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International Organizations and the Making of Modern Legal Histories

Published on January 10, 2019        Author: 

I associate Guy Sinclair’s To Reform the World: International Organizations and the Making of Modern State very strongly with its cover image, Kandinsky’s ‘Circles in a Circle’ (1923). Circles are privileged visual representations of the global, but they only became so at a moment when scientific innovation permitted the apprehension of the earth as a globe. This is a helpful reminder that our (global) vision is tied intimately to the perspective from which one sees. This concern with perspective is central to Sinclair’s work. At its core, the book explores the construction of a novel institutional and political site from which to survey, and thus act on, the world. In what follows in this post, I take perspective as a central thread for some diverse comments on the book: the perspectives which Sinclair opens up, and those we might explore in future. 

Seeing within and with law

There is currently an explosion of historical work probing the social, intellectual, institutional and technological shifts associated with twentieth-century transnational activism, international organization, and what has now come to be called ‘global governance’. Sinclair brings to this scholarship a distinctive focus on law. The question animating this book is a legal one, or at least reflects the stance of a modern public lawyer: how are we to make sense of the expansive activities undertaken by international organizations (IOs), given their parsimonious founding texts? Once the question is posed, however, Sinclair does not confine himself to answering it from a perspective internal to law (i.e., determining whether a given exercise of powers is valid in accordance with the applicable law at the time). Rather, he reformulates it into a broader, socio-legal question: How is it that the expansion of the powers of international organizations came to seem necessary and desirable despite lacking a clear textual justification?

Interestingly, although the book transcends the internal perspective, one valuable contribution of To Reform the World is the way it complicates the law itself. The book reveals legal advisers, the Permanent Court of International Justice and the International Court of Justice dealing not with a set corpus of principles and rules, but with a repertoire of avenues into thinking about powers: treaty interpretation and special rules applicable to texts analogized to constitutions; thresholds for evidence required to establish that a given situation is within express powers; notions of implied consent; the jurisgenerativity of practice (whether articulated as customary international law or as questions about where the inner workings of bureaucracy shade into law); and notions of emergency as a basis for exceptional, even extra-legal powers. These different avenues take legal analysis in different directions. The evolution of international organizations also complicates the relation between ‘law’ and a hinterland of institutional practice from which it emerges, in which it operates, and to which it is directed. Even taken on its own terms, the law here is rather unsettled — and arguably remains so. (On the intellectual challenges of integrating international organizations into a largely statist international legal order, see Fernando Lusa Bordin, The Analogy between States and International Organizations). Read the rest of this entry…

Filed under: EJIL Book Discussion
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