On International Institutional Law, its Pedagogy and the Turn to Alternative Approaches

[Negar Mansouri is a PhD candidate in international law and research assistant at the Graduate Institute of International and Development Studies, Geneva, Switzerland. Photo: Mike Hollman, Untitled (2015)]

On October 2, the virtual seminar entitled ‘Contested Fundamentals of the Law of International Organizations’, organized jointly by Bocconi University and the interest group on international organizations of the European Society of International Law (ESIL) took place. The presentations touched upon some of the most persisting issues of international institutional law, many of which boil down to the familiar hurdles of compromising the functionalist existence of IOs-and corresponding normative frameworks- with the overreaching impact of IOs’ functioning.  At the end of the session,  Jan Klabbers joined for a keynote speech, in which he argued that it is time for the sub-discipline to break free from the limits of the functionalist approach to IOs and explore, amongst others, the supra-functional reach of IOs and the distributive effects of their functions, the dynamics of inter-relations amongst IOs, the issue framing by IOs as a matter of survival and power grab, and alternative conceptualizations of IOs, for example, as market makers (e.g. the International Telecommunication Union) or service providers (e.g. the International Organization for Migration).

Klabbers’ arguments in support of critical engagement with the IOs’ functioning goes beyond the  ‘Frankenstein problem’ of IOs, as abusing their conferred powers or violating the rights of third parties with immunity. He proposes to explore how IOs govern their issue areas beyond the question of formal powers (and accountability) and who the actual ‘winners and losers’ are. He also takes issue with the excessive focus on a fixed list of IOs in discussing issues of IOs’ law and encourages stronger attention less-explored technical organizations which make interesting cases for critically exploring IOs’ law.        

Klabbers’ words were taken by some speakers as, somehow, casting doubt on the continued relevance of the formalist approach to IOs which was the backbone of previous presentations and discussions. The question was posed: do functionalist and non-functionalist approaches to IOs exclude each other?

Similar confrontations can be seen in the literature.  The European Journal of International Law  (Volume 30, Issue 1) recently published a piece by Kristina Daugirdas on the role of international organizations in the formation of customary norms. She identities three conditions, under which the practice of IOs could be taken into account.  All three cases bounce back to member states’ explicit or implicit consent. Her second argument justifying IOs’ competence to contribute to customary norms through the notion of implied powers seems particularly contestable to me. (The notion is concerned whether member states might have implicitly agreed to activity x or y being carried out by an IO on the ground of necessity and assuming a competence for IOs to contribute to customary norms of international law based on the notion of implied powers does.) But that is not at stake here. What matters here is the ground upon which Klabbers has challenged the methodological core of this piece (and two other pieces in the same issue). He argues that ‘sources doctrine is all the better and more convincing when informed by its political background, and this, one senses, is not overwhelmingly present in their respective contributions’ (p. 282). A similar type of criticism can be seen in Samantha Besson’s review of Fernando Lusa Bordin’s award winning book The Analogy between States and International Organizations, published in the Issue 2 of this year’s EJIL. Besson contends that the book has not sufficiently addressed ‘the moral-political justification of the legal analogy between states and IOs’ (p. 773).

The current landscape of the literature on IOs somehow suggests that formalist analysis of IOs is not seen as sufficient anymore. Yet, writing on IOs from non-formalist or alternative approaches (e.g., interdisciplinary, critical or historical) is not easy either. Having experienced the hurdles of conducting alternative research (e.g., interdisciplinary, critical and historical) on IOs, I have, for some time, stepped outside the narrow scope of my enquiries and thought about the teaching of international institutional law, how my learning restricted my legal imagination and how curricula for IOs’ law courses could change for the better.

Revisiting the teaching of international institutional law: some practical recommendations

Teaching international institutional law only through the lens of formalism does not provide students with sufficient tools to creatively and critically engage with the study of IOs and their impact on ‘local’ and ‘global’ spaces. Back in 1999, B.S. Chimni questions the absence of critical reflection on IOs and their ideologies in the discipline, calling it a ‘key omission of international legal studies’ (p. 345) and not much has changed since then. For law students whose first encounter with the world of IOs is through their international institutional law courses, functionalism institutionalizes in their thinking so easily that it becomes an almost unconscious point of departure in their research. Klabbers has written extensively on limitations of functionalism and I do not intend to reproduce his views here. Just to make three examples of how pure formalistic approach could limit students’ legal imagination: 1) the theories of formal powers (conferred and implied) create the wrong assumptions that there is an actual line between official powers of IOs and ultra vires acts. Students assume that IOs constantly avoid (or can be instructed against) acting outside their functions as if this is a question of technicality and not power; 2) the theory of ‘implied powers’ are taught through the lens of legal interpretation and defendable on that ground, without highlighting the judicial policy of international courts in developing the concept and the instrumentality of the concept in taking away the power from ‘local’ and vesting it with the undemocratic ‘global’; 3) the pure functionalist approach creates neutral and utopian images of IOs; functions are seen as naturally leading to progress and IOs’ effective exercise of their mandates is naively put against classic consent-based international law. The idea of IOs as reproducing, reinforcing and legitimizing the systemic problems in both ‘local’ and ‘global’ spaces remains at the periphery of legal thinking about IOs.

None of these clashes with or discredits the formalist approach in teaching IOs’ law, which has the legitimate purpose of teaching students how to find the ‘law’. For students who move on to pursue a career in IOs or national delegations of their countries to IOs, having those tools are important. Yet, for others who seek to learn how to ‘think’ about IOs and their functioning in ‘global’ and ‘local’ rather than just ‘doing’ IOs’ law, learning about alternative approaches is essential. While, I do not have a systematic plan for designing a syllabus here, I have a few suggestions on the teaching of IOs’ law:

1. Concepts and methods of international institutional law should be taught along with the politics around and embedded within them; IOs’ powers from IR/PS perspective, mandate expansion, and supra-functionality in terms of distributive effects, amongst others, should all be included in the syllabi for international institutional law courses.
2. IOs’ theories should be thought in parallel with representative case studies and enough attention to the unique and continually changing conditions of IOs. IOs’ law courses could, for example, explore the conditions of less-known technical (e.g. ITU, ISO, Bureau International des Poids et Mesures) or commodity IOs (e.g. International Coffee Organization or International Tropical Timber Organization) whose work can provide good examples for interplays between science and law, and the politics embedded in both. For the same reason, the classic categorization of IOs based on their functions (economic, development, trade, commodity) must be abandoned.
3. Focusing excessively on few cases of IOs’ failure such as Srebrenica and Rwanda massacres, the Cholera case, peacekeepers’ sexual exploitation without situating them within broader structural problems-and how IOs reinforce them-does not provide students with sufficient tools to analyze institutions and their functioning in local and global spaces. Discussions on IOs’ role in globalizing capitalism, perpetuation of gender inequality, and their reinforcement of Euro-centrism, amongst other things, are vital parts of a good syllabus.
4. Some knowledge of sociology of international bureaucracies can provide students with important tools to analyze IOs’ functioning and the international law they make. IR scholars have been partly successful in incorporating insights from sociology into the study of IOs, mostly based on Weber’s analysis of bureaucracy. For instance, Barnett and Finnemore’s Rules for the World: International Organizations in Global Politics could make a good reading material.  The syllabus could also involve readings on anthropology of international civil service (e.g. Palaces of Hope: The Anthropology of Global Organizations) and critique of expertise, modernity, cosmopolitanism and political reasoning from Foucaultian perspective. 
5. Last but not least, a single course of international institutional law in international law programmes does not give teachers and students enough time and space for engaging with the galaxy of international institutions. Not only more courses should be envisaged for IOs’ law, but also more seminars and roundtables on interdisciplinary and critical approaches to IOs are needed.

The turn to alternative approaches in the study of IOs in international law and the question of self-reflectivity

The literature on IOs in international law has, for some time, embraced the broader outlook beyond the ‘applicable law’; many of the recent publications on IOs law discuss social conflicts embedded in institutionalized law making and the politics embedded in the normative language and functioning of IOs. Nevertheless, interdisciplinary, critical and historical literature on IOs in international law remains, on the one hand, limited in scope, quantity and reach, and on the other hand, inattentive to questions of methods, agendas and objectives.

Briefly, interdisciplinary approaches involve an active engagement with concepts, theories and methods of other disciplines (social sciences such as IR/PS, sociology, anthropology, etc.) to empirically study, for example, the autonomy of IOs, the space they have for direct participation in the formation of rules and mechanisms in their respective issue areas, the effectiveness of reforms, and their factual authority in supervision and implementation of such role, amongst other things. Critical approaches to international organizations in international law (the New Stream, Marxist approach, TWAIL, Feminist approach, etc.) challenge the utopian and uncritical portrayal of international bureaucracies and seek to understand how IOs and their outputs are associated with, and have contributed to, the hierarchy in both ‘local’ and ‘global’ spaces, the emergence of global capitalist networks, ongoing exploitation of the people of the South, and gender inequality, amongst others. While each promoting their unique sensibilities, all three approaches highlight the failures of international institutions against the background of their aspirational mandates and promises. Inspired by critical approaches, the historical examination of international institutions in international law should be seen as belonging to the broader project of the ‘turn to the history of international law’, to reread the history of these institutions, beyond mainstream assumptions, Eurocentric narratives, and toward micro, Marxist, feminist and subaltern and other marginalized histories.

Once we step out of our narrow research projects, many fundamental questions arise: what implications does the ‘institutional’ dimension have for alternative approaches to IOs in international law? Do we need to modify the concepts and methods? How much should we engage with normative theories of IOs? How ‘legal’ should the research be? Is there a difference of method between researching the intellectual history of concepts in international law and writing critical legal history of international institutions from an outward point of view-i.e., how their norms and standards shaped the ‘local’ and ‘global’? Also, how should we incorporate the histories of ‘local’ and ‘global’ into the history of institutions? How do we avoid generalization and black and white portrayal of IOs when writing critical histories?

To me, it seems that non-formalist literature on IOs in international law (interdisciplinary, critical, historical, etc.) has yet to have that moment of self-realization; that there might be something called alternative approaches to IOs in international law; that there is a need to discuss the question of methods, knowledge gaps, overarching agendas and objectives. Where is the space for reflection? Scholarly movements in international law have historically been channeled through international law journals, both generalist ones published by societies of international law and specialized ones. In IOs law, we have the International Organizations Law Review, which despite having greatly contributed to the sub-discipline, has yet to become a platform for systematic enquiry into the pedagogy, potentials and pitfalls of alternative approaches and research agendas. The EJIL has, over the years, published some brilliant pieces and it has recently issued another call for papers focused on the intellectual history of international institutional law. However, the need for self-reflectivity, epistemological and methodological enquiries into alternative approaches to IOs continues to persist.