10.5 THINKING THROUGH THE INTERNATIONAL ORGANISATION

The League, though superseded after the Second World War, has had a long afterlife. It furnished the basic model of an ‘international organisation' which persists today. The United Nations differed from the League in important

respects, particularly the powers granted to the Security Council, but it inherited the League's model of an ‘international civil service', with staff characterised as ‘responsible only to the Organization', and such responsi­bilities having an ‘exclusively international character'.^[711] Aspects of the League's workings, carried over into and developed in the United Nations, have formed the kernel of a ‘law of international organisations' or ‘inter­national institutional law'.

The model of a (putatively universal) international organisation, and ‘inter­national' staff, with the somewhat unstable notions of authority and affiliation this entails, has been open to distinct political projects. Whereas Zilliacus's concern was that the League (or the Secretariat as the League) was not doing enough, not speaking when it should, international officials in different circumstances have sometimes been able and willing to make far more than Drummond or Avenol had done of the possibilities inherent in ‘international' authority. Anne Orford, for example, has charted the way in which Hammarskjold's posture of a ‘neutral' international figure underwrote the expansion of UN administration in post-colonial states during the Cold War,^[712] and Guy Fiti Sinclair has traced the rhetorical and practical means through which international organisations of various kinds have entrenched an influence well beyond the formal powers sketched in their founding instruments.^[713] Such accounts illustrate the role played by international organ­isations in shaping normative expectations of statehood, and setting the terms of decolonisation.

Lawyers, historians and many others have shared a conviction that there is something of importance to explore in the development of our present international institutional landscape. They have also shared an intuition that bringing this role to light might demand that we shift the conventional focus of disciplinary inquiries. Thus, to take two recent examples, Orford has argued that, to understand current theories of the state and authority, we must ‘treat the archives of bureaucrats and international civil servants with the care and attention that was previously devoted to glossing the pronouncements of philosophers, judges or legal theorists'.^[714] Orford also poses a frontal challenge to contemporary doctrinal reasoning in the area of use of force, peacekeeping and humanitarian intervention, arguing that the chief work of the ‘responsi­bility to protect' programme of the 1990s lay in its retrospective legitimation of powers assumed by the United Nations Secretariat since the 1960s. Susan Pedersen has urged historians and political theorists to pay more attention to the Secretariat (and, by extension, like bodies) as ‘a site for political innovation and political thought'.^[715]

Proliferating studies of international organisations have in turn elicited questions about what might be gained and lost by different disciplinary perspectives and, of particular relevance here, the stakes of a legal or juridical, as opposed to historical, account of these institutions.^[716] The interaction between law and (intellectual) history in the history of international law has to date been framed primarily as a debate about anachronism and contextualism.^[717] The argument that law is distinctively concerned with making meaning move across time (to take Orford's vivid phrase), and that its history thus cannot be captured adequately by contextualist historiographical methods - at least without losing the critical potential of historical approaches in the first place - deserves a fuller treatment than I can offer here.

I want here to take the institution, and the League in particular, as an alternative starting-point. The League case allows us to reflect on the role played by legal discourse in the construction of the international organisation as a category, and on the stakes of the disciplinary perspectives we bring to bear on this history. Just as the League seemed to its contemporaries a perplexing thing, resistant to any comprehensive conceptualisation, it can, I suggest, be a (helpful) irritant for us as well. Institutions, like states, are creatures in and of law, bringing facticity close to the surface of legal analysis. They testify also to the power of intellectual construction, while reminding us that this construc­tion is never wholly intellectual; it is a social, cultural, bureaucratic and often extra-textual phenomenon. The institution as an object of inquiry allows us to see anew the diversity within law and history, and the scope for exchange between them.

The League case illustrates the diversity and instability of early ‘legal' thinking about the international institution. To the extent that commentators even understood themselves as anchored definitively in law rather than, for example, political science and a then-emergent discipline of international relations, writers across these boundaries were working with similar concep­tual resources (corporation, league, confederation and the like). These com­mentators, and individuals like Zilliacus, argued in intersecting ways - as in Zilliacus's experimentation with treaty interpretation as one technique along­side others. Even among authors most readily characterised as legal scholars, analyses took diverse starting points. They ranged from efforts to foreground the League as an entity, and classify it alongside ‘confederations' and other like persons, to efforts to bracket the institution itself and focus on the interpretation of its founding treaty, or on the legal order of which it was a creation.

The fact that it is difficult to delineate a domain proper to law in contem­porary accounts of the League's founding calls into question how we might today demarcate our approaches to the international organisation. Our own disciplinary orientation matters to some extent, but disciplinary identification alone is a crude measure. Historians of empire and internationalism and law and political thought might be interested in quite different things; they will see organisations in different lights. Lawyers, too, will differ in their intellec­tual and professional stance. Some will be seeking to craft arguments and produce knowledge within protocols internal to contemporary law which, while uneven and elastic, implicit or explicit, substantive or procedural, and changeable over time, circumscribe the significance and interpretation of past acts and texts.^[718] Others who identify primarily as lawyers may probe how law and legal institutions have evolved, how they work, and what they generate, in ways deeply informed by experience internal to law, but not themselves subject to the protocols which would constrain legal argument today.^[719]

This is not to say that the divide between work ‘internal' to law and beyond it is simple, or closed. It is constructed over time, from both within and without, and politically salient, given law's peculiar capacity to shape insti­tutional and governmental action.

The League case illustrates the way in which writings within law and history can speak to each other. At the most basic level, accounts which read across the boundaries of law's internal understanding, whether they are styled histor­ies or something else, help illuminate what is missed in a purely internal legal account of the institutional past, and the work that law (in all its diversity) is doing. While the consolidation of a law of international organisations has drained international organisations of the startling quality they had for inter­war commentators, recovery of the earlier perplexity makes clear the extent to which current questions remain connected to foundational puzzles.

The question of speech which recurred in so many different guises in the League, and particularly in the ambiguous relation between Secretariat and institution, remains only partially addressed by law. Although the manage­ment of flows of information from governments and non-government net­works has been central to the development of complex interrelations between states and international organisations, these have never been fully registered in legal terms. Still today, they barely feature in accounts of the law of international organisations, beyond reference to inviolability of institutional archives and rules prohibiting unauthorised disclosure of information from staff. This studied indifference to bureaucratic processes is part of the formal­ising and abstracting work that law does. Yet these flows of information and modes of speech cannot readily be separated from questions of responsibility and authority in and through institutions.

Relatedly, a largely statist sources doctrine^[722] has obscured the complex ways in which international organisations and their organs act in the international legal order. It is evident that these organisations may catalyse multilateral treaty-making and incubate customary norms in myriad ways (for example, by eliciting official statements and producing material records from which customary law is discerned). But other aspects of organisational action are less readily assimilated. For example, secretariats, in interpreting founding char­ters, making decisions in matters before them, or pursuing policy work, may also adopt interpretations of law on particular points, and shape the terms in which legal questions are framed and debated.^[723] This works too for the secretariats' own status. Bureaucratic craft and rhetorical self-positioning can settle into what Zilliacus called a ‘tradition', an ‘unprecedential relationship' which, while difficult to reconcile with founding texts, comes to shape the understanding of governments and interlocutors, and help crystallise pathways of influence over substantive points of law.

Of course, as in the interwar period, legal discourse is internally diverse. Some Anglo-American perspectives, in particular, informed by a common law sensibility, animated by a wider sense of ‘governance' or ‘administration', and increasingly informed by social scientific investigation of how institutions work in practice, are more likely to capture diffuse and potentially jurisgen- erative practice that is not intelligible within a more orthodox emphasis on formal delegation of powers from states. These approaches eschew preoccu­pation with the legal forms of transnational decision-making and focus instead on its procedure. This may entail careful attention to knowledge and speech: who shapes decision-making and how. But these approaches, while arguably still part of an internal legal account (on a loosely positivist model), will nevertheless face a certain limit to what can be said in a manner internal to law. The more pressure is put on the outer reaches of this perspective, the more one finds oneself confronted with basic questions about the concept of law being invoked.^[724]

Law has done much of the work to ensure that we have come, in the space of a few decades, to accept as familiar fundamentally novel structures of authority and responsibility. However contingent law's operation might be, its vocabularies and techniques offer a powerful vector through which past events can take on new significance in the present. History offers one way of seeing this work of law in a way which is not bound by law's own protocols. Of course, histories which touch on international organisations may do so quite differently - including situating international organisations in a larger matrix of states, corporate actors and social movements in a way which de-centres organisations, or emphasises the constraints on or conditions of their influence in particular moments. Nevertheless, such accounts, even when not framed in a fashion internal to law, can sound in law (for example, by unsettling accepted premises of past legal decisions, dominant interpretations of texts, and the normative horizons of legal practitioners).

This is not to say, however, that history (of one kind or another) offers a stable external viewpoint. What emerges from the League case is how pro­foundly the institution challenges historical as well as juridical analysis, creat­ing shared dilemmas. The dynamic quality of institution and office - the advent of an entity which then, in its workings, changes the terms on which individuals think and act, and others judge it - is a problem for both history and law. Each confronts the interrelation of thought and action (‘practice' having elements of each), and the related (but distinct) opposition between the institution's textual and extra-textual workings.

This chapter might, for example, have been framed as a conceptual history. The arguments I trace here could be seen as part of a moment of innovation: the emergence of a ‘concept' of the international organisation and inter­national civil service (the two, as presently understood still, being inextricably linked). There is a marked shift around the interwar period in the usage of ‘international organisation' which would bear this out. Yet this process of innovation is arguably more iterative and multidimensional than some char­acterisations of conceptual change in intellectual history.^[725] It involves quite marked concrete reforms to the workings of governments and diplomacy, and the invention of new bureaucratic practices, which then feed into a loosely shared endeavour to grasp these new conditions. Intellectual framings work in complex ways with social and bureaucratic practices: conceptualisation may well precede changes in practice; but the latter (sometimes hesitantly deliber­ate, sometimes not animated by any unitary plan) also re-present the intellec­tual problem in new guises at different points.

This is borne out by the observations of those whose historical work has been most concerned with how the social history of the international civil service, and civil society mobilisation, meets the formal facets of the insti­tution. To put the issue in Foucauldian terms, this is about the way in which sovereignty as practices of government relates to sovereignty in its more formal juridical (and political) sense. Something of this finds its echo in much recent work. Gram-Skjoldager and Ikonomou write of the need to probe ‘the insti­tutional landscape where the individual and... surroundings meet - where concrete meaning is produced through institutional practice'.^[726] Wheatley's study of the mandate petitioning procedure underlines the complexity of historicising a process in which the actual mobilisation and participation of non-state actors shapes the international legal category of the petitioner. She calls for a ‘history of international legal personality that is always looking around the corners of the concept itself.^[727]

The account of the League in this chapter links the speech of and for an institution, and more fine-grained controls on the speech of its human staff. It forces together formal conceptions of an institution, made possible by the actions of human agents who are both looking to formal notions of authority and working in their interstices. The abstracting work of law introduces limits to how much of this picture can be juridically relevant to any internal legal argument today (though the limits are not stable or impermeable). Historical accounts offer one means of putting these limits in question, but the practice of history encounters its own challenges in the institution. Either disciplinary stance entails questions about what we ourselves would say now, and why.