Is International Institutional Law Transforming?

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.

Klabbers’ major conclusions are persuasive – it is difficult to argue with the idea that international organisations have ‘constituencies’ (p 81) outside member states and that functionalism may have limited the ability of international lawyers to grapple with the problems raised by the relationship between organisations and third parties.   The claimed immunity of international organisations, even where human rights obligations have been breached, is the most obvious example of this problem (pp 55-59).  Given that I am largely in agreement with Klabbers’ major premise, what follows is a few questions on the steps leading to these conclusions.

My first question is: why start with the work of Reinsch and Sayre?  Klabbers choice of these two authors as being particularly significant in developing the role of function is curious.  As Klabbers notes, both were American (when most scholars in the area were – and still are – European) and neither specialised in international organisations, ‘yet both made an indelible mark on the discipline’ (p 43).  While Reinsch’s work, Public International Unions, may be the first attempt to provide a systematic overview of a number of different organisations, it is less clear that he is overtly a legal ‘functionalist’.  Sayre’s book, Experiments in International Administration, classified and divided international organisations by reference to the powers they exercised over their members.  His work begins (and ends) with the creation of the League of Nations – an organisation, which as is highlighted by Klabbers, is difficult to describe in functional terms.  In Klabbers’ view, as Sayre defined the League as an international organisation along with other existing unions, then it would become subject to the same functionalist concepts as had been applied to those earlier unions (p 48).  However, the conclusion of Experiments in International Administration appears to be more concerned with the powers to be invested in a future League of Nations and the potential methods for establishing a successful League, than a strong statement in support of functionalism (and, to be fair, Klabbers does not explicitly make that point).

By attributing the beginnings of functionalism in international institutional law to a time prior to the creation of the League of Nations, Klabbers wishes to highlight that functionalism developed when organisations or unions were created for a specific function.  It also assumes that the work of Reinsch and Sayre carried great weight with subsequent scholars, for example scholars who may have written when the PCIJ decided European Commission of the Danube, or the ICJ gave its opinion in Reparations for Injuries Suffered in the Service of the United Nations. But as Klabbers indicates, a separate literature on the law of international organisations did not develop until much later (p 49) – and by the time it took hold it is not clear how influential the early work of Reinsch and Sayre was on the development of functionalism in international institutional law.  Of course, questioning whether functionalism developed prior to the formation of the League (or the United Nations) does not negate Klabbers’ major point – that functionalism is ill-equipped to deal with the relationships between international organisations and third parties. However, if the legal concept of function developed later (for example, after David Mitrany’s work on functionalism in international relations and/or after the formation of the League) then another set of questions may arise.  For example, was functionalism in international institutional law a reaction to the development of larger political organisations and designed to confine the activities of international organisations to particular spheres?  Why did it fail in this objective?

My second question is:  why did functionalism become the dominant theory?  Klabbers’ article provides a thorough accounting of the rise of functionalism in international institutional law, but beyond the attraction is holds (by presenting the organisation as ‘neutral’ – p 18) I am left wondering why alternative frameworks did not gain traction at any earlier stage.  For example, in 1962 C. Wilfred Jenks published The Proper Law of International Organisations in which he described the problem of reconciling ‘the needs of international organisations with the needs of commerce with the protection of the world interest in effective international organisation with the protection of the rights and expectations of the ordinary citizens’ (xl).  Jenks devotes parts of his work to the relationship between organisations and non-member states, including employees and third parties, and utilises the language of international administrative law.   Klabbers refers to the development of constitutionalism and an international administrative law vocabulary as alternatives to functionalism, but neither has taken its place, not least given the difficulties in applying domestic public law concepts to international law.  As these are not new problems, why has the notion that organisations should be examined mainly (if not solely) from the perspective of their function predominated?  Is it because functionalism is such a dominant language in international institutional law that it has obscured all other frameworks? Or, is it because of a sneaking suspicion that international institutional lawyers have been complaisant in theorising about their subject matter?  Or, perhaps, as Hilary Charlesworth once commented in relation to the (previous) lack of critiques of international human rights law:  that this branch of the law is considered too valuable or fragile to withstand criticism?

My third question draws on the title of the article:  Has international institutional law actually transformed?  After reading the article I am left with the impression that while international organisations have transformed, along with the breadth of their activities, the legal frameworks to examine their activities have not (or at least, not quickly enough).  The transformation may be contemplated, or already in action, but it has not been completed.  In the process of this transformation Klabbers does not totally reject functionalism – he is willing to envisage that a ‘modest’ functionalism can be saved (p 79) provided certain conditions are met, one of which is the need to open up international organisations to many constituencies (p 81).  This is not a new idea (the democratic deficit in international organisations has long been debated) and as Klabbers notes such changes would need to be navigated carefully.

As I think about Klabbers’ conclusions, I am also reading reports suggesting that the WHO delayed declaring a global health emergency in relation to Ebola in part due to the potential economic impact on the countries involved.  The delayed response to declaring an emergency, as well as other aspects of the WHO’s response, are part of larger discussions about reform of the WHO.  After reading Klabbers’ EJIL foreword, I have many questions about the way we should view the WHO’s response and the adequacy of the frameworks for doing so.  By looking back into the origins of international institutional law and looking forward to the way in which functionalism has developed Klabbers has clearly outlined some of the flaws of a functionalist approach in international institutional law – now we just have to find a way forward without throwing out functionalism (or the idea of international organisations) altogether.