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Is International Institutional Law Transforming?

Published on August 19, 2015        Author: 

José Alvarez has written that ‘the majority of international lawyers and fellow travelers in international relations rarely see an IO, proposed or existing, that they do not like.’ (2006) 100 AJIL 324, 339-40. International lawyers like international organisations because they promise (or at the very least, propose) international solutions to global problems, whether those problems concern international peace and security or preventing the spread of disease (and these may sometimes be viewed as one and the same – think of the Security Council’s response to the Ebola crisis). International institutional law is designed to enable us to see the similarities in the structure and functioning of different international organisations – whatever their role and wherever they are geographically located.  The idea that all organisations fulfil a specific function or functions as set out in the constituent instrument, and that these functions determine the limits of the actions that an organisation can (or should) take, is well accepted.  However, in ‘The Transformation of International Organizations Law’ Jan Klabbers develops a point he has made previously:  that functionalism as a theory to explain how international organisations should behave has a ‘blindspot’ – this blindspot is its bias in favour of the organisation which means that it can be used to justify any of the organisation’s activities (p 10).  The question remains whether this blindspot is inherent in functionalism or rather a product of our innate desire to see international organisations as a solution rather than a problem.

In this article Klabbers tells us a story – a story not so much about the transformation of international institutional law, but about the origins and rise of functionalism and ultimately its inability to account for the relationship between an international organisation and third parties.  It is one of two articles written by Klabbers and published in EJIL in the last year examining the origins of functionalism as the dominant theory in international institutional law.  In his 2014 article Klabbers attributes ‘colonial inspirations’ to the beginnings of functionalism by concentrating principally on the work of Paul Reinsch.  In this second article, Klabbers revisits Reinsch’s work, but also examines the writings of another American scholar/practitioner, Francis Bowes Sayre, whose major work in the field, Experiments in International Administration, was published in 1919.

Leaving aside some of the very interesting steps in Klabbers’ reasoning, not least the examination of the WHO and Egypt Advisory Opinion, the essential pillars of this article are threefold.  First, that functionalism as a theory in international institutional law (as distinct from a political theory) can be traced to the work of scholars such as Reinsch and Sayre who wrote at a time when the major international unions were technical or specialised organisations, established to perform a specific function.  Secondly, that functionalism remained the dominant theory despite the fact that international organisations were no longer being ‘built around a function in any meaningful way’ (p 31).  Finally, functionalism as a legal theory revolves around a principal-agent relationship and while this is useful in explaining aspects of the relationship between an organisation and its member states (for example, membership and powers), it fails to deal with the effects of international organisations on third parties, starkly illustrated by the cholera outbreak in Haiti. Read the rest of this entry…