1. Introduction
Despite a growing body of scholarship on the relationship between imperialism and international law, most historical accounts of the law of international organizations remain strongly Eurocentric.Footnote 1 Introductions to the subject typically begin with a sweeping history of international co-operation, sometimes going back as far as Ancient Greece. Along the way, the Congress of Vienna, the Hague Conferences, and the public international unions established in the nineteenth century are duly noted, before arriving at the Treaty of Versailles – a sequence of distinctly European milestones. The League of Nations – created primarily by European nations, to solve problems of co-operation among them – is usually taken as the key turning point in the construction of international organizations, and by implication in the law applicable to them.Footnote 2 Moreover, the construction of that law is usually attributed to a relatively small group of twentieth-century Western jurists.Footnote 3 One struggles to find any reference at all to (anti)imperialism, (anti)colonialism, or (de)colonization in textbooks on international organizations law, much less a discussion of the significance of these phenomena on its formation and evolution.Footnote 4
This article aims to sketch the contours of an alternative, postcolonial genealogy of international organizations law. Contrary to conventional accounts, I claim that that law, properly understood, did not emerge until the closing stages of the Second World War, and that its evolution was strongly influenced by the accelerating processes of decolonization that accompanied its birth. The politics of decolonization thus shaped the practice of international organizations, provided the catalyst for many of the foundational cases in international organizations law, and motivated much of its early doctrinal scholarship.Footnote 5 In outlining this genealogy, this article spans a period which saw a shift in the dominant global imaginary from a world of empires to a world of nation-states. I argue that the functionalist logic of international organizations law is deeply embedded in a postcolonial imaginary which, by allowing (and indeed supporting) the division of the world into formally equivalent nation-states, appears to cut against the hegemonic territorialism of colonial governance.
In seeking to trace a postcolonial genealogy of international organizations law, I do not intend to suggest that the latter has somehow overcome or transcended a now-irrelevant colonial past.Footnote 6 To the contrary, ‘postcolonial’ is used here to describe the problems and politics arising in the aftermath of the end of formal colonial rule, in which the relations of power constructed through colonialism remained (and remain) profoundly implicated.Footnote 7 Nor do I want to imply that international organizations law is motivated and shaped by a single political vision, much less that it has succeeded in fulfilling any such vision in the real world. Instead, I argue that the emergence of international organizations law was spurred by a series of perceived problems regarding the adequacy of the international legal system in the postcolonial (or decolonizing) moment. Accordingly, this article aims to indicate how international organizations law emerged from diverse responses to the postcolonial problematique by political leaders and jurists in both the global North and the global South, rather than conduct a detailed analysis of the specific solutions offered by each of them.Footnote 8
This suggests a complex story of legal construction from both ‘above’ and ‘below’. While a significant number of works have examined the colonial and postcolonial genealogies of particular international organizations,Footnote 9 few have extended that analysis to international organizations law itself; Jan Klabbers’ work on the ‘colonial inspirations’ of functionalism in the discipline is a rare exception.Footnote 10 My goal in this article is to decentre further European (and more generally Western) actors and ideas – but not to displace them entirely. International organizations law was not first created in Europe and then extended to the rest of the world; nor was it the sole invention of non-European actors. Important elements of that law may surely be detected, with the benefit of hindsight, in the pre-war precedents of international bodies, as well as (intra)imperial law. My claim is that decolonization animated – and was in turn supported by – the crystallization of these earlier, scattered precedents into a recognizable field and discipline. In elaborating this claim, I hope to contribute to a body of scholarship that explores the agency of non-Western actors in shaping international law, while illuminating the ‘puzzling tendency of international law to combine both imperial and counter-imperial tendencies’.Footnote 11
Recovering the postcolonial genesis of international organizations law may also have practical implications. There is now a growing awareness of the extent to which international law has facilitated the expansion of the governance powers exercised by international organizations,Footnote 12 while hampering the ability of states and individuals to hold them to account for causing or contributing to violations of international law. These problems were highlighted by recent difficulties in making the United Nations (UN) accept responsibility for its role in causing a cholera outbreak in Haiti, which had devastating effects for that country.Footnote 13 A variety of efforts have been undertaken in recent years to codify and reform the law relating to the responsibility and accountability of international organizations.Footnote 14 Yet these efforts have done little to illuminate how and why the law has taken the form that it has. Gaining insight into the evolution and rationale of international organizations law is therefore more pressing than ever.
In pursuing this aim, I adopt a sociological view of law as both contributing to and the outcome of multiple, complex social interactions. Like all socio-legal phenomena, international organizations law is constituted through the interplay of ideas and practices, articulated and performed by real people, in particular material conditions. I am concerned with understanding that law in context, sensitive to the contestations surrounding its formation, as well as changes in its meaning and content over time. In particular, this article observes the emergence of international organizations law as occurring through the interaction of several factors: wide-ranging institutional discourses and practices incorporating legal elements; judicial opinions that crystallized doctrinal statements in response to questions concerning individual organizations; and a growing body of academic scholarship, which increasingly sought to systematize those discourses, practices, and doctrinal statements into a coherent body of law. Giving meaning to all of these is a shared imaginary of how the world is and should be put together.
The article proceeds by outlining and advancing several interrelated lines of argument. Section 2 defines international organizations law for the purposes of the discussion that follows. Section 3 argues that, contrary to the common sense of most international lawyers, international organizations law did not exist in any meaningful way before the Second World War. Section 4 examines that turning point in more detail, identifying the circumstances that gave birth to the new discipline. Section 5 sketches a series of postcolonial inspirations in the practice, jurisprudence, and doctrinal scholarship of international organizations law. Finally, Section 6 analyzes the postcolonial imaginary animating that law, which helps to explain its broad appeal – and perhaps also some of the challenges it faces today.
2. Defining international organizations law
How international organizations law should be defined is a difficult question, partly due to issues of terminology and partly because of shifts in disciplinary focus over time.Footnote 15 For the purposes of this article, it will suffice to identify the main features of the sub-discipline, inferred from a review of the most important textbooks that purport to provide a general introduction to the subject. Arguably, the earliest work in the genre was Paul Reuter’s International Institutions, published in French in 1955 and in English translation in 1958.Footnote 16 D.W. Bowett’s The Law of International Institutions, published in 1963, aimed more explicitly at delineating a field of legal inquiry;Footnote 17 while Henry Schermers’ International Institutional Law remains the most exhaustive treatment.Footnote 18 Other recent textbooks that offer a general overview include those by White,Footnote 19 Amerasinghe,Footnote 20 and Klabbers.Footnote 21
These texts all share several distinguishing features, which provide the basis for a working definition of international organizations law. The first is a more-or-less common definition of international organizations as public (or intergovernmental) organizations, established between states (or governments) on the basis of a treaty (or other instrument governed by international law), and possessing legal capacity (or organs capable of expressing their will), separate from that of their members.Footnote 22 Second, that common definition of their subject-matter allows these texts to undertake a comparative analysis of cross-cutting legal issues affecting such organizations. The first edition of Schermers’ book thus described international institutional law as the branch of law concentrating on ‘the institutional problems which arise or may arise in all or most international organizations’.Footnote 23 Accordingly, one can expect to find in a general text on international organizations law a relatively uniform set of institutional (rather than substantive) issues: membership, organs, powers, decision making processes, interpretation and amendment of constituent instruments, financing, dissolution, dispute settlement, and so on.
Within these broad parameters there are, of course, variations in the approaches adopted among authors and over time. Yet despite such variations, the distinguishing features outlined above characterize a recognizably delimited, albeit sizable, body of scholarship. That corpus includes works that treat a single issue common to many organizations. However, it excludes a wide range of works, including those that treat single international organizations, such as the UN, in a non-comparative way; those that compare multiple organizations, but focus on their substantive law and practice, rather than cross-cutting institutional issues; and those that examine private (non-governmental), public-private hybrid organizations, or groupings that do not possess legal capacity or personality separate from their members.
Defined in this way, international organizations law may seem a rather dry and technical subject, devoid of any particular politics. Yet, as others have noted, international organizations lawyers frequently express the conviction that their discipline is critical to the goal of a peaceful, lawful world. How such exalted expressions of hope and faith are to be reconciled with the focus on the mundane details of doctrine and practice that characterizes much work on international organizations law is a puzzle that this article hopes to illuminate.Footnote 24 At a minimum, most international lawyers assume that international organizations are created to meet the needs of states and are therefore ‘good’. As a consequence, a ‘functionalist’ logic has been applied to determining the extent of organizations’ powers, their privileges and immunities, and other important features.Footnote 25
3. Before international organizations law
Notwithstanding the post-war provenance of general introductions to the subject, international organizations lawyers share a common sense that the origins of their discipline can be traced at least as far back as the end of the First World War.Footnote 26 As David Kennedy has argued, the ‘academic discipline of international institutions’ marks 1918 as ‘a break between a preinstitutional and an institutionalized moment’ in international life;Footnote 27 the first wave of scholarship on international organizations law is often described as arising in the aftermath of the Great War.Footnote 28 Yet many contemporary scholars look back even further, to the previous century, when lawyers first began reflecting on the legal frameworks and activities of public international unions such as the International Telegraph Union and the Universal Postal Union.Footnote 29 In this respect, nineteenth-century European observers such as Pierre Kazansky, Gustave Moynier, and Louis Renault, as well as the American Paul Reinsch, appear to some as early publicists of the law of international organizations.Footnote 30
Challenging that conventional self-understanding, this section of the article argues that no recognizable field or discipline of international organizations law existed prior to the Second World War. Indeed, the establishment of such a discipline, by definition comparative in nature, was hardly possible in the absence of a shared definition of the subject-matter. Throughout the interwar period (and earlier), the term ‘international organization’ was commonly used in at least two, somewhat overlapping senses. Most commonly, it referred in a general way to the overall structure or system of international co-operation. This usage can be traced back at least as far as James Lorimer in the 1860s;Footnote 31 it encompassed such varied forms of international association as federal states,Footnote 32 the Balance of Power and the Concert of Europe.Footnote 33 Less often, ‘international organization’ denoted a specific institution, though rarely distinguishing clearly between public (intergovernmental), private (nongovernmental), and hybrid bodies. In this more specific sense, the term was used to describe public international unions, the League of Nations,Footnote 34 and ‘several hundred unofficial organizations’ besides.Footnote 35 Pitman Potter’s 1934 definition captures well the imprecision of the term at the time:Footnote 36
By international organization is here meant the union of two or more states for service of a common end. The union must consist of an actual material and spiritual community of interest and policy to start with, but must be recognized as such by the states involved and given legal formulation by them … In each case the states may act individually but concurrently under the common agreement, through their own national agencies, or collectively through an agency operating upon international mandate. The forms which these agencies take range widely – diplomats, courts, conferences, and others …
This broad scope of meaning assigned to ‘international organization’ was reflected in its usage within the League of Nations. Article 23 of the Covenant of the League of Nations provided for all ‘international bureaux already established by general treaties’, and ‘all commissions for the regulation of matters of international interest’ subsequently constituted, to be placed under the League’s direction. Article 24 further committed the members of the League to ‘establish and maintain the necessary international organisations’ to ‘secure and maintain fair and humane conditions of labour’. These various categories were not understood as limited to public or intergovernmental bodies, however. A Handbook published by the League in 1921 to facilitate the fulfilment of its obligations under Article 24 thus contained sections on the League itself and the International Labour Organisation (ILO), but also a long listing that included ‘public bureaux’, ‘private bureaux’ and ‘“semi-public” bureaux’.Footnote 37 Moreover, the so-called ‘technical organizations’, established under the auspices of the League to address social and economic questions, did not take any consistent form, and were not independent of the League itself.Footnote 38
Nor did the jurisprudence of the Permanent Court of International Justice (PCIJ) unequivocally recognize the existence of a law of international organizations, in the plural, as opposed to the law of a particular international organization. Several of the PCIJ’s advisory opinions are commonly read today as laying a foundation for international organizations law, but a close reading of these opinions casts into doubt whether the Court saw itself as doing any such thing. The PCIJ’s opinions on the competence of the ILO, for example, are limited to a careful interpretation of that organization’s constituent document (Part XIII of the Treaty of Versailles), without any express suggestion that their conclusions could or should be extended to other bodies.Footnote 39 It is tempting to read back into the European Commission of Danube advisory opinion something like a post-war conception of an international organization, such as in the Court’s holding that the Commission was ‘not a State, but an international institution with a special purpose’.Footnote 40 However, the observation that the Commission had ‘independent means of action and prerogatives and privileges which [were] generally withheld from international organizations’ necessarily implied that there were international organizations without independent means of actions, prerogatives or privileges – that is to say, without legal capacities or personality distinct from their members – and that the Court saw the Commission as merely one of a broad variety of international bodies.
Given the lack of agreement on the defining features of an international organization, it is unsurprising that the scholarship in this period focused primarily on individual institutions and did not assert the existence of a singular, trans-institutional law of international organizations.Footnote 41 Certainly, a comparative approach to international institutions can be observed in some of this scholarship.Footnote 42 Yet only occasionally did such studies narrow their focus to ‘public international organizations’;Footnote 43 most sought to compare both public and private institutions, which were too diverse to yield any useful general conclusions.Footnote 44 By 1930, Arnold McNair could identify the constituent instruments of public international unions as ‘a species of the law-making treaty’ that ‘created something organic and permanent’, further distinguishing ‘treaties creating Constitutional International Law’, such as the Covenant of the League of Nations and Statute of the PCIJ, which constructed ‘a kind of public law transcending in kind and not merely in degree the ordinary agreements between states’.Footnote 45 Yet these distinctions, though useful, went no further in identifying the study of that specific ‘public law’ as a branch of international law.
Two terms used in the interwar period might, at first blush, appear as early designations of what would later be identified as international organizations law. The first of these, international administrative law, addressed an expansive range of co-operative relationships, including the interactions between national administrative agencies and what we might now term ‘intergovernmental networks’,Footnote 46 as well as public international unions.Footnote 47 In another sense, it referred to the law governing the administrative workings, problems, and processes of international secretariats, such as those of the League and the ILO.Footnote 48 The second term, Manley O. Hudson’s conception of an ‘international constitutional law’ – concerning ‘disputes which grow out of the activities of … international bodies’ and ‘within international organizations themselves’, rather than those that arise between states – arguably provides a more likely forerunner of international organizations law.Footnote 49 That conception never acquired widespread acceptance, however, and its restriction to disputes excluded many of the structural dimensions that form an essential part of international organizations law today.
Perhaps the most likely forerunner of international organizations law is the early twentieth-century corpus of works by Paul Reinsch on international administrative law. Indeed, Jan Klabbers has recently argued that Reinsch’s writings on this subject are ‘eminently recognizable to today’s audiences as research into international institutional law’.Footnote 50 Setting aside the question of whether Reinsch should be regarded as ‘one of the founders of international organizations law functionalism’,Footnote 51 his work surely serves as an early example of the kind of comparative method that came to define the field. I disagree, however, that Reinsch’s work can be assimilated to international organizations law as it later emerged. In the first place, the international unions that Reinsch studied included ‘numerous private unions and associations for international purposes’ and hybrid public-private bodies such as the Pan-American scientific congress.Footnote 52 Secondly, Reinsch largely depicted these unions as fora for closer co-operation among national administrations, rather than as distinct organizations possessing separate legal capacities. Indeed, in defining international administrative law as regulating ‘the relations and activities of national and international agencies’, Reinsch arguably comes closer to present-day conceptions of ‘global administrative law’ than the law of international organizations.Footnote 53
None of this is to say that these interwar studies and experiences were unimportant. Clearly, international organizations law as it later emerged drew on, reformulated, synthesized, and systematized a wide variety of doctrinal elements from earlier practice, case law, and scholarship. Nevertheless, the unsettled and imprecise nature of legal thinking about international institutions continued for some time. Writing at the outset of US involvement in the Second World War, Quincy Wright was still using ‘international organization’ in the general sense.Footnote 54 As late as the fifth edition of his Introduction to the Study of International Organization, Pitman Potter defined international organization as including ‘special forms’ such as diplomacy and treaties, international conferences, and international administration and adjudication; while ‘general international organization’ included examples of ‘international federation’ such as alliances, the balance of power and international concert, in addition to the League of Nations and UN.Footnote 55 Political scientists continued to use ‘international organization’ in the general sense well into the 1950s.Footnote 56 Nevertheless, it was during the war, and especially in the years immediately afterwards, that international organizations law was first conceived, defined, and elaborated, as the next section of this article shows.
4. Birth of a discipline
The emergence of international organizations law as a systematic, comparative discipline was made possible by an intensive process of stock-taking and reflection on international institutional arrangements undertaken during the Second World War. That process was led, most consequentially, by agencies of the US government; however, it also engaged the efforts of a considerable number of leading international lawyers.Footnote 57 It acquired a sharpened focus as planning began for the formation of new institutions to serve the post-war international order, such as the UN Relief and Rehabilitation Administration, the International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (IBRD), and especially the new ‘general international organization’ to replace the League.Footnote 58 In the massive effort to design and draft the instruments that would provide the legal frameworks of these new institutions, certain problems and questions arose repeatedly, spurring the development of a comparative legal methodology.Footnote 59
Consciousness of the (at least partial) comparability of the new organizations is apparent in contemporaneous legal instruments, both international and domestic. Perhaps surprisingly, the UN Charter itself is unrevealing in this regard: it uses the term ‘international organization’ only three times, twice in reference to the UN,Footnote 60 and once to refer to international non-governmental organizations.Footnote 61 Another term, ‘specialized agencies’, appears more frequently in the Charter to designate entities that are ‘established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields’ and ‘brought into relationship with the United Nations’.Footnote 62 In contrast, the Articles of Agreement of the IBRD and the IMF referred to each of those organizations co-operating ‘with any general international organization and with public international organizations having specialized responsibilities in related fields’.Footnote 63 Most explicitly, the US International Organizations Immunities Act of 1945 defined ‘international organization’ as ‘a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation’, and stated that all such organizations would enjoy certain legal capacities, as well as the privileges and immunities afforded to foreign governments.Footnote 64
Scholarship in the same period tracked this growing precision in terminology and interest in comparing the treatment of common problems by different organizations. This appears especially true of international lawyers in the US. Thus, for example, Philip Jessup’s 1944 analysis of the privileges and immunities of international officials used the term ‘international organization’ in the specific sense that would soon be adopted widely, and undertook a comparative analysis of the provisions of the recent Articles of Agreement of the IBRD and IMF, and proposed Constitution of the Food and Agriculture Organization.Footnote 65 Three years later, Jessup drew on a similar kind of analysis, now extended to include the UN, to discuss the legal status of international organizations.Footnote 66
With such an accumulation of institutional practice and analysis, it became possible for the first time to herald the arrival of a new branch of international law. A seminal article by Clarence Wilfred Jenks in 1945, titled ‘Some Constitutional Problems of International Organizations’, set the agenda and methodology for international organizations law as it would emerge over the next two decades.Footnote 67 The same year, Jenks referred to ‘the development of the law of international institutions’,Footnote 68 while Georg Schwarzenberger observed that ‘a far from negligible body of international institutional law’ had evolved in the jurisprudence of international courts, though he allowed ‘room for disagreement on the question to what extent the legal principles elaborated by the Permanent Court of Justice regarding specific international institutions are applicable to other international institutions’.Footnote 69 Two years later, one Alger Hiss referred to ‘the adjectival law of international organizations – a branch of international law generally’, defining international organizations as ‘inter-governmental organizations, as opposed to international organizations of a non-governmental nature’.Footnote 70 By 1954, Jenks could confidently to describe the ‘law of international institutions … as the law governing the constitutional framework of a developing world community’, with subdivisions addressing the ‘constitutional’, ‘parliamentary’, and ‘administrative’ law of international organizations, and governing their mutual relations.Footnote 71
The decades following the end of the Second World War saw a rapid accretion of further practice and jurisprudence, particularly in relation to the UN. Between 1945 and 1970, the International Court of Justice (ICJ) issued a series of landmark advisory opinions, addressing such important issues as admission to membership,Footnote 72 powers,Footnote 73 interpretation of constituent instruments,Footnote 74 and the decisions of organs.Footnote 75 Most significant in this respect was the Reparation for Injuries advisory opinion, which at once confirmed that the UN possessed international legal personality and articulated a broad doctrine of implied powers.Footnote 76 The former was noteworthy in settling an issue that had long troubled international lawyers, relating to the essential question of the legal capacity of international organizations.Footnote 77 No less significant was the Court’s reference to implied powers as a principle of law applied by the PCIJ in its advisory opinion on the competence of the ILO – by implication, as it were, asserting a principle that applied trans-institutionally.
The growth of UN practice, and advisory opinions arising out of it, contributed to a body of scholarship on ‘the law of the United Nations’.Footnote 78 Hans Kelsen’s 1950 book on that subject referred to the UN as ‘an international organisation’, but focused narrowly on interpretation of the Charter without reference to a larger corpus of international organizations law.Footnote 79 In a similar vein, Josef Kunz wrote about ‘the particular law of an international organization’, arguing that ‘the law of the United Nations has to be carefully distinguished from general international law’.Footnote 80 Nevertheless, the law and practice of the UN, as the leading international organization of the post-war order, were also now understood to form part of a larger law of international organizations, discernible in the practices of a range of institutions established on a broadly similar basis.
Just as the ICJ had done with the PCIJ’s advisory opinion on the ILO, then, rules and principles derived from advisory opinions on the UN could legitimately be applied, mutatis mutandis, to other international organizations. Indeed, much of the relevant practice and judicial work that went into constructing international organizations law centred on the UN. This was the case even though – or perhaps paradoxically because – the UN was such an atypical institution, whose practice was therefore arguably unrepresentative of international organizations law more broadly. In 1963, Bowett thus reported that the law of international organizations was the most rapidly expanding branch of international law, despite his being the first introductory textbook in English, due to the existence of ‘numerous commentaries on particular organisations’ and ‘monographs on special topics’.Footnote 81 The next section of this article examines the circumstances and concerns that made the production of such scholarship possible.
5. Postcolonial inspirations
So far, I have argued that international organizations law did not (and could not) come into being until a certain degree of conceptual and practical commensurability had been established between its objects of study, thereby permitting a comparative analysis of their main structural or ‘constitutional’ features. Once that precondition was established, legal scholars were able to systematize a growing mass of practice and case law into a coherent field or discipline. Just as that precondition came into place, however, the international order – including international organizations and the law applicable to them – began a profound transformation, driven largely by the processes of decolonization.
This section of the article argues that the post-war invention of international organizations law, following the first outline of the field by Jenks, was crucially shaped by the context of decolonization. That context informed legal and political concerns and disputes which influenced the practice of international organizations. Several such disputes led to advisory proceedings before the ICJ, resulting in opinions that comprise key pillars of international organizations law. Finally, legal scholars in the ‘developing’ states of the global South contributed a set of important doctrinal treatises that helped to establish international organizations law as a dynamic branch of public international law. The following sections describe in turn how postcolonial circumstances and concerns inspired much of the practice, jurisprudence, and doctrinal scholarship of the new discipline.
5.1. Practice
The assembly of a new family of international organizations synchronized with a concerted struggle for decolonization by diverse populations throughout Asia, Africa, and elsewhere. The Great Depression had already lent impetus to embryonic independence movements in many colonies;Footnote 82 these were further energized by the initial defeats suffered by European colonial powers, as well as by the Atlantic Charter’s affirmation of the principles of ‘sovereign rights and self-government’, and ‘the right of all peoples to choose the form of government under which they will live’.Footnote 83 Just as importantly, the rising costs of maintaining colonial territories in the face of nationalist resistance created pressure for decolonization from within the metropolitan powers themselves.Footnote 84 The UN and other international organizations provided important – though certainly not the only, and perhaps not even the most important – political and legal fora within which those struggles were waged.
To the extent that international organizations were perceived as a crucial battleground for decolonization, the debates that took place within them were transformed into struggles over questions of institutional purpose, design, and evolution. Planning for the new organizations was dominated by ‘great power’ interests, and their constituent instruments strongly reflected those interests. Most notorious in this respect was the composition of the Security Council and the veto wielded by its five permanent members. However, similar structural features in other organizations – such as the preferential representation of particular states on executive organs, or weighted voting mechanisms, as in the IMF and IBRD – likewise operated to entrench control by Western states.Footnote 85 Yet the UN Charter also affirmed the principle of the ‘equal rights and self-determination of peoples’;Footnote 86 created a trusteeship system with the explicit objective of promoting the ‘progressive advancement’ of the inhabitants of trust territories ‘towards self-government or independence’;Footnote 87 committed administering powers to developing self-government for populations in non-self-governing territories;Footnote 88 and established a structure for international co-operation through specialized agencies to promote ‘economic and social progress and development’.Footnote 89
These antinomies provided focal points for the new states within the UN and other international organizations. A steady trickle of colonies achieved independence in the immediate post-war years, beginning with the Philippines, India and Pakistan. Not all of the new states joined the UN immediately, but by the end of 1955 the organization’s membership had grown to 76, from 51 in 1945; five years later it reached 99. The eagerness of these states to promote decolonization elsewhere was supported, in rhetoric if not always in positive action, by the two great superpowers. The USSR vociferously advocated dismantling the overseas empires of Western states; the US also favoured decolonization, albeit in a more gradual and managed form and complemented by an ‘open door’ economic policy that would give US corporations competitive access to foreign markets and resources.Footnote 90 These avowed positions did not, however, prevent either from maintaining spheres of influence (and indeed domination) over territories outside their national borders, as well as colonized peoples within them.
The rhetorical support afforded by the public pronouncements of the two superpowers, as well as by the text of the UN Charter, encouraged the newly independent states to use international organizations to advance the cause of decolonization internationally. These states became frustrated at the unequal representation and voting provisions in international organizations, which they saw as contravening the UN Charter principle of sovereign equality, and sought to use their growing numbers to endow the UN General Assembly and the plenary organs of specialized agencies with greater relative authority, and so to reorient the priorities and activities of those organizations. The ‘great powers’ retained significant control over many international organizations, however, through both ‘hardwired’ procedural rules and informal agreements, such as those relating to the allocation of positions of authority and decision-making.Footnote 91 Moreover, the secretariats of many organizations were initially staffed to a disproportionate degree by North Americans and Europeans, including many former colonial service officers, with inevitable consequences for institutional ideology and cultural norms.Footnote 92
The result was a series of struggles within and through international organizations, in three broad areas of activity. First, the ‘Afro-Asian’ bloc in the UN sought to accelerate the decolonization of non-self-governing territories, both through the Trusteeship system and by evolving a parallel system of supervision under Chapter XI of the Charter.Footnote 93 Those efforts resulted in the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples in 1960, and establishment of the Special Committee on Decolonization under the auspices of the General Assembly the following year. They also led to a sequence of confrontations with recalcitrant colonial powers, especially in southern Africa. In particular, efforts to expel South Africa from the UN and various specialized agencies, refusals to accept the credentials of its representatives, and the imposition of economic sanctions made important contributions to the body of practice concerning participation in international organizations.Footnote 94 Likewise, appeals by the General Assembly and the Special Committee on Decolonization to the specialized agencies (in particular the IBRD and the IMF) to refrain from providing assistance to South Africa and Portugal, contributed, albeit somewhat ambiguously, to practice on the relations between international organizations.Footnote 95
A second area of activity affected by decolonization concerned international economic relations. The rapid emergence of a large number of independent states coincided with the advent of a new science of development economics, based in large part on Keynesian economic principles and undergirded by the universal progress narrative of modernization. To US policy-makers, modernization provided a key strategy to combat the spread of communism in decolonized states, while opening up new markets for American products; to leaders and elites in the new states, it promised a greater degree of economic independence and state-building. The UN Charter mandate to promote economic development and co-operationFootnote 96 was further linked to trade in the constituent instruments of the IBRD and IMF,Footnote 97 and thereby also to the General Agreement on Tariffs and Trade (GATT). These endeavours took on ever more tangible institutional forms over the following decades, resulting in the establishment of an Expanded Program of Technical Assistance (EPTA), comprising the UN and seven specialized agencies, as well as a proliferation of international organizations concerned with development in decolonized states, including a number of regional organizations.
Increasingly, the new states became dissatisfied with the policies promoted by the Western-dominated economic organizations. In December 1962, the General Assembly passed a further resolution declaring that ‘[t]he right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interests of their national development and of the well-being of the state concerned’,Footnote 98 which would later become a centrepiece of calls by Third World states for a ‘New International Economic Order’ (NIEO).Footnote 99 Perhaps most significant in institutional terms was the establishment in 1964 of the UN Conference on Trade and Development, which became a major vehicle for the ‘developing’ states of the global South to exert moral and political pressure on the ‘developed’ countries of the North.Footnote 100
Lastly, the newly independent states sought to assert their equal rights of participation in matters of international peace and security. The Asian-African conference held at Bandung, Indonesia, in April 1955, is usually remembered as a milestone in the rise of the non-aligned movement in the Third World,Footnote 101 but the leaders of the 29 states gathered there also gave significant attention to the structure and operations of international institutions.Footnote 102 In his opening address to the Conference, the Prime Minister of Ceylon referred to the possibility of UN Charter revision as ‘an historic opportunity’ for the countries of Africa and Asia to demand that the UN be ‘reconstructed so that it can be in fact what [it] was intended to be in theory – an effective instrument of peace’.Footnote 103 Describing the human race as standing ‘on the brink of chaos’, he further argued that the UN ‘should be so reconstituted as to become a fully representative organ of the peoples of the world, in which all nations can meet on free and equal terms’.Footnote 104 The Final Communiqué of the conference reflected this position, declaring that the existing level of representation of Asian and African countries on the Security Council was inadequate to the principle of equitable geographical distribution, and recommending co-operation through the United Nations to reduce armaments and eliminate nuclear weapons.Footnote 105
Though these ambitions were never realized, the Asian-African bloc had a significant influence in reshaping the UN’s peace and security apparatus, beginning as early as November 1950 in the passage of the ‘Uniting for Peace’ resolution. That resolution, proposed by the US Secretary of State Dean Acheson, provided that the General Assembly would have power to consider ‘any case where there appear[ed] to be a threat to the peace, breach of the peace, or act of aggression’, where the Security Council was ‘unable to exercise its primary responsibility for the maintenance of peace and security because of lack of unanimity of the permanent members’. To many of the new states, the expansion of the General Assembly’s powers at the expense of the Security Council was justified, in both legal and moral terms, by the principle of sovereign equality among states. Emphasizing those members’ concern with the impasse created by conflict between the ‘great powers’, the resolution’s Preamble referred to the Charter’s aim of developing ‘friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’. In the Assembly debate, moreover, several representatives situated the resolution within a longer sequence of struggle in the UN between great and small powers.Footnote 106
Decolonization and the rights of small states were equally central to the invention of UN peacekeeping. It is no coincidence that the earliest peacekeeping operations all addressed conflicts that arose out of the dissolution of empire, particularly in the Middle East, South Asia, and Africa.Footnote 107 In the debates surrounding their establishment, in the make-up of their forces, and in the advisory committees established to guide their actions, peacekeeping operations became vehicles for much more direct involvement by decolonized states in matters of international peace and security.Footnote 108 Moreover, several of these operations – the UN Truce Supervision Organization (UNTSO, 1948), the UN Emergency Force (UNEF, 1956), and the UN operation in the Congo (ONUC, 1960) – gave rise to legal disputes in the ICJ, producing two of the most significant advisory opinions in the jurisprudence of international organizations law. The next section surveys these and other opinions that were prompted by circumstances of decolonization.
5.2. Jurisprudence
This article cannot recount all the different ways in which decolonization influenced the content of international organizations law. Nor is the argument made here that all relevant principles and rules emerged directly from that context. However, it is the case that a significant number of the most important, foundational concepts and norms of the discipline were articulated in response to circumstances and concerns arising from the fact of decolonization; and that decolonized states played an important role in many of the disputes that placed such concepts and norms in question. In truth, it could hardly have been otherwise, as newly-decolonized states sought to play an ever-greater role in international organizations, and as a great portion of the work of those organizations focused in turn on those states – promoting decolonization, providing development assistance of various kinds, and resolving conflicts emerging from the end of empire.
The ICJ’s leading opinion on the legal personality and implied powers of international organizations provides a case in point. In the immediate aftermath of the Second World War, a number of crises broke out in regions that had been subject to European imperial influence and rivalry. One such crisis was centred in Palestine, where the British mandate was coming to an end amidst an escalating conflict between Arabs and Jews. The involvement of the UN in attempts to resolve such crises raised the very real likelihood of harm to its agents; indeed, in the Arab-Israeli conflict several UN officials were assassinated, including its lead mediator, Count Folke Bernadotte. Reparation for Injuries thus sought to answer the question whether, in the event of an agent of the UN suffering injury or death, the UN had the capacity to bring an international claim against the responsible government for reparations in respect of damages caused to the UN itself as well as to its agents, or persons entitled through those agents. As the Court put it, that capacity was essential to ensure that agents of the UN could independently and efficiently perform their ‘important missions … in disturbed parts of the world’Footnote 109 – an unmistakable reference to the UN’s emerging role in managing the end of colonialism.
Two other early cases arose from the growing frustration of small and medium states on the General Assembly with the permanent members’ repeated exercise of their veto power on the Security Council to block the applications of new states to membership in the UN.Footnote 110 Proposals to amend the Council’s voting procedures and abolish the veto, introduced by the Philippines and Cuba at the Assembly’s first session, were defeated.Footnote 111 In its first advisory opinion, issued in 1948 at the General Assembly’s request, the ICJ confirmed that the conditions of admission set out in Article 4(1) of the Charter were exhaustive, albeit ‘very wide and very elastic’ in nature, and therefore subject to a process of interpretation that took into account a range of political factors.Footnote 112 Two years later, the Court concluded that Article 4(2) of the Charter precluded the General Assembly from effecting the admission of a state to UN membership when the Security Council had not first recommended such admission, either because it had failed to obtain support from the requisite majority of the Council or because of the negative vote of a permanent member.Footnote 113 Together, these opinions cast light on relations between organs in an international organization, as well as membership.
Both Reparation for Injuries and the two Admissions opinions addressed the important matter of how to interpret the constituent instruments of international organizations. Another early opinion that did the same, IMCO Maritime Safety Committee (1960), might not on its face appear to bear any connection to decolonization. The rather technical question asked of the Court concerned the meaning of the phrase ‘eight largest ship-owning nations’ in the Constitution of the Inter-Governmental Maritime Consultative Organization.Footnote 114 Here too, however, arguments were raised the proceedings that invoked the principle of sovereign equality, by then a familiar argument of decolonized states. As the countries with the third and eighth largest registered tonnage, respectively, Liberia and Panama claimed a right to representation on the Maritime Safety Committee. In its pleadings, Panama asserted that the IMCO’s action in not affording it that representation was:
a violation of the sovereignty and dignity of the Republic of Panama and also a violation of well-known principles of equality of all sovereign States and of non-intervention into the internal affairs of a sovereign State, well settled under International Law and embodied in the Charter of the United Nations.Footnote 115
The Court’s opinion in Certain Expenses (1962) widened the doctrine of implied powers as articulated in Reparation for Injuries and articulated the presumption that action by the organization was intra vires where it appeared to be appropriate for the fulfilment of one of the organization’s stated purposes. The Court had been asked to provide an advisory opinion on whether the expenditures authorized by General Assembly resolutions for the financing of UNEF and ONUC – both dealing with the aftermath of imperial dissolution, in the Middle East and the Congo, respectively – constituted ‘expenses of the organization’ within the meaning of Article 17(2) of the Charter. The Court affirmed that they did, in effect endorsing the transfer of significant responsibility in relation to international peace and security from the Security Council to the General Assembly, in accordance with the ‘Uniting for Peace’ resolution. The same opinion also effectively confirmed the legitimacy under international law of all subsequent peacekeeping operations, many of which were likewise established to help manage the process of decolonization.
Lastly, the long-running dispute concerning South Africa’s Mandate over South West Africa and its policy of apartheid, led by decolonized states in the General Assembly, resulted in the articulation of a range of important principles in international organizations law. In a series of advisory opinions, the ICJ addressed questions of succession between international organizations (the supervisory functions previously exercised by the League of Nations in relation to Mandates having transferred to the UN General Assembly);Footnote 116 the powers of international organizations (including the General Assembly’s power to terminate Mandates, and the Security Council’s general powers under Article 24(1) of the Charter);Footnote 117 and the legal nature of instruments adopted by international organizations (including whether the Mandate could be understood as a treaty between the League and South Africa).Footnote 118
It is certainly not the case that these opinions articulate a coherent set of rules and principles applicable to international organizations. The Certain Expenses case, for example, revealed a striking contrast in the application of international law rules and principles to international organizations by jurists in the Western and Soviet blocs.Footnote 119 Nevertheless, we do find here the self-conscious elaboration of a body of jurisprudence addressed to international organizations generally, much of which arose out of circumstances and concerns relating to decolonization and the relationship of newly decolonized states to the international legal order.
5.3. Doctrinal scholarship
Each of the practices, disputes, and advisory opinions surveyed above informed the burgeoning scholarship on international organizations law. What is not often acknowledged, however, is the extent to which non-Western jurists contributed to that scholarship. It is worth noting, therefore, that international lawyers from the global South were among the first to produce monographs on such central topics of international organizations law as voting procedures,Footnote 120 termination of membership,Footnote 121 the functions and duties of international civil servants,Footnote 122 domestic jurisdiction,Footnote 123 privileges and immunities,Footnote 124 the jurisdiction and competence of international courts,Footnote 125 capacity to conclude treaties,Footnote 126 the legal significance of particular acts and instruments,Footnote 127 and implied powers.Footnote 128 While some of these titles purported to examine particular international organizations, they typically adopted a comparative approach that encouraged the cross-application of principles to other organizations.Footnote 129 As such, they constituted some of the more important ‘commentaries on particular organisations’ and ‘monographs on special topics’ that made broad introductions such as Bowett’s possible.Footnote 130
Notwithstanding their generally narrow focus on legal doctrine, many of these works reflect concerns stemming from issues related to decolonization. In his 1947 treatise on voting procedures, the Chinese diplomat Wellington Koo (who later served as a Judge on the ICJ) thus framed the issue as centring on ‘the concept of equality of independent states in international organizations’,Footnote 131 and discussed the debate over Security Council voting procedures in the UN Charter as a ‘battle … between the great powers and the small powers’.Footnote 132 Another scholar of Chinese (Taipei) origins, Hungdah Chiu, suggested the importance of the treaty-making power of international organizations to decolonized states in his lengthy discussions of trusteeship agreements,Footnote 133 as well as agreements relating to technical assistance and other aspects of development.Footnote 134 Likewise, Nagendra Singh’s treatise on the termination of membership in international organizations focused on the position of mainland China, which, as he argued, had ‘for all practical purposes … ceased to be a member of the United Nations’.Footnote 135 More explicitly yet, Rahmatullah Khan noted among his motivations for writing his book on implied powers in the UN, the charge that ‘the Afro-Asian States in the General Assembly were forcing the Organization to take irresponsible positions’, and doubts that had been raised by the UN’s competence in its activities aimed at facilitating decolonization in Rhodesia, Kashmir, South Africa, and the Congo.Footnote 136
Perhaps the clearest connection between a topic in international organizations law and the interests of decolonized states can be seen in works on resolutions of the UN General Assembly. Obed Asamoah, who later became the Foreign Minister and Attorney General of Ghana, expressly set his discussion of General Assembly declarations in the intellectual context of decolonization, noting that ‘[e]conomic nationalism among the communist and the new nations [had] challenged the traditional principles of state responsibility’ and that the ‘emancipation of former colonial territories [had] introduced new problems in the law of succession and fostered a concerted drive to undermine the colonial system’.Footnote 137 These political developments called for ‘[s]wift changes in the law’, and international organizations provided ‘convenient fora for the resolution of conflicts of interest and the adoption of principles to regulate state conduct’.Footnote 138 In arguing for the multifaceted legal significance of General Assembly declarations – as interpretation and application of international law, as subsequent practice aiding the judicial interpretation of the Charter, as evidence of custom or general principles, and as agreements – Asamoah took as case studies a series of declarations with particular relevance to new states, including the resolutions on the granting of independence to colonial countries and peoples, the elimination of all forms of racial discrimination, permanent sovereignty over natural wealth and resources, and the prohibition of the use of nuclear weapons.
Scholars of such disparate backgrounds could hardly be expected to share a single perspective on the complex legal issues facing international organizations. Nevertheless, what is significant here is the intense, common interest of jurists from the global South in the structure and functioning of international organizations, arising directly from their perceived potential to serve as vehicles for the promotion of decolonization and the more equal participation of decolonized states in the international order. Already during the interwar period, the League’s Mandate Commission and the ILO, in different ways, had begun to highlight problems with imperial rule.Footnote 139 The UN’s management of decolonization through the Trusteeship system, the mechanisms established under Chapter XI, and peacekeeping, as well as the development assistance provided by and through the specialized agencies, further testified to the efficacy of international organizations in promoting the interests of newly independent states. It should not be surprising, then, that so much of the foundational scholarship in the new nascent discipline of international organizations law should emerge from scholars from these states. The next section of this article seeks to reconstruct the imaginary of international organizations law, drawing on theoretical and judicial statements spanning the period covered in the previous three sections of this article, to demonstrate the wide appeal of that imaginary.
6. A postcolonial imaginary
In recent years, several scholars have suggested that the problems facing international organizations law can be attributed, at least in part, to the functionalist paradigm within which it operates.Footnote 140 Defining functionalism as ‘essentially a principal–agent theory, with a collective principal (the member states) assigning one or more specific tasks – functions – to their agent’, for example, Klabbers contends that this ‘leaves no room for third parties’ and makes it ‘well-nigh impossible to hold international organizations accountable to those other than their own member states’.Footnote 141 This analysis is persuasive, and I do not wish to oppose it here. Rather, I want to focus on an element that is rarely emphasized in such accounts: namely, the extent to which the functionalism of international organizations law has been consistently understood and represented as opposed to the hegemonic territorial logic of imperialism. This opposition has operated as much at the level of symbolism and imagination as in the practices of international organizations, which have had an ambivalent relationship to imperialism at best.
Indeed, I claim that one cannot properly appreciate the appeal of international organizations law functionalism – and thus the difficulty of discarding or moving beyond it – until one appreciates the postcolonial imaginary implicit in it. This claim rests on a body of scholarship that conceptualizes the social imaginary as a complex ‘common understanding’ of social existence that is both descriptive and normative, is typically ‘carried in images, stories, and legends’, and ‘makes possible common practices and a widely shared sense of legitimacy’.Footnote 142 Closer to a shared sensibility than a fully articulated doctrine or theory, the imaginary of international organizations law functionalism pictures a world of nation-states, in which apolitical, specialized organizations carry out technical functions as the agents and in the service of those states, without infringing their sovereignty.Footnote 143 Occupying ‘a fluid middle ground between embodied practices and explicit doctrines’,Footnote 144 this imaginary gives meaning to, and incorporates a set of normative expectations about, the practices of international organizations, even if it does not reflect those practices precisely.Footnote 145 It is postcolonial in that it (implicitly or explicitly) rejects the expansive territorial hegemony of imperial power, although in doing so it tends to obscure the ongoing reality of informal modes of empire.
From an early stage, this imaginary was expressed in repeated statements distancing international institutions from any intention to construct a world state. In 1897, Pierre Kazansky contended that the public international unions that had appeared since the 1860s had been created to serve ‘the interests more or less common to all civilized states’, and expressed the ‘hope that our globe will never be governed by some single political centre’: ‘Our own dream is the decentralised, administrative organisation of humanity’.Footnote 146 A ‘political world organisation would quickly become more or less sovereign’, he claimed, and thereby ‘deprive states of their sovereignty’, whereas the existence of states was still possible and compatible with ‘an international administrative organisation’, the latter being based on social interests.Footnote 147 Accordingly, it was possible to claim that the construction of public international unions meant ‘[a]bandoning the idea of integral reform of the international order’, and turning ‘from politics to administration’.Footnote 148
By focusing on the common interests or needs of states, international institutions thus appeared to early twentieth-century scholars as a pragmatic via media between international anarchy and world unification through imperial conquest. For Paul Reinsch, world organization had become ‘an accomplished fact’ through ‘the slow working of economic and social causes, guided by the conscious will of man’.Footnote 149 On the one hand, the ‘positive internationalism’ he advocated precluded any ‘narrow and exclusive policy’; on the other, it was ‘equally averse to any attempts artificially to create a world state, either by the deadening force of military empire or by mechanical construction’.Footnote 150 Nor was this internationalism opposed to nationalism: ‘The more nationalism itself becomes conscious of its true destiny and its effective aims, the more will it contribute to the growth of international institutions.’Footnote 151
Perhaps the clearest articulation of this vision can be found in the writings of Pitman Potter, who served as professor of international organization at the Graduate Institute of International Studies in Geneva in the decade before the Second World War. Potter’s monumental Introduction to the Study of International Organization, which first appeared in 1922 and ran to its fifth edition by 1948, was hugely influential in shaping a conception of international organizations as aligned with the nation-state, and opposed to two other forms of world unity: ‘empire and cosmopolitanism’. Empire entailed ‘the forcible union and subjection in one state of the people of otherwise independent nations’. Cosmopolitanism, by contrast, involved the voluntary unification of individuals on the basis of common interests; ‘in its form of government it would tend towards anarchy’. Standing between empire and cosmopolitanism, ‘international organization’ assumed the permanence of ‘the national state’, expecting ‘neither its subjugation nor its disappearance by the sublimation of the principle of nationality’, instead proceeding by ‘the voluntary coöperation of separately organized nations’.Footnote 152 By implication, particular international organizations would allow the flourishing of nation-states while avoiding the twin dangers of imperialism and lawlessness.
The interwar experiences of the ILO exemplify the force of this imaginary in practice. In the negotiations over the ILO’s constituent instrument, one sticking-point was the American view that the British draft ‘would have set up an international parliament of labor’ with power to make and impose legislation on its member states, and that a modification of the text was needed in order to avoid ‘the appearance of a super-state making labor laws for all the world’.Footnote 153 Several of the earliest advisory opinions issued by the PCIJ arose from concerns regarding ‘the tendency displayed by [the ILO] to establish a hegemony’,Footnote 154 such as in ‘overstepping the limits of its competence and encroaching on that of another body’.Footnote 155 In response, ILO officials took pains to depict their activities as the technical work of international administration. As the first Director of the International Labour Office put it, ‘we are not, no certainly not, a super-State! We are only humble administrators, obliged to take account of every social movement, of every incident in the political and Governmental life of fifty States’.Footnote 156
By the end of the Second World War, the understanding of international organizations as established on a functional basis had gained widespread acceptance. To some international lawyers, two stark alternatives faced the world: ‘world empire, achieved by conquest, or some form of association, such as world federation, achieved by consent’.Footnote 157 Yet to the leading advocate of the ‘functional approach to world organization’, the Romanian-British political theorist, David Mitrany, both empire and world federation were based on a flawed territorial logic, associated with ambitions for a ‘universal world-State’,Footnote 158 and likely to provoke new regional antagonisms.Footnote 159 In contrast, his ‘functional approach’ aimed to construct a ‘working peace system’ through specialized international agencies such as the ILO, which provided technical services to meet actual needs, as and when they arose. As such, it sought, ‘by linking authority to a specific activity, to break away from the traditional link between authority and a definite territory’.Footnote 160
The same antipathy towards world government, and an anxiety not to conflate international organizations with sovereign states, underpins a functionalist approach in many fundamental aspects of international organizations law. Article 104 of the UN Charter states that the organization ‘shall enjoy … such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes’ (emphasis added), but stops short of endowing the UN with legal personality. As Jenks noted, that formulation was intended to ‘avoid any implication that the United Nations will be in any sense a “super-state”’.Footnote 161 In coming to the conclusion that the UN was in fact an international person, the ICJ’s Reparation opinion took care to address this anxiety: ‘That is not the same thing as saying that it is a State, which it certainly is not … Still less is it the same thing as saying that it is a “super-State”, whatever that expression might mean.’Footnote 162 Accordingly, the rights and duties of an international organization depended on its particular functions and purposes, and did not extend to ‘the totality of international rights and duties recognized by international law’ as possessed by states.Footnote 163 Similarly, an international organization’s immunities are ‘based on the necessity of functions’, given that it does not possess the attribute of sovereignty or ‘territory of its own where it can exercise its exclusive jurisdiction’.Footnote 164
The principle of speciality or attributed powers, which limits the competences of international organizations, in contrast to the plenary powers of states, likewise derives from a functionalist logic. Already in 1927, the PCIJ had articulated this principle in relation to the European Commission of the Danube, underscoring that the Commission was ‘not a State, but an international institution with a special purpose’.Footnote 165 Some 70 years later, the ICJ relied on the same rationale to delimit the World Health Organization’s powers: ‘international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the “principle of speciality”’.Footnote 166 Citing this opinion, the World Bank’s legal counsel argued that the Bank should not insert itself into areas of activity more suitable to other, existing international organizations: ‘The Bank cannot act as a supra-national organization with an open-ended mandate … The Bank is certainly not a world government for its borrowing members’.Footnote 167 As Rahmatullah Khan put it, the Court’s opinions articulated ‘built-in checks and balances, or auto-limitations, both legal and political’, on the expansion of an organization’s functions.Footnote 168
What I am calling a postcolonial imaginary – that is, the implicit image of a world order comprised of nation-states, reinforced by functionally organized international organizations – naturally appealed to states and scholars from the global South. To this constituency, the functionalist logic of international organizations law appeared to fortify their political project to dismantle colonialism in the decades immediately following the Second World War. By cutting across the old imperial structure of international relations, the new multilateral system seemed to advance anti-colonial objectives, with international organizations serving as vehicles of decolonization, development, state-building, and the assertion of sovereign equality in international relations. Where European imperial powers had once exercised sovereign powers, international organizations, fortified by a functionalist law of international organizations, now provided the very means for establishing independent states, constituting statehood and sovereignty itself through functional support without territorial governance.
That imaginary also appealed to states and scholars in the global North, particularly as decolonization gained momentum through the late 1950s. Part of the very design of the multilateral system created at the end of the Second World War was to support a US-led ‘open door’ trade policy that necessitated the breakdown of imperial trading blocs. For many in the West, however, decolonization represented a profound threat to the established world order, and thus to international peace. To Josef Kunz, for example, the crisis in international law could be traced to the ‘decline of Europe’ and the rise of an ‘anti-colonial rebellion’ among non-Western peoples.Footnote 169 To Wilfred Jenks, too, the ideological divisions of the Cold War were mirrored in a basic disagreement on ‘the nature of law itself’, while rapid decolonization carried the ‘grave danger’ of diluting the content of the law.Footnote 170 In a world that seemed beset by potential cleavages, international organizations appeared crucial to socializing new states to the values of the international community. As one observer put it: ‘Filtering an act of intervention … through an international organization may transform what would otherwise have been labeled as “an imperialistic act” into an action recognized on every side as necessary and fair to all parties.’Footnote 171 International organizations law promised to buttress the institutions that would midwife the birth of new states, tutor them into full maturity, and knit together an emerging world community.Footnote 172
7. Conclusion
This article has traced the outlines of a postcolonial genealogy of international organizations law through several lines of argument. In the most straightforward temporal sense, I have suggested that international organizations law should be understood as postcolonial because it emerged in the period of decolonization following the Second World War and not, as the conventional narrative would have it, during the interwar period or earlier. At a more meaningful level, I have shown how much of the practice, jurisprudence, and doctrinal scholarship of international organizations law was profoundly shaped by postcolonial circumstances, actors, and – most importantly – concerns. Lastly, I have argued that international organizations law functionalism should be understood as mediating a postcolonial imaginary, which pictures a world of nation-states in opposition to the hegemonic territorialism of colonialism; and that this should be seen as fundamental to the appeal of international organizations law to states and jurists from both the global North and South.
By retracing international organization law’s origins in the decolonization period, this article aims to assist in a diagnosis of its contemporary condition. A full genealogy would, of course, need to account for the dramatic changes in international relations and law that have occurred following the period covered by this article – including the collapse of the NIEO project, the rise of the neoliberal ‘counter-revolution’, and consequent transformations in the global economy.Footnote 173 Yet postcolonial circumstances and concerns remain central to international organizations law. Consider, for example, the debates regarding organizational responsibility and accountability in relation to the UN’s role in the Haiti cholera outbreak, sexual abuse by peacekeepers in Africa, or the negative impacts of World Bank-sponsored projects in ‘developing’ countries.Footnote 174 Indeed, a notable change that has occurred over the half-century since 1970 is the extent to which jurists from the global South have become more critical of both international organizations and postcolonial states.Footnote 175
That change in attitude, too, can be understood as arising paradoxically from the postcolonial genealogy of international organizations law. As analyzed in this article, the imaginary of international organizations law functionalism supported the continued existence of nation-states – a feature that made it attractive to states and jurists from the global South as well as the North. With the support of international organizations, the ‘radical act of liberation from colonial domination’ was thus transformed and channeled into the form of the nation-state,Footnote 176 enabling at once the consolidation of power in national elites and the expansion of global markets.
To the extent that the practices of international organizations no longer seem to embody or serve these purposes, they have placed the shared imaginary of international organizations law functionalism under pressure. On the one hand, criticisms of international organizations and the failures of international organizations law have been especially acute precisely where functionalist and territorial logics become blurred – where the ‘functional’ activities of international organizations have been extended to embrace the effective governance of territory – such as in an increasing number of UN peacekeeping operations, or in development projects that involve large-scale environmental changes and the forcible removal of populations. On the other hand, the functionalist focus on serving particular needs of states has paradoxically resulted in the untrammelled growth of powers exercised by international organizations and a corresponding disaggregation of state functions.Footnote 177 As a consequence, the dilemma facing international organizations law is how to retain the political energy derived from its postcolonial genesis, while simultaneously addressing a set of challenges that seem to demand a new imaginary to make sense of the actual practices of international organizations today.
