate themselves from partisan squabbles and processes of political contestation.Footnote ²⁶ This often leads some IOs to simplify complex social activities into simple “scores,” economized “facts,” or ratings.Footnote ²⁷ This process resonates with what Latour has termed “matters of fact,” which are entities that are presented as uncontestable truths, fostering a perception of naturalness and inevitability.Footnote ²⁸ Problematizing issues such as pollution, crime, or migration as matters of “fact,” detached from their socio-economic and political determinants, indeed allows IOs to act as powerful global governors.Footnote ²⁹

Representing social problems as matters of fact requires significant effort. It is indeed intrinsically related to the availability of technologies, infrastructures, and different instruments, which translate the complexities of economic, social, and political contexts into a stabilized reality capable of orienting action. However, despite their aura of universality, “matters of fact” are just one exclusionary particular way of defining and thinking about global objects. Attempts to scientize often result in the exclusion and erasure of subjects and of those voices that do not conform to logics of instrumental rationality.

Similarly, presenting objects as matters of fact is not devoid of political implications. In the following section, I show how such a problematization narrows down the scope of possible solutions, limiting them to approaches that align with standardizable rationales and quantifiable results. Responses to matters of facts often come in the form of technical fixes that are perceived as straightforward and easily implementable. Such responses become favored due to their perceived feasibility and their capacity to demonstrate measurable impact and “results.” These responses, however, act as what I refer to as powerful “political palliatives,” which provide surface-level and temporary relief, while overlooking responses that address the social, political, and economic root causes of problems.

Problematizing Hidden Hunger as a Matter of Fact: Science and Economics

I focus on the case of hidden hunger to show how different UN agencies characterized hidden hunger as a “matter of fact,” portraying it as a medicalized problem of nutrient deficiencies mainly in the Global South, to be solved through programs such as adding nutrients to food or delivering vitamin capsules. In a first step, I examine how IOs produced a “cartography of nutritional deficiencies,”Footnote ³⁰ by amassing a body of biochemical and statistical knowledge produced through quantification processes. In doing so, IOs perpetuated Global-North–Global-South asymmetries, wherein countries in Africa, South America, and Asia are characterized by their “deficiencies” and framed as in need of “correction” and assistance.Footnote ³¹ In a second step, I show how such problematization of hidden hunger subtly authorized technical responses and short-term forms of political action that largely neglected the root causes of the problem.

Until the 1980s, hidden hunger did not garner significant global attention. The focus of global discourse in the field was primarily on what was termed the “protein era,” characterized by a widespread belief that a “protein gap” was the primary cause of malnutrition and hunger worldwide. However, by the 1970s, it became evident that the deficiency in protein was not the predominant nutritional issue globally.Footnote ³² Consequently, there was a shift in focus towards the role of “micronutrients,” or tiny substances and particles such as vitamins and minerals, which started receiving increasing attention from the international community.Footnote ³³

In fact, at the time, the connection between these tiny nutrients and health was primarily the subject of scientific and academic inquiry. During this era, studies conducted on a national scale began to unveil the extent of “hidden hunger,” its clinical manifestations and its ramifications for health.Footnote ³⁴ However, in 1986, a publication by Alfred Sommer of an article on Vitamin A in the Lancet played a pivotal role in elevating what was considered solely a “health” issue into a matter of greater social and political significance. Sommer’s study not only confirmed Vitamin A’s role in severe clinical conditions, as previously documented, but also highlighted its correlation with elevated childhood mortality rates.Footnote ³⁵

Given the relevant and potential social implications of the topic, various UN agencies convened major international conferences to advance the understanding of the impacts of nutritional deficiencies and elevate political conversations. As early as in 1974, Sommer was invited to a WHO-sponsored meeting in Indonesia to discuss his work on Vitamin A. He was also in charge of writing the 1995 WHO report on Vitamin A deficiency and its consequences, and of chairing different scientific advisory committees at the WHO and UNICEF.Footnote ³⁶

The 1990 Summit of Children took the issue very seriously and promised the virtual elimination of Vitamin A deficiency by the year 2000.Footnote ³⁷ After the summit, several conferences and summits were held. One significant event was the Conference on Ending Hidden Hunger in 1991, held in Montreal. The primary objective of this conference was to garner “political support at the highest level for ending hidden hunger.”Footnote ³⁸ A similar acknowledgment took place one year later, in 1992, at the first FAO/WHO International Conference on Nutrition in Rome, where it was recognized that hidden hunger was a “matter of major public health concern.”Footnote ³⁹

However, much more than a shift in discourse, the construction of hidden hunger as an object of governance entailed the deployment of tools, instruments, and technologies to make it actionable. In the context of increasing awareness and interest, IOs started to produce and assemble a significant body of knowledge that served to delineate the object as an incontrovertible scientific fact. “Accurate” knowledge of the vitamin content of foods, food consumption at the household level, and anthropometric indicators of nutritional deficiencies were fundamental in that regard.Footnote ⁴⁰

At the time, the WHO expressed concerns about the incommensurability of hidden hunger. The UN agency pointed to a “lack of consistency” of existing nutrition standards, in particular due to a lack of homogenization of “methods of analysis and presentation of survey results.”Footnote ⁴¹ Up until that point, nutrition surveys often employed diverse methods, reporting systems, and reference values.Footnote ⁴² A similar issue of incommensurability existed regarding food consumption data, which is also crucial for making the object of hidden hunger actionable. As pointed out in a WHO Bulletin: “data on global patterns of dietary habits, as well as differences by population characteristics are not well established.”Footnote ⁴³ Such discrepancies and lack of homogeneity in measures and methods was largely seen by IOs as an obstacle to validating knowledge about hidden hunger across jurisdictions.

In response to the perceived lack of uniformization, IOs undertook different activities to universalize standards on diets and food intake. In 1949, the FAO/WHO Expert Committee on Nutrition was established to set references for nutritional politics and health standards.Footnote ⁴⁴ Although the committee was set up to provide technical advice to FAO/WHO secretariat, it also played a key role in insulating these two UN agencies from the politics of their member countries. From the very beginning the Joint Expert Committee expressed its wish to introduce an international codex of analytical methods that would assist scientists to ensure the generation of “uniform and comparable” data regarding the vitamin content of foods and diets.Footnote ⁴⁵ Nowadays, the overarching framework governing FAO/WHO stipulates that all experts chosen must demonstrate impartiality and objectivity in their assessment.Footnote ⁴⁶ Furthermore, a core tenet guiding joint WHO/FAO expert committees on nutrition is the principle of “neutrality,” with their guidance mandated to be grounded solely in scientific evidence.Footnote ⁴⁷

During the same period, the WHO launched efforts to assemble a Global Database on Child Growth and Malnutrition with the aim of collecting, standardizing, and sharing child anthropometric data (indicators typically pertain to individuals’ height and weight). The FAO also launched its Global Database on Food Consumption to standardize the number and proportion of people in each country who consume “insufficient” dietary energy.Footnote ⁴⁸ Although FAO had been publishing “World Food Surveys” and “Food Balance Sheets,” there was a need to further “strengthen micronutrient surveillance capabilities and activities by devising indicators to monitor strategies for achieving national goals related to coverage, compliance and effectiveness in targeted populations.”Footnote ⁴⁹ Among the efforts to quantify food consumption and nutrient intake was UNICEF’s Multiple Indicator Cluster Surveys (MICS), a set of surveys that provided “internationally comparable and statistical data” compiled in more than 200 indicators on children and women.Footnote ⁵⁰ According to UNICEF, MICS has become the “largest source of statistically sound and international comparable data on children and women worldwide.”Footnote ⁵¹ By standardizing data collection, providing internationally comparable statistics, and strengthening surveillance capabilities to monitor strategies aimed at addressing malnutrition and dietary deficiencies globally, these initiatives were crucial in problematizing hidden hunger as something detached from specific social contexts.

Efforts to delineate hidden hunger as a matter of fact also involved the deployment of a wide array of technologies as well as the provision of training assistance, particularly in laboratory capacity to measure the recommended indicators.Footnote ⁵² In order to collect biochemical data on nutritional deficiencies, infrastructures such as laboratories that allow for the storage of specimens were essential. Similarly, the availability of instruments such as rapid test kits, used during face-to-face interviews in different household surveys, were key for “testing” the bioavailability and food composition.Footnote ⁵³ Additionally, analyzing vitamins in bodily fluids was another assessment method, which employed a spectrum of physical, chemical, and biological testing techniques to evaluate foodstuffs and ascertain their physiological effects and nutritional value of foods as sources of vitamins for human consumption.Footnote ⁵⁴

A final aspect that contributed to consolidating hidden hunger as a matter of fact involved its redefinition as a measurable economic concern. The link between economic competitiveness and hidden hunger was operated through the publication of studies that highlighted the impacts of hidden hunger on cognitive functioning, work capacity, and productivity, largely echoing dominant assumptions about development at the time.Footnote ⁵⁵ For micronutrient malnutrition to be quantified in economic terms, it needed to be turned into indicators that could be specified numerically. The most tangible exemplification of this “economized” definition of hidden hunger is known as the WHO disability-adjusted life year (DALY).Footnote ⁵⁶ DALY is a time-based statistical measure that combines years of life lost due to premature mortality and years of life lost due to time lived in states of less than full health, or years of healthy life lost due to disability.Footnote ⁵⁷ The study identified malnutrition as “the risk factor responsible for the greatest loss of DALYs.”Footnote ⁵⁸

Through the use of datasets, surveys, and numerical tools, IOs problematized hidden hunger in scientized and economized terms, or as an indisputable “matter of fact,” that could be known through objective and universally applicable markers that could travel beyond nation states. Backed by estimates of validity and reliability, hidden hunger appeared thus as an objective reality.Footnote ⁵⁹

Omissions and Erasures

Problematizing hidden hunger as an exogenous object to be measured and apprehended through quantification is far from being a neutral exercise. As any “universalizing” attempt, it comes with its own erasures. A statistician working for UNICEF highlighted the significant challenges associated with collecting data on hidden hunger, especially in countries located in Africa, Asia, and certain parts of Latin America.Footnote ⁶⁰ Due to the lack of available national surveys in these regions, statisticians tasked with modeling the data make inferences about these regions based on data from neighboring countries where such information is accessible. This is necessary to generate “reliable global estimates” that transcend national borders, despite the fact that data from Global South regions is excluded. On some other occasions, the problem does not come from the lack of data but from what IO staff refer to as “bad quality data” that countries, mainly from the Global South, provide to the IOs’ secretariats.Footnote ⁶¹ As the UNICEF statistician added, in such scenarios, this data cannot be included in the statistical models as it does not fit the criteria for quality.Footnote ⁶² This statement shows that the numbers and data aggregated, mainly from the Global North, thus become the authoritative account of “the food problem” and of what the Global South “lacks.” A peasant from a grassroots organization in Mexico also pointed out:

Additionally, defining hidden hunger as a matter of fact always entails drawing a sharp boundary between those with the capacity to diagnose, evaluate, and solve deficiencies and those who are the target of interventions. This echoes what Grotluschen and Buddeberg call “southering” – which means defining Global South countries in terms of what they lack while exposing them to a pronounced deficit perspective.Footnote ⁶⁴ Within the dominant approach to hidden hunger people credentialed as experts such as IO staff and statisticians – and not the women who are responsible for feeding families or those who suffer from hunger – are the ones who “know” the problem and hence can prescribe solutions for the malnourished.Footnote ⁶⁵ This narrow conception also evades a social view of hunger and malnutrition that would include macroeconomic and political issues of poverty, inequality, and marginality. For decades, agroecology movements, peasants, and grassroots organizations have emphasized the connections between industrial food production methods and the increasing levels of hunger worldwide.Footnote ⁶⁶ While some of the most prominent multilateral institutions at the global level recognize the importance of such perspectives, they have largely remained at the margins.Footnote ⁶⁷

Therefore, addressing hidden hunger through a scientific account of “missing” nutrients evades a social view.Footnote ⁶⁸ Hidden hunger, understood a matter of fact, de-roots food not only from its cultural richness and its sensual and practical dimensions but also from the broader contexts in which it is produced.Footnote ⁶⁹

Acting upon Hidden Hunger: Political Palliatives?

Nowadays hunger (including hidden hunger) is treated as a scientific matter, mainly concerned with diet quality and objectively measurable nutrient/caloric intake, a paradigm that historians have also referred to as “nutritionism”.Footnote ⁷⁰ When hunger is predominantly addressed by focusing on the nutrient content of food, only certain “magic bullet” solutions become viable.Footnote ⁷¹ Although there is a widespread consensus that acknowledges that interventions focusing on “food systems” could be long-term solutions to hidden hunger, those seems to have received the least attention in the past decades.Footnote ⁷² The rationale behind these asymmetries often stems from an argument about knowledge, attributing the marginalization of socio-economic interventions to the purported “lack” of data or evidence.Footnote ⁷³

Currently, food fortification or vitamin supplementation are the most celebrated way of addressing hidden hunger, despite the fact that many other longer-term strategies are also available.Footnote ⁷⁴ For example, the World Bank has, in many iterations, emphasized the potential of food fortification, stating that “no other technology offers as large an opportunity to improve lives at such low cost and in such a short time.”Footnote ⁷⁵ Other influential actors of the global food and nutrition community, such as the Consultative Group for Agricultural Research and its “Micronutrients Project,” have echoed the sentiment that such interventions are efficient as they have the advantage of treating “the symptoms rather than the underlying causes of micronutrient deficiencies.”Footnote ⁷⁶ Biofortification as a solution to the problem of hidden hunger, therefore, allows the international community to address malnutrition without having to completely rethink the real roots causes of hunger.

Over the past decades, IOs have undertaken numerous projects based on fortifying food with isolated nutrients. Under the “Brighter Futures” initiative, a program funded by the Gates Foundation, UNICEF has conducted large-scale fortification projects in several countries.Footnote ⁷⁷ Similarly, the WHO has also provided extensive guidance to countries on the use of micronutrient powders, which are single‐dose packets containing multiple vitamins and minerals that can be sprinkled onto semi‐solid food. Such powders have been promoted as a “proven” strategy to combat this form of undernutrition.Footnote ⁷⁸ Other organizations working in close partnerships with IOs have also been established to conduct large-scale fortification programs in several countries. One of such initiative is the Micronutrient Initiative (later renamed Nutrition International), which since its inception in the 1992 Montreal Hidden Hunger summit has emphasized the provision of market-based interventions through the delivery of isolated nutrients such as vitamins and minerals.Footnote ⁷⁹ According to its website, the organization works to “deliver the greatest nutrition impact at the lowest cost.”Footnote ⁸⁰ In 2008, Nutrition International supported the WHO Department of Nutrition for Health and Development in enhancing its capacity to provide “evidence-based” nutrition interventions.Footnote ⁸¹ For that purpose, Nutrition International facilitated the meetings of the WHO’s Nutrition Guidance Expert Advisory Group and its activities related to fortification.Footnote ⁸² Similarly, Nutrition International was part of the “core group” that significantly influenced the policy-making process that resulted in the publication of one of the most important WHO/FAO fortification guidelines.Footnote ⁸³

While some of these programs have been key to addressing hunger and malnutrition, scholars argue that “top-down nutrient-specific” interventions alone do not “solve” the problem of hidden hunger, as they claim.Footnote ⁸⁴ Some researchers have found that food fortification programs often tend to overestimate the magnitude of the problem in Global South countries. When such programs are implemented by IOs on a large scale, they also tend to ignore the eco-social specificities of countries as well as the socio-economic determinants of hunger and malnutrition.Footnote ⁸⁵ In Colombia, for example, micronutrient powder supplementation was not the most adequate way of tackling hidden hunger.Footnote ⁸⁶ Another challenge is that, because fortified foods are more costly, they may be beyond the reach of people who are at the greatest risk of deficiencies and, instead, tend to most benefit the people who need them least.Footnote ⁸⁷

Despite the acknowledgment in recent years that food fortification and supplementation fail to address the root causes of hunger, the international community continues to portray them as some of the only “evidence-based” solutions. This was the case during the 2021 United Nations Foods Systems Summit, where “scaling up” biofortified crops was heralded as a “game-changing solution.” The summit emphasized that, in order to deploy large-scale fortification programs, “market forces will be harnessed and leveraged” to ensure the success of this “cost-effective” intervention mostly in Africa, Asia, and Latin America.

The tendency to understand nutrition as a medical problem mainly stemming from a lack of nutrients consumption has several implications. On the one hand, when food is mainly seen as a chemical compound, it can easily be treated as a commodity that is sold and consumed, a frame that has largely served the commercial interests of industries based in Global North countries, which market food as a commodity delivering health promises.Footnote ⁸⁸ At the global level, the agroindustrial and pharmaceutical complex have indeed largely benefited from this narrow meaning attributed to hunger and have used nutritional “deficits” as a goldmine offering ample market opportunities.Footnote ⁸⁹

More generally, such a reductive problematization of hidden hunger, and food in general, puts increasing pressure on individuals to take charge of their health.Footnote ⁹⁰ Several programs are now being conducted in countries like Kenya, Ethiopia, or Bangladesh to address hidden hunger and malnutrition in children through the selling of “Sprinkles,” a manufactured package of micronutrients delivered through markets.Footnote ⁹¹ When hunger is construed as an individual concern, with all attention directed towards the consumer phase of the issue, the responsibility for “solving” it falls upon individuals. Through the purchase of nutrient-enriched food, or vitamins, individuals are tasked with bearing the responsibility of addressing unprecedented levels of global hunger.

Conclusion

In this chapter, I explored the ways in which different UN agencies, the WHO, the FAO, and UNICEF have problematized hidden hunger as an indisputable “matter of fact.” By assembling a significant body of biochemical knowledge about malnutrition these institutions gave the object an aura of naturalness and objectivity. On the one hand, through data aggregation, surveys, and technologies, hidden hunger was defined as a problem stemming from a “deficit” in nutrient consumption in Global South countries. On the other hand, hidden hunger was defined by UN agencies in a highly economized way, placing emphasis on its measurable impact on economic competitiveness and the productivity of nations.

However, akin to any universalizing endeavor, this way of approaching hunger was not only exclusionary but also restricted the spectrum of possible responses and policy options. The chapter elucidated how the dominant problematization of hidden hunger as a problem of missing nutrients has largely authorized and validated short-term political actions, such as food fortification and vitamin supplementation. These responses functioned more as political palliatives than as transformative solutions addressing the root causes of hunger such as inequality, trade regimes, lack of access, environmental degradation, and industrial agriculture.

This chapter has highlighted that the ways in which IOs know and address problems is therefore never functional. Producing knowledge about a given issue and stressing how to “best” approach it is always an exclusionary practice that prioritizes certain voices at the expense of others. This brings a subtle but profound change in the ways in which we think about IOs’ daily work and their power to shape governance practices. As this chapter has emphasized, it is by studying knowledge-making processes behind global problems that one can better understand who has authority to govern and why, and how boundaries and hierarchies are established, maintained, and potentially transformed.

Introduction

For decades, critical scholars have debated the contours of agency and structure – or ‘freedom and constraint’Footnote ¹ – in the legal activities of international organisations.Footnote ² According to some, the inherent indeterminacy and open-endedness of legal processes enable – indeed require – institutional actors to exercise political discretion in (re)definition of norms without reifying ‘the ideas and attitudes that make the established order seem natural [and] necessary’.Footnote ³ Others, by contrast, highlight the structural ‘limits and pressures, tendencies and orientations’Footnote ⁴ that shape normative possibilities, ‘promote the expression of certain types of interests’, and ‘suppress that of others’.Footnote ⁵ Arguably, these are two sides of the same coin, and an emphasis on either position reflects the sensibilities and preoccupations of the observer.

In this chapter, I apply the agency/structure dichotomy to a specific subset of organisations, namely international courts and tribunals. Unlike other entities, judicial bodies do not possess the power of legal initiative: they are not supposed to create law from scratch, but to interpret and apply pre-existing rules to solve concrete cases. However, much like other institutions, courts and tribunals develop recursive – and often ‘unwritten’Footnote ⁶ – practices, postures, and modes of world sensemaking that shape the meaning and evolution of international norms, with systemic effects that extend well beyond the parties to individual cases.

Indeed, the rise in prominence of international adjudicative mechanisms, like the International Court of Justice (ICJ), the European Court of Human Rights (ECtHR), the dispute settlement system of the World Trade Organisation (WTO), and investor-state arbitration (ISDS), has been the object of intense scrutiny by international lawyers, political scientists, and sociologists alike. Countless studies have appeared that seek to identify patterns and strategies in the jurisprudence of the various tribunals and reconstruct the ever-elusive intention du juge.Footnote ⁷ While those studies helpfully shed light on the external forces affecting the decision horizon of international adjudicators, they also tend to overplay systemic constraints and institutional biases.

Against this backdrop, it bears asking: what guides international courts in reaching their decisions? What structural limitations do they encounter? And what agency and discretion do judicial actors enjoy in the process? My main argument is that the legal production of the international judiciary reflects the internal socio-professional dynamics of the community of professionals that run the machinery in its routine operations. The ways those professionals interact, cooperate, and clash on a daily basis have a crucial impact on judicial outcomes – more so than the substantive norms that courts are called upon to interpret and apply; and more so than the external political pressures to which they are subject. To illustrate this point, I unravel some of the everyday practices that occur inside international judicial institutions. My analysis reveals that those practices are at once structured – i.e. subject to social constraints and pressures – and contingent – i.e. open to change, contestation, and restructuring.

My argument proceeds as follows. In the section ‘Determinism, Determinism Everywhere’, I problematise the notion of institutional bias that has been expounded by several authors, and call for an anti-formalist and anti-determinist account of international judicial processes. In the section ‘Sources of Constraint’, I discuss the ways in which the inner circle of adjudication experts delimits and constrains the decision horizon of international courts. In the section ‘Spaces of Freedom’, I identify some residual spaces of freedom and discretion in the construction of international judicial ‘truths’.

Determinism, Determinism Everywhere

In 1989, Martti Koskenniemi shook our disciplinary conscience by revealing the indeterminacy of the international legal argument. Because the body of international law doctrines can accommodate contrary outcomes and courses of action, expert argument enables ‘the taking of any conceivable position in regard to a dispute’,Footnote ⁸ thereby delegating the solution to ‘an ultimately arbitrary choice’.Footnote ⁹ Some twenty years later, the same author offered a strikingly different account: ‘in practice nothing is ever that random. Competent lawyers know that the world of legal practice is quite predictable.’Footnote ¹⁰

This is intriguing. What has transpired in the meantime that has shifted the focus from indeterminacy to predictability? For Koskenniemi, the game-changer is ‘the emergence and operation of structural bias’; more precisely, ‘the creation of special regimes of knowledge and expertise’ like human rights law, environmental law, trade law, investment law, and security law.Footnote ¹¹ The consolidation of ‘institutional projects [that] cater for special audiences with special interests and special ethos’ has made it possible to predetermine the outcomes produced in the international world.Footnote ¹²

This change of view neatly captures the existing narratives of international adjudication. Thanks to years of critical inquiry, we now know that international courts are more than ‘apersonal’Footnote ¹³ bodies ascertaining the preordained meaning of rules and mechanistically applying it to facts.Footnote ¹⁴ We no longer expect the judicial interpreter to proceed in a scientific fashion, plodding through Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), to ‘deduce the meaning exactly of what has been consented to’ and reach neutral and unassailable conclusions.Footnote ¹⁵ Our contemporary imagination is finally emancipated from the deterministic shackles of traditional legal formalism.

Yet, the notion of institutional bias, in its various permutations, still holds sway. To its proponents, judicial outcomes are determined by the sectoral mandate of each court, the backgrounds and entrenched ideologies of its adjudicators, and their quest for legitimacy in the eyes of political constituencies.Footnote ¹⁶ These ‘external constraints’Footnote ¹⁷ reinforce ‘institutionally ingrained problem definitions and strategies for solution’,Footnote ¹⁸ thus framing the categories and vocabularies through which legal issues are addressed. Institutional bias is often depicted as irresistible. A human rights court will be ‘programmed’Footnote ¹⁹ to prioritise fundamental freedoms over state interests; a WTO panel will invariably privilege trade liberalisation over, say, environmental protection; an international criminal tribunal will always be inclined to pierce through sovereign immunity and combat the culture of impunity; and so on.

Taken to an extreme, institutional bias is as deterministic as traditional formalism. Both tend to explain the decisions of international judges by reference to some other reality, invisible to their eyes, that guides their every action. For traditionalists, that reality is the law itself: a concrete entity with its own inherent logic and rationality, somehow independent of the human agents who routinely create, interpret, apply, resist, and are bound by it.Footnote ²⁰ For institutional bias theorists, it is the context of ‘deeper, impersonal forces’ that exert their pressure and inexorably nudge courts in a set direction.Footnote ²¹ In either case, the people actually involved in the process possess little agency, squeezed as they are between the Scylla of legal determinacy and the Charybdis of ideological partiality.

This sombre picture leaves many questions unanswered. How, for one, do ‘particular normative biases and preferences come to be embedded within an international regime at a particular point in its historical trajectory’?Footnote ²² And how, for another, can individuals exercise responsible freedom in the definition and evolution of judicial outcomes? In the pages that follow, I seek to provide tentative answers to these questions and offer an anti-formalist yet anti-determinist account of international adjudication.

To do so, I deconstruct the notion of international courts as cohesive and monolithic entities and shed light on their micro-level practices. Seen from this angle, the ethos and the preoccupations of each court are not carved in stone, but are shaped by the evolving socio-professional dynamics of the club of legal experts that contribute to its routine functioning. This club, which I call the international judicial community,Footnote ²³ comprises all the professionals that gravitate in the immediate proximity of a given judicial institution. International judges are just the tip of the iceberg. Other less visible players include the professional litigators (state agents, government lawyers, private counsel, NGOs, etc.) representing the parties in court; the legal bureaucracies (registries, secretariats, clerks, etc.) assisting the bench with the preparation, deliberation, and drafting of judgments; the specialised scholars developing the unified grammar and conceptual categories of each judicial field; and the like.

The relationships, interactions, and worldviews of the international judicial community are both constrained by existing social arrangements and open to renegotiation, contingency, and agency. As such, they are both the vehicle of reproduction of legal outcomes and the source from which legal changes originate. On the one hand, intersubjective socialisation and patterned repetition allow for shared assumptions and expectations to crystallise, thus ensuring predictability in adjudication. On the other hand, the endless struggles among community members, which in turn reflect their power relations and relative capital, enable the contestation of pre-established patterns, the opening of paths to resistance, and the creation of avenues for the gradual evolution of legal systems.

To fully understand these dynamics, we must stop treating international courts as ‘reified collectives forming separate and self-standing units of analysis’.Footnote ²⁴ Instead, we must open the ‘black box’ of judicial institutionsFootnote ²⁵ and engage in a micro-analysis of their inner workings. This can be done through a variety of methods, including field sociology, practice theory, and ethnographic participant-observation. In the next sections, I sketch a tentative framework for this analysis and link it to the overarching theme of structure vs. agency. I begin by identifying the socio-professional sources of constraint in the production of judicial outcomes, after which I turn to the interstitial spaces of freedom where judicial actors can steer the course of proceedings in new and unexpected directions.

Sources of Constraint

If, as Koskenniemi posits, international norms are inherently indeterminate, then what limits the discretion of international courts in the definition of legal outcomes? Can adjudicators really take any conceivable position regarding a dispute? Of course not. The scope of what is ‘legitimately assertable’ in judicial discourse is subject to powerful constraints, stemming from the collective expectations and dispositions of the international judicial community.Footnote ²⁶

The community plays this constraining role in an active and a passive way. Throughout the adjudicative process, it pushes and forces adjudicators by expressing views as to how certain issues should be addressed, how certain legal terms should be read, and what bodies of rules should be considered to solve the case at hand. Once the judgment is rendered, it carefully tests its analytical rigour, ascribes (in)competence based on background knowledge, and acts as the ultimate arbiter of professional recognition. In short, the community constitutes the immediate audience of international courts. Adjudicators are keenly aware of these internal pressures, and their decisions often ‘speak’ more directly to the legal professionals gravitating around them than to broader political constituencies.Footnote ²⁷

The dispositions of the international judicial community are often un-reflexive, deeply entrenched, and stubbornly resistant to change, and hence the impression that institutional bias is inescapable. Yet, as I will argue in the section ‘Spaces of Freedom’, the socially constructed nature of that bias means that it can be contested and overcome under certain conditions. For now, let me discuss how the community secures and maintains its grip on the routine activities of international courts and fosters the crystallisation of their ingrained preferences. In a nutshell, the pathways of control relate to: (a) the institutional design of each court; (b) the social structures governing the relationships among community experts; and (c) the patterned practices and competent performances that those experts carry out on a routine basis.

Spaces of Freedom

As argued in the previous section, the international judicial community constrains the discretion of courts in many ways, including by participating in their institutional design, perpetuating their operational closure, and developing patterned practices and shared standards of legal argument. Yet, these constraints do not make judicial outcomes automatic or entirely predictable. After all, stability is only ‘an illusion created by the recursive nature of practice’, whereas change ‘is the ordinary condition of social life’.Footnote ⁶¹ Indeed, amid the tight socio-professional structures of the community, there remain interstitial spaces for agency, responsibility, and freedom. It is there that new paradigms emerge – and legal evolution becomes possible.

In this section, I provide an initial mapping of these spaces of freedom and suggest ways to preserve them from the deterministic tendencies of the international judicial system. In particular, I focus on the possibilities offered by: (a) the creative interpretation of norms; (b) the competition among members of the international judicial community; and (c) the many contingent and accidental occurrences that punctuate proceedings. The term ‘freedom’, of course, should be handled with care: international adjudication being a collective endeavour, no single individual is, alone, in full control of the process. If any freedom is possible, it can only emerge from the interactions of multiple actors over time.

Conclusion: Structured Contingency?

In this chapter, I have started to unravel the relationship between agency and structure in the legal production of international judicial institutions. Seen from a distance, international courts appear as subservient entities, pulled apart by the competing forces of metaphysical law and unscrupulous politics. At closer examination, however, they reveal themselves as a site of socio-professional struggles, competing positions, and clashing worldviews. These micro-level relationships and practices are the source of both systemic constraint and responsible freedom in the definition of international legal outcomes.

Therefore, I would conclude that international adjudication takes place in conditions of structured contingency.Footnote ⁸⁶ ‘Contingency’, because the path that leads to the formation of an international judgment is not predetermined, but susceptible to contestation and unforeseen twists. Every step of the process contemplates purposeful choices and value-judgements on the part of the actors involved. Each actor has countless opportunities to voice their opinion, assert and resist claims, and consciously exercise their discrete portion of agency to steer the course of proceedings. ‘Structured’, because while existing arrangements can be changed, ‘change unfolds within a context that includes systematic constraints and pressures’.Footnote ⁸⁷ Departing too abruptly from the tacit rules of the game would lead to professional reprimand, public derision, or outright expulsion from the game. Perhaps, then, the puzzle of freedom can be solved by paraphrasing Karl Marx: international courts ‘make their own history, but they do not make it just as they please in circumstances they choose for themselves; rather they make it in present circumstances, given and inherited’.Footnote ⁸⁸

Introduction

Contemporary global governance is characterised by the deterritorialised production of law – a process in which International Organisations (IOs) play an increasingly important role.Footnote ¹ Some scholars have understood this movement in lawmaking beyond the traditional sites of normative production (‘beyond the state’Footnote ²) as an instance of fragmentation. This, as Koskenniemi has argued, leads to deformalism and managerialism.Footnote ³ But this movement has material effects and outcomes that go beyond the normative and ideational, a fact that is often overlooked by legal scholars. Legal fragmentation within the transnational realm can lead to legal conflicts, where actors with differing power positions in the global order seek to shape particular apparatuses or issues of government in distinct ways and according to their interests,Footnote ⁴ within a legal landscape lacking clear hierarchy. These legal conflicts have material outcomes since they shape the social and political world and affect parties to the conflict in differentiated ways. In transnational law, the line between informal and formal norms is blurry and so the lack of hierarchy in the fragmented international legal sphere pushes the question of authority to the forefront of theories of global governance; understanding how authority is exercised helps to grasp which norm(s) takes precedence over another in situations of global legal pluralism. And, in turn, how certain orders or ways of governing are perpetuated in time.

In this chapter, I make the proposal that an ethnographic engagement with Transnational Legal Conflicts (TLCs) can help shed light on the ways in which authority and hierarchisation within TLCs manifest and shape the social and political world and the galaxy of IOs for that purpose. In the context of the conflict over the responsibility to rescue migrants at the contentious border zone in the Central Mediterranean, I examine the struggle for control over a large stretch of international waters, where migrants attempt to make the perilous crossing having departed from Libya and where NGO vessels carry out rescue activities of the former. Feldman has proposed ‘non-local’Footnote ⁵ ethnography not just to describe the dots or sites linked to governance activities or to represent daily practice but rather to decode governance processes or regimes functioning to ‘regulate large populations’.Footnote ⁶ This approach, he argues, is fitted to study ‘historically particular apparatus’,Footnote ⁷ which span several sites and involve many actors, overlapping policies, and different technologies. Apparatuses coalesce to produce historically contingent models and networks geared towards the management of populations or control the economy. In his words, the ethnography of global governance should ‘uncover how discourses give an emerging regime its shape and direction’,Footnote ⁸ as opposed to limiting itself to the description of the components of governance.

In the following, I apply such a non-local approach to the TLC over the responsibility for rescue in the Central Mediterranean. I excavate the power dynamics at stake that manifest at sea and beyond and show how operational hierarchies are set despite all actors referring to the lawfulness of their actions. In the Central Mediterranean, international borders – both physical and immaterial – have been redrawn by the actions of international institutions, situated far away from the dilemmas of those carrying out rescues. The emergence of the Libyan Search and Rescue Region (SRR) in the International Maritime Organization’s (IMO) Global Search and Rescue (SAR) Plan in June 2018 legitimised European authorities’ handing over of responsibility to Libyan authorities to coordinate the rescue of migrants and to thus disembark survivors in Libya. This clashes with the international principle of non-refoulement and the duty to disembark rescued people in a place of safety according to the 1979 SAR Convention. With this in mind, I analyse how the emergence of this new zone enables an extremely formal interpretation of the SAR convention, ultimately meaning that European authorities can delegate the responsibility for rescue to their Libyan counterparts. I start by outlining how an ethnographic approach to TLCs can help us understand the competing and fragmented jurisdictions in spaces of transnational governance. Then, I move to the setting of the Central Mediterranean Sea and depict the materiality and situatedness of TLCs, relating to conflicts over the responsibility to rescue migrants at sea. I show how different claims of authority manifest in these TLCs, and thus, how the EU has managed to shape the governance of a large stretch of international waters shot through by multiple jurisdictions, to meet its own interests of reducing irregular migration.

Ethnographies of Transnational Legal Conflicts

The de-formalisation induced by global legal pluralismFootnote ⁹ has been criticised for weakening formal rules of procedure and ‘formalised limits of competence’, and, perhaps counter-intuitively, privileging ‘power over plurality’.Footnote ¹⁰ To delve deeper into the power dynamics of a TLC, it is necessary to pay close attention to time and space and empirically engage with instances in which ‘law’ is used and referred to.Footnote ¹¹ An anthropological approach to ‘the transnational’ can help shed light on which ‘chains of interdependence are deemed relevant’Footnote ¹² and which can be disregarded, within situations of legal overlap. Such a situational approach enables the micro study of macro-relations within situations of structured contingency.Footnote ¹³ Hence, an ethnographic approach to TLCs leads to a path beyond legal formalism, helps understand the materiality and meaning of the context, and enables the excavation of power dynamics that might often be masked as references to ‘neutral’ international legal frameworks and the IOs upholding them. In the context of the externalisation of migration control in and around the Mediterranean for example containment policies, in which IOs such as the International Organisation for Migration (IOM) are often active partners,Footnote ¹⁴ are underpinned by the dominant paradigm both in international and domestic law of the nation-state’s prerogative to exclude non-nationals.Footnote ¹⁵ Their legal architecture masks the racialised and neo-colonial nature of the contemporary migration governance at the borders of Europe.Footnote ¹⁶

As mentioned earlier, legal conflicts can be summarised as arising due to actors’ different pursuits and desires in a pluralistic global society.Footnote ¹⁷ Therefore, fragmentation is not just the result of a lack of formal integrity of international law; it is also fundamentally a question of politics. For Koskenniemi and Leino, fragmentation emerges because of the utopian disposition of international law: it is used by actors in ways that try and advance the political present that has been ‘in some way or another’ revealed to be ‘unsatisfactory’.Footnote ¹⁸ In this chapter, I am less interested in the worldviews and justifications of international lawmakers than I am interested in examining how to study the material and ideational outcomes of what happens when different (sometimes utopian) visions of law, or sets of international rules, come into collision with one another.

TLCs Over Responsibility for the Preservation of Life at Sea

Europe’s ‘obsession’Footnote ¹⁹ with clandestine migration by sea in the last decade has had to balance the securitisation of the external border with the issue of preserving life at sea. Walters coined the term ‘humanitarian border’Footnote ²⁰ to describe the rise of importance of borders for Western states, as sites concentrating a set of concerns and fears and therefore in need of being securitised. The counter-intuitive placing of ‘humanitarian’ next to ‘border’ is to signify how these sites have increasingly concentrated a variety of activities carried out by state and non-state actors, which mix dynamics of protection and control.Footnote ²¹ In the Mediterranean, policing, humanitarian action, and intelligence-gathering have all become entangled in a series of networks, including states, international organisations, and NGOs within a system designed to both intercept and rescue migrants in distress at sea.

In the face of these paradigmatic tensions, the responsibility for survivors of a distress situation at sea, or for their death, has taken on geopolitical dimensions in the Mediterranean with the increasingly securitised way in which migration and maritime migration has been dealt with in the EU since the early 2000s. In 2004 already, the German humanitarian ship Cap Anamur rescued thirty-seven people from an inflatable dinghy in the strait of Sicily and was subsequently denied the right to enter Italian territorial waters. For eleven days, the ship was made to wait in international waters, whilst Malta, Italy, and Germany debated where the people should be allowed to disembark.Footnote ²² At the heart of the contention lies the SAR regime and associated 1979 International Convention on Maritime Search and RescueFootnote ²³ (hereinafter: SAR Convention), which splits the high seas (the waters beyond territorial waters) into zones and distributes coordination responsibility among coastal states for rescue operations. Whereas in territorial waters (12 nautical miles (NM) off the baseline of a state’s coast) and the contiguous zone (up to 24 NM off the coast) states enjoy, respectively, quasi full and some limited policing power, on the high seas or international waters, they can exercise jurisdiction in only very limited ways.Footnote ²⁴ On the one hand, the SAR regime was designed to precisely improve safety at sea by ensuring that coordination responsibilities are clear. On the other, in the Mediterranean, states like Malta have disputed the extension of their responsibility to such a large portion of international waters.Footnote ²⁵

The tensions around where to disembark survivors, depending on where they were rescued and by whom, has meant that states have often engaged in a responsibility ping-pong relating to whom should intervene, which has sometimes had deadly consequences. In October 2013 for example, a boat carrying over 400 people, most of them Syrian refugees, sunk off the coast of Lampedusa, killing 200 people, about 60 of whom were children. An Italian navy ship, the Libra, was stationed a mere 19 miles aways from the distress case, in the Maltese SAR zone. The migrants had called the Italian coast guard for help, but the coast guard had repeatedly told them to call Malta instead. The Maltese eventually intervened, hours after the migrants had called and begged for support. And this even though the Libra was only about an hours’ navigational time away from the scene.

Yet the law of the sea is very clear when it comes to the duty to rescue people who find themselves in distress. The 1982 UN Convention on the Law of the Sea (UNCLOS),Footnote ²⁶ the 1974 Convention on Safety of Life at Sea (SOLAS Convention),Footnote ²⁷ and the 1979 SAR Convention all require that life be preserved at sea at all costs, regardless of nationality. They set out the duties of the master of a ship to render assistance and to proceed with speed to conduct a rescue, upon receival of a distress signal. According to the text of the SAR Convention, an SRRFootnote ²⁸ does not entail jurisdiction but assumes duties. However, in practice, this is not a clear-cut distinction. De facto, SAR zones extend a form of jurisdiction as states carry out patrol and surveillance activities.

Shaping a Maritime Control Cooperation Partner Anew: The Genesis of the Libyan SRR

Libya has been a partner to the EU and Italy for what concerns maritime migration control since the early 2000s.Footnote ²⁹ The Treaty on Friendship, Partnership and Cooperation was signed between Italy and Libya in 2008, which provided the grounds for joint patrols and off-shore pushbacks.Footnote ³⁰ The fall of the Gaddafi regime in 2011 after the NATO led intervention brought about the collapse of a stable discussion and cooperation partner for the EU on migration matters. Libya has been in political turmoil since. The legitimacy of the General National Congress (GNC), established in 2012, came under threat by General Haftar calling for the GNC’s dissolution in February 2014 and the Prime Minister, Ali Zeidan, being removed from office in March of the same year. Amidst the insecurity induced by the civil unrest and fall of the dictatorship, migrant crossings increased. This led to the EU changing its external approach to Libya in 2014, shifting from an approach that promoted democracy and institution-building, to one that framed the Libyan crisis as a migration and border crisis.Footnote ³¹ The increase in clandestine crossings also brought about an increase in migrant deaths at sea.

After hundreds of migrants lost their lives in a series of shipwrecks in 2013 off the coast of Lampedusa, the Italian government reacted by launching a national rescue operation Mare Nostrum. However, the operation rapidly came to an end a year later under pressure from both domestic critics and European policymakers more generally who blamed the operation for being a ‘pull-factor’ for immigration into Europe.Footnote ³² This narrative was soon to be shifted onto NGO vessels, the first of which began to operate in the Strait of Sicily at the end of 2014. In April 2015, another series of shipwrecks in the Central Mediterranean prompted a special EU Council meeting in which the EU reaffirmed its commitment to preserving life at sea in the face of this ‘human emergency’.Footnote ³³ Despite this, Frontex’s area of operation under Joint-Operation Triton, which was launched after the end of Mare Nostrum, did not patrol the zone where most distress cases were declared, south of the Italian SAR.

When I interviewed a retired member of the Italian Coast Guard about this period, he clearly stated that these years after 2011 had constituted a great challenge for him and his team. The Italian Coast Guard often had to intervene in scenes of impending mass casualty, sometimes far outside of their own SAR zone, whilst the Maritime Rescue Coordination Centre in Rome (ITMRCC) was overwhelmed by calls from different sources signalling distress cases. What emerged from the point of view of the ITMRCC, he told me, was a need for an authority with whom they could have a regular dialogue as expected by the conventions.Footnote ³⁴ In 2017, an agreement was signed between the Italian Coast Guard and the European Commission’s DG Home to grant funds for the action ‘Assessment of the Libyan Coast Guard legal framework and capability in terms of SAR Services’.Footnote ³⁵ This was to be one of the first steps towards helping the Libyan Coast Guard gain capacity for rescue in the Central Mediterranean. The action was funded by the EU Internal Security Fund (ISF) and included a feasibility study, which was to define under which conditions the LMRCC (Libyan Maritime Rescue Coordination Centre) and an associated SAR zone could be established.

Despite not yet having their own SRR, the Libyan Coast Guard (LYCG) had already massively increased interceptions in 2017. In 2016, NGOs accounted for the highest number of rescues, whilst in 2017, the trend was inverted with the LYCG intercepting more migrants than any other actor.Footnote ³⁶ In parallel to the feasibility study being carried out for the establishment of the Libyan SRR, Marco Minniti, Italian interior minister at the time, struck the infamous Memorandum of Understanding with then prime minister Fayez al-Sarraj.Footnote ³⁷ Italy also then approached the European Commission in May 2017 with a ‘major proposal for integrated border and migration management in Libya’Footnote ³⁸ to be funded under the EU Emergency Trust Fund for Africa (EUTF),Footnote ³⁹ and to complement the ISF funding. The projects caught under the North Africa window of the EUTF to be implemented in Libya focused almost entirely on improving the Libyan authorities’ ability to ‘manage’ migration and secure their borders.Footnote ⁴⁰ On 10 July 2017, the Libyan Ports and Maritime Transport Authority (Ministry of Transport) communicated in a letter to the IMO the designation of the Libyan SRR. In the letter, the Libyan authorities mentioned the lack of resources and facilities of the coast guard and the air forces resulting from the destruction caused by the 2011 military operations. For some time before the actual declaration of the Libyan SRR, when the LYCG had already greatly increased their activity, the Italians were in fact acting as the coordination authority from Tripoli from a military ship.Footnote ⁴¹

On 27 June 2018, the coordinates of a new Libyan SRR were uploaded to the IMO’s Global Integrated Shipping Information System (GISIS). This banal act had juridical consequences: henceforth, the LYCG had coordination priority for SAR events over a vast area of international waters. It was a unilateral declaration with a constitutive effect, the authority of which was based on the structural dominance of states in their ability to grant powers to specific actors ‘at the confluence of legal structures’.Footnote ⁴² Taken alone and distinct from the socio-legal context in which it came into being, the notification could seem straightforward: it simply defined which state would take coordination responsibility for rescues in this stretch of international waters. However, it did not emerge in a neutral space. In fact, it was declared in an already saturated legal landscape: the sea, although it has long been portrayed as a ‘lawless space beyond sovereignty and justice’,Footnote ⁴³ is permeated by a complex (and expanding) regulatory system,Footnote ⁴⁴ which prescribes the conduct of ships in fields ranging from trade to environmental protection and rescue. The emergence of the Libyan SRR was another layer adding to the legal sediments striating the justifications for different conduct of actors passing through the Central Mediterranean. It made the LYCG into a legitimate cooperation partner for the Italian coast guard to coordinate rescues, as set by the law of the sea. Simultaneously, it formalised a practice of systematic pull-backs of migrants to Libya in violation of the 1951 non-refoulement principle. In sum, it further entrenched the conflict between a securitised approach to maritime migration and a more humanitarian and rights-conforming approach.Footnote ⁴⁵

The Libyan SRR formalised the LYCG’s authority to coordinate rescues in this region, giving Libyan authorities primary responsibility to ensure rescued people be disembarked in a ‘place of safety’.Footnote ⁴⁶ Although ‘place of safety’ (and the concept of ‘safety’ more broadly) has not been clearly defined in international legal frameworks, it is widely accepted that it must be interpreted in accordance with refugee law provisions where the principle of non-refoulement is guaranteed.Footnote ⁴⁷ There is an obligation of result that comes with the duties of the state responsible for the SAR zone to ensure that rescued people are effectively disembarked.Footnote ⁴⁸ International law scholars and human rights organisations have argued that ‘place of safety’ should be interpreted in accordance with refugee law provisions. However, it is not my goal to go into the detail of the normative interpretation of these provisions. Rather, here I want to point out that despite the existence of this framework that prohibits the disembarkation of people in a place where their lives and safety are threatened, the enactment of the Libyan SRR enabled a fragmentary reading of these provisions and attributed authority to specific officials in acting out this reading.

As I will show in the following section, the TLC at hand was shaped and hierarchised in such a way that the LYCG were able to gain operational advantage over rescue NGOs and maintained this advantage over time. The way these overlapping jurisdictions could be hierarchised in a specific way was deeply dependent on the way they connected to the priorities and ideologies of the institutions involved in governing the maritime space. In the following section, I show how hierarchy was imposed in that conflict, thus shaping the outcome of political and social behaviours and operational patterns which persist to this day.

Authority in the Libyan SRR

To delve deeper into the question of how and which kinds of authority come to shape the governance of the EU’s external maritime border in international waters, I take the following examples from fieldwork I carried out at sea onboard an NGO rescue ship in the autumn of 2018.Footnote ⁴⁹ This was shortly after the Libyan SRR had been declared. At the time, NGOs and human rights organisations had already been critical of the role of the LYCG in the growing number of interceptions carried out by them.Footnote ⁵⁰ Violent encounters between the LYCG and NGOs had also taken place, for example in November 2017.Footnote ⁵¹ In July 2017, the Italian Minitti government had tried to impose a Code of Conduct on rescue NGOs, which was widely criticised for being legally unclear and for imposing obligations on NGOs and leaving out the responsibilities of the Italian state.Footnote ⁵² The code emphasised, amongst other things, the obligation for a ship master to immediately notify the competent authorities of the flag State once a rescue had been conducted in a zone where there was no official SRR. It was a clear attempt by the Italian government to push other states to become involved in the contentious issue of disembarkation of rescued people by trying to establish responsibility through the flag state. Moreover, the wave of criminalisation against rescue NGOs had started, drastically reducing their abilities to effectively operate in the Strait of Sicily. Then, in the summer of 2018, Italy, spearheaded by far-right interior minister Matteo Salvini, declared the country’s ports shut to all foreign-flagged vessels that had rescued migrants off the coast of Libya. Thus, when I first arrived in Marseille to embark on the NGO ship Aquarius, operated by SOS Méditeranée and Médecins sans frontières, the tension, linked to the political climate in which SAR activities in the Central Mediterranean were unfolding, was palpable. Gibraltar had just announced that it would strip the Aquarius from its registers and so, after initially being told that we would leave the port on 1 September, the departure of the ship was delayed from week to week as the search for a new flag dragged on. The ship operator had made a request to the Panamanian authorities for a flag a few days before I arrived, which was finally approved.

We were finally able to leave the port of Marseille on 30 September 2018, in this jittery operational atmosphere. A few days into navigation, we encountered the first dinghy in need of rescue. It was a small fibreglass boat with eleven people on board, which had been spotted by local fishermen. The SAR coordinator on board the Aquarius tried calling Joint Rescue Coordination Centre (JRCC) Tripoli to request instruction, but his calls remained unanswered.Footnote ⁵³ Since Tripoli was not picking up the phone, the captain reverted to contacting another RCC.Footnote ⁵⁴ The Italian MRCC reacted to the call and the SAR coordinator informed them about the failed attempts to contact Tripoli. Once the rescue was completed, he wrote an email to the Italian Coast Guard again to inform them of the number of people who were now aboard the Aquarius, copying Malta and Tripoli in the process. By the end of the morning, JRCC Tripoli had emailed back to inform that it was taking coordination of the SAR event and gave a set of coordinates where they proposed to transfer the rescued people onto a Libyan asset. The Aquarius responded that it could not proceed to the transfer, referring to the SAR conventions, which prevented them from taking survivors back to an unsafe place; by accepting to make the transfer, they would potentially be in violation of the non-refoulement principle. The LYCG then responded by saying that the Aquarius should contact another RCC or its flag state for coordination and for attribution to a place of safety.

Shortly after this event, the Panamanian Maritime Authority released a press communiqué stating it had initiated proceedings to remove the Panamanian flag from the Aquarius. The reason stated in the release was that the vessel had ‘refused to deliver immigrants and refugees to their place of origin’.Footnote ⁵⁵ The information that the Aquarius had disobeyed orders from the Libyan authorities had been delivered to Panama by the Italian authorities.Footnote ⁵⁶ Panama had declared it was going to have to exclude the Aquarius from its register because not doing so would entail severe political difficulties for the many Panamanian ships operating in European ports.

A second rescue took place a couple of days later. This time, the Aquarius was alerted to a boat taking on water, which was said to have left from Zuwara, Libya. The boat was overcrowded and contained around fifty people, including women and children. After having informed the ITMRCC of the potential case – JRCC Tripoli was once again unreachable – the captain and SAR coordinator decided to head towards the area of the GPS coordinates. The Italian authorities were obviously in contact with the Libyans through other means than those that were available to the Aquarius because they knew that there was a LYCG patrol boat close by. On the phone, they gave the SAR coordinator the name of the Libyan patrol vessel (PV) and said that he should try to enter into contact with it. About an hour later and after several attempts, the bridge managed to establish contact with the PV in question, al-Kifah. Al-Kifah informed the NGO ship that it was going to be the on-scene ‘commander’. The SAR conventions give provisions for the designation of an on-scene coordinator, to ensure the smooth sequencing of events during a rescue.Footnote ⁵⁷ The designation of ‘commander’ signalled the way in which roles would be distributed on the scene. This was not so much about collaboration as it was about operational hierarchy.

When, some hours later, the Aquarius reached the position of the boat in difficulty, the SAR coordinator informed the LYCG that the small inflatable rescue boats of the Aquarius had been launched and were ready to start transferring the survivors. The communication with PV al-Kifah became extremely tense and the LYCG demanded that the Aquarius’ small rescue zodiacs stabilise the situation but then stay five miles away from it. The SAR coordinator explained calmly that this would not be possible, since the boat was in distress. Both zodiacs were made to station next to the boat in distress for close to an hour, with the rescue teams wondering why they were not being given the order to transfer – they were not aware of the difficult ongoing communications between the Libyans and the bridge of the Aquarius. In the early hours of the morning, the LYCG ordered them to move fifteen nautical miles away from the scene and threatened to arrest the rescue ship teams over the radio. Another hour of fraught and volatile communication ensued, with confusing back-and-forth instructions from PV al-Kifah and attempts from the bridge to de-escalate the situation. The final order to start transferring the people to the Aquarius was only given at 7:00am, after the Libyan patrol boat had drawn itself up very close to the wooden boat and the zodiacs and had then proceeded to circle the Aquarius menacingly. The last communication through the radio from the LYCG was an order for the Aquarius to leave the Libyan SRR and not to come back.

The SAR Convention states that when multiple facilities are about to engage in SAR operations, the RCC should designate ‘the most capable person’ to act as on-scene coordinator.Footnote ⁵⁸ Details are not given as to what exactly ‘most capable’ might signify. The Aquarius, with its extensive experience of rescues and accumulated collective knowledge of how to deal with these kinds of flimsy boats, as well as its medical teams onboard, could certainly qualify for ‘most capable’. UNCLOS and the SOLAS and SAR conventions all stress the duty of the master of the ship to proceed as fast as possible to the scene of distress and to offer their assistance.Footnote ⁵⁹ What is clear from the earlier description of the altercation is that the LYCG took up its role as ‘competent authority’ to mean ‘authority that all assets involved in rescues should obey’. The LYCG effectively became a policing force without the mandate to act as one. This clashed with the NGO boat’s understanding of the ‘spirit’ of solidarity at sea, codified by international law and SAR procedures and which they emphasised their abidance by.

The examples I just outlined show how TLCs are not the product of a legal clash in relation to a set hierarchy, in which clearly defined legal levels conflict with one another. Rather, different actors shape the rescue situations, all the while claiming to be abiding by procedures set in legal regulations. The social and material field in which both the LYCG and the Aquarius were pitted against each other is the product of a wider conflict between frames of reference in the contested Central Mediterranean region. Beyond the situations of rescue themselves, the conflict is shaped by decisions, institutional cultures, and ideologies of institutions whose reach extends transnationally. In particular, the EU and Italy were able to institutionalise the ‘right’ procedure to adopt when conducting rescues of migrants in distress, which gave an operational advantage to the LYCG. The power to shape the legal conflict from afar was linked to coercive power (criminalisation of ‘disobedient’ NGOs) and privileged access to information and communication networks, as well as the material and financial support offered to the Libyan authorities. The legitimacy of the support given to the LYCG also came from a specific framing of the migration ‘crisis’ in the Mediterranean and the need to respond to it, which could be observed in the interviews I conducted with European officials and bureaucrats working on the Mediterranean and Libyan migration situation.

The justificatory framing discursively combined the need to act (‘Europe cannot stand by whilst lives are being lost’) with the need to secure the external border.Footnote ⁶⁰ This duality could be traced down into the discourses of EU officials and civil servants. Senior officers and managers working on of the North Africa window of the EUTF whom I interviewed expressed the idea that ‘something’ had to be done to preserve life at sea in the Central Mediterranean, combined with the EU’s commitment to combat irregular migration. One manager lauded the EUTF as a successful instrument for the Central Mediterranean because of its capacity to ‘achieve results’. He brushed away the criticism of human rights and international organisations that migrants were being brought back to Libya: ‘at least we are present’, he scoffed, ‘we know that the Libyan Coast Guard is corrupt. But our strategy works! If you look at the numbers, there are way less deaths at sea now, not in absolute but in relative terms’. As the official acknowledged, this way of managing the EU’s external maritime border included risks and came with its load of controversies given the tensions. Another EU official, this time working for the External Action Service (EEAS), asserted to me that if migrants were rescued in the Libyan SRR, ‘they should go back to Libya’. She complained that some NGOs were being disruptive when they did not follow the LYCG’s instructions, adding ‘sorry, but within the Libyan SRR they need to be brought back to Libya. Each country has to manage its borders.’ NGOs, on the other hand, asserted that they were following international law by refusing to hand people over to the LYCG or step aside for the LYCG to conduct rescues.

So, what has enabled the operational advantage of the LYCG to prevail in time despite them acting within international waters which have been characterised as ‘unmanageable’Footnote ⁶¹ and where freedom of navigation is a fundamental norm limiting sovereign power over the seas?Footnote ⁶² To answer this question, it helps to more closely examine the issue of authority in global governance. In his recent book, Michael Zürn notes that there is something puzzling about international relations and global governance when we start to look more closely at the issue of authority and obedience.Footnote ⁶³ According to him, subordination without force in global governance should be a central issue for scholarly enquiry for four reasons.Footnote ⁶⁴ He says, firstly, that states rarely give up their sovereignty or only in very specific situations, then, that global governance institutions came after states in a historical perspective (so states are not ‘born’ into the authority of IOs) and states have developed many mechanisms to question obligations stemming from the international realm, and, finally, IOs (including the European Union) do not induce obedience or compliance because of a domination through resources since they do not employ large amounts of people. Moving away from rationalist and constructivist conceptions of global authority, he develops the notion of reflexive authority,Footnote ⁶⁵ to revisit the concept of authority under conditions of global governance. Reflexive authorities ‘depend on the epistemic constructions that identify the limits of subordinates and the realm of superiority of an authority’.Footnote ⁶⁶ Because command and deference are not at the heart of this theory of authority, the social processes in which ‘superior knowledge’ or ‘an impartial perspective’Footnote ⁶⁷ is established become of utmost importance. Zürn then speaks of the objectivisation and institutionalisation of authority under global governance, which are necessary for operational hierarchy to be imposed.

With the Libyan SRR both of those processes are at play: they are essential for understanding how such a criticised, conflictual, and contested wayFootnote ⁶⁸ of governing the EU’s external border can be maintained in time. The authority of the IMO plays an important role here. An authority relationship is objectivised when the ‘knowledge order that underlies the relationship becomes a dominant worldview or ideology that reaches beyond the immediately involved actors to external audiences’.Footnote ⁶⁹ Although the notification made by Libya to the IMO was voluntary and sovereign, the IMO participates in the process of objectivising the institutions relating to the control and coordination of the area, including JRCC Tripoli. The coordinates of the zone are uploaded to the GISIS, a centralised database of shipping information containing everything from contact for authorities and authorised organisations relating to IMO questions, to relevant regulations and marine data. The EU and European coastal maritime states such as Italy and Malta then take part in the second part of the legitimation of the LYCG, through institutionalising it; according to Zürn still, the institutionalisation of authority takes place when decisions and interpretations can be delegated or pooled.Footnote ⁷⁰ This is exactly what is enabled by the establishment of the Libyan SRR: neighbouring European RCCs can delegate rescue and the interpretation of whether a case constitutes a distress case or whether a rescue needs to be coordinated by the LYCG. It is important to point out that although there is proximity between authority and legitimacy, they cannot simply be merged by defining authority as legitimate power. There is a process of legitimation which participates in the hierarchisation of authority of the LYCG. Added to the fact they are backed up by coercive force, they can act as a policing force in international waters despite having no formal mandate to act as one.

The formalisation of the authority of the LYCG provided a basis for justification of measures I described in the rescue scenes earlier. For example, disobeying the orders of the so-described ‘legitimate’ coordination authority provided state authorities with the grounds to strip the Aquarius of its flag whilst it was still at sea. Similar other capillary effects are to be observed in the augmented capacity for states to argue against NGOs in cases of criminalisation. In June 2018, the NGO ship MV Lifeline entered the port of Valetta after having rescued 234 people in the Libyan SRR.Footnote ⁷¹ During the rescue operation, MRCC Rome had initially coordinated the rescue and allocated a SAR number to it but they had then informed the captain of the Lifeline that the LYCG had taken over the coordination. The captain, judging that Tripoli could not be considered a safe place of disembarkation for the survivors, had then sailed north, considering the port of Valetta as the next port of call. Malta had then not allowed the Lifeline to land. The captain had finally decided to enter the territorial water and port. Importantly, Malta accused the captain of ‘reportedly ignor[ing] instructions of the responsible authority, i.e. the Libyan Coast Guard’.Footnote ⁷² The captain was subsequently arrested, and the ship was impounded.

Operating in the Libyan SRR meant having to collaborate with the recognised authority associated with the zone. However, if this given authority insisted that rescued individuals, migrants, or refugees be taken back to Libya, then NGOs or any other vessel having conducted a rescue faced a situation where they were stuck between a rock and a hard place: either they disobeyed orders and had to face the likely retaliation of European states, refusing or delaying the disembarkation of survivors on European shores. Or they obeyed the orders, and in doing so were in violation of the non-refoulement principle in international law. These frames of reference are themselves related to the ‘institutionalised power embedded in scalar relations’:Footnote ⁷³ geopolitical stakes are at play in a moment of tense negotiations over the lives of those who have been turned into political chess pieces. This, to the extent that it is more than a simple clash of legal references, but a clash of who is given the right to act and operate in a newly governed zone.

Conclusive Remarks: The Power to Redraw Borders

In June 2020, over a hundred NGOs and individuals wrote to the IMO to request the revocation of the formal recognition of the Libyan SRR.Footnote ⁷⁴ The signatories of the letter denounced the zone being used ‘opportunistically’ to create a ‘fictional account’ allowing states and the EU to abdicate their duties under international law. Evoking the IMO’s role as the ‘guardian of the law of the sea’, whose responsibility it was to uphold UNCLOS and the SOLAS and SAR conventions, they appealed to the IO’s legitimising role in upholding the LYCG’s authority.Footnote ⁷⁵ The zone still exists today and pull-backs to Libya have increased every year since 2017,Footnote ⁷⁶ despite the outcry.

An ethnographic and multi-scalar approach to the TLC over responsibility for rescue in the Central Mediterranean provides insights both into the manifestations of authority in the governance of the EU’s external border, and into how this authority can be maintained in time. The IMO objectivises the LYCG’s authority by continuing to recognise the Libyan SRR. The EU and its member states then participate in the institutionalisation of the LYCG by integrating JRCC Tripoli into the operational procedures that are adopted in case of a distress case being declared in the extensive section of international waters. The material translation of this institutionalisation is then experienced by NGOs having to negotiate or interact with the LYCG when they try to conduct rescues, but also by migrants who testify to being chased by the coast guard or intercepted repeatedly when they try to flee Libya by the sea. This institutionalisation justifies the technical and material support such as patrol boats and trainings offered by EU authorities to the LYCG since 2017.Footnote ⁷⁷

The externalisation of migration control, which has accompanied other processes of privatisation of migration control and securitisation since the end of the Cold War,Footnote ⁷⁸ has rendered the departure and transit of migrants wanting to head for Europe increasingly difficult. Migration policies from states of the global North are dominated by the deterrence paradigmFootnote ⁷⁹ in which policies and practices of externalisation push the occurrences and manifestations of border enforcement and control, always further from the territorial borders of the states sponsoring these policies. In the Central Mediterranean, the imperative of securing the EU’s external maritime border has been mixed with the duty posed by international regulations to preserve life at sea. The empowerment of the LYCG since 2017 has enabled a form of ‘contactless control’Footnote ⁸⁰ from the part of EU authorities, mixing these two imperatives of border control and ‘rescue’, whilst limiting their responsibility and accountability for the rights violations induced by these deterrence policies. In the Central Mediterranean, the policing competence of a specific actor – the LYCG – has been inflated under the discourse of increasing rescue capabilities. Simultaneously, overlapping protection regimes of international refugee and human rights law are disregarded or, as Moreno-Lax has claimed, ‘deflate[d]’.Footnote ⁸¹

The actions of IOs, such as the EU and the IMO redraw international borders both physically and immaterially. The emergence of the Libyan SRR, with the forms of authority associated with it, not only renders the maritime border more impassable for migrants fleeing across the Mediterranean Sea and attempting to reach Europe. It also trickles into the argumentation of states in their attempts to criminalise rescue NGOs. The methodological flexibility offered by more ethnographic approaches to global governance helps to highlight the processual dynamics involved in the formation of authority in spaces of jurisdictional overlaps. In the case of the governance of the EU’s external border, I have shown how under the guise precisely of increasing the preservation of life at sea, the Libyan SRR has rather exacerbated a politics of irresponsibility for rescue and disembarkation in places of safety. TLCs are not just about legal fragmentation entailing dilemmas of interpretation for international lawyers longing for a long-lost single source of normative validity. They are dynamic interactions in which particular hierarchies of power and exclusion get sedimented in and through legal orders. Paying close attention to the different types of manifestations of authority within TLCs provides an analytical framework for examining how these hierarchies are made to persist in time within the multi-polar landscape of global governance.

Introduction

Almost exactly a century ago,Footnote ² on April 26, 1921, the Establishment Officer of the League of Nations (LoN) Howard Huston alerted his colleagues about an impending “housing crisis within the Secretariat.”Footnote ³ In a memorandum directed to Herbert Ames – the first Financial Director of the LoN – Huston requested an immediate increase of funds to expand the working capacity of the then headquarters of the League: a building called the National Hotel (l’Hôtel National). In his request, Huston clarified that these measures were urgently needed due to the enlargement of the Economic Section of the League and the division between the Health and the Social Section. But above all, the creation of an Armaments Section – which was later renamed as the more fitting Disarmaments Section – demanded a spatial expansion without parallel in the early years of this nascent international organization (IO). Huston, in particular, demanded the approval of an additional expenditure of 1,000 gold francs per month. This would be destined for the renting of a neighboring property. Indeed, one of the reasons that had convinced League officials of acquiring the Hôtel National for the enormous price of 5,500,000 gold francs was that this property had nearby plots or venues that could be incorporated as the IO grew.Footnote ⁴ But above all, the dignified architecture and structure of the Hôtel had convinced the League to choose this site for its first permanent dwelling. In fact, Eric Drummond – first Secretary-General of the organization – considered that this was the only site in Geneva that could meet the expectations of the organization.Footnote ⁵ While local press outlets saw this as a lavish choice – as it gave the staff “a kind of high life in offices which had been hotel rooms overlooking [l]ake [Leman]”Footnote ⁶ – Drummond instead believed that the institution had finally settled in a building whose “dimensions, style, and architectural beauty are worthy of the great international task that lies before the League.”Footnote ⁷ Regardless of this lofty statement, by the early twenties, it was becoming evident to those toiling within the Hôtel that its walls were growing increasingly small for the League.Footnote ⁸

If it was raining at the LoN, next door at the International Labor Organization (ILO) it was pouring. A year or so after Huston’s memorandum, the ILO governing body adopted a similarly strongly phrased memorandum in relation to its own limitations of space.Footnote ⁹ With the French national Albert Thomas at its helm, the ILO had found its first permanent dwelling in the basement of the Institut International d’Education la Châtelain in 1920, often called the Thudichum school after its rector.Footnote ¹⁰ This edifice would eventually be refashioned as the Carlton Hotel, and later would become the site of the International Committee of the Red Cross – but that is a story for another occasion.Footnote ¹¹ For our purposes, we must note that, by 1921, ILO officials were increasingly at odds with the basement of this boarding school. In their opinion, the limited space “does not r[e]ach even a reasonable standard from the hygienic point of view, to say nothing of it allowing the space necessary for really efficient work.”Footnote ¹² In fact, these ILO bureaucrats – not unlike myself – were toiling in a cramped space in the wake of a global pandemic. For that reason, we can easily sympathize with their concerns related to their hunch that the “high rate of sickness this winter has been partly due to the inadequacy of the present accommodation.”Footnote ¹³ And even in the face of these limitations, this IO was constantly expected to grow. If for Huston the main problem before the League was the inauguration of the Armaments Section, for the ILO the rising tensions came from the ever-expanding library. And these preoccupations were only related to the edifices that served as the working places for the full-time staff of these institutions. The limitations of space also extended to the lack of proper infrastructures for parliamentary meetings. At this early stage of the history of IOs, the ILO and League assemblies were held awkwardly either at the Casino Kursaal (nowadays the Fairmont Grand Hotel) or the Salle de la Réformation – also called the Calvinium(!), demolished in 1969.Footnote ¹⁴ Both were fairly inconvenient in terms of logistics or acoustics.Footnote ¹⁵ The former was described by its contemporaries as a “barn-like structure situated at the other end of Geneva and intended for […] Calvinist worship” while the latter was seen as “a sort of combined vaudeville show and dance hall.”Footnote ¹⁶

A careful reading of the traces and silences found in the archival collections of these early IOs shows that infrastructural and spatial anxieties were the bread and butter of the everyday operations of global governance. More often than not, the lofty goals of the pursuit of peace were punctuated by the routine malfunction of machinery, the occasional industrial fire, and the general displeasures of overcrowded offices. The men – and rarely but increasingly, womenFootnote ¹⁷ – that served as the pioneering cohorts of international civil servants had (just like any contemporary reader) to muster the resources and navigate the constraints imposed upon them by their built environments – and often to their chagrin. This is especially true to those involved in the so-called first generation of IOs, which through luck and improvisation produced knowledge and practices that later came to define the operations of future international institutions.Footnote ¹⁸

And yet, the anxieties and promises that space and architecture posed for these networks of transnational governance are, by and large, absent from our scholarly accounts. Sinclair’s recent monograph on the history of IOs in international law, for instance, tells us a nuanced and rich account of the intellectual history of Thomas’s tenure and the context of the early ILO without mentioning the frustrations that the organization faced in the crowded basements of La Châteleine or its eventual displacement to the Bloch property in Geneva – a building that today hosts the World Trade Organization – also a story for another time.Footnote ¹⁹ In the neighboring fields of international and global history, the surge of interest in the study of internationalisms has not necessarily been accompanied by a careful interrogation of the spaces and venues of IOs. The Hotêl National, for example, only appears in two sentences of Sluga’s (masterful, to be sure) history of internationalisms,Footnote ²⁰ while Pedersen’s groundbreaking monograph on the League’s Mandate system tell us little about the material investments behind the so-called l’espirit de Genève.Footnote ²¹ Most accounts, in other words, divorce their analysis of actors, ideas, or norms from the seemingly banal histories of the “buildings, staffs, and letterheads.”Footnote ²² While the “human component” of IOs has been submitted to an increased scrutiny in international history,Footnote ²³ and in the aftermath of “biographical turn” to “people with projects” in international law,Footnote ²⁴ the non-human and more-than-human elements of international institutions have remained largely unexplored. These elements, moreover, warrant study for it is within those very concrete “rooms” in which international lawmaking operations take place – imposing constraints and providing resources for those engaged in this sort of work.Footnote ²⁵

What is more, “IOs are inclined to define their own histories by writing ‘official histories’ themselves [… and s]uch official histories maybe be written by insiders, who lack a scientific or critical regard,” as Reinalda duly noted.Footnote ²⁶ This fact is even more salient when it comes to the literature on edifices of IOs, which often follows the genre of coffee table literature – highlighting hagiographic narratives of progress and downplaying moments of tension and conflict.Footnote ²⁷ The literature, if at all, might present us with a rosy picture of the grand palaces that eventually came to host IOs, but will remain stubbornly silent with regards to the rather precarious and improvised locales that actually came to serve the fledging system of IOs in their infancy. Conversely, in this chapter, I draw from, and contribute to, the recent or forthcoming works that bring the study of material culture, space, and art and architecture into the conversation on global governance.Footnote ²⁸ In this vein, I trace a history of the interim dwellings of IOs, arguing that a study of the built environments that haphazardly nested these institutions might reveal much about the structural limitations and jurisdictional boundaries of these “delicate machines” of world ordering.Footnote ²⁹ To do so, after this short introduction, we return to (2) the ironically named Hôtel National. Then, (3) we cross the Atlantic to the early United Nations complex in Lake Success and Flushing Meadows in the state of New York. This will allow me to (4) conclude with some remarks on the relevance of primary sources and archival research in the theory and history of international law and IOs.

A Contradiction in Terms? The Hotel National, Home to the International Community

In an “irony of history,” the first permanent dwellings of one of the pioneering twentieth-century IOs was the former Hôtel National.Footnote ³⁰ From there, the League “overflowed into two or three surrounding buildings.”Footnote ³¹ As I mentioned earlier, its acquisition had been partly prompted by Drummond’s desire of finding a dignified site for the IO – and the Hôtel, for him, was the only serious option that Geneva offered.Footnote ³² But most dramatically, the acquisition of this edifice was also prompted by the attempt of other cities to dethrone Geneva as the foremost site of interwar internationalism.Footnote ³³ As noted in the epigraph, spectators in both Switzerland and abroad were painfully cognizant of the fact that, “[f]or all the great hopes placed in these organisations, Geneva in 1920 did not offer more than a disused hotel for the [LoN] and an old boarding school for the [ILO].”Footnote ³⁴ To be sure, Genevese and Swiss authorities were aware of this. William Rappard, who had served as the chief Swiss negotiator at the Paris peace negotiations, knew that other European municipalities were competing to oust Geneva – something that would be unacceptable to his Swiss constituency. The mere fact the Viennese newspaper Freien Presse had published a call for furniture supply for the secretariat had angered local businessmen, as it made them doubt whether the League had “the restoration of Swiss industry from its present depression at heart.”Footnote ³⁵ In fact, Brussels had almost outbid Geneva when the League’s Council recommended that the US President Wilson convene the first assembly in Belgium in 1920.Footnote ³⁶ While Geneva was saved by Wilson’s “friendly and spontaneous” gesture to prefer the neutrality of Switzerland over the revanchisme of the recently invaded Belgium,Footnote ³⁷ this episode convinced Rappard and the President of the Swiss Confederation, Giuseppe Motta, that now it was their turn to reciprocate. Had it not been for the personal rapport between Wilson and Rappard, perhaps Geneva “might well be nothing more than a cantonal capital.”Footnote ³⁸

The first Swiss overture to sway the League to stay in Geneva came in the form of a tax exemption in 1920. At that time, the Genevese Conseil d’État decided not to charge the LoN for the droits de mutation et des transcription (a tax related to the acquisition of property) of the Hôtel National, which amounted almost to 700,000 gold francs.Footnote ³⁹ The majority of the council members favored the exoneration as a way to support the League and show their commitment to its historical mission – and pivotal role in warranting Swiss neutrality and independence. And yet, a minority of socialists, led by M. Burklin, argued against the measure, claiming that the state could not afford to exonerate the payment of this tax amid the acute housing crisis which affected the local working class. Along these lines, M. Nicole stated that the League represented the interests of the international capitalist class, which is why the only stable peace could be built by the international workers’ movement. In the end, the socialist faction remained adamant, tallying twenty-two votes against the majority’s sixty-two votes to exonerate the tax. In the following weeks the Council, presided by Paul Pictet, published its official decision to exonerate, laying the first stone upon which “International Geneva” was erected.Footnote ⁴⁰ Indeed, it was only after this that the Federal and local authorities began investing heavily in infrastructure “to live up to the privilege of being chosen.”Footnote ⁴¹ In the years that followed, Geneva witnessed the opening of a new railway station (named Cornavin), an airport (named Cointrin), and a series of infrastructures for communications and transport technologies.

Despite this tax exemption, the League still paid a hefty amount to acquire the Hôtel. While it had been originally erected in the late 1870s to create a luxurious hotel on the right bank of the lake (rive droite), it failed to reach commercial success. Not only did its construction costs exceed the initial expectations (leading to the dramatic suicide by defenestration of one of its initial owners),Footnote ⁴² but its location in the then-outskirts of Geneva failed to attract wealthy clients. Even in the 1920s and 1930s, League officials were skeptical of the Hôtel’s location “at the extremity of an industrial and working-class neighborhood, still in development.”Footnote ⁴³ After the Great War, the plans to reopen the edifice as a hotel were quickly scuttled after the League manifested its interest in the property, and it was instead renovated by the architects Marc and Jean Camoletti for a bureaucratic use (Figure 9.1). But even after these repairs, it was clear that “the old hotel was not particularly well-suited for administrative functions and as the League’s work picked up pace, the leadership of the League Secretariat was struggling to fit the growing number of staff [and] meetings.”Footnote ⁴⁵ The spatial layout of the League, in fact, reflected its own internal hierarchies. Unsurprisingly, the top floors were reserved for the higher echelons of staff (Drummond, for instance, used a corner office that overlooked the lake, where former Habsburg aristocrats had spent their nights), with various Sections located in the middle floors of the edifice.Footnote ⁴⁶ “Ancillary services” were relegated to the basement, attic, and the neighboring villas. In 1924, the hotel complex was suggestively renamed Palais Wilson, in an homage to the Unitedstatesean President who had strongly vouched for Geneva in the struggle to find a dignified location for the League.

Figure 9.1 Genève, Hôtel National. Unknown author (1919).

Bibliothèque de Genève, vg p 0140 ©.Footnote ⁴⁴

All in all, “the pattern that emerges […] is one of an organisation that is clearly bursting at its seams.”Footnote ⁴⁷ The League officials were painfully aware of this, which is why they started to look for new alternatives to move out almost as soon as they moved in. Archival traces from 1925 note that the Secretary-General himself was “experiencing the utmost difficulty in finding office accommodation for the staff. All the available space in the Hôtel National has been utilised and further dividing and subdividing […] is no longer possible.”Footnote ⁴⁸ The ILO – which, as seen earlier, was also in a dire place in terms of infrastructure – eventually built its own edifice in another lakeside property donated by the Genevese and Swiss authorities. The fact that they had managed to do so for much less (around 3,000,000 gold francs) was not lost on the League’s secretariat. Eventually, after receiving some land donations from the Genevese and Swiss authorities, the League also moved to erect its own purpose-built Palais des Nations, the design of which was to be selected through an international competition of architects.Footnote ⁴⁹

In the meantime, the League tried unsuccessfully to sell the Hôtel National to increase the budget for the new edifice. Alas, despite the “untiring efforts which M. Motta [on behalf of the Swiss Confederacy] has made to bring these delicate negotiations to a satisfactory conclusion,” the League failed to receive even a single offer for the Hôtel.Footnote ⁵⁰ Motta and the Swiss Federation even wanted an assurance that the Helvetic state would complement any private bid so that the League at least received four million gold francs (which was still one and a half million less than it had spent in 1920 to buy the venue). And yet, no offers came. As the global economic situation worsened, it was easy for League officials to look back and conclude, “the acquisition of the Hôtel National had not been a brilliant operation but was justified by urgency.”Footnote ⁵¹ The Belgian architect Victor Horta – President of the Jury of Architects elected to supervise the erection of the new Palais – was even more blunt in his assessment. In his view, the acquisition of the Hôtel proved that the League had, “in their efforts to buy a draught horse, mistakenly accepted to purchase an elephant.”Footnote ⁵²

The early years of the League, in other words, were tied to this white elephant. Due to the delays and complications, the official Palais open its doors only in 1937. But at that time, the League was no longer expanding but was rather on the verge of collapse due to the worsening international climate. Aloft, the Palais remained “something of a pristine haunted house,”Footnote ⁵³ while most of the technical staff of the League sought refuge in Princeton at the other side of the Atlantic during the second great war.Footnote ⁵⁴ The League’s lifetime, in other words, had been marked by its awkward tenure at the Hôtel. Indeed, once it became clear selling the Hôtel was not possible, the organization did its best to find respite in the limitations of this dwelling. The most salient example of this was the improvised modernist pavilion that was built by the local architect Adolphe Guyonnet in 1931, commissioned for the upcoming Conference for the Reduction and Limitation of Armaments.Footnote ⁵⁵ It was there where the League witnessed one of its most remembered “failures”Footnote ⁵⁶ – as the thirties witnessed a surge towards rearmament and the opening of a new chapter in the twentieth-century European civil war. In its wake, the nascent United Nations organization would also have to find a home to call its own – this time away from the shores of lake Leman. We turn to this now.

Lake Failure: Commuting to the Early United Nations

With the utopian promise of exhibiting “the world of tomorrow,” the 1939 World’s Fair opened its doors in the Flushing Meadows complex in New York. Originally conceived to promote economic recovery after the sorrows of the Great Depression, the start of the second great war four months later gave its motto a new meaning.Footnote ⁵⁷ “The world of tomorrow” entailed not only a globe changed by the innovations in technology or consumer goods,Footnote ⁵⁸ but also the promise of a new planetary order forged during and after the “scourge of war.” As the conflagration dawned in Europe, spectators roamed around the fair’s Court of Peace to visit the adjacent national pavilions and the Hall of Nations. While the German Reich had conspicuously withdrawn its participation at the last minute, the Italian Pavilion reminded the fairgoers of the towering vision that the Axis powers wanted to impose on European soil.Footnote ⁵⁹ Not far away, the pavilion of the Second Polish Republic survived exclusively on the private support from the Polish-Unitedstatesean benefactors, as its Government-in-Exile could no longer afford to run it.Footnote ⁶⁰ Defiant – as if aware of the suffering to come – the Soviet and “Jewish Palestinian” pavilions remained not far, articulating their own visions of the world of tomorrow.Footnote ⁶¹ In the 1939 New York World’s Fair, just like the many other international exhibitions that have sprouted in the North Atlantic world since the nineteenth century, the aesthetical, political, and socio-technical dimensions of the world ordering were seamlessly intertwined.Footnote ⁶²

After the end of the war, the infrastructure that once had heralded the coming of the “world of tomorrow” in 1939 came to serve a similar purpose in the years after 1945. Initially, the UN would come to use a variety of venues scattered in Long Island while the final headquarters were being erected in Manhattan.Footnote ⁶³ The first of those was the Bronx campus of Hunter College (nowadays, CUNY’s Lehman College).Footnote ⁶⁴ During the war, the campus had been vacated of students and readapted as a training station for the US Navy WAVES (“women accepted for voluntary emergency service.”) Again, improvisation marked the first steps of this new-born IO. The pool in the gym building was covered up with planks to create a makeshift press center – with the New York Times relegated to the “hairdrying room.”Footnote ⁶⁵ What is more, that same gym room would be the venue for the first strike of the UN personnel of the first (out of many) walkouts of the Soviet Delegation from the Security Council.Footnote ⁶⁶ Later that year, the UN moved to a more “permanent” temporary venue (insofar as they would stay there three to five years): the Sperry Gyroscope Company in Lake Success.Footnote ⁶⁷ Just like Hunter College, the new house of peace had formerly had a military function, as it housed “one of the biggest war plants in the New York area, and one of the most secret, closely guarded factories anywhere in the world.”Footnote ⁶⁸ While 118 residents of Lake Success voted in favor (with 70 against) of becoming “the world’s capital city,” the refurbished military factory was still far from perfect.Footnote ⁶⁹ The New York Times, for instance, raised “violent objections […] on the inadequacy of press facilities” of both the Lake Success and the Hunter College makeshift headquarters.Footnote ⁷⁰ Perhaps as a revenge for its time in the College’s “hairdrying” room, the Times complained that – unlike in the League’s edifices – the UN’s Long Island sites “have separated bar and lounge facilities” for delegates and the press. Moreover, the lack of space forced the UN to reject more than 2,500 requests for seats, as only 385 of the 732 places of the new Council Chamber were available for the public. The battle waged by the press for more space in the room was paralleled by a similar international dispute between the US and Soviet delegations in relation to the admission of new member states to the IO.Footnote ⁷¹ In sum, the walls of Hunter College ended up being too small to host “international society.”

To resolve this, the UN turned towards the leftover infrastructure from the 1939 fair. From then on, the “New York City Building” (nowadays the Queens Museum) housed the UN General Assembly from 1946 to 1950 (Figure 9.2). This was initially confusing for the “delegates, visitors[,] and [journalists]” who were flabbergasted to arrive at an international building that had the words “[The] City of New York emblasoned in black letters across the façade.”Footnote ⁷² Be that as it may, it was in the Flushing Meadows complex, in fact, that the UN’s partition plan for Palestine was voted in 1947 – not far away from the “Jewish Palestinian” pavilion, which was situated roughly halfway between the New York building and the Court of Peace. Even the old fair’s railroad service was reopened by the Long Island Rail Road system, allowing for a relatively straightforward commute from New York’s Penn Station every half an hour or so to the newly renamed “United Nations station” in Flushing Meadows. The interim headquarters at Lake Success, however, were a bit more difficult to reach, as the route required delegates and staff to take a train to the Great Neck and then hail a bus.Footnote ⁷³ Tired of these “intramural headaches,” the Secretary-General Lie urged for the creation of a national home for “[t]he wandering United Nations, now shuttling between a fair building and a reconverted factory, [… desperate to] have a place to call its own.”Footnote ⁷⁴

Figure 9.2 United Nations Temporary Headquarters. Unknown author (1947).

UN Multimedia, UN7720617 ©.Footnote ⁷⁵

In this sense, the 1939 fair’s “Hall of Nations” was but an early dress rehearsal for the posterior negotiations related to the creation of a “United Nations Organisation.” And yet – just like the Hôtel National in the case of the League – one finds little to no references in the literature in relation to the everyday geographies of the early days of these IOs.Footnote ⁷⁶ This is unsurprising, given the hegemonic hold of the methodological benchmarks of intellectual history on the field of the theory and history of international law and international institutions.Footnote ⁷⁷ But for the men and women who toiled within these IOs, spatial, architectural, and infrastructural considerations were anything but ancillary. The same was true, I suggest, for the leading state and non-state actors that were involved in the financing and erection of these sites. As we have seen, both in Geneva and in New York, the “location, location, location” of an IO was a hotly contested affair – intimately tangled with questions of national jealousy, international rivalries, and the “dignity” of international institutions. As we have seen, ideas – on their own – do not erect headquarters; establish bureaucracies; or cross frontiers.Footnote ⁷⁸ To do so, they require land, capital, and labor. In this chapter, I offer but a modest example of how the stories of the political economies of two pioneer IOs can be rewritten into our histories of international institutional law.

Concluding Remarks: Archival Research for International Institutional Law

Given the fixation of international (institutional) lawyers with the history of our (sub)discipline and its “founding fathers,”Footnote ⁷⁹ one can understand why some might believe that we already know everything about the history of our IOs.Footnote ⁸⁰ Indeed, in a discipline where teleological narratives of progress are so pervasive,Footnote ⁸¹ it is easy to dismiss the early days of the League or the UN as times of inchoate experimentation, only relevant insofar as they pave the way for our own contemporary institutional arrangements.Footnote ⁸² Indeed, until very recently, the League was mostly remembered as a “failed” IO – relegated as a moment of “not yet” in the history of an increasingly sophisticated international order.Footnote ⁸³

But the collective memory of our discipline – just as the one of its individual members – is partial and fickle. To decide to see and remember the League’s history as one of failure was a particular disciplinary choice, with important distributive and political implications.Footnote ⁸⁴ The same is true, of course, for the early UN, which quickly had to justify its mandate by contrasting its operations with those of its Geneva-based predecessor. Instead of this tired narrative of “failure,” a growing trend of interventions in international law and global history are challenging the “historiographical amnesia” of our standard accounts of the development of IOs.Footnote ⁸⁵ To “unlearn some common tropes,”Footnote ⁸⁶ a new generation of scholars in both fields have delved into the “archives of universal history” of IOs.Footnote ⁸⁷ Within them, as I’ve tried to show in this chapter, we have found “sundry worlds within the world” – a plethora of traces and silences that bear witness to the quotidian hopes and anxieties that surrounded the lofty project of world ordering through international norms and institutions.Footnote ⁸⁸ This sobering encounter with primary sources and archival collections, I hope, can push international legal scholars to note that perhaps we do not know everything about the history of international institutions. In fact, an archival journey often pushes us as researchers to come to understand our “known unknowns” – and more dramatically, to discover we might still have many “unknown unknowns.”

This is not to argue that we should take archival collections as pristine repositories of truth, nor that we should approach primary sources without a critical eye. We need not to succumb to the fever of the archive.Footnote ⁸⁹ This is an important point, as some international lawyers have come to mistakenly read all primary source-based historical work as epistemologically modernist and politically conservative.Footnote ⁹⁰ In fact, some of the leading interventions in the histories of internationalism precisely anchor their narrative in biases and limitations of their archival repositories.Footnote ⁹¹ This is particularly true for IOs. While their archives “are an extraordinarily fertile, undervalued, underutilised, and endangered source,” they have been also compiled and curated following the geopolitical biases and pressures that these institutions faced in their day-to-day activities.Footnote ⁹² It is because of these pressures and biases – and not in spite of them – that the traces and silences found in these primary sources and archival collections have much to say about the ways in which “the international” was forged, negotiated, and contested within these institutions.Footnote ⁹³ It is time we, as students and scholars of international institutional law, start listening.

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.

Introduction

In International Organization and Industrial Change: Global Governance Since 1850, Craig Murphy offers a longue durée view of world institutions as emerging and evolving not from the changing phases of multilateralism – as mainstream social sciences and humanities tend to think – but from the changing scales of industrial capitalism and the impersonal pressure to improve the conditions of life on the margins of private property relations.Footnote ¹ From this perspective, international organizations (IOs) have not only been crucial to the integration of markets and infrastructures, but they have also ‘helped mitigate conflicts that go along with the expansion of the industrial systems [….] Their history is part of the dialectic between capitalism and alternative ways of organizing economic and political life’.Footnote ² Indeed, a historical materialist approach to IOs as evolving from the co-constitutive functioning of capitalism’s laws of motion and agents’ politics unfolds new pathways for understanding stability and change in the world order.

Unsurprisingly, the law’s place in capitalist social relations have been at the core of the Marxist literature in international law. Two main camps have emerged: the ‘form camp’ and the ‘content camp’. The former argues that liberal (international) law by form abstracts from historical social relations by treating groups in different relations to the means of production (in terms of ownership, access, and accumulation of surplus value) as juridically equal and as such enables the reproduction of the capitalist relations of production.Footnote ³ Those in the ‘content camp’ take issue not with the ‘form’ of law but with the ways in which the content of law comes to embed the interests of the capital and the ruling class.Footnote ⁴

While the literature produced within both camps has greatly contributed to the study of capitalist social relations, the discipline of international law would benefit from going beyond the narrow realm of ‘law’ and engaging with the broader landscape of production relations, and elements such as the structure of the world order, processes of capitalist expansion, and hegemony, amongst others. Most notably, international lawyers have historically viewed the capitalist state as a homogenous category, losing sight of different trajectories of Anglo-American capitalism (laissez-faire capitalism) and the mainland European, Asian, and African capitalism (state capitalism) and what such variations in socio-political ordering mean for the form and content of international law.

This chapter borrows from historical materialist International Relations (IR), and particularly the works of the Dutch IR scholar Kees van der Pijl, to argue that capitalist social relations reproduce on the ground through not only commodification but also socialization or mitigating the dislocating effects of the capitalist mode of production. Across territories, capitalism expands through the struggles between two modes of organizing production relations: laissez-faire and state capitalism. The history of IOs since the mid-nineteenth century should, indeed, be seen in the context of such struggles. More specifically, the organization of production relations by the market in laissez-faire capitalism tends to peripheralize non-capitalist territories leading to the organization of production relations by emerging ethno-national bureaucratic vanguards (state capitalism) and geared towards territorially confined accumulation. After discussing these premises, the piece empirically engages with them in the context of three historical developments in the post-1945 period, capturing the flow of manufactured commodities and raw materials as well as the machinery of such flows, i.e. marine logistics. The three histories are: liberalization of global telecommunications, the rise of open shipping registries in the transport of raw material, and the mass logging of tropical forests. The idea is not to offer full historical accounts, but rather to re-construct the three histories through the proposed framework.

Capitalism’s Laws of Motion and the Making of the International Relations

For IR historical materialism, the history of the modern international relations has been a history of political and impersonal struggles between two developmental variations of state/society complexes: Lockean and Hobbesian, as referring to two rather distinct political theories prescribing different modes of organization of production relations. The term ‘Lockean’ refers to John Locke’s Two Treatise of Government and ‘Hobbesian’ to Thomas Hobbes’s Leviathan or The Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil.

As the famous story goes, modern international relations emerged at the end of the Early Modern times or the late seventeenth century, and was marked by a transition from kin-based papal-monarch authority-territory towards impersonal administrative-juridical state apparatus exercising exclusive authority over certain territory.Footnote ⁵ The rise of petty commodity production and the decline of feudal regimes of accumulation in England was followed by the 1688 Glorious Revolution, the establishment of a constitutional monarchy, and the maturing of a capitalist class out of the aristocracy who went on to invest in commercialized lands and domestic production. These material and social transformations gave birth to a Lockean state/society, marked by a small government, a self-regulating market, and an entrepreneurial individual.Footnote ⁶ In the Lockean mode, ‘production is organized organically and without interference from public authority’; state is subordinated to the bourgeoisie society, and its primary role is to protect ‘the independence of relations of production’.Footnote ⁷ Mass immigration from England and colonization of the New World extended the English historic bloc to other territories.Footnote ⁸ In parallel, British foreign policy moved away from territorial expansion towards maintaining a certain configuration of power in the pre-capitalist Europe to enable the creation of new spheres of production and exchange by English capitalism.

To tackle peripheralization caused by the de-territorializing nature of Lockean capitalism, a series of from-above or bourgeoisie revolutions gave birth to another form of state/civil society complex in contender states such as France in the aftermath of the 1789 French Revolution and throughout the 1800s. France transformed from a pre-capitalist agrarian society with disparate and overlapping territorial claims into an absolutist regime pursuing territorially confined capitalist accumulation, before the 1848 Revolution paved the way for a republic. Similar transformations materialized in Prussia/Germany, Japan, Russia/USSR, and China, amongst others.Footnote ⁹ In the Hobbesian state/society complex, a strong state is put in place, and it is the sovereign rather than the capital that commands the organization of production relations in line with ethno-nationalist objectives. Territorially confined accumulation in the Hobbesian periphery is intended to overcome the temporally delayed capitalist advancement while ensuring survival in a ‘transnational space dominated by the Anglo-Saxon ruling class’.Footnote ¹⁰ Yet, after the Second World War, mainland Europe underwent transformation again. As the US-led IOs such as the Organisation for European Economic Co-operation dismantled the Hobbesian mode of capitalism in mainland Europe in favour of laissez-faire capitalism, the rise of ethno-national states in Asia, Africa, South America and the rest of the developing world became the harbinger of a new wave of Hobbesian state/society complexes.Footnote ¹¹

While different in socio-political organization, Lockean and Hobbesian state/society complexes are both formed around centralized ownership and control of means of production and similar processes of capitalist advancement. How does capitalism develop?

Capitalism moves across time and space and transforms social relations around means of production through commodification and socialization. Commodification involves subjugating the use value of things to an exchange value, through a ‘constantly in the making’ social activity that detaches the thing from the natural and historical condition.Footnote ¹² Commodification and the dislocating effects it generates necessitates socialization (Vergesellschaftung). Socialization involves creating social coherence on the margins of the dominant mode of production, for example, by managing labour antagonism, ecological externalities of industrial production, and creating a shared image of production relations.Footnote ¹³ The need for socialization lies in the fact that ‘[u]nder the discipline of capital and the commodity form, the real subjects cannot execute the planning/normative function for themselves [which has] evolved into a special task of a special category of functionaries subordinate to the ruling class – the cadres’.Footnote ¹⁴ The post-1945 histories of liberalization of telecommunication networks and services, the rise of open shipping registries in the transport of raw materials, and the expansion of the global tropical timber trade are histories of not only continuous commodification and socialization but also broader struggles between the Lockean and Hobbesian state/society complexes, shaped by episodes of resistance against the de-territorializing nature of laissez-faire capitalism, followed by its ultimate victory.

Liberalization of the Global Telecommunications: The Defeat of the Hobbesian Mode

The post-World War II history of liberalization of the global telecommunication regime as developed in and beyond the International Telecommunication Union (ITU) has been a history of the defeat of the statist telecommunication in mainland Europe and most of the developing world by the Lockean end-to-end telecommunications, where the laying of networks and delivery of services followed supply and demand and not national strategies set by the state. Liberalization of telecommunication networks and services in the last quarter of the twentieth century involved a decade-long process of commodification of what used to be characterized as ‘utilities’, followed by new rules and institutions to integrate nationally organized telecommunication sectors into the privatized global telecommunication regime, while also managing privatization anxieties amongst the masses in and beyond the developing world.Footnote ¹⁵

Since the mid-nineteenth century, when the first transboundary telegraph networks were laid, all the way through to the mid-twentieth century, telephone and telegraph services were delivered by state-owned telecommunication enterprises. The International Telegraph Union (IT), the predecessor of the ITU, was established by the initiative of the nephew of Napoleon, Bonaparte III of France, in 1865 to institutionalize the reign of national telecommunication administrations, and as part of the broader European project for a transition to industrial capitalism.Footnote ¹⁶ The Union was intended to act as an ‘international cartel of national telegraph agencies’.Footnote ¹⁷ For almost a century, the organization of networks was viewed as a sovereign choice, and under the ITU’s operational norms, members states were protected against competition by each other’s telecommunications administrations, equipment manufacturers, or operators based in their territories.Footnote ¹⁸ Crucial to nation-building, telecommunication infrastructures also became one of the first assets to be nationalized in post-colonial Asia and Africa.

While the ITU institutionalized the material capability of public-owned telecommunications in mainland Europe, the organization of telephony and telegraphy was different in the Lockean state/society complexes, most notably the United States and the United Kingdom. They relied on telephone monopolies at home (AT&T and British Telecom) while maintaining different models of international telephone services abroad. Due to the private ownership of their telegraph networks, neither of the two countries became founding members of the IT. The UK, however, joined the Union in 1868 when it nationalized its domestic telegraph, and to represent its interests in India.Footnote ¹⁹ The 1868 Convention adopted by the Vienna Plenipotentiary Conference also made it possible for companies to accede to the convention without being able to take part in standard setting.

The pace of technological advancement in the post-1945 US telecommunications, caused partly by the country’s recent war effort but also by the Cold War, introduced a new level of political and impersonal pressure against the Hobbesian global telecommunication order and the normative infrastructure underpinning it. To respond to companies’ telecommunication needs, the ITU’s 1949 Telephone and Telegraph Regulations allowed the lease of telegraph circuits to one company from another.Footnote ²⁰ However, inter-company resale of the telephone circuits remained prohibited. In a few years, the 1956 Recommendations allowed a ‘multiple-user lease’ by different private entities engaging in the same activity or in the same business. Yet, the Recommendation banned connection to public networks, imposed a surcharge on the leased traffic, and mandated that calls using leased circuits ‘must be concerned exclusively with the personal affairs of the subscribers or those of their firms’.Footnote ²¹

All these developments materialized as the newly independent states in Africa and Asia in the 1950s and 1960s had begun to pose a challenge to the status quo in the ITU. They contested the historical position of the ITU as a mere forum for industrialized countries’ public telecommunications administrations or private telecommunications operators to compete for favourable rules and standards – what the US delegate once called ‘the old boys club’.Footnote ²² They called for restructuring the ITU to allow the development of an overarching telecommunications policy and a strong secretariat to assist the Global South in developing their national telecommunications sectors along the Hobbesian lines.Footnote ²³ In other words, they sought to tackle the threat of a Lockean global telecommunication order through intergovernmental intervention geared towards promoting and protecting statist telecommunication. The upcoming neoliberal turn in global telecommunications, however, soon rendered their visions of self-sufficiency obsolete.

What triggered privatization and deregulation of networks and services was the advent of the satellite and digital telecommunication technologies in the Lockean heartland, the growing pressure from the US administration for liberalization of global telecommunication, but also the de-territorializing nature of laissez-faire capitalism as travelling across networks and services. The commercial use of satellites for telecommunications was made possible by the positioning of satellite systems in the geostationary orbit (GEO). The first satellite to transmit voice signals was launched from the US in December 1958. With the establishment of the National Aeronautics and Space Administration the same year, a series of projects to develop satellite technology started.Footnote ²⁴ The potential for mass commercial use created a strong incentive for the US administrations to shape the path. In 1962, the US Congress set up the Communication Satellite Corporation (COMSAT) as a private corporation. However, in 1962, the Kennedy administration turned COMSAT into an intergovernmental organization with weighted voting called INTELSAT. Seventy-four nations joined. Circumventing the one-nation-one-vote ITU, INTELSAT soon became an exclusive club of existing and rising satellite powers, where investment shares determined the voting power.Footnote ²⁵ The organization of the space regime around private capital had implications beyond space. It generated new geographies of accumulation for large firms and multinationals.

In parallel, the marriage of digital technologies with telecommunications, commercialized in the 1960s, became an important source of change.Footnote ²⁶ The change from ‘analogue’ to ‘digital’ transformed both switching and transmission in telecommunication networks, allowing cheaper operation of networks and growing user base in the long term. Scrambling for the vast opportunities generated by digitalization, large American firms and multinationals lobbied for liberal telecommunications networks on an end-to-end basis so they could access networks on their own terms but also circumvent the surcharge they paid to subsidize national telecommunications. Starting in the mid-1970s, some mainland European public telecommunications operators unsuccessfully sought to contain the pressure of liberalization by upgrading their networks.Footnote ²⁷

The first salvo against the ancien régime was finally fired by the US Federal Communications Commission in 1980, when it unilaterally extended the US’ rules on resale and sharing of networks with private firms to international services, in violation of the consensus built into the Recommendations of the Consultative Committee for International Telephony and Telegraphy (CCITT) for almost a century.Footnote ²⁸ The AT&T was also broken up into multiple firms by the US court, triggering a search for global markets by the US manufacturers and service providers.Footnote ²⁹ The UK followed suit and so did Japan and gradually mainland Europe. With changing material capability, ideas and institutions had to also change. The same year, the US requested the Organisation for Economic Cooperation and Development (OECD) Trade Committee to study trade barriers in services. The US Coalition of Service Industries, represented by Citibank, played a substantial role in the process.Footnote ³⁰ The final OECD report, as well as another study carried out by GATT, demonstrated good prospects for negotiation on liberalization of trade in services.Footnote ³¹ Four years later, twenty-five OECD member states expressed their resolve to include trade in services in the upcoming Uruguay Round and negotiate the expansion of such trade ‘under conditions of transparency and progressive liberalisation’,Footnote ³² against the wish of twenty-three developing countries.

This essentially meant a decline in relevance of the ITU and its Hobbesian logic, in favour of GATT and the Lockean end-to-end telecommunication order, underpinned by a de-territorializing entrepreneurism. To catch up with the pressure, the Union opted for change.Footnote ³³ The 1982 Plenipotentiary Conference in Nairobi reproduced a 1932 provision from the Union’s Constitution into the ITU Convention, requiring a change also in the operational rules such as Telephone and Telegraph Regulations and Recommendations. The ‘special arrangements’ clause had stipulated, ‘[t]he High Contracting Parties respectively reserve the right of making separately, between them, special arrangements of all kinds, on service points that are not of interest to the generality of States …’.Footnote ³⁴ As liberalization of telecommunications was being discussed by the GATT Uruguay Round, the 1988 ITU World Administrative Telegraph and Telephone Conference in Melbourne revised the International Telephone and Telegraph Regulations to recognize the right of the member states to retreat from the collective and open their networks to foreign capital, and providers to choose to deliver services to the public. The new regulations also made international rates ‘cost-based’.Footnote ³⁵

Breaking away from its century-old function to coordinate the work of national telecommunication administrations, the Union’s Secretariat also began not only to assist developing countries in revising their national laws to allow access and foreign direct investment (commodifying public-owned networks and services), but also to manage broader anxieties around liberalization of infrastructure by promoting narratives of entrepreneurship and competition as inducive to development.Footnote ³⁶

As ITU revised its rules in Melbourne, the Uruguay Round negotiations in Marrakech adopted the 1994 GATS Agreement along with an Annex on Telecommunications. The annex targeted value-added services such as data, image, and video. It committed Member States to give access to ‘any service supplier of any other Member’ for the ‘use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions’.Footnote ³⁷ Foreign service providers were given the right to ‘establish, construct, acquire, lease, operate, or supply telecommunications transport networks or services’ in a member state’s territory should they agree.Footnote ³⁸ Restrictions were allowed only to ensure the ‘technical integrity of network’, only if they were necessary and not just a disguise to influence the competition.Footnote ³⁹ Basic telecommunication, i.e. voice telephony, was kept out of the agreement. But not for long! The impersonal pressure of Lockean organization travelled across not only geographies but also technologies. The Marrakech meeting adopted a document titled ‘Decision on Negotiations on Basic Telecommunications’ with a timeline for negotiation of liberalization of telecommunications. In a sharp move, fifty-seven governments acceded to a reference paper that committed them to putting in place competitive safeguards and providing access to markets ‘with interconnection at any technically feasible point in the network’.Footnote ⁴⁰ Forty-seven of these countries also committed themselves to offering immediate access to their basic telecommunications.Footnote ⁴¹ On 15 February 1997, the WTO Agreement on Basic Telecommunications opened ‘the biggest chunk of the global market’, accounting for 93 per cent of the telecommunication networks across the globe.Footnote ⁴²

Rise of Open Shipping Registries: The Reign of the Lockean Mode

Unlike the global telecommunication regime, norms and processes of world shipping have emerged and evolved around laissez-faire capitalism since the rise of modern long-haul shipping in the nineteenth century. In the post-1945 era, open shipping registries in the transport of raw materials (bulk shipping) became a vivid manifestation of the organization of production relations by supply and demand, destabilizing what was historically known as national shipping. Although the system came to be challenged in the 1950s through to the 1970s by the proponents of the Hobbesian shipping order who favoured a national link between vessels and flags (and the crews and trade they carried), the 1980s neoliberal turn rendered aspirations for nationally organized marine logistics obsolete, culminating in the victory of open shipping registries.

The growth of the world shipping into a modern and rationalized industry in the nineteenth century (as opposed to the pre-modern shipping carried out by state-sponsored monopoly trading companies and dominated by piracy and mercantilist under-pricing) was the product of revolutionary technological developments in England.Footnote ⁴³ The construction of steam-powered vessels running on coal-generated steam engines and propellers enabled long-haul trips, followed by the adoption of standardized practices, tariffs, and rules within the European economic system. Although the normative foundation for ‘freedom of the sea and navigation’ was laid three centuries prior,Footnote ⁴⁴ the material infrastructure for a liberal shipping order, underpinned by self-regulation and rationalized norms and practices, was concretely laid following the defeat of Napoleon in 1815 and the challenge of mercantilism in the Hobbesian mainland Europe. Britain’s naval hegemony between the mid-nineteenth century and the Second World War meant norms, institutions, and practices governing long-haul shipping formed around Lockean self-regulation, mostly in London insurance and indemnity clubs, and without much interference from states.Footnote ⁴⁵ One of the earliest maritime institutions, Comité Maritime International (CMI), was set up by European lawyers in 1897 to integrate commercial and maritime law to bring ‘stability and security in the relations between the men who commit themselves and their belongings to the capricious and indomitable sea’.Footnote ⁴⁶ CMI developed authoritative rules on bills of lading, liens, mortgages, and tort cases arising from collisions or stowaways – all forming the corpus of admiralty law – which were automatically accepted by governments.

In the post-WWII era, the transport of raw materials or ‘bulk shipping’ – as opposed to ‘cargo shipping’ concerned with carriage of packaged and manufactured commodities – became an emblem of organization of production relations by the market, competition, and comparative advantage. Bulk vessels carry unpackaged materials with low value to weight ratio (crude oil, refined oil, liquid natural gas, iron ore, timber, and grains, amongst others), shipped from a specific producer to specific buyers. While the cargo sector has historically been dominated by European shipping firms that formed cartels (shipping conferences), the sea transport of raw materials for most of the twentieth century materialized in a free market and was reigned over by American oil majors and other multinationals that integrated extraction, processing, transport, and marketing of raw materials. As marine wages and industry standards increased the costs of shipping in the Atlantic area, a large portion of the bulk vessels including oil tankers flagged out to Panama, Liberia, Honduras, and Costa Rica, amongst others.Footnote ⁴⁷ In times of good business, the cheapest tankers and crews and relaxed flags helped bulk firms gain an upper hand in the market, and in times of bad business (for example in the aftermath of the 1973 oil crisis), they became crucial to compensating the financial loss.Footnote ⁴⁸ Flags of convenience, however, became the object of contestation between, on the one hand, the US, American firms, and open registry states, and, on the other hand, traditional maritime states in Europe witnessing the decline of their national shipping and the new and developing world facing major hurdles in developing national maritime sectors to carry their trade.

Although the self-regulatory underpinning of world shipping could pose structural hurdles to intergovernmental intervention, the range of international shipping bodies set up by allies to coordinate merchant shipping during the war years created an amicable atmosphere for the creation of an IO on the margins of the private shipping enterprise. More importantly, the US-led campaign for trans-nationalization of production and exchange and the explosive rise in marine traffic for that purpose required socialization and managing externalities such as oil pollution on the seas. Moore called this ‘maintaining a modicum of security and mopping up the mess around the enclaves of wealth extraction’.Footnote ⁴⁹ It was in this context that the Intergovernmental Maritime Consultative Organization (IMCO) was set up with an altered mandate. Article 1 on ‘purposes of the organization’ carefully delineated the tasks of the IMCO on the margins of Lockean shipping. Paragraph (a) read ‘to provide machinery for co-operation among, Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade and to encourage the general adoption of the highest practicable standards in matters concerning maritime safety and efficiency of navigation’. As the oil spills such as the 1967 Torrey Canyon came to reshape the fate of the oceans in the Golden Age of Capitalism, the IMCO’s gained an even higher relevance in restoring social coherence to the oceans. The organization helped develop the 1973 International Convention for the Prevention of the Pollution from Ships (MARPOL) and the International Convention for the Safety of Life at Sea, which set new safety standards for bulk shipping, without undermining its transnational modus operandi.Footnote ⁵⁰

Outside the IMCO, however, the very organization of open shipping registries came under attack by mainland European and later developing states in international courts and institutions, but also on the shores of the industrialized world by labour strikes.Footnote ⁵¹ The challenge was initially posed by a bloc of traditional maritime states such as the Netherlands and Norway but also the UK whose national shipping industry and labour were losing to the laissez-faire modus operandi of flags of convenience shipping. Earlier in the 1950s, the International Law Commission became a battleground for the definition of ‘genuine link between the vessel and flag’. The output was the 1958 UN Convention on the High Seas, which recognized the right of states to fix the conditions of their shipping registries on their own, but required ‘a genuine link between the State and the ship’ by way of effective exercise of jurisdiction and administrative control.Footnote ⁵² As the IMCO was beginning its work in 1959, another legal conflict arose: should states with open shipping registries be considered among the ‘largest ship-owning nations’ for the purpose of membership in one of the organization’s most important bodies, the Maritime Safety Committee. A request for advisory opinion was made to the International Court of Justice in 1960, in response to which the court stood by the laissez-faire spirit of freedom of navigation and the right of states to decide conditions of their shipping registries.Footnote ⁵³ By the end of 1960s, Liberian and Panamanian flagged vessels had grown from 15 million gross tonnage to 32 million.Footnote ⁵⁴ Soon enough, the recession of the late 1960s and oil crisis of 1973 resulted in rapid flight to the flags of convenience to save the profitability rate.Footnote ⁵⁵

While traditional maritime states in Europe were gradually moving in the direction of improving the operation of flags of convenience vessels as opposed to phasing them out, antagonism was growing amongst the new and developing countries.Footnote ⁵⁶ Although they accounted for 90 per cent of the raw materials carried by tankers in the post-1945 era, they owned only 6 per cent of the bulk market.Footnote ⁵⁷ To promote national shipping and a world shipping order in that direction, in the early months of the UN Conference on Trade and Development (UNCTAD), a shipping committee was set up in a coup-like move by the Secretariat and developing countries, with a mandate to conduct studies on world shipping and potentially develop regulatory frameworks in support of the Global South’s national shipping.Footnote ⁵⁸ This was part of the broader efforts within UNCTAD to tackle laissez-faire capitalism underpinning the work of Bretton Woods institutions through promoting state developmentalism.Footnote ⁵⁹ From the late 1970s through to the early 1980s, the Group 77 in UNCTAD advocated for an international treaty that could phase out open registries in the bulk sector through a gradual transfer of ownership or employment of national crews. Yet, as the North–South negotiations over terms of global economy collapsed in the early 1980s, the efforts for an anti-flag of convenience treaty resulted in a feeble instrument that sufficed to improve the link between open shipping registries and flagged out vessels, while promoting the increasing share of the rest of the developing world in bulk transport.Footnote ⁶⁰ Titled the ‘1986 UN Convention on Conditions of Registry of Ships’, the convention sought to combine the right of states to decide the conditions of their shipping registries and neoliberal principles of efficiency in world shipping,Footnote ⁶¹ with interventionist measures such as the ‘strengthening the genuine link between a State and ships flying its flag’.Footnote ⁶² In that direction, the convention required the recruitment of a satisfactory portion of crews from the nationals of the flag states and increased ownership and management of bulk firms by nationals of the flag states, and as such the document came to accept the foundation of open shipping registries.Footnote ⁶³ By the time the convention was opened for ratification, the opposition from UNCTAD’s Secretariat and Global South governments to flags of convenience had declined, as open registries were becoming the norm in transport of raw materials and the Global South itself was being integrated into neoliberal narratives of entrepreneurism.Footnote ⁶⁴ The convention has yet to enter into force.Footnote ⁶⁵ The momentary Hobbesian challenge to the Lockean world of shipping and the efforts to restore national shipping failed to disrupt the centuries-old foundations of laissez-faire on the global ocean.

Mass Logging of Tropical Forests: The Rise of the Hobbesian Mode

Just as mainland Europe created the ITU to institutionalize the state’s control over infrastructures in the mid-nineteenth century, the creation of the International Tropical Timber Organization (ITTO) from the mid-1960s through to the mid-1980s, amidst the rise of the global tropical timber trade, was the product of post-colonial states in the tropics seeking to institutionalize their reign over resources and encase mass extraction through aid and trade. As GATT, alongside other Bretton Woods institutions, came to promote the supremacy of the market and price in socio-political ordering, so UNCTAD and the international commodity agreements developed under its auspices and as part of the broader movement for a New International Economic Order were intended to tackle laissez-faire capitalism through state developmentalism. The struggle for ‘permanent sovereignty over natural resources’ and growth for that purpose were ultimately premised on commodification.Footnote ⁶⁶ Yet, while those gathering around the NIEO agenda opposed any retreat from economic growth and environmentalism without the reform of the international economic order in the 1970s and 1980s, the growing anxieties around tropical deforestation but also the ascent of neoliberalism in the 1990s came to render the Global South’s militancy against liberal environmentalism obsolete, making way for the ‘sustainable forest management’ in and beyond the ITTO and the 1992 UN Conference on Environment and Development (UNCED). But where did the ITTO come from?

Soon after its creation in 1964, UNCTAD occupied itself with the development of international commodity agreements in response to the ongoing fall of commodity prices and the deepening laissez-faire underpinning of the global economic ordering as organized by the Bretton Woods institutions. UNCTAD’s approach to the South’s commodity challenge was famously shaped by the theory of commodity prices developed separately by the Argentinian economist and the first executive director general of UNCTAD Raul Prebisch and the German economist and future UN staff Hans Singer.Footnote ⁶⁷ The theory argued that the price of commodities since the 1940s, and in general, tends to decline faster than the manufactured products; that specialization in primary commodities were not conducive to industrialization – as claimed by many industrialized countries in the broader global division of labour. The way to break free from the unequal exchange between the two worlds was to undergo an episode of state-assisted extractivism and intergovernmental intervention to finance import-substitution industrialization.Footnote ⁶⁸

In 1966, UNCTAD’s Integrated Programme for Commodities (IPC) was set up ‘with a view to improving the terms of trade of developing countries and … eliminate the economic imbalance between developed and developing countries’.Footnote ⁶⁹ The IPC was intended to increase the capacity of the developing world in producing and marketing their raw materials, increase the prices, and enable processing at home countries for that purpose. Timber was the last item on the 18-item agenda and was added at the request of Congo Basin countries, which had been unsuccessful in establishing timber industries at home. As the process was becoming slow, Japan – the biggest consumer of tropical timber – tabled a resolution at the UN General Assembly for an international tropical timber agreement in 1983.Footnote ⁷⁰ Two preparatory meetings were held in Geneva and the International Tropical Timber Agreement (ITTA) came into being.Footnote ⁷¹ Reflecting a vivid Hobbesian logic, Article 1 of the ITTA read, ‘for the benefit of both producing and consuming members and bearing in mind the sovereignty of producing members over their natural resources’. Reflecting a pure logic of commodification, Article 2 restricted the work of the organization to ‘tropical timber’ and ‘promoting the expansion and diversification of tropical timber trade’. The provision created a material and ideological structure whereby ‘forests’ could only be dealt with in the form of ‘extracted timber’ destined for global markets, and questions of forest ecologies or forest-dwelling communities were excluded. ITTO was established as a commodity organization with weighted voting, which meant the largest timber producing and consumer countries had the highest vote in deciding not only the terms of the global tropical timber trade but also the extent of sustainable production.Footnote ⁷² In Colchester’s words, ‘the more a country destroyed tropical forests, the more votes it got’.Footnote ⁷³

The ITTO’s early years revolved around tapping into new forests and lesser-known species, based on pre-project and project proposals developed by the producing countries or the Secretariat. Forty-two projects for promotion of tropical timber were already approved during the negotiations within UNCTAD. Sawmills were funded, wood villages were built, and loggers were trained in sawing difficult species and seasoning mixed species, amongst others.Footnote ⁷⁴ Headquartered in a business skyscraper in Yokohama, Japan, and directed by the former deputy director of Malaysian forest department Freezailah Che Yeom, the ITTO functioned as a hub for a diffusion of Japanese and Southeast Asian entrepreneurism and state developmentalism – embedding what Cumings called a ‘Bureaucratic Authoritarian Industrializing Regime’ – to tropical Africa and South America.Footnote ⁷⁵ The Secretariat embarked on a path of producing knowledge on marketable breeds, available timber reserves, and production capacity.

Yet, as the 1990s drew close, the commodification logic of the organization had to be accompanied with some degree of conservationism. Deforestation in Southeast Asia and South America, particularly the Amazon forests, and the impact of the ongoing debt of tropical countries on their forests had created global anxieties. Just in the 1980s, the global annual rate of logging had increased from 11 to 17 million hectares. To contain the fears, the ITTO began commissioning several expert reports on ways to manage the ecological externalities of logging without undermining the logic and scale of industrial logging,Footnote ⁷⁶ and as preparations for the 1992 UNCED took off the ground, the ITTO’s Council adopted a declaration that committed the organization in a non-binding manner to ensuring that ‘the total exports of tropical timber products should come from sustainably managed resources by the Year 2000’.Footnote ⁷⁷

UNCED became a battleground between developing countries, led by Malaysia and Brazil, insisting on old rhetorics of ‘permanent sovereignty over natural resources’ and proponents of liberal environmentalism in the North, calling for ‘sustainable forest management’ and an international treaty on tropical forests. The Bush administration, specifically, viewed a forest convention as a low hanging fruit to catch up with the pressure of environmentalism at home, while using tropical forest conservation as an alternative to carbon emission education.Footnote ⁷⁸ More specifically, the initiatives around UNCED reflected a shift from the 1970s narratives of ‘limits to growth’ towards ‘managing ecological crises’ on the margin of the market and without retreat from the growth. It was ultimately the spirit of free trade and the ongoing GATT Uruguay Round that set the limit to environmentalism. Instead of an international treaty, the summit finally opted for a weaker instrument titled the Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (known as Forest Principles), which blended tropical states’ extractivism with some degrees of liberal environmentalism in tropical forests. The adoption of the declaration was followed by renegotiation of the ITTA, the founding instrument of the ITTO, in 1994 to recognize ‘sustainable forest management’ and with the objective to ensure sustainability of globally traded timber, a lousy goal that the organization continued to grapple with in the years that followed.Footnote ⁷⁹

The retreat from ‘absolute sovereignty’ was part of a broader neoliberal shift in the South’s politics within UNCTAD following the Eighth Conference in Cartagena, Colombia in February 1992. The Conference adopted the ‘New Partnership for Development’ which acknowledged the role of private enterprise and free market in the South’s economic growth,Footnote ⁸⁰ what Lemoine characterized as ‘the offering by the developing countries of the olive branch and its acceptance by the developed countries’.Footnote ⁸¹ UNCTAD’s move away from the NIEO militancy was followed by the summit of the Non-Aligned Movement in Jakarta in September 1992, where, in the shadow of the breakdown of Yugoslavia and the debt problem, a collective decision was made to move towards ‘a constructive North/South dialogue based on interdependence, mutual interest and shared responsibility’.Footnote ⁸² With juridification of global free trade in the 1990s, one can argue that both developing states’ demands for a New International Economic Order and the industrialized world’s compromised environmentalism were ultimately subsumed into neoliberal entrepreneurism and crisis management.Footnote ⁸³

Conclusion

While historical materialist approaches to international law have long unblackboxed the nature and function of ‘law’ in capitalist social relations and the ‘Rule of Law’ at the core of the liberal politics for that purpose, the ‘state’ as a socio-material structure has yet to become a central problematique in Marxist international law. IR historical materialism and historical sociology from the works of the proponents of the Uneven and Combined Development and the Amsterdam School on European integration to the neo-Gramscian IR all offer rich ways of reconceptualizing IOs and the international law by essentially reasoning from local relations of production up to the world order and IOs.Footnote ⁸⁴ This chapter sought to introduce, rather briefly, such ways of thinking into international institutional law by arguing that capitalism moves in times and space, transforming social relations around means of production through constant commodification and socialization. Beyond the ground-level, the world order and IOs for that purpose have been and continue to be shaped by struggles between two modes of capitalist social relations: one grounded in the organization of such relations by the market (and embedding a de-territorializing logic of advancement) and the other rooted in the organization of production relations by bureaucratic vanguards, along ethno-national lines and geared towards territorial regimes of accumulation.

I sought to demonstrate these dynamics by scrabbling around three histories from post-WWII regimes of flow of manufactured products, raw commodities, and marine logistics. I argued that liberalization of telecommunications, the rise of flags of convenience in world shipping, and the mass logging of tropical forests in the post-WWII era reflected not only the continuous oscillation between commodification and restoring social coherence through standard setting, but also the struggles between laissez-faire and state capitalism, ending in the gradual yet ultimate victory of the former as underpinned by the supremacy of the market in socio-political organization since the last quarter of the twentieth century.

Introduction

A recent Special Issue on resilience in the EU and international institutions observes that ‘[r]esilience is one of those terms that seems to have appeared out of nowhere to be present everywhere: from billboards advertising “resilient skincare” to think tank policy talks about the need for more resilient critical infrastructures, and environmentalist calls for resilient planetary eco-systems’.Footnote ¹ Indeed, resilience has become the buzzword or mantra of World Bank sustainable development policies; OECD recommendations for economic development and disaster management; international organisational approaches to supply chain governance; World Health Organization approaches to physical and mental health; the approaches to urban development of the International Committee of the Red Cross and United Nations; and development and disaster management strategies and national security policies in the UK, USA, EU, and elsewhere. This chapter begins from the premise that vocabularies matter in international law, as ‘ideologies’ in the ‘technical sense of reifying, making seem necessary or neutral something that is partial and contested’,Footnote ² and in international relations, as disciplinary mechanisms of control and often structurally biased means of governance.Footnote ³ Accepting the view that ‘resilience sits precisely at the crux of governmentality and political economy’,Footnote ⁴ it is possible to analyse ‘resilience talk’ as an essential element in the movement away from multilateral, institutional governance, towards the self-help system of self-regulating subjects under neoliberalism.Footnote ⁵ This chapter submits that resilience talk is often a hegemonic force that depoliticises and naturalises deep structural inequalities in the governance activities of international organisations and law. The language of resilience both instantiates and reflects the language, logic, and inherent crises of capitalism. By asking the critical political economy questions of ‘who gets what’ from resilience talk and just ‘whose resilience’ are we talking about, the chapter explores resilience as both an ideology and a material force in new constitutional governance.Footnote ⁶ The language of resilience has become the legal and governance common sense of the day, obscuring the underlying conflicting social forces created and advanced by new constitutionalism.

New constitutionalism differs in many ways from the old constitutionalism, but the most salient characteristic of contemporary new constitutional governance is the commitment of global leaders to the expansion of capitalism and the privileging of private, market-based means of capitalist appropriation as the grundnorms of global governance.Footnote ⁷ New constitutionalism, like the old or traditional understandings of constitutionalism, associated with the rule of law, limitations on governmental power, and equality before the law, is committed to the rule of law. However, this commitment is to law of a specific form: it is capital’s law that can blow both hot and cold, hard and soft, depending upon the needs of capital.Footnote ⁸ As a mechanism of new constitutional discipline, the language of resilience deepens global capitalism, both intensively and extensively, through the hegemony of neoliberalism, the privatisation and the individualisation of responsibility, and the preservation of hierarchies of power and domination as the common-sense foundations for law and good governance. The chapter makes the case for destabilising and disrupting this discourse and practice as a necessary move in revealing the class, gender, racial, and intersectional operations of resilience talk in order to humanise important institutions of global governance.

The chapter begins with a discussion of new constitutional governance, outlining the contours of a critical political economy approach to international organisations and law.Footnote ⁹ Analysis then shifts to document the various and multiple illustrations of the promotion of resilience by various actors, institutions, and legal texts engaged and implicated in global governance. The final section addresses what critical political economy has to offer to our understanding of the interests and purposes served by ‘resilience talk’ in global governance and makes the case for disrupting and challenging its hegemonic significance as ‘common sense’ by an appeal to transformative ‘good sense’.

Critical Political Economy and New Constitutionalism

Adopting a critical political economy approach, the relationship between law and capitalism is here analysed as a new constitutionalism that often operates by subordinating the public domain to the disciplines of the private sphere of transnational capital accumulation. By definition, new constitutionalism refers to a combination of processes involving: the emergence of a de facto constitutional governance structure for the world market; the neoliberal restructuring of states according to the juridical demands of market civilisation;Footnote ¹⁰ locking-in mechanisms, such as trade, investment, and financial laws, which support neoliberal accumulation; informality and flexibility in non-binding legal regulation; and the interpellation of the neoliberal subject in the development of the commodity form of law as the template of global governance.Footnote ¹¹ While each process will be addressed in turn, critical political economy asks ‘who gets what?’ and ‘whose interests and purposes are served?’ through law under a new constitutionalism that obscures and shields foreign and transnational corporations from accountability, while locking states into legal commitments that continue to advance private transnational capital accumulation.Footnote ¹²

As mentioned earlier, the new constitutionalism refers to the uneven emergence of a de facto constitutional structure for the global political economy. This development has largely coincided with the global expansion of capitalism since the 1980s and the pursuit over the past few decades by many states and associations of neoliberal policies and constitutional reforms, both domestically and globally. The new constitutionalism is further reflected in a proliferation of neoliberal trade and investment frameworks, such as the US, Mexico, Canada Free Trade Agreement, the World Trade Organization (WTO), the international investment regime, and in legal and institutional changes in macroeconomic policy, exemplified by politically independent central banks and currency boards. Changes in public service provision involving the privatisation of education, healthcare, and many other aspects of life are linked to neoliberal trade and investment frameworks and treaties, such as the General Agreement on Trade in Services (GATS)Footnote ¹³ and the global intellectual property regime,Footnote ¹⁴ and are subordinated to the demands and regulatory power of transnational business corporations. The new constitutionalism increasingly informs bilateral and multilateral trade and investment agreements, and other economic, social, and environmental policy frameworks.Footnote ¹⁵ It is redefining politics and governance globally and, in the terminology of the World Bank, involves locking in states to neoliberal frameworks of capital accumulation.Footnote ¹⁶ Neoliberalism is a ‘theory of political economic practices proposing that human well-being can best be advanced by the maximisation of entrepreneurial freedoms within an institutional framework characterised by private property rights, individual liberty, unencumbered markets, and free trade’.Footnote ¹⁷

The new constitutionalism is increasingly significant in shaping global public policy, in ways that may have long-term effects on the ontological and epistemological bases of constitutionalism, as well as more broadly on institutions of social reproduction associated with public services, care, and education.Footnote ¹⁸ In this regard, it provides the template for contemporary economic, social, and political regulation and entails the acceptance by society of the expansion of commodification through legal protection of private property rights as natural, rational, and common-sense modes of governance that serve the common interests of all, both the governors and governed.Footnote ¹⁹ Private appropriation becomes constitutionalised through law and state as a public good. Through new constitutionalism, the communal protection of private property rights becomes a natural and organic accompaniment of global production and exchange.Footnote ²⁰

The commodity form of law is central to new constitutional governance. Evgeni Pashukanis,Footnote ²¹ building upon Karl Marx’s critique of political economy, believed that law is inextricably linked to capitalism and is in fact itself a product of capitalism, functioning as an integral part of the commodity system: the commodity form of law is homologous with the commodity form of capitalism and mediates political interests.Footnote ²² The commodity form of law reinforces capital and is legitimated through the misrecognition of law as impartial, just, rational, and operating between juridically equal subjects. Law is therefore deeply imbricated in capitalism and its resulting relationships of power. To Pashukanis, this imbrication is predicated on the formation of the legal subject as the holder of legal rights as an abstract, impersonal, and, ultimately, juridical person. In fact, in recognising the juridical subject, capitalism assumes its legal character through the legitimation of exchanges of commodities as formally equal commodity owners: one party the owner of labour and the other the owner of surplus value, engaged in free exchange.Footnote ²³ But to Marx and Pashukanis, this assumption of juridical equality masks the profound inequality that inheres in the very fabric of capitalist relations between owners and producers. Importantly, it is the role of new constitutionalism to obscure this inequality and render it invisible in the formation of common sense.

Indeed, critical political economy offers important insights into the constitution of common-sense meanings. It recognises that capitalism does not simply reproduce itself of its own accord, but requires certain attitudes, institutions, and apparatuses to enable its continuing reproduction and expansion.Footnote ²⁴ Theories of the State recognise the analytical distinction between functions of accumulation and legitimation, recording the need of capitalist states for material, institutional, and normative or ideological reproduction. Robert Jessop, for example, differentiates between the ‘accumulation strategies’ of a state and its ‘hegemonic project’, suggesting that achieving the material conditions for capitalism is insufficient, for these conditions must be generally accepted by society.Footnote ²⁵ Jessop articulates understandings of hegemony inspired by Antonio Gramsci and the idea that the dominant class achieves dominance or ‘hegemony’ through the combined influence of coercion and consent. Gramsci believed that hegemony, the process by which the ruling class establishes the conditions necessary for achieving leadership, could not be secured solely through coercion, but required the ideological capture of popular support. This involves the acceptance and internalisation by the masses of the interests and values of the ruling class as their own. Indeed, as Adam Morton observes, ‘hegemony is the articulation and justification of a particular set of interests as general interests. It appears as an expression of broadly based consent, manifested in the acceptance of ideas and supported by material resources and institutions.’Footnote ²⁶

The acceptance by civil society of relations of dominance is thus a crucial dimension of hegemony. So too is the work of the ‘organic intellectuals’ who facilitate the internalisation of the interests of the ruling class as the common interest and, indeed, as the ‘common sense’ of the time. Antonio Gramsci observes that the acceptance by the masses of the dominant ethos as ‘common sense’ is not a result of ‘self-deception [malafede]’ but ‘the expression of profounder contrasts of a social historical order’ associated with its subjugation as a group.Footnote ²⁷ It is organic intellectuals of the day who are able to generate the acceptance by the masses of the interests of the ruling class as ‘common sense’. Moreover, law is the ‘instrument for this purpose’.Footnote ²⁸ Indeed, organic intellectuals are able to garner both the ‘spontaneous’ consent of the masses and the legal enforcement of coercive discipline. In this latter respect, Gramsci regarded the law and legal institutions as playing a particular role in producing common-sense understandings under-girding hegemony.Footnote ²⁹ Law becomes the mechanism for authorising the framing of private interests as public interests and as common sense. Although Gramsci wrote very little about law, his fragmentary analysis of law coupled with his understanding of hegemony inspires a praxis conception of law of great relevance to this analysis.Footnote ³⁰ This conception derives from Gramsci’s theorisation of Marxism as a philosophy of praxis: as a unity resulting from the dialectical development of contradictions between theoretical and practical activity. Gramsci contemplated this unity as ‘immanent’ in capitalist society and as realisable through practices informed by critical inquiry.Footnote ³¹ The role of the organic intellectual is linked to the processes of establishing the hegemony or leadership of the dominant social forces. The process of achieving hegemony and ‘colonising the internal world of the dominated classes’ involves three related developments in which organic intellectuals and law play leading roles: universalisation, naturalisation, and rationalisation.Footnote ³² Universalisation involves the representation by the dominant group of its private interests as common and public in nature, while naturalisation and rationalisation concern processes of reification that present the existing order as fully consistent with the natural and rational order of things. Law facilitates these processes by interpellating individuals as equal legal subjects, obscuring their actual subordination and inequality, and rationalising this appearance as part of the universal and natural order of things.Footnote ³³ These processes may be achieved through trasformismo, being the absorption of opposition into the dominant group,Footnote ³⁴ which involves the work of organic intellectuals who ‘perpetuate the existing way of life at the level of theory’ as the rational and natural order of things.Footnote ³⁵

Resilience talk and the experts who cultivate and advance it through the work of international organisations and law are the organic intellectuals who naturalise and rationalise resilience as the best practice in global governance. They facilitate the interpellation of the subjects of resilience planning as ‘neoliberal subjects’ and active participants in the reproduction of capitalism and many of the conditions causing severe crises in capitalism in the first place.Footnote ³⁶ In doing so, expert international lawyers are instrumental in the construction of hegemony, perhaps unwitting participants in the creation and maintenance of neoliberal hegemony. For example, international intellectual property lawyers who are advancing climate resistant seeds as the solution to climate change may be regarded as promoting the resilience paradigm and the common sense of adapting to, rather than resisting or trying to abate, the climate crisis. They are thus enabling climate capitalism to proceed as business as usual and possibly contributing to corporate concentration in the seed industry, which is threatening global food security.Footnote ³⁷ The discussion will turn to consider how resilience is becoming the common sense in global governance of the climate change crisis, sustainable development, and disaster and refugee management strategies. These crises and disruptions are all interlinked in various ways to a deeper crisis in the production and reproduction of global capitalism.

Resilience Talk in Global Governance

Notable common tendencies in each of the resilience strategies adopted by international organisations considered here are the trends toward the enhanced role of technical experts in global governance, the deformalisation of law through the predominance of ‘soft law’,Footnote ³⁸ and the management of crises in capitalism through the application of what Robert Cox refers to as ‘problem-solving theory’.Footnote ³⁹ Problem-solving theory is differentiated from ‘critical theory’ in that the former takes the world as it is with its existing power structures, while the latter seeks to transform the world and challenges existing hierarchies of power and authority. Resilience theory has its origins in multiple disciplines in the attempt to deal with risk management. It is ‘concerned fundamentally with how a system, community or individual can deal with disturbance, surprise and change’.Footnote ⁴⁰ Ecosystem stability, engineering infrastructure, psychology, the behavioural sciences, disaster reduction, supply chain regulation, and multilateral aid organisations are just some of the areas adopting resilience theory into their programming. The goal is to ‘ensure that shocks and stresses, whether individually or in combination, do not lead to a downturn in development progress’ and economic growth.Footnote ⁴¹ The focus on risk management and reduction and ensuring the continuity of economic expansion and growth is consistent with what Henk Overbeek refers to as the ‘reformist’ turn in global governance from a ‘transformist rallying cry’ in the late 1970s, to rule by technocratic experts and ‘the global rule of capital’ geared to ‘the management of neo-liberal globalisation’.Footnote ⁴² Today global governance is ‘increasingly informalised’, ‘based on self-regulation by private forces’ and ‘predicated on a constitutionally anchored legal basis’:Footnote ⁴³ the new constitutionalism. As we turn to examine examples of resilience governance it becomes apparent that they are connected in different ways to a deeper crisis of capitalism on a planetary scale.

Phillipe Bourbeau provides an excellent overview of the adoption in the social sciences of the resilience framework and notes that ‘[t]he United Nations, together with several international organisations and non-governmental organisations, has invoked resilience as a new organising principle’ to address human suffering and reduce the costs of emergency responses.Footnote ⁴⁴ The World Bank identifies building resilience as essential to achieving the goals of ‘ending extreme poverty and promoting shared prosperity’ by integrating the risks of climate change and disaster relief into development initiatives.Footnote ⁴⁵ The World Health Organization similarly regards resilience building as at the ‘core’ of its Health 2020 vision, while resilience building is integrated as well in United Nations Sustainable Development Goals.Footnote ⁴⁶ In fact, adaptation to climate change,Footnote ⁴⁷ sustainable development,Footnote ⁴⁸ disaster relief,Footnote ⁴⁹ climate migration management,Footnote ⁵⁰ and the management of crisis-related supply chain disruptionsFootnote ⁵¹ provide the most notable and growing imbrications of resilience-oriented global governance strategies and mechanisms into the foundations of capitalism, in both local and global political economies. As Julian Reid observes, the ‘resilient subject is one which presupposes the disastrousness of the world, and likewise one which interpellates a subject that is permanently called upon to bear the disaster’.Footnote ⁵² The grafting of resilience strategies onto sustainable development policies by the United Nations Development Program (UNDP) and the United Nations Environment Program (UNEP)Footnote ⁵³ integrated neoliberal rationalities into sustainable development projects and was a complicated process that is beyond the scope of this chapter.Footnote ⁵⁴ However, the upshot of the process is the framing of sustainable development, not as a question relating to the security of the individual, but rather one relating to the adaptability of the individual. The resilient subject is thus ‘not a secure but an adaptive subject;’Footnote ⁵⁵ a subject that accommodates itself to the existing order and its existing power structures and ‘not a subject which can conceive of changing the world, its structure and conditions of possibility’.Footnote ⁵⁶ Indeed, the resilient subject is considered the ‘new ethic of responsibility’ for disaster management and championed by the Intergovernmental Panel on Climate Change (IPCC).Footnote ⁵⁷ But critics question the suitability of a theory developed in addressing natural systems to social systems and highlight how resilience theory, rooted as it is in neoliberal, market-based, technical managerialism, erases ‘the role that large scale social, economic and political processes play in shaping resilience’, depoliticises solutions, and ignores gendered and intersectional dimensions of existing power structures in the communities subject to resilience policies.Footnote ⁵⁸ In law, resilience talk forecloses the development of alternate possibilities. In the context of the climate resistant seeds discussed earlier, the resilience adaptation model forecloses legislation regulating corporate concentration in the seed industry or regulations limiting the sorts of seeds that can be patented and, ultimately, fails to address the underlying problems and risks to the environment and to global food security.Footnote ⁵⁹

Michael Mikulewicz illustrates how resilience-based development in Liberdade, a community on a small island in the Gulf of Guinea that is subject to impacts of climate change droughts, floods, and rising sea levels, is promoting resilience amongst the new leaseholder farmers. However, the resilience strategy developed by the UNDP rested upon the privatisation of agriculture and failed to provide the necessary agricultural support for the farmers as well as adequate investment in the project. As a result, there was complete failure to address the specific development needs of the people and the underlying structural inequalities relating to social, gender, and racial inequalities. As the state retreated from the countryside, the farmers were left to UNDP managers who excised these structural problems ‘from the resilience formula’.Footnote ⁶⁰

Stephanie Wakefield, in a study of efforts to address rising sea levels in Miami Beach, emphasises the conservative nature of climate change resilience policies in urban environments that ‘do not counter or transform existing social or economic urban relations. Instead, they attempt to extend and maintain existing relations into the future.’Footnote ⁶¹ They thereby ‘secure and manage an unchanging urban order’ dedicated to ‘maintaining Miami Beach’s current socio-economic order’ premised upon tourism, high-end real estate markets, and luxurious lifestyles.Footnote ⁶²

Margherita Pieraccini shows how resilient legal strategies, involving customary, property, and environmental laws enacted to protect the common property area of Regole d’Ampezzo, Italy, in fact obscure underlying gendered power relations.Footnote ⁶³ These laws sustained gender inequality by preventing women from inheriting rights and participating in management of the region, prompting the author to call for a politicised understanding of the legal regime.

The political economy dimension of resilience talk is vividly illustrated by its impact on climate migrants. The United Nations Framework Convention on Climate Change 2010 recognises mobility as an adaptive strategy for climate change and the Paris Agreement echoed this recognition and called for concrete recommendations. The result was the Guidance on Protecting People through Planned Relocations from Disasters and Environmental Changes and Operational Guidelines, both soft law initiatives developed by legal experts and representatives from international organisations and states to assist states and organisations in addressing displaced persons.Footnote ⁶⁴ However, the treatment of displaced persons through the adaptation and resilience framework has reconceptualised migration as a solution to the problems of disaster and climate change, rather than as a result and consequence of the failure to mitigate these very problems in the first place. This reconceptualisation shifts the terrain of legal discourse, lenses, and solutions from one concerning threats of harm that need to be addressed and solved in the context of mitigating climate change, to one of adaptation to and management of climate change. Indeed, this treatment reflects a ‘turn from a discourse of “climate refugees”, in which the organisations perceive migration as a failure of both mitigation and adaptation to climate change, to one of “climate migration”, in which organisations promote mitigation as a strategy of adaptation’.Footnote ⁶⁵ Moreover, ‘the growing mantra of resilience in climate policy and politics’ and ‘the more recent narrative on “migration as adaptation” appears to displace justice claims and inherent rights in favour of a depoliticised idea of adaptation that relies on the individual migrant’s ability to compete in and benefit from labour markets’.Footnote ⁶⁶ The concept of ‘climate refugee’ has been displaced by the concept of ‘climate migrant’, signalling the ascendance of neoliberal reconfigurations of the problems of climate change and disaster management.Footnote ⁶⁷ Once a refugee subject to the catastrophic effects of failures to mitigate climate change and possessing rights to security and (reparative) justice, the migrant is reconfigured as a resilient subject/worker with a duty to self-actualise the potential to manage and adapt to the crisis by integration as a migrant into the work force of the receiving state and contribute to the development of the home state by sending regular remittances home. The climate migrant is thus inserted into the global circuit of capital as a valuable source of remittance income through an expert policy discourse conducted in global governance circles.Footnote ⁶⁸

Indeed, international organisations have been very active in promoting the climate migrant/worker concept. The UNEP, the International Organisation of Migration, the United Nations University, and the Munich Re Foundation created an alliance – the Climate Change, Environment and Migration Alliance – in 2008 to ‘mainstream environmental and climate change initiatives into migration management policies and practices, and to bring migration issues into global environmental and climate change discourse’.Footnote ⁶⁹ In fact, the promotion of climate migration by the International Organisation for Migration (IOM) is ‘a defining feature of this organisation’Footnote ⁷⁰ and a central site for the development of expert discourses on climate migration resilience.Footnote ⁷¹

The shift from climate refugee to climate migrant was accompanied by another subtle shift away from hard treaty law to soft laws and domestic policies. As Romain Felli observes, ‘[n]o longer should the environmental migrant be located conceptually within the realm of international law and legal categories, as he comes to be surrounded by an ensemble of deformalised norms, and practices, such as “soft laws”, advice, capacity-building practices, etc.’Footnote ⁷² In fact, international migration law is characterised by the predominance of soft law arrangements at the bilateral, regional, and international levels, although there are a few international treaties.Footnote ⁷³ Felli associates this shift to deformalised norms with a shift away from ‘the language of international law’ and ‘reparative justice’ to a language of ‘strategic individuals with an entrepreneurial ethos’.Footnote ⁷⁴ Felli also regards the shift as part of a deeper process of primitive accumulationFootnote ⁷⁵ that reconfigures the political economies of predominantly Southern states, dispossesses their climate migrants from the means of production, and subjects labour to precarious conditions of employment. It is important to note that this shift and these processes are instantiated through law and have profound legal consequences for those dispossessed through climate change.

In my view this shift is an example of the commodity form of law at work. Migrants are reconfigured and interpellated by soft law initiatives as resilient neoliberal subjects as they are injected into the global political economy of migrant labour. Indeed, the World Bank presents migration as adaptation through remittances of goods or money to a migrant worker’s home state as a positive consequence of climate migration, while the IOM promotes temporary, circular labour migration and ‘income diversification through remittances’.Footnote ⁷⁶ The World Bank estimates that global remittances for 2020 were US$651 billion,Footnote ⁷⁷ while the IOM 2020 Annual Report details the funding of over sixty-two countries in the development of migrant worker schemes.Footnote ⁷⁸ Problematically, circular labour migration introduces ‘extreme flexibilisation’ into migrant labour and as a consequence labour unions worldwide and even the International Labour Organization have denounced migrant worker schemes, which Felli argues ‘turns these migrants into an activity productive for the accumulation of capital. Climate change is thus harnessed toward the reconfiguration of social relations in a capitalist form.’Footnote ⁷⁹

Nicola Phillips identifies the promotion of migration as a development strategy and a form of accumulation by dispossession that inserts migrant workers from the South into transnational supply chains through the provision of labour. This strategy creates conflict between migrant workers and national workers by putting downward pressure on wages and leads to the extreme flexibilisation of labour.Footnote ⁸⁰ As noted by others, this form of migration management ‘is fundamentally about making migration economically beneficial, notably by connecting the supply of labour in the less-developed South with the migrant workers in the North’.Footnote ⁸¹ Felli calls for a reconsideration of how the conception of the climate migrant naturalises and depoliticises the politics of climate change, the dispossession it works, and the legal forms involved, to which attention turns.

Disrupting ‘Common Sense’ in Global Governance

Critics of resilience talk argue that resilience strategies are essentially reactive and function to shift development assistance responsibilities (as well as responsibilities for climate change mitigation, disaster relief, and so forth) away from states, international organisations, and business corporations and onto individuals, who are expected to achieve development as resilient neoliberal subjects. A study of the reception of Syrian refugees into Jordan and Lebanon under the guise of resilience frameworks reveals that very little development resulted for either the refugees or the host states and the framework is better regarded as a strategy to keep migrants out of the European Union.Footnote ⁸² Sarah Sharma notes that ‘resilience is a reactive neoliberal policy tool implemented by the World Bank in urban spaces of the global South in both the transition from the Washington and post-Washington Consensuses and the rise of the climate crisis on the international development agenda’.Footnote ⁸³ She further notes that ‘[r]esilience policies call for individuals to brace themselves, build up strength, and bounce-back from so-called exogenous shocks and stresses’.Footnote ⁸⁴

Resilience strategies are a form of neoliberal discipline and new constitutionalism. They deliver significant power and authority to technocratic experts and obscure underlying socio-political-economic causes of poverty, insecurity, and inequality. Attention is shifted away from providing solutions to the underlying causes of insecurity and inequality, such as the failure to achieve climate change mitigation, toward technocratic adaptation, management, acceptance, and normalisation of crises as something that requires adaptation. Resilience talk is, in the end, a form of post-politics that has evacuated the ‘political’ in favour of technical, economic, and managerial reason with profound implications for local and global political economies. Indeed, Mark Neocleous argues that resilience has colonised ‘the political imagination’: ‘resilience is by definition against resistance. Resilience wants acquiescence, not resistance. Not a passive acquiescence, for sure, in fact quite the opposite. But it does demand that we use our actions to accommodate ourselves to capital and the state, and the secure future of both, rather than to resist them.’Footnote ⁸⁵

How might we destabilise and dislodge resilience talk in global governance laws and institutions? The first step is to problematise the relationship between law and resilience thinking. Problematisation involves recognising that ‘[l]egal structures, principles, and processes, as well as core concepts of the rule of law, impinge on the capacity of societies to manage ecosystems, withstand environmental degradation as well as economic shocks’.Footnote ⁸⁶ The next steps involve ascertaining how law affects these systems and identifying its positive or negative effects.

I believe that scholars of international law and organisation have a particular role to play in problematising the resilience paradigm of governance, as what Antonio Gramsci would call the ‘organic intellectuals’ of global governance. International lawyers, as legal experts, give shape to the norms and practices that articulate and, indeed, constitute the ‘common-sense’ foundations of global governance. Located at the intersection of national and transnational capitalist systems, they function to represent their disciplinary consensus as ‘normal’, transmitting it through society, consensually, as ‘common sense’. But as David Kennedy has noted, in doing so they believe that they ‘advise, they interpret, but they do not rule’ and they ‘sustain their self-image [as neutral experts] by locating the “political” elsewhere’.Footnote ⁸⁷ As experts they are engaged in technical management, not governance. However, as Kennedy argues ‘we need to relativise our idea of “international governance” more radically’, because there is ‘very little’ in political life that is not better understood ‘as the work of experts and the product of expertise’.Footnote ⁸⁸

We might begin by contesting the work of legal experts of resilience talk by first recognising that ‘common sense’ is precisely that: common opinion as framed by legal expert opinion makers. It is not ‘good sense’ as Gramsci conceived of it in terms of understandings accompanying transformative political praxis. Governance through good sense contemplates self-reflexivity as well as conscious recognition of and moral and ethical engagement with contesting social forces. It begins, as Kennedy notes, with asking ‘who wins and who loses’ in resilience policies and programmes.Footnote ⁸⁹ This directs attention to the political economy of resilience, the ‘who gets what’ in resilience politics, and the class, gender, and intersectional power relations embedded in the legal norms and structures. It also involves delving into the ‘politics of consciousness’ by examining the underlying ‘shared assumptions’, ‘blind spots and biases’ of resilience experts.Footnote ⁹⁰ Contestation involves going beyond problem-solving theory in approaching crises, like those of climate change and climate refugee/migrants, to engage in critical theory by focusing on the purposes and interests served by resilience talk. Crucially, this involves a recognition that the politics of resilience does not lie elsewhere. The challenge is not about discovering cracks or openings in resilience talk, but recognising as critical theory reveals, that the cracks and openings are always already there, because dominant understandings require continuous articulation in order to remain dominant and there is always opening for contestation in this process.

Hegemony is a process and one that requires continuous reinforcement, justification, and legitimation. International lawyers must acknowledge their crucial role in the construction of hegemony and not acquiesce in assumptions that are taken for granted as the legal common sense of the day. The challenge is to critically examine the assumptions upon which law operates; to interrogate the relationships between law, capitalism, and humanity. They/we cannot, and, indeed, must not, seek shelter behind distinctions between law and politics, public and private, here and there. The investigation must interrogate the political, economic, and social consequences of the dominant legal forms of our time.

Introduction: Or Else What?

Where can one find the United Nations (UN) and its sister international institutions? As an international organisation (IO) with a ‘universal’ reach,Footnote ² the UN – just like international law – seems to be both ‘everywhere’ and ‘nowhere’.Footnote ³ Elsewhere in this volume, I have tried to answer this question by highlighting that IOs always have to function somewhere – and, as such, issued a plea for the study of their geographically situated and materially embedded sites in international institutional law.Footnote ⁴ Departing from this premise, in what follows I want to take this a step further to think about the entanglements of these institutions with what, following Du Bois, one could call the ‘global colour line’.Footnote ⁵ With this, I make reference to the ways in which the institutions of international order pivoted on notions of racial hierarchy and white supremacy, including some peoples (while excluding others) within the bounds of the ‘international community’.Footnote ⁶ As Obregón and others have shown, the quest of international order has long been haunted by the echoes of a nineteenth-century conception of ‘civilised peoples’ that has served to exclude and constrain non-European participation in the ‘family of nations’.Footnote ⁷

Indeed, given that the UN and its sister institutions were forged in the ideological crucible of what Hobsbawm has called the ‘Age of Empire’,Footnote ⁸ it would be easy to assume that they were unable to play a role in challenging the global colour line. And yet, as Mazower has shown, the fact that the UN had been created in the image and likeness of ‘imperial internationalism’ did not prevent a cast of generations of non-European and racialised international lawyers to flock to its hall to attempt to create a post-colonial international order from within the very belly of Empire.Footnote ⁹ This is what Sayward has called the UN’s ‘Nehruvian moment’;Footnote ¹⁰ or what Moyn has understood as the ‘high tide of anticolonial legalism’.Footnote ¹¹ For some readers, the label of the first generation of Third World Approaches to International Law (TWAIL I) lawyer-diplomats might a be more familiar monicker.Footnote ¹² What matters is that, in all of these attempts to rethink and challenge the global colour line, the UN played a salient role: either as an actor to ally with, as a source of (material and ideological) resources, or as a forum to dispute in.Footnote ¹³

In this chapter, I show this by focusing on the relations between the polity of Ethiopia and the institutions of international ordering – the UN and its predecessor, the League of Nations (‘the League’), chief among them.Footnote ¹⁴ For, if we look closely at one of the sites where the UN fashioned a shell for itself in the city of Addis Ababa,Footnote ¹⁵ we can see that the Ethiopian elites understood that the UN (with all of its flaws) had to play a protagonist role in the struggles to come. Let us turn, then, to the central panel of the stained-glass tryptic The Total Liberation of Africa, of 1959 (Figure 15.1).

Figure 15.1 A White Knight in Shining Armour?Footnote ¹⁶

Designed by the Ethiopian artist Afewerk Tekle after winning a competition and under the supervision of Emperor Haile Selassie I, this three-part stained-glass window constituted the central artwork of the new building ‘Africa Hall’.Footnote ¹⁷ As the edifice was erected to host the new UN Economic Commission for Africa and to provide the continent with a proper site for high-level diplomatic encounters, its design and construction was carefully supervised by the Ethiopian establishment with the purpose of dazzling local, regional, and international audiences alike. Here, tucked in the corner of the panel, we can find the UN. But the portrayal is quite particular: this IO appears as a white knight, clad in European armour and a daunting longsword. All the other figures are dark-skinned and ‘wear traditional Ethiopian costumes, because it is felt by the Artist that Ethiopia should occupy this leading place’ in the decolonisation of Africa.Footnote ¹⁸ But the White Knight, the sole European of the composition, with the UN’s blue emblem in his chest, appears as a symbol ‘of what the United Nations stands for and of Africa believing and appreciating its justice and willing[ness] to cooperate in the support of its ideals and aspirations’.Footnote ¹⁹

This chapter traces the lofty promises, and resounding disappointments, that the UN (as a proverbial White, and male, Knight) offered the racialised peoples of the world – and Ethiopia, in particular – in their attempt to challenge the global colour line. The result is neither a blind celebration of the UN’s anticolonial potential, nor a resolute condemnation of its imperial lineage.Footnote ²⁰ Instead, I want to embrace the ambiguities offered by the metaphor of this racialised and gendered saviour trope – especially in relation to the racialised savage non-European other.Footnote ²¹ For in any attempt to overturn the global colour line, the UN will prove to be both utterly indispensable and insufficient. To argue this, I show how the Ethiopian polity engaged with the treacherous figure of the White Knight of international ordering, (2) from the pre-modern era all the way to the so-called (3) interwar period, and (4) the post-war age of the UN. This allows me to (5) conclude with some remarks on the limits of taking Ethiopia as a representative polity of the racialised peoples of the world.

In Lewis Carroll’s rendition of this trope, Alice finds herself hostage to an unwanted session of poetry-reading by a towering White Knight.Footnote ²² After he appears to rescue her from (another equally unwanted) Red Knight, Alice falls under his ‘protection’ until she is ready to emerge as an independent queen – that is, a ‘sovereign’.Footnote ²³ In the meantime, she is exposed to his technological inventions and mavericks – including a poem that is ‘very, very, beautiful’.Footnote ²⁴ The White Knight proudly claims that ‘[e]verybody that hears me sing it – either it brings the tears into their eyes, or else’.Footnote ²⁵ ‘Or else what?’ retorts Alice. ‘Or else it doesn’t, you know’ replies the Knight.Footnote ²⁶ Either way, Alice was about to hear it! The Ethiopian polity, like Alice, quickly realised that once one falls under the White Knight’s ‘protection’, one might as well enjoy his poetry – what else? But like Alice, Ethiopia did not remain passive through its encounter with the White Knight. She remained always with one eye fixed towards the imaginary border that separated her from her sovereign crown.Footnote ²⁷ With this metaphor in mind, we now turn to the story of Ethiopia’s encounter with the ‘World of White Knights’ and their international institutions.Footnote ²⁸

The Kingdom of ‘Prester John’: Early Modern Fluidity in Interpolity Ordering

‘Before the West’, as Zarakol reminds us, notions of interpolity order looked quite different.Footnote ²⁹ During the Early Modern era, the self-identification of the elites of the Ethiopian Solomonic Empire as ‘an isle of Christians surrounded by a sea of pagans’ made religion, rather than race, the key marker of their approach to foreign affairs.Footnote ³⁰ As early as the thirteenth century, Ethiopian pilgrims and merchants have found their way to the courts of the leading European polities, especially those with ports on the Mediterranean sea.Footnote ³¹ The first properly documented diplomatic visit sent by an Ethiopian emperor to the Venetian court happened in 1402, opening the door to the ‘first age of Ethiopian-European diplomacy’.Footnote ³² Animated by the myth of a remote eastern kingdom that had been created by a lost Christian Priest-judge (‘Prester John’), the Early Modern Europeans were generally friendly towards the Ethiopian overtures and treated them as ‘peers’.Footnote ³³ Indeed, they both shared an ‘interest in military alliance against Muslim powers’ and an ecumenical desire for religious dialogue.Footnote ³⁴ By the sixteenth century, this reproachment reached its climax as Portuguese forces intervened in favour of the Ethiopian sovereigns in its war against Adalite and Ottoman Muslim forces – leading to a period of sharp Jesuit influence in the region.Footnote ³⁵

What matters for the purposes of this chapter is that, before the ‘modern’ era, Ethiopians were not seen as beyond the pale of the European family of nations, but rather as long-lost Christian cousins awaiting to be brought back into its fold.Footnote ³⁶ Records of the arrival of an Ethiopian delegation in Lisbon in 1514 show that their hosts asked a slew of questions related to their ‘written laws, law courts and magistrates […] written history, […] taxes […] and proper styles of clothing and social distinction’ as the Europeans sought to make sense of the shared practices of their Christian equals.Footnote ³⁷ But as Pagden has shown, the ‘discovery’ and conquest of the Americas increasingly complicated (and racialised) the terms of encounter between Europe and its others.Footnote ³⁸ As Salvadore notes in relation to the story of an Ethiopian noble who sought refuge and was welcomed in the highest echelons of European secular and religious society in the seventeenth century, ‘race defined him in death, but not in life’.Footnote ³⁹ With this, he makes reference that it was only later (in tandem to the introduction of racialised African slavery in the Americas) that an increasingly fixed notion of race began to trump Christian brotherhood in the European imagination.Footnote ⁴⁰ By the late Renaissance, Korhonen notes that the proverb ‘to wash an Ethiopian white is to labour in vain’ was ‘repeated so frequently […] that it was understandable even when either half of the sentence was omitted’.Footnote ⁴¹ Indeed, on the eve of the Age of Revolutions and ‘Modernity proper’, the ‘rather exceptional European attitude toward slavery […] – specifically, its association with the concept of race’ had now fully consolidated.Footnote ⁴²

This had important consequences for interpolity diplomatic relations. As Sluga has shown, the ‘invention’ of international order that occurred in 1815 (in the wake of the post-Napoleonic restoration) tended to ossify conceptual borders – at least in comparison to a ‘relatively diverse aristocratic cosmopolitan brotherhood’.Footnote ⁴³ While the Ethiopian establishment continued to pursue diplomatic relations abroad across the Mediterranean, this was ‘only grudgingly conceded by Europe [… and this same right] was denied to powerful African states of the time like the Asanthi and the Zulu’.Footnote ⁴⁴ By the late nineteenth century, Ethiopia had gone from Christian peer polity to a potentially conquerable ‘savage’ entity – and it increasingly found itself ‘between the jaws of hyenas’ of its former Christian cousins.Footnote ⁴⁵ Shortly after the European great powers formalised the rules for the partition of Africa,Footnote ⁴⁶ the Ethiopian polity inflicted a resounding blow on the encroaching Italian colonial army at the battle of Adwa of 1896.Footnote ⁴⁷ Like the rising Japanese Empire (which, in turn, defeated the Russian Empire militarily in 1905), the Ethiopian elites understood that to be a ‘sovereign’ in the Modern era military and industrial might were indispensable.Footnote ⁴⁸ While Ethiopia could have been recognised as an equal, even if ‘black’, Knight in the fifteenth century because of its common faith, on the eve of the Great War in the twentieth century it was clear unless it was ready to brandish its sword it would fall under European ‘protection’. The nineteenth century, in this sense, constitutes a turning point in the relations between Europe and the Christian, but non-European, world.Footnote ⁴⁹ The same, as the secondary literature has shown, was true of the Ottoman Empire and other polities that suddenly found themselves to be ‘quasi-sovereign’ after centuries of (at least nominal) equality with European rulers.Footnote ⁵⁰

The Great(er) War: Ethiopia and the League of Nations

Indeed, as an Ethiopian ‘quasi-sovereign’, Lij Iyasu was an unlikely victim of the upheavals of the Great War of 1914.Footnote ⁵¹ The prefix Lij is used in Ethiopian Amharic to denote a child of royal blood, which was fitting because Iyasu was never crowned, as such, due to his young age. He had been appointed as successor to Menelik II (the emperor who had defeated the Italians at Adwa) in 1909, and in that capacity attempted to rule amidst the palace wars of the period. But the declaration of an actual war in Europe, kilometres away, eventually led to the coup that deposed the young Iyasu in 1916. Given that he had been trained by a German tutor and was widely rumoured to sympathise with the Central Powers, a pro-Allied faction of local notables deposed him (arguing that it was a just a matter of time until the Crown Prince converted to Islam as an apostate and joined the Central Powers in their war effort).Footnote ⁵² He was replaced by an ambitious Crown Prince, who would eventually be crowned in 1930 as the Emperor Haile Selassie I.Footnote ⁵³ Given that his rise to power was directly related to interpolity intrigues, it is not surprising that the new emperor would ‘concentrate on Addis Abeba [his capital …] and foreign affairs, around which he would build his authority’.Footnote ⁵⁴ This led him to undertake a European ‘grand tour’ in 1924, which culminated with the troubled accession of his polity to the new IO created in the wake of the war and international law’s move to institutions: the League.Footnote ⁵⁵

And yet, Ethiopia’s membership of the League was always tenuous – Getachew understands this as a ‘burdened and racialised’ membership.Footnote ⁵⁶ Famously, the Japanese had been unsuccessful in their attempt to enshrine a racial equality provision in the Versailles peace settlement, with important consequences for the institutions created there.Footnote ⁵⁷ As I have noted elsewhere reviewing some of the literature on non-European participation in the family of nations, ‘territorial statehood is always precarious and unstable, constrained to the fulfilment of imperial standards of race; civilization; development; alien/human rights’.Footnote ⁵⁸ In this particular context, it imposed a series of institutional obligations on Ethiopia vis-à-vis the League in relation to slavery and the slave trade.Footnote ⁵⁹ With the establishment of the League in 1919, one of its tasks had been to supervise the management of conquered colonial territories, which were given as ‘mandates’ to the victorious allies.Footnote ⁶⁰ Due to Ethiopia’s racialised membership, its situation was almost closer to the non-self-governing mandates than to its peers among the European and Latin American polities, as the system offered ‘little more than colonialism by another name’.Footnote ⁶¹ Most famously, Ethiopia’s member status did not prevent its brutal invasion by another ‘peer’ (Italy) in 1935 – an event that, for Du Bois, proved that despite the League’s lofty promises, the world was run by those who pinned ‘their faith on European civilization, the Christian religion and the superiority of the white race’.Footnote ⁶²

And yet, the institutional set-up of the League (both for the mandates and for Ethiopia as a quasi-sovereign member) offered opportunities for those who sought to challenge racial hierarchy in international order through international order. Du Bois, who had participated in the League’s first General Assembly in 1920, believed that it could play a central role for anti-racist activism on behalf of both African-Unitedstateseans and colonised Africans.Footnote ⁶³ Indeed, even Haile Selassie I never lost his faith in the League. As the Italian armies encroached his homeland, he departed towards exile in the UK. But not before he went to Geneva to personally address the League in 1936.Footnote ⁶⁴ While he was ultimately unsuccessful,Footnote ⁶⁵ the League ‘provided a formal stage’ where the emperor performed the dances of (quasi)sovereignty.Footnote ⁶⁶ Even if the White Knight’s ‘protection’ was but a fig leaf, the League offered a place where its treacherous ways could be called to account. Indeed, when he reconquered the capital city of Addis Ababa at the helm of his ‘Gideon Force’ in 1941 with the support of his British allies as part of the UN military alliance against Fascism, Haile Selassie I (as many in his generation) drew from the experience of the League’s ‘failure’ lessons for the new post-war order.Footnote ⁶⁷

The First ‘Ally’: Ethiopia and International Order in WWII

Like Alice in Wonderland, Ethiopia was rescued by the White Knight during WWII. And yet, it would soon discover that the ‘protection’ of the ‘White’ UN was not too dissimilar from the occupation of the ‘Black(shirt) Knight’. The wake of the Ethiopian Liberation campaign of 1941 had left the country as a thinly veiled British protectorate,Footnote ⁶⁸ in which the emperor’s patriots were but ‘grudgingly recognised as allies’.Footnote ⁶⁹ At first, key imperial policymakers sought to treat Ethiopia as a conquered Italian possession – some even aspired to create a united British East African colony as a post-war trusteeship territory ruled from Nairobi.Footnote ⁷⁰ Even after some autonomy was devolved to the emperor’s quasi-sovereign government, the British held on to the Somali-inhabited area of the Ogaden and the former Italian colony of Eritrea was war conquests. Moreover, the rump state was forced to use the East African shilling as its national currency (until 1945) and almost all the Italian industrial infrastructure was duly looted by its British ‘allies’.Footnote ⁷¹ The emperor remained ‘aware that his country was as much occupied as liberated’ and ‘remained doubtful of British intentions’.Footnote ⁷² Indeed, with friends like these, who needs enemies?

The emperor, who had neither forgotten (nor perhaps forgiven) Geneva, turned to the promise of a new international order to fight for his polity’s sovereignty. Like many peoples of the colonised and occupied world – both seen as racialised by either the Allied imperial or Axis war machines – the promises issued by the Atlantic Charter in 1941 and the Declaration of the United Nations in 1942 offered a glimpse of hope.Footnote ⁷³ If all people had, pursuant to the clause three of the Charter, ‘a right to self-determination’, this had to be true both for the polities militarily occupied by the Fascist powers (say Poland and Ethiopia), and perhaps even for the whole colonised world. This expectation gained even more momentum when, in 1945, the military alliance of the UN was formally institutionalised into a new ‘universal’ IO – and one, moreover, that enshrined equal rights and self-determination of peoples as one of its cardinal values.Footnote ⁷⁴

In this spirit, as soon as he retook the capital, Haile Selassie I wrote to the US President Franklin Delano Roosevelt (FDR) arguing that Ethiopia should be seen as the first liberated polity of the UN alliance.Footnote ⁷⁵ FDR reciprocated by inviting the emperor to meet him personally aboard the USS Quincy near Cairo, where he would stop after the Yalta conference of 1945.Footnote ⁷⁶ From then onwards, the US became a key supporter of Ethiopian independence. Ethiopia, in turn, committed fully to the UN (being, with Egypt and Liberia, the only three independent African countries that participated in the San Francisco Conference of 1945) and to the idea of the US-led international order.Footnote ⁷⁷ Translating words into deeds, the Ethiopian army answered the military call of the UN by sending its forces to peacekeeping operations in Korea (1950) and the Congo (1960).Footnote ⁷⁸ This gambit paid off, as it was untenable for the British to colonise a (nominally) equal ally and fellow UN member. As a British colonial officer noted, ‘the fact that we surround [Ethiopia] and could in the old days have squeezed [it] flat with very little difficulty, is of course irrelevant in the age of Lake Something’.Footnote ⁷⁹ This is a reference to ‘Lake Success’ – where, as we saw in my earlier chapter in this volume, the UN had its interim headquarters during this period.Footnote ⁸⁰ The ambiguities of the White Knight, here, appear in their full colours.

Of course, this change in the nature of the liberal international order had more to do with the vanquished than with the victors. Given that the Axis powers had made racial superiority a central banner of their war effort, the allies included an ‘equality of race’ provision in their post-war settlement.Footnote ⁸¹ The inclusion of this, however, was not without frictions. Indeed, as I noted elsewhere, the Soviet Union ‘rarely lost an opportunity to embarrass its erstwhile allies by highlighting the persistence of racial discrimination in the US to critique the use of the trope of “civilization” by European empires’.Footnote ⁸² Indeed, colonial powers frequently invoked the cover of sovereignty to shield themselves from UN criticism over entrenched racial hierarchies – with, of course, South Africa being the most obvious example.Footnote ⁸³ Immigration policy was – and continues to be – a thorny issue in our allegedly post-racial world.

And yet, at the same time that the UN’s notion of sovereignty provided cover for racialised hierarchies, it also created opportunities for those who wanted to challenge the global colour line. The General Assembly, in particular, became a key site of struggle – especially as the increasing tempo of decolonisation added more and more formerly colonised peoples to its ranks.Footnote ⁸⁴ In time, this IO – and its family of institutions, UNESCO in particular – has developed a series of mechanisms and procedures to highlight the persistence of racial discrimination and the unfulfilled promises of the post-war settlement.Footnote ⁸⁵ Ethiopia, in particular, became a fervent supporter of the institution’s work in general – and, in particular, became the host of its Economic Commission for Africa (UNECA).

In fact, it was in UNECA’s building (‘Africa Hall’, as we saw earlier), that the UN’s Security Council met in 1972 for the first time on African soil.Footnote ⁸⁶ After an extensive diplomatic campaign coordinated with other African member states (and with the Organisation of African Unity (OAU) – created in the wake of a summit held in that same building in 1963), Haile Selassie I managed to convince the UN to discuss African problems within the continent itself. A US diplomat, anonymously quoted in the New York Times, candidly confessed that this was ‘a silly idea, but if you object to it you’re a racist, so naturally we didn’t’.Footnote ⁸⁷ The agenda was dominated by the thorny issues of Zimbabwe/Rhodesia, South Africa, and the Portuguese colonies that remained on the African continent. Unsurprisingly, the session ended in disappointment after the UK vetoed any resolution that threatened white supremacy in their former colonial holdings. Be that as it may, Haile Selassie I and his African allies saw the Council meeting as a triumph. Somalia and Sudan rotated the Council’s Presidency, and in that capacity, they invited Haile Selassie I to address the international community – ultimately, for the last time. For the ageing emperor, the Council session’s highlight was the ceremony held in his palace where the UN Secretary-General Kurt Waldheim awarded him the ‘Peace Medal for his contributions to international peace and justice’.Footnote ⁸⁸ A fitting end for a monarch who had invested many of his early years in convincing his polity, perhaps somewhat naively, to believe in the promises of a so-called post-racial liberal rules-based international order.

Concluding Remarks: The Star of Ethiopia

The Star of Ethiopia: A Pageant, of 1911, was Du Bois’ debut as a playwriter.Footnote ⁸⁹ While it had been presented to audiences before, its presentation in Philadelphia in 1916 (to commemorate the passage of the Fourteenth Amendment to the US Constitution) represented its theatrical climax.Footnote ⁹⁰ The plot was simple: merely ‘the history and development of the black race from prehistoric times to the present’.Footnote ⁹¹ The involved cast mirrored the play’s ambitions, with at least 1,000 actors involved in different capacities. The result, in Du Bois’ mind, was a pedagogical tour de force that would teach ‘on the one hand the colored people themselves the meaning of their history and their rich emotional life through a new theatre, and on the other, to reveal the Negro to the white world as a human, feeling thing’.Footnote ⁹² Ethiopia, in this perspective, appeared as ‘the mother of men’: a polity that could claim to be the true cradle not only of humankind as a whole but of the coloured peoples of the world in particular. In this same vein, the anthem of the Universal Negro Improvement Association (led by the famous Afro-Jamaican thinker Marcus Garvey) adopted as its anthem the song ‘Ethiopia, Thou Land of Our Fathers’.Footnote ⁹³

Indeed, for Du Bois and many other anti-racist and pan-African thinkers, Ethiopia remained a ‘northern star’ in their struggle.Footnote ⁹⁴ The Italian war of aggression against this polity in the interwar years, in particular, became a galvanising call to arms for future generations of anticolonial actors. Haile Selassie I, years later, would also come to adopt the pan-African agenda with the zeal of the convert, becoming one of the architects of the aforementioned OAU in 1963. And yet, any recovery of this polity’s legacy of anti-racist struggle cannot be complete without a mention of the ways in which the Ethiopian Empire, itself, reproduced racial hierarchies within its own borders. As Asseraf well reminds us (in relation to Arabic feelings of ethnic animosity against ‘black’ Africans in French-colonised Algeria), notions of racial hierarchy were not solely a European invention.Footnote ⁹⁵ Imperialism, no doubt, ossified (and even radicalised) certain ‘racial’ tensions in the colonised world – with lasting consequences to our days.Footnote ⁹⁶ But we also ought to remember that ‘some of the most vocal “anticolonial states” – such as Indonesia and India – simultaneously repressed independence campaigns and pursued imperial expansion’.Footnote ⁹⁷ The same was true of the mid-century Ethiopian polity. Ultimately, for ‘the wretched of the earth’, the day will not be saved by any dazzling Knight: white, black, or otherwise.Footnote ⁹⁸