Alison Duxbury and Ian Johnstone: A Rejoinder

Delighted as I am to have received the insightful comments of Alison Duxbury and Ian Johnstone, I cannot write a very lengthy rejoinder, for the good reason that on most general matters, the three of us seem to be in broad agreement. In particular Johnstone and I are pretty much on the same page, it seems, our only quibble (if that is what it is) being about whether I go far enough in discussing the weaknesses of functionalism as principal-agent theory. Johnstone contends that I do not, and even with this I agree: functionalism is not even very good at discussing the relationship between international organizations and their member states, by and large because it refuses to acknowledge the political nature of this relationship. Functionalism aims to take the politics out of politics, and as usual, this affects its explanatory force. If the article focuses on other aspects of functionalism, it is because elsewhere I have made critical comments about such staples as the implied powers doctrine, the ultra vires doctrine, or the bias of functional necessity in the law on privileges and immunities, for instance in An Introduction to International Organizations Law (3^rd ed, 2015). Beyond this, both Johnstone and I signal a move to discursive accountability (the adjective is his; I wish I had thought of it) driven largely by reputational concerns, and his rendition hereof as a ‘looser form of functionalism’ may actually give functionalism more credit than I would give it – I am not so sure that the result can still qualify as a form of functionalism.

Duxbury and I are also broadly on the same page, but she does pose some explicit questions. First (her last question) is whether functionalism has actually transformed, and here the answer must be in the negative: the process of transformation is still ongoing, and will no doubt go on for a few more decades. It is a glacial process, not an overnight transition, partly because too many have vested interests in not discarding functionalism altogether, and that includes international organizations and their staff: they benefit tremendously from the bias inherent in the law. It also includes the member states of organizations generally, who can write off governmental responsibilities and use organizations for scapegoating purposes, tut-tutting every now and then about ‘mission creep’ but secretly happy to use organizations as instruments of what Foucault would call governmentality: for most member states, having entities such as the World Bank or the International Organization for Migration function without too much oversight is much preferable to strict governmental control. It also covers pretty much all academics working on international organizations law (myself included), partly because of the way those academics are trained, and partly because functionalism generates the promise of a better world – and that is a promise that is hard to ignore.

To the extent that the above also answers Duxbury’s second question (why did functionalism become dominant?), the most difficult to answer is her first question: why trace the origins of functionalism back to two fairly obscure US-based authors from the early 20^th century, rather than to later European writers such as, say, Schermers, or Bowett? And can I be certain that Reinsch and Sayre did influence their successors in quite the same measure that I think they did?

This is a tricky question, and I might not have an answer that would hold up in court, but there might be two fairly decent reasons for concentrating on Reinsch and Sayre. First, I did what most people (I guess) would do: I took later texts, and worked my way back through their footnotes. Thus, e.g., Bowett’s standard textbook, from which I was taught as an undergraduate student, refers to Reinsch, as does Inis Claude’s classic Swords into Plowshares. When reading Reinsch, moreover, it struck me that his work, published more than a century ago, looked very familiar – I wondered why this was the case, and concluded that he must have worked on the basis of similar premises as most of the later works that I had read.

From this, I went to my second step, which was to try and find other texts, preferably earlier, which could have inspired Reinsch, and found very little, other than the works mentioned in my article. These however, as the article highlights, were not quite as systematic as Reinsch’s work. Jellinek may have first launched the idea of function but did not do too much with it; Kazansky’s two articles in French, written around the turn of the century, somehow lack the depth of Reinsch’s work; Renault still largely lacked an institutional perspective, and other authors were either analyzing the substantive work of specific organizations or advocating the creation of international government or governance but without too much attention for the legal aspects.

So I ended up settling for Reinsch and initially saw Sayre simply as an early successor. It took me a while to figure out that Sayre’s contribution was no less important, precisely because he very overtly and explicitly broadens the notion of international organization so as to include well-nigh each and every form of cooperation between states. This, to my mind, provided one piece of the puzzling issue why it is that functionalism is usually seen to apply to each and every kind of organization, regardless of that organization’s functions, regardless also of its politics, it role, its structures, its mechanisms, and the contribution it can be said to make (however flimsily) to the global common good. Reinsch looked at a limited number of entities; a decade later Sayre looked predominantly at others, and treated them under the same heading.

So I ended up settling for Reinsch and Sayre, partly because of the ‘smoking guns’ that I found to exist in their works, partly also because it struck me as implausible that there would have been a century without serious thought before the likes of Schermers or Bowett or Seidl-Hohenveldern started to write: surely, if organizations can by and large be traced back to the 1860s (or even earlier), it defies credibility to posit that these were not subject to any theorizing, however implicit perhaps, for close to a century. What struck me – and still strikes me – as more credible is that precisely because of the paradigmatic force of functionalism, few realized that there actually was an underlying theory or where it came from. This is why the article refers to Thomas Kuhn’s highly restrictive view of what constitutes a paradigm. But Duxbury is correct in suggesting that I cannot, strictly speaking, demonstrate that later generations were influenced by Reinsch and Sayre; at best, I can make a circumstantial case. And she is right in reminding us of the curious gap of the interbellum, which saw many specialist works on individual organizations but spawned little general literature. Surely, this gap requires an explanation – but perhaps that is something for another occasion.