Abstract
This article maps out how (international) legal concepts and norms were employed during the inter-institutional struggle between the United Nations and the World Bank in the decolonization era. The first contribution is historiographical. Drawing on material from the Bank's (oral) archives, the article gives an original account of the ways in which the organization bypassed the universalist aspirations that were gaining a foothold in the UN's democratic bodies. Secondly, the paper retraces how this particular event gave rise to a clash between opposing imaginaries of international legal order, where axiological aspirations voiced by states from the Global South were ultimately frustrated by a functionalist understanding of international (institutional) law that justified the Bank's institutional insulation. Finally, the paper aims to provide a modest methodological contribution to the field of international institutional law- A doctrinal discipline that traditionally pays little empirical attention to the historical and sociological performativity of concrete legal interventions. Keywords
| Original language | English |
|---|---|
| Pages (from-to) | 459-484 |
| Number of pages | 26 |
| Journal | Journal of the History of International Law |
| Volume | 21 |
| Issue number | 4 |
| DOIs | |
| Publication status | Published - 18 Dec 2019 |
Keywords / Materials (for Non-textual outputs)
- apartheid
- colonization
- performativity
- United Nations
- World Bank
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In: Journal of the History of International Law, Vol. 21, No. 4, 18.12.2019, p. 459-484.
Research output: Contribution to journal › Article › peer-review
TY - JOUR
T1 - International Law as insulation
T2 - The case of the World Bank in the Decolonization era
AU - Van Den Meerssche, Dimitri
N1 - Funding Information: ’. Asian Journal of International Law 8 ( 2 ) ( 2018 ), 403 – 431 . von Bernstorff , Jochen and Dann , Philipp . The Battle for International Law in the Decolonization Era , ( Oxford : Oxford University Press , 2019 ). 1 I am referring in particular to the UN’s Declaration on the Granting of Independence to Colonial Countries and Peoples . The notion of ‘democratic’ bodies refers to the fact that voting in these bodies occurs on the basis of the ‘one country, one vote’ principle. This stands in contrast to the Bretton Woods Institutions, where voting power is determined by the financial contributions of states (and therefore evidently reflects global disparities of (economic) power). 2 Methodologically, this approach is inspired by the great work by Ingo Venzke on (the limits of) counterfactual histories in the context of international law. See Venzke, Ingo. ‘Possibilities of the Past: History of the NIEO and the Travails of Critique’. Journal of the History of International Law 29 (2017); Venzke, Ingo. ‘What if? Counterfactual (Hi)stories of International Law’. Asian Journal of International Law 8(2) (2018). Equally inspiring is Orford, Anne. ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’. IILJ Working Paper 2012/2 (2012). I will elaborate more on questions of (false) contingency and continuity in section 4 of the article. 3 On this historical observation more generally, see von Bernstorff, Jochen and Philipp Dann. The Battle for International Law in the Decolonization Era (Oxford: Oxford University Press, 2019). See also Muschik, Eva-Maria. ‘Managing the world: the United Nations, decolonization, and the strange triumph of state sovereignty in the 1950s and 1960s’. Journal of Global History 13(1) (2018), 121–144 (more generally on the UN as a site for the struggle against colonialism and the emergence of ideals of post-colonial statehood). 4 Indeed, one way to historically interpret the political stakes in the controversy is to situate them in the context of Cold War politics and the emergence of Western hegemony. In that sense, the image of international law that is retrieved here sought to counteract the international institutional developments retraced in the work of Mazower. See Mazower, Mark. Governing the World: The History of an Idea (London: Penguin Press, 2012). 5 For a description of ‘regimes’ as ‘solipsistic and imperialistic’ sovereignties, see Koskenniemi, Martti. ‘Hegemonic Regimes’, in Regime Interaction in International Law: Facing Fragmentation , eds. Margaret Young (Cambridge: Cambridge University Press, 2012), 317–318. 6 See Letter from Olivier De Schutter and Cephas Lumina to Jim Yong Kim, 10 August 2012; Letter from Anne-Marie Leroy to Olivier De Schutter and Cephas Lumina, 16 January 2013. In this exchange of letters between the Office of the High Commissioner of Human Rights ( OHCHR ) and the World Bank, we can observe how the functionalist mode of legal argumentation employed in the episode under scrutiny is transmitted to a very different, more recent, controversy (where the Bank asserted its juridical autonomy from the authority of the UN human rights regime). This does not imply a historical continuity between both events, but it does signal, in the way described by Orford, how law serves as a carrier of inherited obligations and codifier of inter-institutional relations through which specific constellations become resilient over time and difficult to alter or contest. Cf . Orford, ‘The Past as Law or History?’ 2012 (n. 2). Despite these observations, I should make explicit that the analysis of law’s performativity that is explored in this article is derived from the particular past controversy at the heart of the inquiry and defies facile extrapolations. 7 This point is elaborated in section 4 of this article. The need to differentiate between normative justification and causal determination is argued extensively in Koskenniemi, Martti. From Apology to Utopia: The Structure of International Legal Argument . (Cambridge, Cambridge University Press, 2005), 571–572 (‘[t]he legal justifiability of a decision is not the same as a causal account of why it was taken’); Kratochwil, Friedrich. The Status of Law in World Society: Meditations on the Role and Rule of Law . (Cambridge: Cambridge University Press, 2014). 8 These effects (and the differentiation with causal modes of reasoning) are described in detail in section 4. 9 See Klabbers, Jan. ‘The Paradox of International Institutional Law’. International Organizations Law Review 5 (2008). 10 In Kratochwil, The Status of Law in World Society 2014 (n. 7). 11 As I elaborate in more detail later on, this perspective is informed by Latour’s writing on law’s ‘mode of existence’. 12 It suffices to note for the purposes of this analysis that the contentious issue during these negotiations was whether the Bank would become subordinated to the UN System or have an autonomous legal status. While several countries within the UN (most vocally, the USSR and Norway), urged for the former option, the eventual agreement encoded the latter. The position taken by the Bank during these negotiations was articulated by its internal Committee on Interpretation in the following terms: ‘no provision of the Charter of the United Nations may be interpreted or applied in such a manner as to impose on any such Specialized Agency obligations inconsistent with their basis instruments’ and the Bank ‘must have freedom of judgment and decision on all matters falling within the special field of their activities as defined in their Articles of Agreement’. This report was consulted in the World Bank’s archives. See IBRD , Report of the Committee on Interpretation , 9 October 1946, World Bank Archives, 6. 13 United Nations Economic and Social Council, Committee on Negotiations with Specialized Agencies – Summary Record of the Fifty-Fifth Meeting – First Joint Meeting of the Committee on Negotiations with the Specialized Agencies of the Economic and Social Council and the Representatives of the International Bank for Reconstruction and Development and the International Monetary Fund, 15 August 1947, World Bank Archives. 14 IBRD , Committee on Interpretation 1947 (n. 12). 15 Ibid. 16 It is evident that these early inter-institutional controversies had their own historical context in the post-War momentum and reflected the nascent divide between the plenary political sites of international public order and the bordering sphere of international economic governance. On both the historical and ideological context of this ‘constructed separation’, see Pahuja, Sundhya. Decolonizing International Law (Cambridge: Cambridge University Press, 2011), 18–25. The struggle over the legal relationship between the IBRD and the UN also had an immediate geopolitical aspect. As Arutiunian, the USSR representative in ECOSOC ’s Committee on Negotiations with Specialized Agencies, argued: ‘[t]he United States controlled one third of the votes both of the Bank and of the Fund, and would like to prevent the two organizations from coming under the influence of the United Nations. In such circumstance, the Bank … lost [its] international character…. The Bank had become a political institution belonging to one great national Power’. In United Nations General Assembly Joint Committee, Fourteenth Meeting, 14 October 1947, Word Bank Archives. Demuth later recognized that, indeed, ‘the international organization people in the [US] State Department were very anxious that [the Relationship Agreement] go through’. Interview by R. Oliver with R. Demuth, Oral History Research Office, Columbia University, 1961, 18. While the context of decolonization that is central to this article differs from this earlier conflict, it should be remarked how at this early stage already – as reflected in the 1947 Relationship Agreement – law performed the particular roles of insulation and self-foundation that are further explored in section 4 of this article. The 1947 agreement was essential in protecting and insulating the Bank from alternative imaginaries of international public order centred around the plenary halls of the UN and organized around egalitatian ‘one country, one vote’ principles. When reporting back to the Bank’s Board after the 1947 negotiations, McCloy expressed: ‘I am rather happy that we do have an agreement … which identifies our status this clearly, if only to counteract the impression that we are a specialized agency of the United Nations’. IBRD , Transcripts of 103rd Board of Executive Directors Meeting , 20 August 1947, World Bank Archives, 365. 17 Interview by R. Oliver with A. Broches, World Bank Oral History Program, 1985, 15 (referred to as ‘Broches 1985’). 18 Interview by R. Oliver with R. Demuth, Oral History Research Office, Columbia University, 1961, 18 (referred to as ‘Demuth 1961’). 19 Ibid., 20. 20 G.A. Res. 1514 ( XV ), Declaration on the Granting of Independence to Colonial Countries and Peoples , Dec. 14, 1960. 21 In December 1961, the General Assembly declared the 1960s as ‘UN Development Decade’. See G.A. Res. 1715 ( XVI ), United Nations Development Decade: a programme for international economic cooperation , Dec. 19, 1961. 22 See G.A. Res. 2184 ( XXI ), Question of Territories under Portuguese Administration , Dec. 12, 1966, para. 9. See also G.A. Res. 2054 ( XX ); G.A. Res. 2105 ( XX ); G.A. Res. 2107 ( XX ), G.A. Res. 2189 ( XXI ) and G.A. Res. 2202 ( XXI ). For an overview, see UN General Assembly, The Politics of Apartheid of the Republic of South-Africa & Question of Territories under Portuguese Administration – Consultation with the International Bank for Reconstruction and Development, Report of the Secretary-General , U.N. Doc. A/6825, 15 September 1967. 23 G.A. Res. 2105 ( XX ), Implementation of the Declaration of the Granting of Independence to Colonial Countries and Peoples , Dec. 20, 1965, para. 11. 24 G.A. Res. 2107 ( XX ), Question of Territories under Portuguese Administration , Dec. 21, 1965, para. 9 (emphasis added). 25 Sundhya’s Pahuja recent work provides new insights into the world-making institutional struggles between 1955 and 1974 to define the proper relationship between international law, the state and the corporation-which-travels. Her analysis focuses specifically on the attempt in 1974, by the ‘Group of 77’ developing states, to assert international legal control over trans- or multi-national corporations through the establishment of the Commission on Transnational Corporations. See Pahuja, Sundhya. ‘Rival Worlds and the Place of the Corporation in International Law’, in Dann and von Bernstorff, The Battle for International Law , 2018 (n. 3). See also Pahuja, Sundhya. The Changing Place of the Corporation in International Law , Hersch Lauterpacht Memorial Lecture, Cambridge, 2018. 26 See UN G.A. Off. Rec. 20th Session, Annexes, Agenda Item 23, Addendum A/6000/Rev. 1. 27 See Brölmann, Catherine. The Institutional Veil in Public International Law: International Organizations and the Law of Treaties (Oxford: Hart Publishing, 2007). 28 With the major exception of the USSR , of course, which was not a member of the Bretton Woods Institutions. 29 With voting power in the Bank being linked to the number of shares held by states (generating de facto control by the US and its allies over the Bank), in contrast to the equal voting rights in the UN General Assembly. This difference in voting power, in combination with the absence of the USSR from the Bretton Woods Institutions, placed the Bank and the UN at opposing ends of major political debates in the context of the Cold War and the anti-colonial struggle. 30 This echoes the observations by Koskenniemi, who defines these ‘regimes of truth’ as ‘autonomous social and epistemic wholes’ that ‘that are internally validated by their embedded hierarchies of preference’. See Koskenniemi, ‘Hegemonic Regimes’ 2012 (n. 5), 317. 31 This aligns with the more general argument that ‘[m]odern international law is an elaborate framework for deferring substantive resolution elsewhere: into further procedure, interpretation, equity, context, and so on’. See Koskenniemi, Martti. ‘The Politics of International Law’. European Journal of International Law 1(1) (1990), 28. 32 Latour, Bruno. An Inquiry Into Modes of Existence: An Anthropology of the Moderns , trans. C. Porter. (Cambridge: Harvard University Press, 2013), 363. 33 As argued, inter alia , by Rosaria Mauro, Maria. ‘The Protection of Non-Economic Values and the Evolution of International Economic Organizations’, in Evolutions in the Law of International Organizations , eds. Roberto Virzo and Ivan Ingravallo (Leiden: Brill/Nijhoff, 2015). 34 As argued, inter alia, by Darrow, Mac. Between Light and Shadow: The World Bank, The International Monetary Fund and International Human Rights Law (Oxford: Hart Publishing, 2003). 35 See Kratochwil, The Status of Law in World Society 2014 (n. 7); Latour, An Inquiry Into Modes of Existence 2013 (n. 32); Latour, Bruno. The Making of Law: An Ethnography of the Conseil D’Etat , transl. M. Brilman and A. Pottage (Cambridge: Polity Press, 2009). 36 ‘The UN General Assembly for years had adopted resolutions calling on the Fund and the Bank not to deal with South Africa and Portugal. We acknowledged receipt of the resolutions and said that we would send them to our members, who, of course, had already received them, but we took no further action’. See Broches 1985, 10. 37 Interview by J. Lewis, R. Webb, D. Kapur with A. Broches, World Bank Oral History Program, 1990, 20 (referred to below as ‘Broches 1990’). 38 Ibid. 39 Broches 1985, 11. 40 Ibid. Interview by R. Asher with A. Broches, World Bank Oral History Program, 1984, 22 (referred to below as ‘Broches 1984’). 41 Broches 1984, 22 (emphasis added). 42 See Sinclair, Guy. To Reform The World: International Organisations and the Making of Modern States (Oxford: Oxford University Press, 2017). 43 Broches, Aron. ‘International Legal Aspects of the Operations of the World Bank’. Recueil des Cours 98 (1959), 313. 44 Ibid., 336. 45 Statements of U.N. Legal Counsel and I.B.R.D. General Counsel on Relations of U.N. and I.B.R.D. and Effect of U.N. Resolutions. International Legal Materials (Cambridge: Cambridge University Press, 1967), 154 (referred to below as ‘Fourth Committee’). 46 Ibid., 160 (emphasis added). 47 Ibid. 48 Ibid., 157. 49 Ibid., 163ff. Upon further questions by the Ghanaian and Tanzanian representatives if the Bank could simply disregard General Assembly resolutions, Broches merely repeated that ‘[t]he Bank had not regarded the resolutions in question as formal recommendations within the meaning of Article IV , paragraph 2 of the [Relationship Agreement]’. Ibid. 166. 50 Ibid. 154. 51 Broches 1984, 23. 52 Reference to these goals was made by the representative of Ceylon. See Fourth Committee, 153. 53 This axiological recourse to ‘world public opinion’ was made by the Ghanaian representative. Ibid. 54 Respect for these rights and freedoms had to be safeguarded in all loans, according to Iran’s representative. Ibid., 168. 55 This statement was made by the USSR ’s representative. Ibid., 165. 56 Ibid., 159 (emphasis added). 57 Responding to the Portuguese representative, Mr. Appiah said that ‘the voice he had just heard was a lone cry in the wilderness, representing a piece of the Iberian peninsula which believed that it was still the fifteenth century. That country should wake up to the realities of the twentieth century. It was indeed practising genocide in Africa’. Ibid. 169. 58 Mr. Mendelevisch used the occasion to state that ‘the Soviet delegation had been motivated by a principle – that of support for peoples fighting against colonialism. The Soviet Union gave such peoples its moral and material support both inside and outside the United Nations’. Ibid., 186. 59 Ibid., 151–152 (emphasis added). 60 Ibid., 153. 61 Ibid., 157 and 169 (emphasis added). 62 Broches 1984, 22. 63 Ibid. 64 Koskenniemi, ‘The Politics’ 1990 (n. 31), 28. 65 Fourth Committee, 169 (emphasis added). 66 Representatives from Ghana, India, Bulgaria, USSR , Tanzania and Yugoslavia contested the idea that the Bank could place itself outside the UN Charter because – presumably, but disputably – no ‘consultations’ had taken place. 67 Broches: ‘short of amendments to the Articles of Agreement to remove such obstacles, the Bank could do nothing’. Ibid., 160. Latour, An Inquiry Into Modes of Existence 2013 (n. 32), 364: ‘the passage of law gradually modifies the relation between the quantity of facts, emotions, passions, as it were, and the quantity of principles and texts on which it will be possible to rule. This proportion of relative quantities is known by the admirable term “legal qualification”’. 68 See Teubner, Gunther. ‘Juridification – Concepts, Aspects, Limits, Solutions’, in Juridification of Social Spheres , ed. Gunther Teubner (New York: De Gruyter, 1987). 69 Christodoulidis, Emilios. Law and Reflexive Politics (Dordrecht: Springer, 1998), 97. 70 See UN General Assembly, The Politics of Apartheid of the Republic of South-Africa & Question of Territories under Portuguese Administration – Consultation with the International Bank for Reconstruction and Development , Report of the Secretary-General, U.N. Doc. A/6825, 15 September 1967, Annex I (‘Memorandum by the Secretariat’), 19. 71 Ibid., Annex II (Extract from a letter from the General Counsel of the IBRD to the UN Secretariat, 5 May 1967), 7, 19. 72 Ibid., Annex III (Letter from the Legal Counsel of the UN to the General Counsel of the IBRD , 20 July 1967), 1. 73 Teubner, Gunther. Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford: Oxford University Press, 2012), 52. 74 See, inter alia , Darrow, Between Light and Shadow 2003 (n. 34); Bradlow, Daniel. ‘The World Bank, the IMF and Human Rights’. Transnational Law and Contemporary Problems 6 (1996), 55ff; Rosaria Mauro, ‘Evolution’ 2015 (n. 33), 254. 75 Broches 1984, 24 (emphasis added). This is a wonderful affirmation of the argument in Daugirdas, Kristina. ‘Reputation and the Responsibility of International Organizations’. European Journal of International Law 25(4), 2015, 991–1018. 76 Ibid. 77 UN General Assembly, The Politics of Apartheid 1967 (n. 70), Annex IV (‘Letter from the President of the IBRD to the Secretary-General of the UN’, 18 August 1967) (emphasis added). 78 Ibid., Annex V (‘Letter from the Secretary-General of the UN to the President of the IBRD’, 23 August 1967). 79 Broches 1984, 24 (emphasis added) and 1985, 13. 80 See Koskenniemi, ‘Hegemonic Regimes’ 2012 (n. 5). 81 Hereby I refer to Teubner’s argument that law is essential for the self-foundation and delineation of social systems (now perhaps more commonly described as ‘regimes’). The ‘constitutive’ dimension points to what Teubner describes as ‘the self-identification of a social system with the assistance of the law’. Cf . Teubner, Fragments 2012 (n. 73), 71. 82 The concept ‘inscription device’ is borrowed from Latour, who defines ‘inscriptions’ as ‘durable representations of knowledge’ produced through the alignment between organization and technology. See Latour, Bruno. Science in Action: How to Follow Scientists and Engineers through Society (Cambridge: Harvard University Press, 1987), 65–68. In drawing on the concept, I want to point to the capacity of law in establishing a ‘durable bond of political association’; a signpost for appropriate intra-institutional thought and action. 83 Broches 1984, 22. Demuth equally observed that ‘[i]t’s extraordinary how differently the governments react in [political] discussions, at the [Bank’s] Annual Meetings, for example, where the finance ministers are representatives, and at the Economic and Social Council where the representatives come from foreign offices, and are more politically motivated’. See Demuth 1961, 19. 84 According to Luxford, one of the ‘biggest fights at Bretton Woods’ was to ensure that the Bank’s directors would be reasonably independent, so that they could ‘talk intelligently to their own countries and point out the facts of life … and get away from voting … purely as political matters’. See Interview with Luxford, World Bank Oral Archives, 1961, 17. 85 Fourth Committee 1966, 176. 86 Ibid., 169. This argument still persists: ‘[a]ccording to Article 103 of the UN Charter, the obligations of States under the Charter, including obligations in the field of human rights, take primacy over other international obligations’. See Tilburg-GLOTHRO Guiding Principles on the World Bank Group, the IMF and Human Rights (2003), para. 8 (published in van Genugten, Willem. The World Bank Group, the IMF and Human Rights: A Contextualised Way Forward (Antwerp: Intersentia, 2015)). Cf . De Zayas, Alfred. Report of the Independent Expert on the promotion of a democratic and equitable international order . A/HRC/36/40, 2017, Annex III . 87 Fourth Committee 1966, 169. 88 d’Aspremont, Jean. ‘The Multifaceted Concept of the Autonomy of International Organizations and International Legal Discourse’, in International Organizations and the Idea of Autonomy , eds. Nigel White and Richard Collins (Abingdon: Routledge, 2011), 74. 89 De Zayas, Report 2017 (n. 86). 90 See Tilburg Principles 2003 (n. 86), para. 6: ‘[a]ccording to the Relationship Agreements the organisations are, and are required to function as, independent international organisations. It provides an organisational independence from the UN, not from interna‑ tional law.’ 91 The champion of this argument is of course Koskenniemi. See Koskenniemi, ‘Hegemonic Regimes’ 2012 (n. 5); Koskenniemi, Martti. ‘Human Rights Mainstreaming as a Strategy for Institutional Power’. Humanity 1(1) (2010). 92 Fourth Committee 1966, 152. 93 Broches 1984, 24 (emphasis added). 94 Ibid. (emphasis added). This observation very sharply articulates the constitutive role of law in the process of functional differentiation. 95 Lindahl develops a very sophisticated line of reasoning in arguing that ‘legal orders are necessarily limited’, and that ‘joint action by a legal collective presupposes a closure that is spatial, temporal, subjective and material’. These collectives – the ‘first-person plural’ – are grounded in ‘mutual normative expectations … about who ought to do what, where and when … articulated and actualized in joint action under law’. The character of a legal collective ‘manifests itself to its members – and to others – in how it draws the boundaries that establish the who, what, where, and when of behaviour falling within the scope of its normative point’. Absent these concrete ‘ought-places’ and their inevitable boundaries of purpose and meaning (at this point Lindahl aligns with the system theorists), law cannot ‘assign[] the appropriate places and times for the appropriate subjects to do the appropriate things’, in Lindahl, Hans. Fault Lines of Globalization: Legal Orders and the Politics of A-Legality . (Oxford: Oxford University Press, 2013), 25, 74, 84, 165. This view on how legality is implicated in the communicative foundation of the ‘collective self’ echoes in Teubner, Fragments 2012 (n. 73), 68ff. 96 Lindahl, Fault Lines 2013 (n. 95). 97 Latour, An Inquiry Into Modes of Existence 2013 (n. 32), 369–370. 98 Ibid. 370. 99 In her book on non-legality , Johns wonderfully traces how many of international law’s ‘voids’ or ‘empty spaces’ are constituted and shaped through legal work. Johns, Fleur. Non-Legality in International Law: Unruly Law (Cambridge: Cambridge University Press, 2013). D’Aspremont in this sense argues that IOs (as proper legal orders) are endowed with institutional independence, defined as ‘the impermeability of the organization to external institutional interferences’ and constituting a ‘legal order distinct from the general international legal’. D’Aspremont, ‘Autonomy’ 2011 (n. 80), 63–64. 100 Koskenniemi, ‘Hegemonic Regimes’ 2012 (n. 5), 317–318; d’Aspremont, ‘Autonomy’ 2011 (n. 80), 79. 101 In this light, d’Aspremont is right to argue that the ‘mechanism of Article 103 of the UN Charter … does not impinge on that conclusion [of institutional independence] as it simply addresses such a conflict from the vantage point of the UN Charter’. d’Aspremont, ‘Autonomy’ 2011 (n. 80), 75. 102 As Latour has stated, ‘[i]f there is one thing that law does not know how to replace, it is the gradual composition of sovereignty that is achieved by politics – a very specific form of enunciation, with its own particular vehicles and labours’. In Latour, Conseil d’État 2009 (n. 35), 270. This aligns with Teubner’s argument that law does not play a primary role in the self-foundation of social systems. Law, for Teubner, solidifies the autonomy of these social systems – in a process he defines as ‘double reflexivity’ – by neutralizing the paradox of self-referentiality involved in any constitutional claim. Law closes the circle of constitutional self-foundation by providing a stable reference point. Or in Teubner’s words: ‘[t]he “self” of the social system is defined heteronomously by legal norms and it can then define itself autonomously thereby. While the unity of a social system develops through the concatenation of its own operations, its identity is created in its own constitutions through the re-entry of external legal descriptions into its own self-description’. In Teubner, Fragments 2012 (n. 73), 107ff. Cf . Luhmann, Niklas. Law as a Social System (Oxford: Oxford University Press, 2004), 147. 103 Darrow, Between Light and Shadow 2003 (n. 34), 152. 104 Rosaria Mauro, ‘Evolution’ 2015 (n. 33); Bradlow, ‘Human Rights’ 1996 (n. 74), 55 (fn. 35). 105 See De Zayas, Report 2017 (n. 86); Tilburg Principles 2003 (n. 86). 106 Darrow, Between Light and Shadow 2003 (n. 34); Alston, Philip. Report of the Special Rapporteur on Extreme Poverty and Human Rights , A/70/274, 2015, 2: ‘[t]he biggest single obstacle to moving towards an appropriate approach is the anachronistic and inconsistent interpretation of the “political prohibition” contained in its Articles of Agreement’. 107 See Rosaria Mauro, ‘Evolution’ 2015 (n. 33), 254. 108 Bradlow, ‘Human Rights’ 1996 (n. 74); Handl, Gunther. ‘Legal Mandate of Multilateral Development Banks as Agents for Change Toward Sustainable Development’. American Journal of International Law 92(4) (1998); Darrow, Between Light and Shadow 2003 (n. 34); Darrow, Mac. ‘World Bank and International Monetary Fund’, in Encyclopedia of Human Rights , eds. David Forsythe (Oxford: Oxford University Press, 2009); Van Genugten, Human Rights 2015 (n. 86). 109 On the salience and flaws of this imaginary, see Johns, Non-Legality 2013 (n. 99). 110 Indeed, if a sense of contingency clearly emerges from the legal debates that this article has explored, such contingency becomes questionable once the inter-institutional conflict is contextualized in light of its particular historical setting, the broader geopolitical stakes at play and the investment of potent actors in the politics of functional differentiation (or, on the other hand, axiological integration). Publisher Copyright: © 2019 Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Copyright: Copyright 2020 Elsevier B.V., All rights reserved.
PY - 2019/12/18
Y1 - 2019/12/18
N2 - This article maps out how (international) legal concepts and norms were employed during the inter-institutional struggle between the United Nations and the World Bank in the decolonization era. The first contribution is historiographical. Drawing on material from the Bank's (oral) archives, the article gives an original account of the ways in which the organization bypassed the universalist aspirations that were gaining a foothold in the UN's democratic bodies. Secondly, the paper retraces how this particular event gave rise to a clash between opposing imaginaries of international legal order, where axiological aspirations voiced by states from the Global South were ultimately frustrated by a functionalist understanding of international (institutional) law that justified the Bank's institutional insulation. Finally, the paper aims to provide a modest methodological contribution to the field of international institutional law- A doctrinal discipline that traditionally pays little empirical attention to the historical and sociological performativity of concrete legal interventions. Keywords
AB - This article maps out how (international) legal concepts and norms were employed during the inter-institutional struggle between the United Nations and the World Bank in the decolonization era. The first contribution is historiographical. Drawing on material from the Bank's (oral) archives, the article gives an original account of the ways in which the organization bypassed the universalist aspirations that were gaining a foothold in the UN's democratic bodies. Secondly, the paper retraces how this particular event gave rise to a clash between opposing imaginaries of international legal order, where axiological aspirations voiced by states from the Global South were ultimately frustrated by a functionalist understanding of international (institutional) law that justified the Bank's institutional insulation. Finally, the paper aims to provide a modest methodological contribution to the field of international institutional law- A doctrinal discipline that traditionally pays little empirical attention to the historical and sociological performativity of concrete legal interventions. Keywords
KW - apartheid
KW - colonization
KW - performativity
KW - United Nations
KW - World Bank
UR - http://www.scopus.com/inward/record.url?scp=85077534023&partnerID=8YFLogxK
U2 - 10.1163/15718050-12340127
DO - 10.1163/15718050-12340127
M3 - Article
AN - SCOPUS:85077534023
SN - 1388-199X
VL - 21
SP - 459
EP - 484
JO - Journal of the History of International Law
JF - Journal of the History of International Law
IS - 4
ER -