International Organizations

Jan Klabbers

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9780754624479
• eBook ISBN:
  9781351926652
• Topic: Law
• Subtopic: International Law
• Index: Law

International organizations have come to occupy a central position in international governance, exercising many public functions and facilitating political debate amongst states and other actors, though it is only recently that the focus of legal discussions has begun to shift to controlling the activities of organizations. This volume assembles sixteen important essays addressing various issues relating to the law of international organizations, highlighting theoretical issues and ongoing political debates and emphasizing issues of control. The introductory essay provides an overview of the development of the politico-legal debate and situates the law of international organizations historically and in its contemporary context.

Part I

General Frameworks

[1]

THE MOVE TO INSTITUTIONS

David Kennedy^*

I.	INTRODUCTION
II.	THE ORIGIN OF THE LEAGUE OF NATIONS
	A. Diplomatic History and the Break of War
	B. International Institutions and the Move to Peace
	C. Institutional Practice as Transformation and Repetition
	D. Establishment by Association and Exclusion
	E. Organizing a Break
III.	THE COVENANT OF THE LEAGUE OF NATIONS
	A. The Status of the Covenant
	B. The Covenant and the Peace Treaties
	C. Substance and Process in the League Covenant
	D. The Covenant: A System for Peace
	E. The Covenant: A War System
	1. Plans for a War System
	2. Textual Establishment of a War System
	F. A Text About War and Peace
IV.	THE LEAGUE PLENARY
	A. The Plenary Structure: Membership, Voting, and Organs
	B. Plenary Decisionmaking: Voting
V.	A CONSTITUTED LIFE

I. INTRODUCTION

The discipline of “international institutions” has made much of 1918.¹ Although most histories of the field stress the importance of various nineteenth-century European institutional innovations, they express little doubt that the modern international institution was born with the League of Nations in the aftermath of the First World War. This article examines the transformation of these historical developments, and in particular of war, into the origin of an institutional and academic practice.

By locating its origins in a set of historical developments, the discipline of international institutions distinguishes itself from public international law, which generally traces its origin to the texts and ideas of a few Europeans who wrote about international law and statecraft prior to the 1648 Peace of Westphalia.² Modern scholars of public international law write about the relationship between the ideas that comprise their discipline and various historical practices.³ They consider the historical connections between the development of the national state or the Reformation and doctrines about sovereign autonomy or the separation of municipal and international law.⁴ They theorize about the influence of state practice on legal norms and vice versa.⁵ These are the preoccupations of a discipline which begins with the word.

Scholars writing about international institutions do not worry about the normative or historical relationship between their doctrinal or theoretical work and the practice of the institutions they study.⁶ Theirs is not, in this sense, a normative or an idealist discipline. They worry, rather, about capturing the functional relationship between institutions and states and the details of institutional design on paper. In its practice, the discipline considers problems of situated and pragmatic management rather than normative authority and application.⁷ These are the preoccupations of a discipline which begins with the deed. If the mystery of international law’s origin lies in the autonomy of its ideas, the mystery of international institutions is the transformation of deed into word.

Because it self-consciously originates in a relationship between deed and word, the discipline of international institutions seems more modem than public international law. Yet both the academic discipline of international institutions and the establishment of the institutions themselves are textual practices. Thus, Inis Claude begins his classic American college text Swords Into Plowshares by asserting that:

It is useful to consider the nineteenth century as the era of preparation for international organization, and, for this purpose, to treat 1815, the year of the Congress of Vienna, and 1914, the year of the outbreak of World War I, as its chronological boundaries. Starting thus, we establish the years which have passed since the momentous events of 1914 as the era of establishment of international organization, which, in these terms, comes to be regarded as a phenomenon of the twentieth century.⁸

That Claude uses the word “establish” twice in this paragraph, once to refer to “our” own historical periodization and again, this time with emphasis, to refer to history’s production of an institutional regime is revealing, for indeed, both were products of a similar imagination.⁹ Ruminating about the origin of international institutions as a discipline no less than as a practice raises issues about what might be thought of as the textualization of social life rather than about the development, originality, and integrity of the word. By what mechanism does the discipline encompass its historical situation in a legal process? How did international life come to be “institutionalized”?

As comprehended by the discipline, the year 1918 originates the international institution in three ways. First, it executes a break between a preinstitutional and an institutionalized moment. Second, it establishes a progressive movement across that break into the League of Nations. Third, it inaugurates an institutional practice of repetition and exclusion which sustains the momentum of that movement into the institution.

The break in history’s narrative providing the opportunity for the institution’s birth is most apparent in the treatment accorded the year 1918 by the literature about international institutions. I consider these writings in Section I. The texts of establishment, particularly the Covenant of the League, transform that break into an institution. I take up this theme most directly in Section II. The analysis of voting in the plenary illustrates the recapitulative institutional practice which has been established, and is considered in Section III.

I begin exploration of these three themes of origination—break, movement, and repetition—by examining the discipline’s sense that international institutions were necessary and desirable reactions to a disorganized world, distinguishing a preinstitutional from an institutionalized international order.¹⁰ Thinking about the origins of international institutions seems to demand a vision of war, of peace, and of the process by which war gives way to peace. The sense that international institutions respond to war is common to literature about the institutional efforts which followed the First World War, the Second World War, and the wars of decolonization.¹¹

The men who developed international institutions in this century experienced the wars to which institutions responded as temporary, disruptive, out of the ordinary, chaos.¹² In Section I of this article, I explore the interpretive mechanisms deployed within the discipline—among them notions borrowed from diplomatic history—to sustain this image of a discrete break against which to construct an enduring peace. Some of these mechanisms are purely discursive, for example, the characterization of the 1918 break as a movement across the boundary between politics and law, or passion and reason, or reality and utopia. Others are exclusionary, writing the history of the break as the successful transcendence of extreme positions and politics thought typical of chaos. In 1918 this was most pronounced in the exclusion of feminists and radical reformists from the Peace Conferences and in the temporary exclusion of utopian lawyers by realist politicians.

These images of the relationship between war and peace were associated with an image of the institution as the opposite of the social breakdown of war.¹³ The literature has contrasted organized life with chaos in two major ways. First, the institution opposes a social situation which it organizes and into which it, or perhaps we, would sink should the institution’s cohesion lapse.¹⁴ This disorganized scene might seem either violent, chaotic, and passionate, or rigid and boring.¹⁵ In either case, to be organized is to be lifted above its mire, from passion into reason, from mechanical stasis into inspired social progress.¹⁶ Second, and more importantly for the discipline, the institution is a continual transcendence of chaos, a continual movement forward from its origin and differentiation from its own history.¹⁷ The current form of the institution responds to its preparation, reminds us of the moment at which war was set aside, and promises the institution’s withering away and the arrival of its successor—a peace which could finally leave the threat of war behind.

The second and third Sections of this article explore this institutionalization practice. Section II analyzes the textual mechanism which establishes the institution: the Covenant of the League of Nations. The use of a text to signal the move, and indeed to move, from chaos to order is part of the genius of modern institutional practice. This section considers the relationship between the peace negotiations and the drafting of the League Covenant, the international dynamics of the Covenant itself, and the relationship envisioned by the Covenant between the moment of textual establishment and the plenary of the institution being established.

The system of textual establishment illustrated by the League Covenant set in motion an institutional and disciplinary practice quite different from the political practice it sought to leave behind.¹⁸ Section III considers this continuing process of institutionalization in the analysis and reform of plenary voting schemes as institutional embodiments of the replacement of war by peace through organization. This literature captures changes in the discipline’s image of institutionalization as it breaks forward from its own history, and illustrates the continued practice of exclusion and redefinition which sustains the institutional regime and transforms the chaos of war into the rhetorical practice of “dispute resolution.”

Before examining these three practices of the discipline—its origin in the break between peace and war, its textual movement to establish the institution, and its recapitulative efforts at institutional continuation and reform—I should stress that this is neither a history of the League of Nations nor an account of changes in the discipline of international institutions. Those stories have been ably told elsewhere.¹⁹ This article considers only a set of ideas about institutionalization illustrated by some narratives told by the discipline of international institutions about its origin and practice.

II. THE ORIGIN OF THE LEAGUE OF NATIONS

In this Section of the article, I examine several basic ideas about the League’s origin that recur in the international institutional literature. Many of these ideas are shared with or borrowed from the literature of diplomatic history. Perhaps unsurprisingly, contemporaneous plans and proposals for a League participate in the same narrative. Of the three establishment themes explored in this article—break, movement, and repetition—the first is best illustrated by these texts about the League’s origin. All are concerned to establish a rupture in the narrative of history which could accommodate something as original as the institutionalization of international relations. In these materials, this break is most commonly articulated as part of the relationship between war and peace. As they enforce a break between war and peace, these materials also illustrate the transformation of that difference into both a forward momentum for the establishment of institutions and an institutional style which can sustain that momentum.

A. Diplomatic History and the Break of War

For three generations, students of international relations and diplomatic history have been taught to treat the First World War as a watershed.²⁰ In much of this literature, the War is treated as the quintessential mark of historical change.²¹ It is in this spirit that people writing about public international law and international organizations treat 1918 as a break in the evolutionary development of contemporary international institutions.²²

Although texts which treat 1918 as a sharp historical break in both the development of international institutions and in the analytic tradition spawned by that development rely upon the common image of the War as an interruption in the historical narrative, they also depart from it in important ways. It seems obvious that speaking of the War as a “break” oversimplifies what were complex changes, not only in the international political order, but in cultural assumptions, legal theory, and much, much more. At best, “the First World War” seems useful shorthand for a variety of quite different changes. Allowing the War to signal a variety of historical changes is different from situating a single change—a move into institutions—in the peace which resulted from that War.²³

Literature about the origin of the League thus relates two different breaks—one which it borrows from diplomatic history and one which it creates in 1918. The first of the two ruptures relies comfortably on common images of the difference between war and peace. In general parlance, the First World War is treated as a disruption, an intrusion into the affairs of men which dramatically altered their “flow.” The War was a “catalyst,” a “crucible,” a “sudden storm sweeping away the old order.”²⁴ In this vision, war is as fundamentally different from peace as is nature from the affairs of man.²⁵

The general sense of the War as a break in the flow of peace suggests a second difference, one between the peace which preceded and that which followed. The First World War seems a crucial historical juncture because of its position between two different cultural, political, and social orders. When historical changes are organized around the breaks provided by war, the peaceful “systems” of both the pre- and postwar eras seem relatively continuous and stable, despite being subject to periodic radical disruption.²⁶ So long as war organizes and punctuates the progress of peace, the “break” between two orders seems less a rupture than a movement forward.

In diplomatic history, particularly as rendered by literature about the origin of international institutions, the First ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I GENERAL FRAMEWORKS
• PART II PERSONALITY AND POWERS
• PART III NORM-SETTING
• PART IV MECHANISMS OF CONTROL
• PART V CONSTITUTIONALIST TENDENCIES
• Name Index