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The Future of International Law in an Authoritarian World

Published on June 3, 2019        Author: 
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In this short review essay, I would like to offer some thoughts on the future of international law in an increasingly authoritarian world. Even for a discipline which loves a crisis, these are perhaps challenging times. The liberal cosmopolitan project of global governance through international law and multilateral institutions has, at the very least, hit a bump in the road. There is a widespread sense that a change in direction is likely. It is a reasonable time to reflect on questions such as: is international law in trouble? How concerned should we be at attempts to revise the international system? And what might a more authoritarian version of international law look like?

In reflecting on the questions I’d like to offer my readings of three scholars I’ve recently found thought-provoking. These are personal reflections and interpretations, not an effort to capture every nuance of their work. Nonetheless, each has had an impact on my thinking.

  1. Shirley Scott, “The Decline of International Law as a Normative Ideal

In this piece, Scott contrasts her view of international law with what she considers the dangers in the turn to speaking about a “rules-based order”. Scott sees the project of international law as historically containing a commitment to several major principles.

First, the principle that law is politically neutral: a conception that law stands aside from politics, and creates a level playing field for state actors, to engage and to argue with each other. This principle includes the idea of formal sovereign equality.

Second, a commitment to peace through law: the idea that law contains within it the potential for objective dispute settlement, and that this is a contribution to world peace. Read the rest of this entry…

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To Reform the World: International Organizations and the Making of Modern States – A Reply to the Discussants

Published on January 22, 2019        Author: 
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Earlier this month we hosted a discussion of Guy Fiti Sinclair’s book, To Reform the World: International Organizations and the Making of Modern States. Below is Guy’s reply to the discussants. We are grateful to all of the participants for their role in this discussion

I am extremely grateful for the sensitive and sympathetic comments on my book in the posts by Jan Klabbers, Megan Donaldson, Devika Hovell, and Edouard Fromageau. Together, they offer a rich set of reflections on the book’s themes, each informed by their distinctive scholarly interests and expertise. In reading them, I found myself nodding along, with very little disagreement on even the more critical points. What follows, then, is not an attempt to debate any particular issue, much less all of them, in the systematic manner they deserve – but rather an effort to engage with a few of the wide-ranging concerns raised by four scholars for whom I have the deepest respect, in the hope that doing so will help to advance the conversation and stimulate further reflection and research.

Several of the posts raise questions relating to perspective and methodology. The book’s particular focus emerged from an effort to answer a relatively narrow set of questions, albeit ones that have broader implications for how we understand international law and organizations. Seeking to understand how international organizations have been able to expand their powers informally beyond the terms of their constituent instruments, and the role of international law in making that expansion seem possible and legitimate, led me to look beyond the relatively restricted set of legal materials traditionally examined by international organizations lawyers. Examining a handful of overlapping episodes involving three organizations with very different purposes, structures, and histories, the book adopts a socio-legal methodology which makes it possible to explore the variable role of (international) law in the public discourse and practices of those organizations.

But what does this kind of analysis help us to see, what does it overlook, and what does it obscure? While not the central thrust of his post, Jan Klabbers rightly points out that, by concentrating on fairly well-known organizations – the International Labour Organizations (ILO), the United Nations (UN), and the World Bank – the book leaves open the question whether the same framework of analysis could be extended to other organizations which are less well-studied and may present more anomalous or harder cases, such as the United Nations High Commissioner for Refugees, the Organization for Security and Co-operation in Europe, the International Olive Council, or the International Organization for Migration (IOM). Moreover, as Megan Donaldson wonderfully shows through a vignette by Shirley Hazzard, the book’s focus on the speeches, writings, and actions of senior international civil servants leaves unexplored the perspectives of lower-level officials in the same organizations. Read the rest of this entry…

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The Use of Administrative Analogies and the Making of the Modern International Organizations

Published on January 14, 2019        Author: 
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I would like to comment on a significant part, albeit a rather small one contentwise, of Dr Sinclair’s very interesting book – To Reform the World: the use of administrative law analogies in relation with the making of modern international organizations. Before going further, we would need to agree on a definition of analogy. Popular culture may help in that regard. According to Britta Perry, a student at Greendale Community College in the TV Show Community (video available here), an analogy can be defined as “a thought with another thought’s hat on”. In her convincing de Beauvoiresque analogy between “weddings” and “little girls’ tea parties”, Britta however highlights three differences between them, while analogies are generally focusing on “accepted similarities between two systems” (P. Bartha, “Analogy and Analogical Reasoning”, The Stanford Encyclopedia of Philosophy, available here).

Legal analogy, for Chaïm Perelman and Lucie Olbrechts-Tyteca, is not defined as an imperfect resemblance, but as an identity of relations within different domains (See C. Perelman & L. Olbrechts-Tyteca, La nouvelle rhétorique. Traité de l’argumentation, PUF, 1958, p. 500). Analogy then implies that a is to b like c is to d. The goal is to explain a relation that is unknown (a to b), called theme, with the help of a known relations (c to d), called phore. The theme states what one means or wishes to prove, while the phore states what one says so that it may better be expressed or proven. For example, One good piece of news does not guarantee happiness is like one swallow does not make a summer (O. Reboul, “The Figure and the Argument”, in M. Meyer (ed.), From Metaphysics to Rhetoric, Kluwer Academic Publishers, 1989, pp. 175-176). The phore is generally more concrete, or at least more familiar, than the theme. It is the resemblance between the two relations which allows us to infer the fourth term from the three others. We prove b given a, c and d, since the relation between a and b resembles that between c and d. The point of the reasoning, in this example, is that “one has no right to generalize”.

We should also distinguish analogies from metaphors. The metaphor occurs when analogy is condensed through the omission of certain terms. It reduces the resemblance to an identity by evacuating the difference. One can say to reassure an old person anxious about death that it is only a kind of sleep. This metaphor implies an analogy : that death is to living like sleep is to waking (O. Reboul, “The Figure and the Argument”, op.cit., pp. 175-176).

I would like to focus on one particular specie of analogy, the one in which the phore (the known relation) is domestic law, also known as domestic analogies. Read the rest of this entry…

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Reforming the World in Our Own Image: A Critique of Liberal Constitutionalism

Published on January 11, 2019        Author: 
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Over the contest hovers, as in all ages, a concept of society formulated and fostered by intellectuals. This is not a reflection of reality, but a goal and hope of good men.

P.E.Corbett, Law and Society in the Relations of States (1951)

The conviction in a linear teleology of progress is fundamental to modernity – and to liberal democracy, its exemplary political formation. The supposition is that history has a telos, and that telos is liberalism. Yet in this era of profound disorientation, against the backdrop of increasing attention to the rise of ‘illiberal’ democracies, history is, as Wendy Brown has commented, becoming ‘both weightier and less deterministic’. The idea that law has evolved to some higher state of reason from which pinnacle it can trump over politics and ideology has proved an imaginative cul-de-sac. Attention to history is important, not to reinforce an artificial progress narrative, but to engender consciousness of the fluidity of politico-legal discourse and its capacity to change (see Martin Loughlin, Sword and Scales (2000), at 225-6).

In To Reform the World, Guy Fiti Sinclair has written a book of astonishing reach and intricacy. Its scope brings to mind the words of Woody Allen, ‘Can we actually “know” the universe? My god, it’s hard enough finding your way around Chinatown’. Yet this is not a book purporting to provide a blueprint for global order. One of the most interesting and insightful contributions of the book, and something that sets it apart from other international legal work on global governance, is its resistance to normative conclusions. Sinclair has developed a work of critical history, mapping the ‘constitutional growth’ of international organizations, yet without presenting this development as in any way teleological. Instead, the effect of the book is to debunk quietly yet powerfully any idea of the inevitability of any particular theory of global governance.

A theory that is never expressly critiqued, yet clearly in the frame, is that of liberal constitutionalism in global governance. Sinclair’s critical engagement occurs not on the already saturated theoretical plane, nor as a doctrinal exercise demonstrating how public law discourse permeates the practice of treaty drafting, adoption, interpretation or reform. Instead, his focus is on the everyday discursive level – the ‘rationalities’ and ‘technologies’ of power – tracking the deployment of constitutional discourse in the everyday practice of international organizations, namely the International Labour Organization, UN peacekeeping and the World Bank. The picture that clearly emerges is of international constitutionalism as a scholarly movement – yet with an international bureaucratic wing. The book reveals how the international civil servant has deployed the metaphor of constitutional growth to carry the logic of liberal reform into international organizations through a range of public-law related discourses, doctrines and techniques of interpretation. Read the rest of this entry…

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International Organizations and the Making of Modern Legal Histories

Published on January 10, 2019        Author: 
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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…

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On Reforming the World and Reforming Character

Published on January 10, 2019        Author: 
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Guy Fiti Sinclair’s To Reform the World was, for me, one of the books of the year when it came out in 2017. It is a model of legal scholarship, and does two things very well that are oh so difficult to bring together. First, Sinclair is an excellent lawyer – he knows the law, he knows what to focus on and what to ignore, and what is more, he is interested in the law, both its doctrinal detail and its political role; sadly, this interest in the law is not always present with people interested in the politics of law. Second, and related, he brings out this political role with verve and cogency. The work is scholarship of the highest order, a credit to its author and to those who trained him. I find, in all honesty, little to comment sensibly on; this is one of those books (few as they are) which I wish I had written myself. One can of course always ask questions: why focus on the World Bank and not, say, UNHCR? Why not include the work of an organization that proclaims to exist outside and beyond the law, like the OSCE? Could the same type analysis be applied to an interest organization like, say, the International Olive Council? Those questions can always be asked – the world of international organizations counts at least 300 varieties, and we tend to look at some of them a lot more than at others. It is almost a disgrace, for instance, that not more is known about a hugely important global governance institution such as the International Organization for Migration, responsible for establishing border management practices across the world and even for running migrant processing centers on behalf of member states, but steadfastly ignored in the legal literature.

But it would be churlish to go down this path. Instead, I want to address an element that usually stays a little under the radar and to which I cannot attach a proper label. It has something to do though with the political role of legal academics. Sinclair, without advertising it and (blissfully) without posturing, adheres broadly to the critical school. He may not be a card-carrying crit, but his work is sensitive to and inspired by critical givens (the indeterminacy thesis, the oscillation of law between apology and utopia, the notion that law typically serves as a vehicle for someone’s political project, that sort of thing). There is a Foucauldian flavor to the work and Sinclair clearly has taken the critical revolution to heart. And the book is all the better for it; indeed, it would have been impossible to write To Reform the World without something of a critical mindset.

The obvious follow-up question then is, however, what next? If the law cannot be trusted to do what we have always been taught to expect from it, if it carries institutional biases and tends to favour some at the expense of others, then what are international lawyers to do? Some have been happy to just continue to point to biases and the role of the ideology of international law – the equivalent of Voltaire’s retreat into his garden. Others have pointed to the emancipatory potential latent in international law; and yet others have put forward the idea that international lawyers or decision-makers more generally have a role to play in ensuring that the negative effects of international law are mitigated, aiming to complement the sterile structures of the law with calls on individuals to operate with a minimum of common decency. Read the rest of this entry…

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To Reform the World: International Organizations and the Making of Modern States – An Introduction

Published on January 9, 2019        Author: 
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How have international organizations been able to expand their governance powers so significantly over the past century? What has been the role of international law in making this extraordinary expansion of powers seem possible and legitimate? And what does this tell us about international law itself?

My book, To Reform the World: International Organizations and the Making of Modern States (Oxford University Press, 2017), explores these questions by examining the expansion of legal powers exercised by international organizations through informal processes of discourse, practice, and (re)interpretation (‘IO expansion’ for short), rather than by the formal amendment of an organization’s constituent instrument. The book argues that IO expansion has been imagined, understood, and carried out as necessary to a process of making and remaking modern states, based on a broadly Western model. It also argues that international law plays a central, protean role in that process. It would be overly simplistic, therefore, to contend that IO expansion has resulted only in a loss of sovereignty by states. To the contrary, my argument is that IO expansion is intimately bound up with the creation of states, the construction of state powers, and the very constitution of modern statehood.

The book develops these arguments through detailed accounts of three episodes of IO expansion. The first involves the beginnings of technical assistance in the International Labour Organization (ILO) in the interwar period. The second concerns the emergence of United Nations (UN) peacekeeping in the two decades following World War II. And the third encompasses the World Bank’s ‘turn to governance’, which reached a high point in the 1990s. By examining three very different international organizations, spanning different periods in the 20th century, the book is able to identify broad themes in how international law has evolved and works in the world.

The research that led to the book began from the commonplace observation that international organizations have become some of the most significant actors in global governance. Today, hundreds of these entities, both regional and global in scope, intervene in myriad areas of activity, including international peace and security, social and economic development, trade and finance, and environmental protection. The powers exercised by international organizations now impact directly and indirectly on the lives of millions of people around the world. Some of these activities involve relatively mundane (though far-reaching) matters of international standard-setting and coordination, while others are more spectacular, including military, financial, and other forms of intervention. Read the rest of this entry…

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Announcement: Book Discussion on Guy Fiti Sinclair’s “To Reform the World”

Published on January 9, 2019        Author: 
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The blog is happy to announce that over the next week, we will host a discussion of Guy Fiti Sinclair’s book, To Reform the World: International Organizations and the Making of Modern States. Guy Fiti Sinclair  is a Senior Lecturer at Victoria University of Wellington Law School. His principal area of research and teaching is public international law, with a focus on international organisations law, the history and theory of international law, and international economic law. 

Guy will open the discussion this morning with an introduction to the text. This will be followed by posts from Jan Klabbers,  Megan Donaldson, Devika Hovell and Edouard Fromageau. Guy will close the symposium with a reply to the discussants.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in – comments will of course be open on all posts.

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2018 Favourite Readings: Values, Identity, and Growth in the Global Economy

Published on December 26, 2018        Author: 
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Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we give you Diane Desierto’s favourites.

Why do we have a global economy, what is it for, what comprises it, and to what ends and purposes do we regulate it?  Somewhat unconsciously, my favourite books for 2018 directly or indirectly related to these questions. Throughout 2018, I relished reading (or rereading, in some of these) Hersch Lauterpacht’s classic International Law and Human Rights (F.A. Praeger Press, 1950), followed by Louis Meuleman’s Metagovernance for Sustainability: A Framework for Implementing the Sustainable Development Goals (Routledge, 2018); David Pilling’s The Growth Delusion: Wealth, Poverty, and the Well-Being of Nations (Bloomsbury Publishing, 2018), Mariana Mazzucato’s The Value of Everything: Making and Taking in the Global Economy (Penguin Random House UK, 2018), and Francis Fukuyama’s Identity: The Demand for Dignity and the Politics of Resentment (Farrar, Straus, and Giroux, 2018).  These books proved illuminating this year in my ongoing thematic and granular search for answers to the above questions.

Hersch Lauterpacht’s International Law and Human Rights is an apt reminder of how modern international law, at its inception, fundamentally serves the ends and aims of human rights in free and just societies. Lauterpacht makes his argument in three parts – showing in The Rights of Man and the Law of Nations that the concept of international peace is inseparable from the vindication of human dignity through human rights; elaborating human rights provisions central to the UN Charter in Human Rights under the Charter of the United Nations; and concluding with a detailed set of recommendations (recall, this was long before the development of the major human rights treaties today) for the International Bill of the Rights of Man.  Read the rest of this entry…

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Favourite Readings 2018: Revisiting the Postwar Moment

Published on December 21, 2018        Author: 
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Editor’s note: Continuing a tradition started by Isabel Feichtner a few years ago, EJIL’s Review Editor, Christian J. Tams, invited members of the EJIL board to offer short reflections on their favourite books of the year 2018. In the following days we will present some selections here on EJIL:Talk! They comprise a wide range of books, from (a few) doctrinal legal texts, to (many more) historical accounts and works of fiction. Unlike in many official book prize competitions, 2018 does not necessarily stand for the year of publication; rather, board members were asked to list books they read or re-read this year, and found inspiring or enjoyable. Today we bring you 2018 favourite reads from Doreen Lustig

In 2018, the international legal world as we know it has faced deep and significant challenges, including the attack on democracies and the rise of authoritarianism, the preference of both the American and Chinese governments for bilateralism over multilateralism or the destabilizing of global economic institutions. How and what does one read at a time like this? Most of the books I survey here revisit the history of the postwar moment and its hopes for a future that is now our present. It may not be surprising that in this moment of bewilderment we return to history and early beginnings, searching for answers. We look for parallels in the past. We look more closely at the key architects of international law and how their ideas shaped (or not) the legal reality over time. We examine whose ideas took prominence and why. We search for the roads not taken. This is by no means a comprehensive list for such an inquiry, but I hope that reading these books may offer some important clues in working with these questions.

Let me open with a book on the transition from the interwar era of minority rights to the postwar era. James Loeffler’s Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (Yale University Press, 2018) examines the tension between Jewish lawyers’ great hopes for a postwar human rights order, one that would take seriously the plight and persecution of minority groups, and their limited influence on its content and design. Read the rest of this entry…

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