International Civil Servants and Their Unexplored Role in International Law

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2019 marks the centenary of the foundation of the League of Nations. While the early intergovernmental organizations (IOs) founded before WWI were often staffed by seconded officials, Eric Drummond, the British diplomat and the first Secretary-General of the League, set the ground for creation of an ‘international’ secretariat, composed of professional public servants of various backgrounds, who were ready to commit to the goals of the League and carry out their functions under the sole direction of a non-national leader. The concepts and approaches introduced by Drummond were later inherited by the United Nations and other IOs. Later on, the second UN Secretary General Dag Hammarskjöld played a major role in concertizing the concepts and principles of international civil service, introducing ‘independence’ and ‘international responsibility’, as the pillars of the work of the secretariat.

Today, the backbone of international bureaucracies are individuals with expertise and diplomatic tact, who altogether constitute a unique body of human resources known as ‘international civil servants’. International civil servants perform their duties in complex legal and political environments; in refugee camps, humanitarian missions, post-conflict administrations, and sometimes in calmer environment of headquarters. The status, rights and obligations of employees of IOs are rooted in the constituent instruments of their respective organizations, concluded under international law. However, this is not a one-way road. Indeed, international civil servants actively contribute to formation of international norms, monitor and report on their implementation at macro and micro levels. In a broader perspective, they collectively shape the vision of ‘good life’ for the world population, using an expert language, which enhances the persuasive force of their narratives. Nevertheless, the role of individuals behind the wheels of IOs in development of international law is, to a great extent, absent from the international legal discourse. A better understanding of the changes in international law necessitates an in-depth inquiry into the role of international civil servants in constructing the narratives that influence the spheres of global and national governance.

Why do we ignore international civil servants in international law? 

For obvious reasons, the international legal community is generally more cognizant of the output of IOs, or how their activities affect the outside world, rather than their internal dynamics. International lawyers avidly study resolutions, treaties, and reports adopted by IOs, focusing on the dynamics within their inter-governmental bodies. On the contrary, the normative framework for administration of IOs is often absent from the curricula of international law programmes. While scandals such as the recent revelations about ethical abuses by UNRWA’s senior management, the illegal payments in the Oil-for-Food Programme or the sexual abuse of children by UN peacekeepers in CAR find their way into international law scholarship, issues such as the nature of the legal regime governing the relationship between IOs and their employees or contribution of international civil servants to narratives of international law are rarely discussed. The scarcity of analytical thinking can also be seen in teaching of international organizations law, where students learn about the structure and functions of IOs in a rather mechanical and descriptive way and do not get the chance to situate the law and politics of the field in the broader perspective of international law or to critically think about the dominant narratives such as functionalism or separation of IOs’ legal systems from international law.

Why should we take international civil servants more seriously in international law? 

Nuanced understanding of global governance necessitates an in-depth inquiry into the role and influence of international civil servants in shaping the narratives that govern our world. By virtue of their formal and non-formal authorities, staff of IOs identify and frame issues for collective debate, set the agenda, negotiate appropriate rules and policies, partake in their implementation and monitor their advancement.

Indeed, the footprint of international civil servants can be seen in a number of historical developments in international law. For example, those who are interested in the work of the ILO are aware of its remarkable mandate expansion, led by its senior officials from the early days of its creation in 1919. The ILO’s first Director General Albert Thomas was determined to depict the organization as a “really living organization”, able to engage in activities which are necessary for effective realization of its mandate (see here at 263). Thomas’ background as a prominent French socialist and the first Minister of Armament for the French Third Republic during WWI, accompanied with his sociological understanding of law, helped him successfully argue in favor of the constitutional growth of ILO. Later on, Wilfred Jenks, the sixth Director General (the ex-legal advisor to the previous DG), and a high profile international law scholar, continued the path and advocated for an idea of development “inspired by a teleological constitutionalism, dynamic in outlook, based on a scholarly grasp of the institutional needs of a rapidly evolving society, and sustained by a keen awareness of the institutional techniques available to meet those needs”. (see here at 72.) Any legal research on the ILO’s constitutional growth remains incomplete if, for instance, it only covers the advisory opinions of the Permanent Court of International Justice on the competence of ILO (see here and here), without taking a step further to understand the role of its’ charismatic management.

International civil servants do not always aspire to make waves in international law. Confined by the legal and political context in which their respective organization functions, some opt for a reserved approach in interpreting their mandate. A good example would be the UNHCR’s fourth High Commissioner Prince Saddrudin Aga Khan during the early years of his tenure in 1960s. In the wake of violent civil wars in 1960s, some political space was provided to UNHCR, by certain world powers, enabling the agency to actively engage in humanitarian assistance to internally displaced persons. However, relying on the principle of non-interference in the domestic affairs of states, Aga Khan dismissed the opportunity. Following his re-appointment in mid-1970s, he took a more expansionist approach and used the legal space provided by the General Assembly resolutions (see here and here), to assist a growing number of individuals in refugee-like situations. UNHCR’s engagement in a variety of humanitarian situations laid the ground for future normative development in protection of IDPs and climate refugees. These brief examples demonstrate the complex influence of international bureaucrats on international law, varying across different administrations and historical periods.

If international lawyers wish to gain a better understanding of the dynamics of international law and global governance, in a broader perspective, they need to look into the normative, structural and political forces, which enable, or alternatively constrain, international civil servants in shaping international norms and narratives. The idea is in no way to idealize international civil servants as ‘the angels of humanity’. On the contrary, such an enquiry is part of the larger critical movement in the international legal scholarship to discover the managerial approaches of those involved in constructing the narratives of international law. From this perspective, international civil servants should be viewed as ‘men and women with projects’, in the words of Martti Koskeniemmi!      

How can we study international civil servants in international law?

Undoubtedly, the dominance of rule-centered approach to international law poses both methodological and substantive barriers to the analysis of individuals’ influence on the developments of the field. Traditional approaches to international law hardly accommodate constructivist views of norm making and hence, the contribution of non-state actors-including individuals- to such processes, remains hidden in a traditional legal inquiry. How can we study international civil servants in international law?

The rights and duties of international civil servants are formulated in general terms in the constituent instruments of their organizations, and detailed in staff rules and regulations adopted by each organization. International civil servants are also required to comply with standards of conduct applicable to their service. The writings on these provisions are mostly confined to unambitious commentaries, failing to provide a systematic understating of the factors that determine the competence of international civil servants in the political landscape of IOs. Indeed, in order to understand the space of maneuver available to international civil servants, one should go beyond the formal sources and examine the complex mesh of informal sources of authority of these individuals (their legal backgrounds, political connections, character, organizational culture, etc.). What is clear is that issue identification, agenda setting, policy negotiations, policy implementation and monitoring are some of the areas where international civil servants can exercise influence in the spaces of governance. Yet, the how and when these activities lead to changes in different areas of international law remains unexplored.

This blog calls for the particular attention of the academia to go beyond the constrains of rule-oriented/state-centered discourses in international law and reflect on the space that international civil servants occupy on the international plane. In fact, novel thinking about international civil service should not remain limited only to those who are interested in law of IOs. In fact, norms of environmental law, human rights law, or international criminal law are not developed only by states, but also by individuals who rely on their international authority and expertise to shape their preferred values for national and global governance.

A refreshing account of international secretariats has been recently introduced to the international law scholarship by Fiti Sinclair. In an interesting article published by EJIL, Fiti Sinclair identifies law, morality and expertise, as three interconnected sources of authority for international civil servants. More recently, Fiti Sinclair’s award winning book To Reform the World: International Organizations and the Making of Modern States (2018) examines how international bureaucracies expand their legal competences by constructing the discourses, which justify the superiority of global standards over local perspectives. Focusing on ILO, the UN, and the World Bank, Fiti Sinclair analyses the expansionist strategies of these organizations in light of both the activities of the secretariats, as well as a number of their executive heads, specifically ILO’s Albert Thomas and Wilfred Jenks, the UN’s Dag Hammarskjöld and the World Bank’s Ibrahim Shihata and James Wolfensohn. Another useful research has been documented by IHEID professor Littoz-Monnet and her colleagues at the Global Governance Center in a book titled The Politics of Expertise in International Organizations: How International Bureaucracies Produce and Mobilize Knowledge. The book explores different modes of the production of expert knowledge by IOs and the persuasive power of ‘evidence-based’ policy making in global governance. Finally, in the last days of August 2019, an edited series named Legitimacy of Unseen Actors in International Adjudication was published by Cambridge University Press. The interesting contributions explores the ways through which different categories of individuals behind the scenes of international adjudicative bodies (scientific experts, legal officers, translators, etc.) play a role in shaping international judicial decisions.

What is missing from the current literature is a systematic view of the factors, including the legal and non-legal competences of individuals behind wheels of IOs enable them to participate in making of narratives in the complex landscape of international law.

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Rutsel Silvestre J Martha says

October 4, 2019

You are correct to highlight this issue. Unfortunately, much can be derived from either the role of international civil servants, the law that applies to them, and the operations of the organisations within they function, escapes the yes of students/scholars of international law. I can recommend one book, which contains articles written by legal counsel of international organisations: Asif H. Qureshi & Xuan Gao, International Economic Organisations and Law - The perspective and Role of the Legal Counsel (Wolters Kluwer 2012)

Kishor Dere says

October 5, 2019

Negar Mansouri rightly points out that although in a wider sense, international civil servants mould the vision of ‘good life’ for the world, yet the role of individuals behind the IOs in evolution of international law is neglected. Mansouri again persuasively argues that international lawyers interested in understanding the dynamics of international law and global governance, have to analyze the normative, structural and political forces, which either facilitate or hinder the work of international civil servants in shaping international norms and narratives. Thus, international civil servants are indeed people with many a mission deserving a serious study.

Negar Mansouri says

October 8, 2019

Thank you for the comment Rutsel! You are absolutely right. Although researching on direct role of individuals (or different categories of them such as practitioners or legal scholars) in making the narratives of international law is becoming popular, employees of IOs continue to be seen as 'faceless clerks' with 'apolitical functions'.In fact, the major proportion of scholarship on IOs law resists interdisciplinary perspectives or even views on 'inter-legality' between IOs' internal normative frameworks and the external legal orders. Hopefully, the recent publications on these topics trigger interest in young intl' law researchers.

Also, thank you for introducing this interesting book which had escaped my attention so far!

Esmaeel Yaghoubi says

October 10, 2019

Absolutely agreed with you as to the importance of 'the role and influence of international civil servants in shaping the narratives' of world governance. However, could this not be told also about the heads of states, or their representatives or diplomats acting on their behalf on the international plane? Also them, 'by virtue of their formal and non-formal authorities' might 'set the agenda, negotiate appropriate rules and policies, partake in their implementation and monitor their advancement'. It seems to me that at the very end we are back to the very basic yet fundamental question of individuals vs. states in the international law. As you said, it's a matter of 'men and women with projects'.
I believe reference to works of Professor Klabbers could also be looked into.