Seeing Like an International Institutional Lawyer: The Ethos and Pedagogy of a Subdiscipline

What do international institutional lawyers see when they peek out from a window? If, as Kennedy argues, public international lawyers see a “world of nation-states and war” while trade lawyers see “a world of buyers and sellers,”Footnote ¹ it is likely that international institutional lawyers see a world of delegated competences. They dream of interstate cooperation – and they fear the nightmare that might come with the abuse of institutional power.Footnote ² Indeed, for the mainstream international law scholarship (MILS) on international organizations (IOs),Footnote ³ these institutions represent one of the highest summits in the history of the rational organization of global life in the “long march of mankind from the cave to the computer.”Footnote ⁴ Accordingly, the subdiscipline has been organized around a series of fixed dichotomies and research questions that frame its field of vision.

For instance, the mainstream international legal inquiry into IOs is usually restricted to a fixed list of topics (legal personality, membership, financing, external relations, legal status of normative outputs, application of international law, etc.) and methods (interpretation of IOs’ constituent instruments, the study of rulings of international and domestic courts, etc.).Footnote ⁵ Functionalism, as the dominant theoretical lens of lawyerly inquiry into IOs in international law, “has been developed by practitioners, responding to practical challenges, often in piecemeal fashion and through mimicry or comparison.”Footnote ⁶ In fact, much of the subfield has developed in the form of the endless commentaries on a series of landmark rulings by international courts and arbitration bodies on the competence and legal personality of certain international institutions.Footnote ⁷

In other words, a pragmatic and practice-oriented lens, underpinned by a particular understanding of the legal scholar’s craft, has come to dominate the international legal inquiry into institutions. As such, the IOs’ law ethos, pedagogy, and intellectual framework has remained committed to a monodisciplinary outlook.Footnote ⁸ A clear example of that can be found in the syllabi and textbooks that deal with the law of IOs, written often by MILS lawyers (many of them associated with the legal offices of IOs themselves) with the aim of training new generations of future IO law practitioners. As a result, “doing” IOs law has overshadowed “thinking” about international institutions. Indeed, not much has changed since Chimni wrote in 1999 that

As John Berger noted, the “relationship between what we see and what we know is never settled. Each evening we see the sun set. We know that the earth is turning away from it. Yet the knowledge, the explanation, never quite fits the sight.”Footnote ¹⁰ With this in mind, Ways of Seeing International Organisations seeks to disrupt this state of disciplinary complacency. It is time, we argue, for the discipline to start seeing IOs differently. For the MILS, lenses reveal as much as they obscure. While the functionalist window has placed “norms” and “authority” at the forefront of its concerns, it has seldom interrogated IOs as sites of socio-technical struggles, or as vessels of visions of world ordering. More dramatically, the MILS perspective has settled itself with a reified set of issues or questions that “naturally” belong within “the providence of jurisprudence determined.”Footnote ¹¹

Conversely, our volume challenges the premise that “looking” at international institutions is a neutral operation. Instead, it problematizes and pluralizes our “ways of seeing” IOs. In particular, it opens vistas to four core issues that have been overlooked (to different degrees) in the MILS literature: expertise, structures, performances, and capital.Footnote ¹² To do so, we bring together voices from international law’s neighboring disciplines in conversation with the heterodox traditions that have developed within the legal discipline itself. With the former, we refer to International Relations (IR),Footnote ¹³ history,Footnote ¹⁴ and anthropology,Footnote ¹⁵ among others. With the latter, we allude to perspectives from the so-called New Stream;Footnote ¹⁶ the Feminist;Footnote ¹⁷ the Third World Approaches to International Law;Footnote ¹⁸ and the Global Administrative Law (GAL) scholarly movements.Footnote ¹⁹ By putting these two stands of literature in conversation, our edited volume pushes for an interdisciplinary opening of international institutional law that not only blurs the external boundaries of the field but also challenges some of its key internal tenets. Our goal is not only to promote diversity in the methods and methodologies used to study IOs,Footnote ²⁰ but to actively challenge the current “common sense” way of doing things within the subfield of international institutional law.

“Must Do Away with All Explanation”: International Institutional Law beyond Problem Solving

Our volume is not the first – and hopefully will not be the last – call for the reimagination of the law of IOs (and international law more broadly).Footnote ²¹ Indeed, it builds upon – but it also departs from – the legacy of the previous attempts to renew or re-theorize the study of international institutions, from Constitutionalist approaches to the aforementioned GAL movement. Our invitation to see IOs differently, however, differs insofar as we challenge the dominance of “problem-solving thinking” in the study of international institutions in international law. For all of their intellectual innovations, Constitutionalist perspectives and GAL were also fixated on providing solutions to an increasingly complex global order through the language of European Public Law.Footnote ²² Here, again, drives for renewal may risk becoming repetitions.Footnote ²³ We argue that the job of international institutional law scholars should not be reduced to merely finding “legal” answers to “legal” questions – we can perhaps leave that to judges and practitioners.Footnote ²⁴ Instead, we investigate the ways in which IOs serve as sites of struggle for remaking the world order. In this way, Ways of Seeing International Organisations goes beyond the limited theoretical debate between advocates of liberal constitutionalism and those who remain faithful to functionalism.Footnote ²⁵

The dominance of “problem-solving thinking” is not exclusive to international law. In the 1980s, Robert Cox wrote extensively about the tendency in the IR neorealism of Hans Morgenthau and Kenneth Waltz, where the role of the discipline was portrayed as identifying “variations on always recurrent themes.”Footnote ²⁶ Emerging from the assumption that “the past repeats itself” based on a quantifiable rationality, theoretical frameworks such as game theory shed historicism to give way to claims of scientific prediction. Ahistoricism, abstraction, and the production of binaries lie at the core of problem-solving theories in both IR and international law. As Cox noted, a problem-solving theory “takes the world as it finds it, with the prevailing social and power relationships and the institutions into which they are organised […] The general aim of problem-solving is to make these relationships and institutions work smoothly by dealing effectively with particular sources of trouble.”Footnote ²⁷ At the core of such theories is the division of social reality into “spheres or aspects of action,” chief among them separation between the realms of “politics” and the “economy.”Footnote ²⁸ This, in turn, entails a categorization of actors into “public” and “private”; “state” and “non-state.”

Similar to IR neorealism and liberal institutionalism, MILS studies global processes within the confines of regime-complexes. In this sense, doctrinal international law in general – and international institutional law in particular – remains structurally ahistorical and regime-oriented. It does not take interest in the study of historical change, nor does it interrogate how social orders emerge in the first place. The turn to social sciences in international law has not drastically changed the “problem-solving nature” of the international legal inquiry either. Over the last thirty years, the reign of the neoliberal international legal education geared towards training corporate practitioners to match the demands of global capitalism has exacerbated disciplinary and epistemological biases. The ultimate goal of teaching and research in international law programs – and in law courses on IOs, for that matter – remains finding “solutions” to “global challenges” within the existing order(s). The ideological stance that “one should know what’s inside the box before embarking on out-of-box thinking,” or that “theory is abstraction from experience or action,”Footnote ²⁹ has eventually resulted in sidelining questions of capitalism, colonialism, everyday practices, expertise, and ideology in the day-to-day making of the “international.”

For that reason, our volume does not offer a blind celebration of interdisciplinary thinking. As we have argued earlier in relation to the dominance of “problem-solving theories,” realist and liberal institutionalist IR share many assumptions and shortcomings.Footnote ³⁰ While we remain committed to interdisciplinary dialogue, we do not presume that other disciplines can simply “correct” limitations of MILS by merely adding different “methods” or “perspectives” and stirring. At the same time, in a moment of disciplinary “turf wars,”Footnote ³¹ calls for “counterdisciplinarity,”Footnote ³² and celebrations of narrow understandings of lawyers’ métier (even among critical legal scholars),Footnote ³³ the contributors to our edited volume remain convinced that our field has much to learn from its peers in the social sciences and the humanities.

What is more, we also envision such interdisciplinary dialogue as a two-way street.Footnote ³⁴ As such, we hope that the increased use of social science methods in international law might also offer relevant insights on questions of law, justice, regulation, and rights for our colleagues in other departments. In this sense, we build on the burgeoning literature on the intersections of international law and history,Footnote ³⁵ anthropology and international law,Footnote ³⁶ and IR and international law,Footnote ³⁷ while adding a layer of specific engagement with IOs and institutional legal questions, across these conversations. Ultimately, our volume not only promotes cross-fertilization between disciplinary departments but argues for an increasing destabilization of the intellectual boundaries that delimit the intellectual spaces we inhabit.Footnote ³⁸

In sum, our aim is to question and reimagine our ways of seeing IOs in international legal scholarship in general – and of international institutional law in particular. To do so, we propose a departure from finding “solutions” to global challenges, in a way doing “away with all explanation,”Footnote ³⁹ and instead seeing what we have already grasped with new eyes. The volume invites the international law academy to reflect on world institutions in a multidimensional perspective and foregrounds questions of expertise and knowledge production; material and social structures; practices and performances; capital and classes. While our volume has no aspirations of comprehensiveness (as it cannot realistically cover all IOs, nor does it provide space for every discipline or perspective), it provides both experts and newcomers with a compelling overview of what interdisciplinary and critical methods can bring to the study of the “international” – a tentative map of the everyday struggles that are waged within IOs to make and contest world orders.

In this sense, we also depart from a robust tradition of critical social theory, which has interrogated the relationship between international institutions, knowledge production, and the making of the material world. In this sense, Marxist–Gramscian theories have been reappropriated and reinterpreted by international lawyers to explain the processes of capitalist expansion, the labor division among different international institutions, and the mechanisms used to contain antisystemic movements.Footnote ⁴⁰ Post-structuralism and post-poststructuralism have also offered methods for the uncovering of the trajectories of international civil servants as “people with agenda,”Footnote ⁴¹ or the intellectual history of international institutions, forging the path to more historical and multifaceted views of the “international,” its making, and its contestation. Derridean, Bourdieusian, Foucauldian, or Latourian modes of deconstruction of the “social” have borne interesting insights for the language, authority, and material performance of technocratic governance.Footnote ⁴² As some of the chapters in this volume attest, approaches that focus solely on either the “macro” or “micro” scales of critique have limitations in their understanding of global processes and institutions. The same is true for the dichotomy between “internal” and “external” modes of critique, as Chimni argues in Chapter 3. In this vein, this volume invites readers to engage dialectically with both the “micro” and “macro” critique and the “internal” and “external” critique to interrogate the “international” forces of stability and change in the world order. By putting various modes of critique in conversation, our volume seeks to highlight the significance of methodological curiosity and of a diversity of positionalities in the scholarly inquiry into international institutions.

Volume Overview: New Questions and Methods for the Study of IOs

Ways of Seeing International Organisations puts forth proposals for a decidedly non-doctrinal approach to the study of the “institutional” dimension in international law.Footnote ⁴³ It brings together a diverse and balanced cast of scholars from international law, the social sciences, and the humanities to reflect on promises and perils of transdisciplinary methods for the study of IOs. It would not be coherent with the destabilizing ethos of our volume, however, to focus merely on intergovernmental organizations created by states through a formal constitutive instrument – as the traditional literature often does. Instead, our volume seeks to interrogate transnational institutions that actively shape the “global.” For that reason, our volume also includes chapters on the role of international courts and tribunals (and, specifically, their secretariats), and certain nongovernmental organizations with transnational regulatory aspirations. Indeed, we hope our volume not only challenges the atheoretical and procedural focus of the mainstream literature on international institutional law but also disrupts – even if momentarily – the monopoly of knowledge production in this field, which has long been dominated by male European scholars, many of whom have been affiliated with IOs.Footnote ⁴⁴ Indeed, that has been the motivation behind our initial sets of conversations both in person and in print, in which we sought to bring together scholars from a variety of vantage points as a way to push the line of vision of our field further ahead.

In line with its objectives, the volume is structured in two parts. The next two contributions in this part (Part I) shed light on the past and present of international institutional law and the implications of different theoretical frameworks for the “institutional” dimension of international law. For all their differences, these two authors share a concern about the limitations of the traditional ways of seeing IOs and put forward alternative ways of thinking about the role of these institutions in global governances. B. S. Chimni ponders on what critical theory can bring to the study of IOs – and vice versa. His call for a dialectic between internal and external critiques, in many ways, sets the stage for the subsequent theoretical or empirical interventions of our volume. Jan Klabbers, in turn, questions mainstream approaches to international institutions in the discipline of international law and in IR. Instead, he proposes a supra-functionalist approach that highlights distributive implications of global processes.

Part II, in turn, interrogates four different constellations of research themes that have been and continue to be out of the ambit of inquiry in the mainstream literature on international institutional law. For each cluster of research themes, the volume puts three chapters in conversation to ask our authors to explore different aspects of international institutions in an oscillation between what to study (objects of inquiry) and how to study (method/approach/perspective). By bringing together three different, but not necessarily divergent, perspectives, the four sections seek to open space for interdisciplinary dialogue. In all of the sections, we have included authors who were trained as lawyers, placing them in conversation with those who hail from other disciplines – and others who may feel uncomfortable with such disciplinary boundaries in the first place. The common thread that brings these sections together is that all of the contributions invite the reader to see the “international” in a different light.

The section “Expertise, Authority, and Knowledge Production” begins with a chapter by Annabelle Littoz-Monnet where she discusses the processes of production and circulation of knowledge through expert groups, academia, high-level commissions, or advisory committees within IOs. Richard Clements interrogates the case of the Independent Expert Review of the International Criminal Court, conceptualizing internal reform as a method of world ordering. Juanita Uribe studies the case of hidden hunger and how various UN agencies came to transform it into a governable object for policymaking. She explores how these agencies problematize the world, by aggregating knowledge through bureaucratic procedures.

The chapters in the section “Structures, Spaces, and Jurisdictions” revolve around material and normative structures within which IOs function. Some of these structures are shaped by organizational culture, some by the materiality of space, and others by constructed legal and jurisdictional boundaries. Tommaso Soave enquires into the institutional practice of international lawyers in international adjudicative settings, focusing on the ways in which legal operators function in the space between the structure and agency set by not only elastic norms but also socio-professional modalities. Kiri Olivia Santer offers an ethnographical account of how IOs and states raise claims over contested jurisdictions in cases of transnational legal conflicts, focusing on the involvement of the European Union and International Maritime Organization in the patrol of the Central Mediterranean. Daniel R. Quiroga-Villamarín concludes this section, focusing on the eminently material structures that constrain the “everyday geographies” of international ordering. To do so, he uses archival research to show what a material approach to international legal history can reveal about the interim headquarters of the League of Nations and the United Nations.

While the section “Expertise, Authority, and Knowledge Production” probes into questions of expertise and knowledge production, and the section “Structures, Spaces, and Jurisdictions” engages with material and discursive practices involved in the making of international order, the section “People, Practices, and Performance” zooms in on the quotidian experiences of international lawyers, civil servants, and independent experts within international bureaucracies as questions of gender, ideology, and professionalization in international institutions. Jan Eijking opens this section with an intervention that draws from a growing tradition of biographical and sociological approaches which sits at the crossroads of IR and international history. In particular, he focuses on the 1865 founding conference of the International Telegraph Union to understand the union from the perspective of its making. Miia Halme-Tuomisaari, in turn, follows with a reflection on what anthropology can offer to the study of international institutional law, focusing on the everyday performances of the UN Human Rights Committee. Dimitri Van den Meerssche introduces us to the Latourian critique of the lawyerly practice in international institutions. Focusing on the World Bank’s legal office, he invites us to look for sites of political agency and intervention within “the situated, material, and embodied life of international law.”

The section “Capital, Class, and Political Economy” explores the intertwined life and functioning of global institutions and the capitalist mode of production. It explores the ways in which international bureaucracies and their experts reconfigure production relations, integrate spheres of production and exchange, and depoliticize racial capitalism. Negar Mansouri argues that the history of the world order since the rise of capitalism to an overarching force of socio-political ordering in late seventeenth-century England has been a history of struggles between the organization of production relations by the market (laissez-faire capitalism) and organization of such relations by the bureaucratic vanguards (state capitalism). She subsequently engages with the dynamics of such struggles in three historical developments in the post-World War II global economy. Subsequently, Claire Cutler explores the notion of “resilience” as an adaptation strategy in the disciplinary operations of global neoliberal imaginaries. In particular, she studies how “resilience” is operationalized by a plethora of international institutions ranging from the World Bank and the Organization for Economic Cooperation and Development to the International Committee of the Red Cross and the UN. By drawing attention to the question “who gets what” from the resilience talk, Cutler introduces a critical political economy approach to the language of resilience in global governance. Last but not least, Daniel R. Quiroga-Villamarín offers a historical account of Ethiopian sovereignty within two key international institutions of the first half of the twentieth century: the League of Nations and the United Nations. He situates the case within the broader racial hierarchy embedded in European international legal imaginary and the United States’ reaction towards it in the post-World War II era.

The volume concludes with a contribution by Guy Fiti Sinclair, in which he takes stock of the opportunities and the limitations of interdisciplinary and critical approaches to the study of international law and its institutions. He draws together some of the common threads of the volume to ponder on what the future of international institutional law might look like. Ultimately, we hope that the volume might open new ways of seeing the role of IOs in global governance – and, as such, that it offers more questions than answers for a field in need of a profound reimagination.

Emergence of Critical Approaches

This chapter underscores aspects of the study of international organizations (IOs) or international institutions that are relatively neglected by critical approaches to international law (CAIL) and calls for an integrated approach that combines what may be termed external and internal critiques and, in its backdrop, considers proposals for their reform.

A few prefatory remarks are, however, in order at first on the evolution of CAIL scholarship. For nearly a century international institutional law scholarship has been rooted in the positivist tradition of international law, whose different variants may together be termed mainstream international institutional law scholarship (MIILS).Footnote ¹ MIILS has a synergistic relationship with functional and liberal approaches, which tend to present IOs as essential and neutral institutions that promote international cooperation and the global common good.Footnote ² Their shared views are widely disseminated through standard textbooks of international law and IOs. What are neglected are the individual and collective roles of IOs in the expansion and stabilization of a hegemonic global order centered around the global capitalist system through inter alia prescribing, justifying, and legitimizing policies and practices that advance the interests of advanced capitalist states.

An emergent MIILS was challenged in the inter-war period of the last century by Soviet scholarship using a Marxist lens and later by the classical realist approach.Footnote ³ Subsequently, after decolonization postcolonial nations questioned the role of IOs for pursuing the interests of developed nations, in particular the role of international economic organizations such as GATT, IMF, and the World Bank. There was also an effort to establish new IOs such as UNCTAD, created in 1964 and seen as anti-GATT, that argued the case of developing nations, in this case in the field of international trade.Footnote ⁴ UNCTAD formally adopted the principle of preferential treatment for developing nations, leading in 1966 to the addition of Part IV in GATT.Footnote ⁵ Since developing nations were heavily reliant on the export of primary products for their export earnings UNCTAD actively promoted price and income stabilizing international commodity agreements and international commodity organizations.Footnote ⁶ UNIDO was founded in 1966 to “promote and accelerate the industrialization of developing countries.”Footnote ⁷ The G-77 was established in the same year as UNCTAD to identify, articulate, and promote the collective interests of developing nations in international economic organizations.Footnote ⁸ The different critical and constructive efforts culminated in the call for a new international economic order in 1974.

These initiatives and developments received support from the academia in the developing world, in particular from the first-generation proponents of Third World Approaches to International Law.Footnote ⁹ Meanwhile, other critical voices began to emerge. The neo-Gramscian scholar Robert Cox argued that we need “to place the process of international organisation in the framework of global change, to take the structural, diachronic approach.”Footnote ¹⁰ He identified those features of IOs that sustained the rule of advanced capitalist nations: (1) they embody the rules which facilitate the expansion of hegemonic world orders; (2) they are themselves the product of the hegemonic world order; (3) they ideologically legitimate the norms of the world order; (4) they co-opt the elites from peripheral countries; and (5) they absorb counter-hegemonic ideas.Footnote ¹¹ But even by the end of the last century there was a paucity of critical literature on IOs.Footnote ¹²

However, in the last two decades the influence of both MIILS and the functionalist-liberal approaches to IOs has begun to be actively challenged by a host of critical approaches, which include a second generation of Third World Approaches to International Law, Feminist Approaches to International Law, and Neo-Marxist Approaches to International Law. There is, besides, the global administrative law initiative, which seeks to promote the democratic functioning of IOs.Footnote ¹³ Each of the critical approaches bring out particular troubling dimensions of IOs. The feminist approaches contend that IOs neglect the world of women, promoting policies and practices which reinforce institutions of patriarchy, and in this context point to among other things the absence of women in key decision-making positions.Footnote ¹⁴ The third world and Marxist approaches to international law argue that IOs are instruments of imperialism, the roots of which can be traced back to the Mandate System of the League of Nations.Footnote ¹⁵ Arguably, a transnational capitalist class has emerged in recent years that influences the work of IOs, diminishing the resistance of postcolonial nations to imperialism.Footnote ¹⁶ There are also intersectional approaches, which combine class, gender, and race standpoints to critique IOs.Footnote ¹⁷ Finally, emerging global administrative law points to the need for greater transparency and accountability in the functioning of IOs.

It deserves mention that the various critical approaches do not subscribe to the reductionist view that IOs are mere instruments of class, gender, racial, or geographical domination. There is recognition that to different degrees individual IOs also promote larger community interests. Thus, for example, whatever the critique of WHO, it would be acknowledged that it has been an important instrument of coordination in the course of the Covid 19 pandemic, providing beneficial assistance and guidance to member states.Footnote ¹⁸ The United Nations even serves as a site for the formation of counter-hegemonic coalitions (such as in the UN General Assembly [UNGA]) and strategies (discursive and legislative) to influence international agenda and outcomes. Even in the instance of international economic organizations whose mandates and design more openly support the objectives of imperialism, critical approaches are not dismissive of them. For instance, there is acceptance that developing nations need IMF as a lender of last resort. The problem is not the goal of providing loans for overcoming short-term balance of payments crises but the content of the accompanying conditionality regime. Yet all things considered it can be said that IOs tend to promote the interests of dominant social classes and states in the international system. In other words, critical approaches rightly underline the class, gender, race, and geographical bias of existing IOs.

While critical approaches have made an important beginning in pointing to the deficiencies in IOs there are important aspects of their history and functioning that have received insufficient attention. First, the existing literature primarily offers an external critique of individual IOs with a focus on issues of biased design, the lack of adequate participation of weak states and groups, and unjust distributional outcomes. This critique needs to be strengthened in at least four ways: through factoring in the emergence of institutional complexes that necessitate a critique that goes beyond the design and operation of individual organizations; by offering a separate and detailed account of the history and participation of individual postcolonial nations in IOs; by advancing an appropriate theoretical framework that enables the effective combination of the class, gender, race critique of IOs and evolving IO complexes; and by suggesting ways to fill gaps in the existing accountability and responsibility regime found in the International Law Commission’s Draft Articles on the Responsibility of International Organisations. Second, an external critique needs to be accompanied by an internal critique of IOs. An internal critique should inter alia review the following aspects of the functioning of an IO: the working of rules of membership, withdrawal, suspension, expulsion, voting, finance, and dispute settlement; in relation to endogenous and exogenous factors, the changing interpretations of mandates and accompanying policies and practices and their impact over time; and the role of leadership, staff recruitment policies, knowledge production, and organizational culture and how these subserve the interests of powerful states. Third, an active debate is called for on the need and usefulness of advancing proposals for the reform of IOs. A key question is whether organizational nihilism or organizational reform is the way forward for weak states and groups? In sum, what is needed is an integrated critical approach to IOs.

External Critique

The external critique of IOs neglects at least four important dimensions of the functioning of IOs. The first is the ongoing transmutation of IOs through the emergence of what Abbot and Faude call “hybrid institutional complexes” (HICs).Footnote ¹⁹ The historical movement is from individual IOs to “regime complexes” (consisting of an international treaty and a formal international organization) to HICs characterized by “a high degree of institutional diversity.”Footnote ²⁰ HICs are constituted by “informal inter-governmental organisations; trans-governmental networks; transnational public–private partnerships; transnational associations of sub-national governments; private transnational regulatory organisations; and other types of institutions.”Footnote ²¹ According to Abbott and Faude, “HICs exhibit relatively greater functional differentiation, and…greater informal hierarchy. As a result, they produce different dynamics, interactions, systemic effects and outcomes.”Footnote ²² Eilstrup-Sangiovanni and Westerwinter speak more broadly of the emergence of a global governance complex defined as “a system of governance composed of at least three international or transnational institutions or actors whose mandates, functions and memberships overlap, and that jointly address a specific policy problem.”Footnote ²³ The UN Secretary-General has also spoken of the phenomenon of networked multilateralism that “draws together existing institutional capacities, overcoming fragmentation to ensure all are working together towards a common goal…”Footnote ²⁴ He has pointed out how “networks can be flexible, allowing for variable participation by a wide range of actors and the possibility for open coalitions or small ‘mini-lateral’ or even ‘micro-lateral’ groups, growing over time to include more actors.”Footnote ²⁵

The result of the emergence of these new developments is that engaging with single institutions or even regime complexes does not today suffice to understand the working of IOs. The inner dynamics of HICs or the like may either promote progressive orientation and practicesFootnote ²⁶ or result in impeding individual components from pursuing commonly agreed objectives.Footnote ²⁷ For instance, in the field of climate change multiple regional and international IOs, along with corporations and sub-national associations (such as cities) and civil society associations are involved. Arguably, given the vast financial resources available to corporations, and the primacy accorded to the interests of shareholders, disinformation campaigns and lobbying may be carried out negatively impacting the dynamics of the global climate change institutional complex. In other words, critical approaches must “investigate the ways that power is articulated and exercised within institutional complexes.”Footnote ²⁸

Second, there is the justified lament of postcolonial theory that both mainstream and critical approaches do not study the record of participation of Global South nations, occluding the possibility of soundly assessing their place and role in IOs. The history of participation of even principal developing nations such as Brazil, China, India, Indonesia, and Nigeria are seldom reviewed and taken into consideration in theorizing or identifying problems with the functioning of contemporary IOs. Take the example of colonial India, which was an original member of the League of Nations and United Nations. Its record of participation in the period before independence in 1947 shows that formal membership alone does not promise positive outcomes.Footnote ²⁹ That history suggests that the current relationship between postcolonial nations and IOs need to be evaluated only after locating them in deep structures of neo-colonialism.Footnote ³⁰ There is also the need to examine whether regional organizations (e.g., African Union and ASEAN) and development organizations (e.g., the New Development Bank) established by Global South nations are able to advance their interests. Furthermore, how far do these organizations depart from the universal counterparts in terms of design, objectives, and functioning? For example, do international financial institutions established by Global South nations reject the principle of weighted voting? In short, in order to advance an effective critique of IOs or offer sound suggestions on ways of reforming them it is necessary to engage with the history of participation of Global South nations.

Third, while individual critical theories have made important contributions in pinpointing shortcomings in existing IOs from class, gender, race, and geographical standpoints there is also a need to explore intersectional approaches that can draw together the rich insights that have been advanced. The overall idea is not an arithmetic aggregation of the different critiques but the development of a more fundamental viewpoint that traces the separate critiques to deep structures that give rise to different forms of exclusion. Arguably, the deficiencies can be traced to the functioning of a patriarchal and racial global capitalist system whose inner dynamics produces negative distributive outcomes for subaltern groups and nations in the process of sustaining the global accumulation of capital.

Fourth, there is the need to pinpoint the weaknesses and gaps in the ILC’s Draft Articles of Responsibility of International Organizations as it only deals with a narrow set of acts of omission and commission.Footnote ³¹ What is called for is a more inclusive rendering of the rules of legal accountability and responsibility, especially for large human rights harm caused to subaltern groups and nations through IO policies and practices.Footnote ³² One way forward is for IOs to “acknowledge customary international law obligations to provide effective remedies.”Footnote ³³ According to Daugirdas and Schuricht, the advantages of this move are many: “…it offers a way to apply human rights law to powerful, non-State actors – and increases the likelihood that those obligations will be implemented. And from the perspective of global administrative law, a customary obligation offers a way to cement accountability-promoting principles in a traditional source of binding law.”Footnote ³⁴ Another possibility is that member states of IOs undertake due diligence obligations.Footnote ³⁵ These are just some suggestions. What is called for is a thorough discussion of ways in which to supplement ILC’s Draft Articles.

Internal Critique

Even a comprehensive external critique of IOs will remain partial and limited if unaccompanied by a review of the internal functioning of an IO, i.e., a study of its intramural structures and everyday practices, which can play an important role in sustaining the hegemony of powerful states. The internal critique is now complicated by the emergence of HICs as a new dynamic is in play with individual IOs having to function in an institutional complex. At least seven aspects of the internal functioning of an IO deserve to be examined.

First, critical theory needs to be more alert to the fact that powerful states seek to achieve their objectives through manipulating the design features of an IO.Footnote ³⁶ The focus of the internal critique will be more on the practice of states than the design feature per se. For example, it would examine in detail how the provisions on withdrawal from membership have been used to make an IO change direction and policies.Footnote ³⁷ The US has deployed the withdrawal strategy on a number of occasions: It withdrew from membership of ILO (in 1977, returned in 1980), UNESCO (in 1985, returned in 2003), UNIDO (1995), UNICEF (2017), HRC (2018, returned in 2022, withdrew in 2025), and WHO (2020, returned in 2021, withdrew in 2025). It has also threatened to withdraw from WTO. A number of Global South nations have also used the provision of withdrawal to signal their dissent from policies of IOs. For example, Bolivia (2007), Ecuador (2009), Venezuela (2012), and Honduras (2024) have withdrawn from the International Centre for the Settlement of Investment Disputes (ICSID) to protest inequitable outcomes. African nations have threatened to exit the International Criminal Court (ICC) for targeting African leaders. Burundi (2017) and Philippines (2019) have already withdrawn from ICC. However, in view of the power differentials Global South nations do not have the same impact as those of the Global North.

A key design feature of any IO relates to the allocation of voting rights which can be used to gain control over the decision-making process. The constituent instruments of the IMF and World Bank are examples of IOs that adopt a weighted voting system denying effective participation to Global South nations. The veto powers assigned to the five permanent members in the UN Security Council is another instance. These design defects have sought to be rectified by Global South nations. Thus, for instance, Article 10 of the Charter of Economic Rights and Duties, 1974, stressed “the right to participate fully and effectively in the international decision-making process in the solution of world economic, financial and monetary problems.”Footnote ³⁸ There have also been efforts to amend the UN Charter provisions on membership and veto power in the UN Security Council;Footnote ³⁹ the Russian vetoes after the invasion of Ukraine is likely to renew these endeavors. The challenge before critical approaches is to offer in the matrix of these formal voting structures an ethnographic account and analysis of the dynamics of the regular interactions among officials of the organization, the type of diplomatic bargaining that tends to take place, the informal processes influencing decision-making in times of crisis, and the negative effects of formal arrangements on taking impartial, equitable, and reasoned decisions.Footnote ⁴⁰

Second, in reviewing IOs, critical approaches need to distinguish different phases of the life of IOs with the inevitable ebbs and flows to capture the complex relationship between external developments in the global order and the changing interpretations of their mandates. What are required are thick histories of organizations that allow an assessment of the principal factors that influence their functioning, and the informal and formal processes through which respective mandates are adapted to address new challenges or concerns of powerful member states. For example, the World Bank has gone through at least six phases in response to external developments. Michael Goldman identifies four of these: the “‘reluctant Banker’ period of 1944–68; the Bank’s ‘rise to power’ in the period of 1968–80 during which the calls for ‘poverty alleviation’ and meeting ‘basic needs’ for the ‘absolute poor’ reflected a new turn; the ‘debt and adjustment’ period of 1980–89; and the ‘green neoliberal’ period” beginning 1989.Footnote ⁴¹ The 2007 financial crisis and Covid 19 pandemic inaugurated two subsequent phases. The different phases of the history of the IMF are inter alia reflected in its changing guidelines on conditionality. For instance, as a response to developing nations avoiding seeking loans from the organization IMF adopted new conditionality guidelines in 1979. A key feature of the new guidelines was the possibility of “pay[ing] due regard to the domestic social and political objectives, the economic priorities, and the circumstances of members including the causes of their balance of payments problems.”Footnote ⁴² But the situation underwent change with the collapse of primary commodity prices in the early 1980s followed by the debt crisis that visited many Global South nations. Thereafter, IMF tended to neglect the 1979 guidelines.Footnote ⁴³ The organization once again revised its conditionality guidelines in 2002 when it was without clients, now recognizing that “its programs have become unduly intrusive” and that there was a need to “reduce the number of conditions to those that are essential to the achievement of the program’s objectives.”Footnote ⁴⁴ But post the financial and pandemic crises the IMF received a new lease of life and the earlier regime of conditionalities was essentially restored. The history of IMF also shows how the mandate can be reconfigured in practice. It was given little authority by the articles of agreement in the domain of capital controls.Footnote ⁴⁵ But since it worked in the interests of the advanced capitalist states the absence of mandate did not deter IMF from adopting an “institutional view” on capital controls, the latest in March 2022 (replacing an earlier view approved in 2012).Footnote ⁴⁶ The reasoning that informs and legitimizes the response of the IMF – pointing to developments in the world economy – can only be tenuously justified by reference to the articles of agreement. Put differently, the mutable relationship between IMF actions, its mandate, and the global capitalist system deserve to be adequately researched.

The changing role of UNHCR is another example of how the mandate of an IO is adapted to meet either new situations or the concerns of powerful states.Footnote ⁴⁷ Betts speaks of “formal and informal adaptations over time” of the UNHCR Mandate with respect to “who to protect” and “how to protect.”Footnote ⁴⁸ The changes in the mandate have in some cases been authorized by states, but in other instances initiated by the organization in response to changing contexts and developments, including its relationship to other organizations in the field.Footnote ⁴⁹ Betts goes on to identify “five key turning points in mandate expansion”: “1. prolonging its existence (1952–1956); 2. geographical expansion (1957–1967); 3. becoming a humanitarian relief agency (1990–2000); 4. assuming responsibility for IDP [internally displaced persons] protection (1998–2006); and 5. protecting victims of natural disaster (2007–2011).”Footnote ⁵⁰ What critical approaches need to explore is the relationship between these different phases, the organizational stakes in modifying the mandate, and the interests of powerful states. An important variable here is the voluntary nature of funding making UNHCR vulnerable to pressure from rich donor states.Footnote ⁵¹ Therefore, when Betts concludes that UNHCR “has had considerable agency to define its own destiny,” the question is the factors and actors that allowed it that freedom.Footnote ⁵² These aspects call for close study so that the hypothesis of IOs as vehicles for pursuing the interests of powerful states can be tested.

The shifting role of the UN Security Council and UNGA in the maintenance of international peace and security in different times is an instance of the shifting responsibility of the internal organs of an IO. The emergency session of the UNGA on the Russian invasion of Ukraine called under the Uniting for Peace Resolution adopted in 1950 shows the evolution of assigned roles of internal organs of IOs over time.Footnote ⁵³ Critical approaches must closely analyze the meaning and implications of such developments.

Third, critical approaches do not sufficiently examine the role of organizational leadership and its impact on the goals and functioning of an IO. The feminist approach to international law is an exception in this respect, but its reflections are essentially confined to the absence of women in leadership roles. While this lament is entirely appropriate the issue of leadership goes beyond the gender question. A dynamic leadership can redefine the goals of an IO. For example, Robert McNamara, who was the president of the World Bank between 1968 and 1981, played an important role in projecting a poverty agenda in a period of accelerated decolonization. The official history of the World Bank puts it in the following way: “Robert McNamara shaped the Bank as no one before him… The Bank that McNamara left in 1981 was completely transformed from the institution he had entered thirteen years earlier. It was a much larger organisation, and much more complex.”Footnote ⁵⁴ What did this expansion and complexity mean? Did it reflect the strategy of the Bank to deal with the problems of postcolonial states? Did the poverty agenda help operationalize a neo-colonial agenda? The leadership in IOs has played an important role in other organizations such as UNHCR. According to Betts, leadership “mattered for defining the direction of the organisation’s mandate.”Footnote ⁵⁵ The fact that the role of leadership is a significant factor can be seen from the targeting of WHO Director-General Tedros Adhanom Ghebreyesus by the Trump administration during the Covid 19 pandemic followed by a call for change in the direction and functioning of the organization. In reality, the leadership was impeded by “limitations in the mandate” and “its chronic underfunding, with 80 per cent of its $2 billion annual budget dependent on earmarked contributions, which undermines its [i.e., WHO’s] independence and capacity to deliver on its mandate.”Footnote ⁵⁶ In sum, a critical assessment of leadership of IOs is important in sustaining the view that these serve interests of powerful states.

Fourth, critical approaches should review staff recruitment policies and everyday practices of an IO. The kind of staff that is hired, its class, gender, geographical, and disciplinary dimensions, has an important bearing on organizational culture with implications for IO policies and practices. Thus, for example, it is important to consider the profile of experts working in the World Bank and explore how far the dominance of economists has a bearing on the fact that it has not taken international human rights law seriously.Footnote ⁵⁷ What role have anthropologists and sociologists played in the World Bank? What impact have they had on organizational culture? Did the generation of interdisciplinary knowledge help internalize the gender and green critiques? There are a range of other issues as well. How does the socialization and everyday work of the staff contribute to the effectiveness of an IO? How far does the fact that international civil servants are insulated from the influence of individual member states help in maintaining the autonomy of an IO? For instance, it has been said that there is “substantial evidence that World Bank staff play an important role in facilitating implementation of investment projects.”Footnote ⁵⁸ In sum, what is the impact of organizational culture and staff on the working of IOs?

Fifth, there is a need to separately study the legal culture of IOs as it can determine whether certain policy initiatives and practices are seen as in accord with respective mandates. In his recent work Van den Meerssche documents how a “new normative architecture” proposed by Anne-Marie Leroy, the World Bank General Counsel from 2009 to 2016, shaped the understanding of the limits of the organization’s mandate and accountability.Footnote ⁵⁹ Leroy departed from the more traditional approach of predecessors like Ibrahim Shihata who insisted that the World Bank act within the constraints imposed by the mandate. Instead, she emphasized “a pragmatic ‘paradigm’ for legal practice.”Footnote ⁶⁰ It allowed Leroy to respond positively to the demands of the higher management leading to “the emergence of a new ‘culture’ of lawyering a flexible, dynamic, outcome-driven approach attuned to the productivities of uncertainty and the governmentality of risk.”Footnote ⁶¹ This orientation was used to limit the Bank’s accountability to international human rights law. She did this to restore “institutional harmony” when the World Bank Inspection Panel was seen as overstepping its role.Footnote ⁶²

Sixth, critical approaches should review the knowledge production function of IOs which has from the times of the League of Nations performed a crucial role in global governance; the League saw the production of information and analysis on mandate states as critical to their (colonial) administration.Footnote ⁶³ The production of knowledge about postcolonial nations is as significant today in devising and legitimizing certain models of development.Footnote ⁶⁴ For instance, the development strategies recommended by organizations such as the World Bank are based on the knowledge produced and its larger vision of development spelled out in publications such as The World Development Report.Footnote ⁶⁵ The impact of the ideas advanced in them comes through their wide dissemination and their eventual infiltration of policy-making forums in postcolonial nations. The “law and development” project of the World Bank is another example of how knowledge is used, in this case relying additionally on the work of economic historians like Douglass North, to ensure the creation of legal institutions necessary to promote free market economies.Footnote ⁶⁶ But to be sure not all production of knowledge by IOs feeds into the hegemonic enterprise. The UN, as the UN Secretary-General has observed, is “a source of reliable data and evidence, providing public and verified information to help the world understand risks and opportunities.”Footnote ⁶⁷ There are also initiatives underway for “better linking of knowledge centres across the United Nations system, including in its specialised agencies.”Footnote ⁶⁸ Such efforts need to be evaluated from the perspective of weak groups and nations.

Seventh, critical theories should devote close attention to IO–NGO–civil society relations. The UN Secretary-General has stated that “what is most needed” at present is for the UN system “directly to include civil society in their work across all the pillars of our activities.”Footnote ⁶⁹ He has called on “all United Nations entities…to establish a dedicated focal point for civil society, if they have not already done so.”Footnote ⁷⁰ Underlying this understanding are the all-affected and all-subjected principles that stress the need to give voice to all those impacted by global rules, decisions, and practices and help address democratic deficit in IOs.Footnote ⁷¹ At the same time there is a need to be alert to the growing presence and influence of corporates in IOs to suggest ways in which to limit their impact. Thus, for example, WHO has framed rules to limit the influence of transnational corporations in the making of its policies.Footnote ⁷² Finally, in instances when IOs accept the viewpoint of civil society, such as the World Bank’s accommodation of its human rights and environment critiques, it is important to evaluate whether it is real and substantial.

Reform of IOs

It can be said that despite the serious and legitimate concerns expressed by critical approaches – which need to be further explored through addressing the neglected dimensions of external and internal critiques – contemporary IOs have a dual character. Even as IOs help sustain the hegemony of powerful states these also promote the common good, each IO to a different degree, through institutionalizing progressive international cooperation. If that were not the case weak nations would not have remained members of IOs or expressed concern today that the liberal international order is being dismantled. In other words, there is acknowledgment that a global order in which IOs mediate the relationship between powerful and weak states on the basis of agreed rules and established channels for communication is better than a system in which the relationship between these group of states is the direct subject of power relations. The concern of weak nations is that among other things the mandate and rules that control the functioning of IOs, especially key IOs (or their organs), favor strong states constraining among other things their policy space, limiting the possibility of promoting the welfare of their peoples.Footnote ⁷³ The matter is complicated by the emergence of a transnational capitalist class which aligns the interests of elites of key Global South and Global North nations.Footnote ⁷⁴ This development prevents important Global South nations from actively campaigning for reform of key IOs through a global coalitional strategy, other than to seek changes that enhance their individual influence in the global order. It is this complex situation which explains why IOs are simultaneously the subject of sanguine mainstream functionalist and liberal views and questioning critical approaches. To put it differently, while IOs have the potential to actively promote the global common good through institutionalized international cooperation, and some gains do accrue to weak nations, the promise of a just global order remains largely unfulfilled as these submit to the imperatives of sustaining a global capitalist order.Footnote ⁷⁵

But given the fact that some advantages do accrue to weak nations the idea of reform of IOs is worth pursuing so as to enhance opportunities for further gains. It could of course be argued that since IOs are primarily tools of dominance and exploitation any effort at reform will only go to legitimize them. Such a view overlooks three considerations: First, since the proposals for reform simultaneously represent a critique of the mandate, structures, and functioning of existing IOs these can help disseminate the reasons for dissatisfaction. Second, as long as the direction of proposed reforms is part of a larger vision for creating a more equitable global order such initiatives do not necessarily go to legitimize individual IOs or the global organizational order. Third, the reform project could in the face of resistance from powerful states propel the creation of new IOs that serve the interests of weak nations. In the past weak nations established organizations like UNCTAD and UNIDO for this purpose.

The more important question perhaps is whether in the present state of international relations there is less likelihood of effective collective strategies being put together by weak nations. The fact that key Global South nations are members of G-20 – and the non-aligned movement and G-77 are no longer as effective – would appear to reduce the possibility of building a coalition of weak states to bring about reform of IOs. On the other hand, we have seen the creation of a new platform and multiple organizations by BRICS nations. These contrasting developments suggest competition and collaboration between key nations of the Global North and Global South that does not eliminate the possibility of and space for reform of existing IOs. The problem with the standpoint of organizational nihilism is that it leaves the field free for dominant social forces and actors to pursue their hegemonic enterprise. It discounts the fact that sustained critique and political mobilization through a coalition of states, and global civil society, even if at times sans some key states of the Global South can help bring about changes that advantage weak nations and groups in however small ways. It must be remembered that “while weak states are often profoundly disadvantaged in the global system, they have more power than is commonly assumed, and a wide variety of strategies for exercising that power.”Footnote ⁷⁶ The latter range from linkage making to the act of withdrawal.

However, if IO reform is to be pursued several steps need to be taken by CAIL to create a facilitating environment.

First, there is a need to decolonize the pedagogy and study of IOs. It is crucial to expose and disseminate the role IOs play in sustaining a hegemonic global order. Such interventions must be accompanied by a critique of MIILS for ignoring the key role of ideology, power, and interests in the functioning of IOs. Likewise, attention must be drawn to the limitations of the functionalist and liberal approaches. A sustained case has to be made out for studying IOs from class, gender, race, and intersectional standpoints.

Second, when possible critical scholars should use official platforms to propose reforms in relevant IOs. For example, many leading TWAIL scholars have served or are serving as UN Special Rapporteurs on different human rights themes. These include Tendayi Achiume, Michael Fakhri, Obiora Okafor, and Balakrishnan Rajagopal. The position of Special Rapporteurs allows the authorized gathering and dissemination of important information and analysis which challenges dominant accounts and visions of the global order. It equally creates opportunities to advance proposals for reform of IOs in concerned areas even if these be modest in nature.

Third, critical approaches should assess measures taken by IOs to accommodate critiques, including in some instances the creation of new processes and mechanisms to address problems raised by academia and civil society critics.Footnote ⁷⁷ Thus, for example, the World Bank created the World Bank Inspection Panel to deal with concerns of project-affected persons whose plight was raised by social movements.Footnote ⁷⁸ Its design and functioning should be appraised so as to identify gaps and weaknesses in functioning.

Finally, critical approaches should advance detailed proposals for reform of IOs and call for the creation of new organizations if these can promote the interests of weak states and groups. For instance, a new IO is needed for global digital regulation as the current regime constituted by national and regional regimes and self-regulation of digital corporations cannot effectively protect the digital rights of individuals and weak states. Equally, critical approaches should propose designs and structures that can promote digital equity and justice.

Concluding Remarks: The Value of an Integrated Approach

In order to be effective, the appraisal of IOs should not simply be an extension of a critique of the global order. The specificities of the world of IOs, their mandates, structures, and functioning, need to be the basis on which any assessment must be advanced. What are called for are integrated critical studies that combine external and internal evaluation of individual organizations and institutional complexes to map and illuminate over time the role inter alia of the mandate and its interpretations, design, leadership, and culture in sustaining the domination of powerful states resulting in troubling outcomes. Such detailed analysis can help assign appropriate significance to formal and informal elements and processes, underscoring that the demand for structural reform should be accompanied by suggested changes in the everyday practices and culture of an organization or organization complex. In other words, an integrated approach can capture the interaction and dynamics between the formal and non-formal elements to help identify multiple spaces for intervention and reform. It can thus help frame appropriate initiatives to realize the interests of weak states and groups.

Introduction

The law of international organizations is stuck in a rut. The legal framework governing the operation of international organizations developed in the late nineteenth and early twentieth century has not been changed since. Perhaps it was suitable once upon a time, for the world circa 1900, but whatever suitability it may once have had has long disappeared from view.Footnote ¹

The outdated nature of the legal framework, one might be tempted to think, is little more than a theoretical academic conceit. After all, international organizations continue to exist; they continue to multiply; they function more or less as they have done for over a century; and the world would decidedly be worse off without them. Indeed, states queue up to join them: no sooner has a state achieved independence than it wants to join the United Nations. No sooner has a European state achieved a certain level of economic development than it wants to join the European Union, as doing so is the smart thing to do (and withdrawing is economic suicide, as the UK is finding out). And even the stable genius that is Donald Trump, who once spent some time tweeting from the White House, saw fit, his reputation as gravedigger of international law and multilateralism notwithstanding, to have the US join international organizations. So what, then, if the theoretical framework is outdated?

And yet, there are practical ramifications – the theoretical immaturity has a ‘spill-over’ effect (pun intended) into the practical life of international organizations and, what is more, into our everyday lives. This is most prominently visible when it comes to issues of control: international organizations operate without much political control, and without much judicial control; a point made with some regularity in the literature.Footnote ² Hence, these highly important political actors – the institutions of global governance – can almost by definition do as they please in ways that are difficult to reconcile with basic ideas about democratic decision-making, the accountability of public power, or the cherished Rule of Law.

As a result, it should come as no surprise that many have proclaimed that the law ought to change, so as to facilitate the control over international organizations, especially perhaps when these are exercising public power. Neither is it very surprising that inspiration for the rejuvenation of international organizations is often looked for in the insights of neighbouring disciplines, in particular the discipline of International Relations (IR). And yet, much of this barks up the wrong tree. Mainstream IR, whether neo-realist or liberal-institutionalist, at its best can and does offer a deeper insight into political processes and the uses and limits of particular concepts; think only of some of the work of Robert Keohane.Footnote ³ But it often does so at the price of specific legal thought. So as a way to overcome problems of control, IR does not have all that much to offer, really, in much the same way that the brain surgeon is unlikely to find much help in the work of the surgeon specialized in knees. They may both occupy the ‘same conceptual space’, as Slaughter once delightfully yet misleadingly called it – but do not have all that much to teach each other.Footnote ⁴

The call for inter-disciplinarity, which I was asked to address, makes sense in the abstract but is not without pitfalls. In what follows, I will explain what the problem is with international organizations law (in the section Functionalism’s Limits), where and how the formation of theory should and could improve, and under what conditions which forms of inter-disciplinarity may be of assistance in arriving at a persuasive legal theory of international organizations (in the section On State-centrism and Inter-disciplinarity). In doing so, I depart from the less wide-ranging but excellent recent study by Gasbarri,Footnote ⁵ and will sketch my own intuitions about how to come to a proper understanding of international organizations law (in the section Towards a Supra-Functionalist Alternative). The Conclusion contains some final remarks.

Functionalism’s Limits

The theory of international organizations law was effectively put in place about a century ago, after in particular Paul Reinsch and Francis Sayre had published their influential works.Footnote ⁶ Reinsch laid down the broad contours: under functionalism, as it came to be known, international organizations perform tasks assigned to them by their member states. These tasks are typically a-political, technical in nature (administrative, in today’s language), cost member states little in terms of either loss of sovereignty or financial contributions, and yet, if all relevant sectors of social life are organized this way, world peace will be around the corner. The overwhelming functionalist sentiment is that through inter-state cooperation, swords can be turned into ploughshares.Footnote ⁷ To this Reinschian and still very recognizable basis, Sayre further added the idea that all forms of more than incidental inter-state cooperation, no matter their precise goal, ought to be seen as international organizations. This makes it plausible for the discipline to treat wide-ranging entities such as the World Bank and the European University Institute, or the World Health Organization, the North Atlantic Treaty Organization, and the International Jute Study Group, as species of the same genus.

Functionalism’s main strength is, no doubt, its normative appeal; as an explanatory theory, it has some traction – though not much, really. It can explain why Liechtenstein was refused admission to the League of Nations: not having an army of its own, Liechtenstein was considered unable to contribute to the League’s function of maintaining peace and security. It can help explain why international organizations can boast certain powers (in order to facilitate their functioning) and it can explain why, as a general matter, international organizations enjoy privileges and immunities (again, in order to facilitate their functioning). But it is unable to explain why some organizations enjoy higher levels of immunities than others. And it cannot explain why some enjoy broader powers than others, or why some allow any aspirant state to join – in a telling development, Liechtenstein was warmly welcomed into the United Nations in 1990, despite still lacking an army of its own and despite the UN still having the same basic function as the League.Footnote ⁸

Indeed, functionalism, for all its merits, has basic problems explaining some of the more visible or representative events happening to and within international organizations. None of these was more grim than the Rwandan genocide. During three months or so in 1994, some 800,000 Rwandans were slaughtered. The UN was timely informed; there could be no doubt that the matter fell squarely within the tasks of the UN; the death toll was exceptionally high; and yet the UN stood by idly, with no one on the Security Council wishing to even utter the word ‘genocide’ for fear of unleashing legal ramifications.Footnote ⁹ Functionalism is singularly useless here as an explanation: if ever there was something happening that would warrant UN action, this was it. And yet, nothing much happened. The most plausible explanation available in the literature is that while important states were rather lukewarm to begin with, neither did the UN itself (its secretariat, its department of peacekeeping operations) display much enthusiasm. This was attributed to a certain ‘metal fatigue’: having been shamed not long before in Somalia and having a difficult situation in the former Yugoslavia to contend with, there was just not enough interest or animus to address the Rwandan genocide.Footnote ¹⁰

Functionalism is also unable to explain why, a few years later, the Director-General of the Organization for the Prohibition of Chemical Weapons (OPCW), Mr Bustani, was forced out of office. Bustani had been neither lazy nor corrupt, and in fact had just been re-elected for a second term as Director-General when the US started a campaign against him.Footnote ¹¹ It is generally rumoured that the campaign was the result of Bustani proposing surprise inspections of chemical facilities not just in countries in the Middle East or Eastern Europe, but also in the US. This apparently rubbed US politicians the wrong way. A possible second explanation, sometimes whispered, is that Bustani was about to bring Iraq into the regimeFootnote ¹² – and if so, this would have made it so much harder to claim that Iraq was holding weapons of mass destruction, which could justify an invasion two years later. Both accounts suggest an organization (and organizational leadership) functioning very well, doing exactly what it was assigned to do. And yet, Bustani was ousted, in a manner that baffles functionalist theory: surely, one should not be ousted for effective functioning?

And functionalism would have a hard time explaining the US’ volte face with respect to the Universal Postal Union (UPU). In 2018, the US announced its withdrawal from this classic international organization, having realized that the postal rates set by the UPU, the ‘terminal dues’, worked much more favourably for a country like China than for the US. In response, the UPU organized an extraordinary conference, adapted its terminal dues, and did so to the satisfaction of the US, which could happily announce not to withdraw after all. It is part of the function of the UPU to set terminal dues; yet the precise distribution thereof, and consequent allocation of costs and benefits, remains out of functionalism’s reach.

These three anecdotes all suggest that functionalism is insufficient. A more plausible explanation of the UN’s indolence at the time of the Rwandan genocide taps into organizational sociology; the ousting of Bustani owes considerably more to naked power politics than it does to any functionalist concerns; and the UPU episode suggests that a perspective informed by institutional economics or political economy may be very welcome. These events all suggest that insights from neighbouring disciplines may help to understand them. More generally, it has been established that withdrawal, expulsion, or suspension of member states rarely is based on functionalist considerations alone. Claims concerning these matters will be dressed up in functionalist language (and sometimes not even that: surely, Zimbabwe’s dismal human rights record has fairly little bearing on its capacity to contribute to the functioning of the Commonwealth), but usually owe next to nothing to concerns about the organization’s functioning.Footnote ¹³

Yet, the stories also suggest that, in all cases, the law played an important role (not necessarily benign) in structuring debates and discussions, and even in offering alternatives. In the Rwandan genocide, much energy went in to avoiding the term ‘genocide’, for fear that it would activate a legal duty to prevent and punish, under the terms of the Genocide Convention. In addition, it has been suggested that legal responsibility might rest on the UN for failing to perform in accordance with its mandate.Footnote ¹⁴ In the Bustani affair, legal procedures were required (and somewhat manipulated perhaps) to create the appearance of respectability, and Mr Bustani sought and found relief with the ILO Administrative Tribunal, which held that his dismissal had taken place unlawfully and ordered compensation. And in the UPU saga, one set of legal rules was replaced by a different set of legal rules, following established legal procedure. What is more, none of the episodes can be properly understood without taking into account the structuring role of the law: legal procedures channel the discussion, help decide which terms are considered acceptable, and help to create path dependencies. Any attempt to explain these incidents in purely legal functionalist terms is bound to fail; but conversely, any attempt to explain these matters by ignoring the role of legal rules and procedures is likewise bound to fail.

On State-Centrism and Inter-disciplinarity

The anecdotes listed earlier, anecdotal as they may be, suggest two things of pivotal academic relevance. The first of these is the need to move beyond state-centrism. It is a remarkable and sadly ironic feature of much scholarship on international affairs, world politics, and global governance that it still tends to be highly state-centric: states are considered to be the central actors, and putative explanations are typically cast in terms of the interests of states. This is downright deceptive: states are conduits and have to be because this is how the international legal machinery is organized, but states rarely have interests of their own, beyond the ubiquitous and circular idea of the raison d’état. Instead, behind states there are the interests of groups and persons within the state.Footnote ¹⁵ Governments and politicians may wish to be re-elected; companies may wish to make a profit; individuals may wish to have opportunities, be protected against each other, or be free from unwarranted controls; and civil society organizations may wish to push a normative agenda. All these can be said to have interests which may or may not explain much, but states themselves, in isolation from these interest groups (nomen est omen…), have few interests of their own beyond perhaps sheer survival.Footnote ¹⁶

The most obvious reason why states are given such a central role is epistemological in nature and has little to do with their actual relevance. States are few in number (some 200 or so, worldwide) and share a bunch of similar features, so they are extremely suitable for theory-building. The result is that much theorizing, by lawyers and social scientists alike, takes place in terms of state interests (and within international organizations in terms of member state preferences, blissfully ignoring possible institutional autonomy), placing the state as the central unit – never mind that the subsequent analysis does not always elucidate what actually goes on in the world.

The state-centrism is taken to a further extreme when analysts start to count attitudes towards multilateralism or international law as meaningful in their own right, as in claims that ‘state X is against multilateral institutions’ or ‘state X is the gravedigger of international law’.Footnote ¹⁷ Dubious as it is to think of states as having interests of their own to begin with, it is even less persuasive to think (beyond broad outlines) of states as having a position on international law in general. Surely, no state would decline the status of statehood, awarded by international law, or voluntarily forfeit the right of self-defence, a right that only makes sense (as far as states are concerned) under international law. States will not be for or against international law; they will, instead, be for or against particular sets of rules or regimes. And they will be for or against particular regimes depending on the desires, wishes, and interests of influential domestic factions.

The second lesson to be drawn from the earlier discussion is the lesson that inter-disciplinarity is needed, but much depends on how this is realized. What is clear is that individual scholars can learn from those working in different disciplines, and this, of course, makes eminent sense, and has made eminent sense from the very first days of academic specialization. Academics may think (and have to think) in little boxes, but the real world (however defined or conceptualized) cannot be expected to respect disciplinary boundaries. Clearly, being familiar with concepts, methods, and techniques, and borrowing from insights prevailing in other disciplines, can be highly beneficial. There are examples of international lawyers doing so fruitfully: think of the historically informed work of Martti Koskenniemi,Footnote ¹⁸ or the way Eyal Benvenisti sometimes weaves insights from economics into some of his legal work.Footnote ¹⁹ Likewise, some scholars active in IR make good use of jurisprudential insights and international legal understandings, perhaps none more so than Friedrich KratochwilFootnote ²⁰ and Nicholas Onuf.Footnote ²¹ And some are formally trained in several disciplines, integrating insights from the diversity of their backgrounds into their work.Footnote ²²

This need not result in formal cooperation between representatives from different disciplines, however: such formal collaborations are usually not very insightful, and often amount to the scholar from one discipline adopting methods and insights from the other.Footnote ²³ It is not necessarily the case that the results are unhelpful: for instance, lawyer Kenneth Abbott and IR scholar Duncan Snidal have done some useful work together, with Abbott adding more than just a lawyer’s sense of precision.

Yet, the example of Abbott and Snidal’s work also suggests that inter-disciplinary collaboration is best done (if at all) between scholars with similar sensibilities. The rationalist IR scholar and the law and economics-oriented lawyer speak much the same language; they share the same working assumptions about rationality, profit maximization, the relevance of market analogies perhaps, and thus can fruitfully communicate. Much the same applies to the critical legal scholar and the constructivist IR scholar: both will have an innate understanding of the role and relevance of language in the construction of society, the relevance of tropes and biases, and the relevance of making legal claims. But collaboration between a critical legal scholar and a rationalist IR scholar is highly unlikely – their assumptions do not match, to the point where even bare communication may be extremely difficult. Likewise, the realist IR scholar or historian can only communicate with the most self-loathing lawyer: those who feel that law is by definition epiphenomenal cannot realistically communicate, let alone collaborate, with those for whom law is something relevant, however ephemeral or ineffective it may be perhaps.

It is also worth pointing out that it is perfectly respectable (and perhaps preferable) to be eclectic in terms of theory and method and discipline.Footnote ²⁴ As a point of departure, the established methodologies in most academic disciplines can generate useful results (leaving poor scholarship aside, but this too is not bound to any particular approach). A couple of caveats are in place, however. First, it seems that in the more ‘scientific’ branches of international law scholarship (and by extension international organizations law scholarship) generating hypotheses is far more popular than actually testing them. This is understandable: generating a hypothesis, whether of the critical or the rationalist variety, is relatively easy. One needs a few facts, an established method, et voilà, a new hypothesis is born. In an industry which places a premium on output, visibility, and whatever is understood by impact, one can see the temptation.Footnote ²⁵ The clever hypothesis-generator can this way easily churn out a dozen or so articles every year, and given that hypotheses can generate attention (more so than verification tends to do), heFootnote ²⁶ can also end up being among the most cited scholars, without ever doing much research, properly speaking, whether empirical, doctrinal, or historical. This is particularly endemic in the law and economics tradition but is not only visible in those circles alone.

A further caveat harks back to the earlier point about eclecticism. All methodologies, it would seem, have their blind spots. Viewing states as profit maximizers tends to block from the view the relevance of non-state actors, as well as of such concepts as altruism; viewing actors as altruists, by contrast, tends to obscure the role of power. Focusing on power as formal authority tends to hide informal power exercises; et cetera. Regardless of whether a single truth can even exist, it seems rather obvious that the same thing can look differently to different people. The theologian may view a church as a place of worship; the sociologist as a site of expression, while the architecture historian may entertain yet a different view.Footnote ²⁷ These need not be mutually exclusive, but can well be complementary; accordingly, it is folly to ignore what those in other traditions are doing.

And perhaps the most important practical caveat is to be reminded that inter-disciplinarity is a two-way street. Since the late 1980s and early 1990s, when AbbottFootnote ²⁸ and SlaughterFootnote ²⁹ started to endorse collaboration between IR scholars and international lawyers, it is fair to say that international lawyers have tried hard to familiarize themselves with IR scholarship and IR scholars. International lawyers have made an effort, and have often incorporated insights gained from the study of IR. But it is also fair to say that the love has remained unrequited. With the exception of some work in the constructivist IR tradition, IR scholars have spurned the advances of international lawyers – somehow the IR practitioners seem to think that a basic understanding of the law is a luxury, a bit like getting the topography of a state right.Footnote ³⁰ Sometimes this is rather innocent: it may not be accurate to suggest the Universal Declaration on Human Rights has been ‘ratified’ (instead of adopted), but nothing much usually rides on this. But sometimes it gets considerably more serious, so much so as to jeopardize their insights.

One recent example concerns an ambitious attempt to understand international organizations, positing that these creatures are often the playball between universalist and parochialist sentiments, or function versus community.Footnote ³¹ Plausible as this is, it would have immensely strengthened the approach if the authors had realized that for some hundred years or so, this very tension has been managed by what lawyers refer to as the ‘implied powers’ doctrine. And the implied powers doctrine is by no means an esoteric doctrine, but is the widely acknowledged centrepiece of international organizations law, discussed in even the most introductory of textbooks.Footnote ³² This then raises an awkward question: why do IR scholars not consult even those most introductory of textbooks? IR scholars working on economic issues would as a matter of course open an introduction to economics to learn about Ricardo’s terms of trade or the Stolper–Samuelson theorem, but when it comes to the law, doing so is apparently considered unnecessary.

This can only be based on a fundamental misunderstanding of the relevance of law, a misunderstanding that most likely can be traced to the all-too-simplistic (and rather surreal) realist IR tradition. For those who view international law as merely engaged with constraining actors from behaving in a certain manner, it must indeed seem that international law is mostly useless. But here lies the rub: any half-way sophisticated understanding of the law will realize that constraining actors is but a small part of what the law aims to do. In much the same way as in domestic societies law is more than just crime and (sometimesFootnote ³³) punishment, so too is international law far more about facilitating the interactions amongst autonomous agents (call them states, if you will), and about both enabling and possibly controlling the exercise of public power. Societies cannot function without private law (contract, property, tort, family law); societies cannot function without public law (constitutional and administrative), and much the same applies to international society, regardless of whether one thinks it is deserving of the label society or needs to be prefaced by adjectives such as anarchical.Footnote ³⁴

Towards a Supra-Functionalist Alternative

International organizations lawyers have been seduced, perhaps under the influence of Sayre writing a century ago, to view international organizations as manifestations of ‘the international’: international organizations give effect to cooperation between states, and since cooperation is by definition considered a good thing (the alternative seemingly being the Hobbesian world of all against all where life is ‘nasty, brutish, and short’), it follows that international organizations are generally considered as good things – for who could possibly argue with the promise of turning swords into ploughshares?

This view painfully ignores that international organizations are not merely manifestations of the ‘international’ but also ‘organizations’. There must be a reason why the organizational form is preferred over alternative possibilities of establishing cooperation (think of the treaty, the congress, the informal coalition, etc.). The most obvious reason, historically defensible moreover, is that the organizational form is better suited than alternatives if two imperatives need to be met in tandem: the combination of widespread participation and permanent management. Put bluntly: the COVID crisis would have worked out rather differently if the global health regime had consisted merely of a single treaty between a few handfuls of states, with the parties meeting once a year for two days. Instead, global health requires permanent management and widespread participation: it is surely no coincidence that already in the mid-nineteenth century the organizational form was chosen to protect the West against infectious diseases originating elsewhere. Much the same applies to customs classifications, or the regulation of postal traffic – this cannot properly be done on an incidental basis or with only a few handfuls of states.

As organizations, international organizations (like all organizations) do essentially three things.Footnote ³⁵ First, they regulate. The UPU may set terminal dues. The International Telecommunication Union (ITU) distributes radio frequencies (and much besides). The World Meteorological Organization (WMO) figures out when a storm is properly to be called a storm, and the International Civil Aviation Organization (ICAO) harmonizes safety standards.Footnote ³⁶

Second, as organizations (like all organizations), international organizations monitor and manage. They monitor compliance with the standards they have established but also engage in further monitoring activities: the International Organization for Migration does not just set standards and offer best practices but also studies migration patterns and collects data.Footnote ³⁷ The WMO does not just regulate what constitutes a typhoon but also follows weather patterns, tries to predict what will happen next, and issue warnings in case of bad weather, to the point of the WMO being one of the driving forces behind the Intergovernmental Panel on Climate Change.Footnote ³⁸

And like all organizations, international organizations allocate costs and benefits. The terminal dues set by the UPU benefit some more than others; the distribution of radio frequencies benefits some more than others, and much the same applies to declarations of a Public Health Emergency of International Concern by the WHO or a declaration of airworthiness by the ICAO. Distributing radio frequencies or declaring a public health emergency are activities with an inevitable technical, expertise-based component: there is a reason why the ITU tends to be directed by engineers or natural scientists, and why much of the staff at WHO is medically trained. But at the same time, these tasks are inherently political: decisions will involve winners and losers.

It follows that there might be merit in not (only) viewing international organizations law through functionalist lenses but also studying how this body of rules helps to structure patterns of winners and losers; which institutional biases are inherent in institutions and carved in legal texts, and how those legal texts come about. Tracking the role of law in the distribution of costs and benefits by international organizations manifests a decidedly novel approach to the law of international organizations, as does the study of these processes in terms of their effects not on member states alone but on other actors as well, in particular effects on the private sector. What seems clear is that the law is not merely the final outcome of political processes, as it is so often assumed to be, but it in turn also helps channel and structure those same political processes. Political processes are embedded in legal rules – it could not be otherwise. And those legal rules therewith are not merely innocent technical devices, but help to shape political outcomes. If even war, so often seen as the antithesis of law, is recognized as a highly legally regulated affair,Footnote ³⁹ the same applies to everyday political processes.

The insight has serious implications for the law of international organizations. It entails that the law of international organizations can no longer be plausibly viewed as a set of rules and doctrines aiming to facilitate the effective functioning of international organizations in a setting where those organizations are pitted against their member states – this, one might conclude, is sheer ideology.Footnote ⁴⁰ The relevant struggle is not merely the struggle between the principals and their agent, the member states and their organization; it also pits member states against each other, organizations against each other, and, most of all, involves interests within those member states.

To provide one example among many possible examples: the outbreak of the swine flu and the WHO’s response thereto owed fairly little to any conflict between the WHO and its collective member states; nor did it reflect any conflict among member states. Instead, it turned out that those whose interests were affected were mostly pharmaceutical companies. Those whose vaccines were marketable made a handsome profit; those who were less well-prepared did not.Footnote ⁴¹

Either way, what mattered eventually (and these are the points on which the WHO received considerable flak afterwards) was the combination of substantive decision-making and the timing thereof. Had the WHO not declared a public health emergency, its (in-)activity would not have had much impact on pharmaceutical companies. But it did, and its timing became subjected to predictable criticism: the pharmaceutical companies whose vaccines were not yet ready complained that the decision had possibly been taken prematurely. Others retorted, not unreasonably, that postponing the decision could have sacrificed human lives. Both positions are plausible enough, and decision-making of this kind often amounts to political action of the ‘damned if you do, and damned if you don’t’ variety. The best one can hope for is a reasonable exercise of discretion and judgement by the decision-makers – what Aristotle already recognized as phronesis.Footnote ⁴²

Noteworthy in all this is that the law never is an innocent bystander. The WHO’s decision-making is embedded in legal rules, granting considerable powers to its director-general. The declaration has obvious legal effects: once a public health emergency is declared, national governments can take measures they may not take otherwise; and citizens may vie for vaccines while they otherwise might be reluctant or simply indolent. Critics too have little choice but to voice their discontent in legal terms. They cannot simply claim that the WHO got it wrong because their companies or industries were badly affected; instead, their claims have to be presented in legal terms, and follow legal procedures to be heard.Footnote ⁴³

All this suggests, as noted earlier, that inter-disciplinary scholarship can be very useful. The study of international organizations law (and the understanding of international organizations) can be enriched by taking on board insights from neighbouring and even not so neighbouring disciplines. Examples abound. International organizations are generally seen as playing an economic role: indeed, there is an entire branch of economics studying the roles and effects of institutions, under the label ‘institutional economics’.Footnote ⁴⁴ This too is likely to enhance the lawyer’s understanding. By the same token, there is scholarship studying patterns of administration, whether public administration or business administration: in essence, while there are differences between the government agency and the private company, there are also similarities, and both are institutions of some sort. Consequently, the student of international organizations may well derive insights from scholars of both public administration and business administration and related sub-disciplines such as organizational sociology. It may be relevant, e.g., that organization scholars have developed the idea that some organizations are composed of other organizations (i.e., meta-organizationsFootnote ⁴⁵), something that may well apply to international organizations: meta-organizations of states. If so, the dynamics are bound to be different in some respect than with organizations composed solely of individuals: organizations have constituencies in ways that individuals do not, and for instance the idea of states as conduits may well result from this realization: states have constituencies, after all, while individuals do not – at least not in the same way. Public administration scholars and organization sociologists have also long studied patterns of distributing and sharing accountability. The problem of the ‘many hands’, e.g., has long informed these branches of scholarship,Footnote ⁴⁶ as have ideas about the leaking away of responsibility and accountability as related to the outsourcing of authority.Footnote ⁴⁷

Historians can tell us what went into the decision-making of international organizations on specific points or what role specific organizations (or even their organs) played in particular policy domains,Footnote ⁴⁸ or in politics at large.Footnote ⁴⁹ Intellectual history, additionally, can tell us about the underlying ideas, concepts, and assumptionsFootnote ⁵⁰ – and some good historical work contains instructive and informative elements of both.Footnote ⁵¹ Anthropologists and ethnographers can help us understand how organizational cultures, practices, and rituals affect the acts of participants and other stakeholders and of those organizations.Footnote ⁵²

Conclusion

If this chapter constitutes something of a manifesto, it seems fitting to offer not conclusions but rather final suggestions. Good academic work is work that has soul and is somehow connected to people of flesh and blood. That does not exclude analytical philosophy (quite the opposite), but it does, or should, limit the amounts of energy spent on trying to prove that Foucault was right, or that Latour is superior to Bourdieu or vice versa. Those are suitable topics for conversations over a glass of Armagnac on the Left Bank, but less interesting as scholarly ventures.

That is no slight on Foucault, or Latour, or Bourdieu. Instead, I hope to have suggested that a good international organizations lawyer takes careful note of the insights these scholars have to offer on, among other things, power, expertise, and social capital, as their insights can help us understand the topic of our study. But it should not derail into a race between them, or a competition, as is sometimes the case.Footnote ⁵³

If it is true that all theories and methods have their own blind spots, it follows (in much the same vein, really) that the best academic work is driven rarely by theory or by method but rather by curiosity. The point of academic work is not to show that the neo-realists are right, or that rational choice is methodologically superior – if only because much depends on the object of study and the research question. Those of us interested in the best interpretation of article 2, paragraph 7 of the UN Charter will not gain much from a law and economics approach, and neither will those of us interested in the accountability of the World Bank. But should we wish to know why some organizations have withdrawal clauses, then insights from economics may be helpful.Footnote ⁵⁴ In other words, the research question should influence the choice of theory and method, rather than the other way around.

Likewise, there is little point in trying desperately to achieve a paradigm shift. True paradigms are rare, especially in the social sciences and humanities, where they might be non-existent.Footnote ⁵⁵ Research funding agencies, themselves bureaucracies that should be studied as such, are keen on paradigm shifts, but that is largely a conceit drifted over from the natural sciences, and akin to the amateur football team dreaming of one day winning the Champions League. It is useful to set the bar high, but few of us will ever realize a paradigm shift – so this kind of language ought not to be taken overly seriously. A good academic study is one that tells us something we did not already know or makes us understand something we did not understand before. And as the discussion in this chapter will have made abundantly clear, there is no substitute for reading and studying widely and broadly.