The Transformation of International Organizations Law

The law of international organizations, governing such topics as their powers, their membership rules, and their privileges and immunities, is dominated by a single theoretical perspective: the theory of functionalism. Yet for all its importance, functionalism as a theory has always remained under-explored and, so to speak, under-theorized. Relatively little is known about how functionalism is structured and how, in turn, it structures the law; relatively little is known about how it came about or how it developed over the years, and little attention has been paid to its strengths and weaknesses, both as normative theory and as explanatory theory.

My article, the first EJIL Foreword, aims to take stock of functionalism by delving precisely into the above-mentioned questions, and in doing so reflects the culmination of almost two decades of study and perhaps, some might say, obsession. The article’s three main parts discuss the nature of functionalism, its genesis, and its relative fall from grace, and while there is no main conclusion to be drawn (in that the piece describes and analyzes an ongoing process of transformation), some of its main points can be summarized as follows.

First, I contend that functionalism is a special kind of principal-agent theory, special in the sense that the principal is by definition collective, and special in the sense that the principal is invariably part of the agent: all organizations have a plenary organ in which the member states (the principal) are represented. One important ramification hereof is that functionalism is ill-equipped to address issues that do not emerge from the relationship between principal and agent or, or more colloquial terms, between organization and members. I identify two broad groups of relationships that fall outside functionalism’s purview: functionalism has little to say about the internal dynamics within an organization (e.g. relations between various organs, or between organization and staff), and functionalism has little to say about the relations of organizations with the outside world. And the latter in particular is of interest to the general international lawyer: it suggests that the responsibility of international organizations under international law cannot fruitfully be approached from a functionalist perspective, and further suggests that our available frameworks of thinking about organizations are inadequate to address such questions as whether organizations are bound by general international law. Functionalism, as devised and developed, never thought about such issues and, more importantly, never could have done so coherently at any rate: a theory focusing on the principal-agent relationships cannot accommodate other concerns, at least not without diluting its original focus. To put it strongly and in different terms, functionalism has a blind spot: the issue of control. Actors other than the member states have no means of controlling organizations.

How then did this state of affairs come about? I trace the term ‘function’ back to the late 19^th century writings of Georg Jellinek who, writing in German, attributed a Verwaltungszweck to some kinds of cooperation between states. This was picked up by several others, most notably by Paul Reinsch, a lawyer cum political scientist based in Wisconsin who wrote in the early 20^th century. For Reinsch, the outstanding characteristic of organizations was that they were assigned a function and, employing a fairly narrow definition of organization, he could confidently view those functions as emanations of the common good. Hence, function and moral appeal went hand in hand, culminating in Nagendra Singh’s classic 1950s claim that international organizations were considered to contribute to the ‘salvation of mankind’. Now who could argue with that?

Perhaps as a result of precisely the moral appeal of the salvation of mankind, what had been overlooked is that Reinsch’s contemporary Frank Sayre, writing on the eve of the Versailles Conference, applied his functionalism to a considerably broader range of actors. For Sayre (married to Woodrow Wilson’s daughter, incidentally), it was not just the Universal Post Union or the various sanitary commissions that could qualify as international organizations, but also international police forces, or river commissions that served as thinly disguised imperialist outposts. In doing so, functionalism lost some of its connection to the common good, but without anyone noticing. This was compounded by the almost simultaneous emergence of a functionalist theory of integration, associated most prominently with David Mitrany, whose teachings included the proposition that cooperation begets further cooperation and that this will eventually lead to a ‘working peace system’. While Reinsch had still paid some attention, however intuitively perhaps, to the substance of the function assigned to organizations, for Sayre and Mitrany it was the mere fact of inter-state cooperation that counted: all cooperation is, in principle, beneficial. The net result is that entities as diverse as the World Health Organization and NATO, as diverse as the EU and the UN or the European Forest Institute, as diverse as the Nordic Investment Bank and OPEC, are said to be governed by the same legal framework, ultimately on the basis of the thought that if states would just assign functions to international organizations, then the world would be a better place, regardless of which precise functions these organizations are endowed with. Functionalism, therewith, is a strongly a-political theory aiming to make sense of a strongly political environment, and it is under reference to the functioning of the organizations that many activities will be justified.

That this was bound to be problematic should have been clear as early as the 1920s and 1930s, for instance when the UK campaigned to get Liberia expelled from the League of Nations for its cavalier attitude towards human rights. This had nothing to do with the functioning of the League; instead, it strongly suggested the intrusion of political considerations. More structural issues became clear later, e.g. when in 1980 the ICJ could not say much of great finality with regard to the WHO’s attempt to terminate its headquarters agreement with Egypt. Egypt was both a member state of the WHO, and a party to a treaty with the WHO. In its capacity as member state it could have been subjected to functionalist concerns, but in its capacity as treaty partner it was protected by the pacta sunt servanda norm. At the end of the day, the Court could only compromise; the functionalist law of international organizations could not touch on Egypt’s status as third party. This illustrated that when it comes to dealings between the organization and the outside world, functionalism was of little help, an impression further strengthened by episodes such as the Tin Council crisis in the 1980s, or the long-standing discussions concerning the World Bank and human rights.

Some of these main points are reflected in current discussions about the UN’s responsibility for the spread of cholera in Haiti, in the aftermath of the 2010 earthquake. A functionalist perspective seems to offer little solace: while it may not be the function of the UN to spread diseases, if accidents occur during the proper exercise of functions, the law would nonetheless seem to protect the organization. Either way, functionalist immunities protect the UN from suit (in fact, immunity is well-nigh absolute, as functionalism knows no limits), and functionalist doctrine renders uncertain even the claim that the UN did something legally wrong under international law. After all, there is no international prohibition of negligence, and if it is true that the peacekeepers were tested for cholera in accordance with regular practice and internal rules, then the claim of negligence becomes difficult to sustain at any rate. Surely, this cannot be what functionalism’s founders (in particular Reinsch perhaps) had in mind, yet the uncoupling of function and substance by Sayre and the immense expansionist potential of functionalism (almost anything can be seen as part of, or contributing to, a specific function) have combined and conspired to place organizations in an extra-legal vacuum.

The piece concludes with some prospects for change. It is becoming increasingly clear that functionalism is, at least in part, inadequate; the law needs to adapt, and is slowly allowing other than functionalist concerns to enter the discussion (this is the ‘transformation’ of the title). What precisely these concerns should be though remains uncertain; which other approaches offer better perspectives remains as yet unspecified, although in particular Global Administrative Law has made some waves over the last decade as a (partial) alternative. And there remains the question: ‘better perspectives’ for whom? Some organizations may do work most of us can appreciate within the present global structure, yet may also be complicit in keeping that unfair global structure in place: is it then preferable to find ways to control them, or should they be replaced by different entities embodying a more just global system?

I am delighted that my commentators on EJILTalk! will be professors Alison Duxbury and Ian Johnstone. Duxbury’s 2011 study The Participation of States in International Organisations is a highly informed critique of the functionalism underlying the rules on membership and participation in international organizations; Johnstone’s 2011 book The Power of Deliberation is one the first to present a non-functionalist perspective on the role of organizations in global affairs. I have learned a lot from both, and look forward to their comments.