{"id":18851,"date":"2022-11-21T12:00:13","date_gmt":"2022-11-21T11:00:13","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=18851"},"modified":"2022-11-22T17:03:17","modified_gmt":"2022-11-22T16:03:17","slug":"unsettling-the-place-of-law-in-international-organizations","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/unsettling-the-place-of-law-in-international-organizations\/","title":{"rendered":"Unsettling the Place of Law in International Organizations"},"content":{"rendered":"

In The World Bank\u2019s Lawyers<\/em><\/a> Dimitri Van Den Meerssche does a great service to legal scholarship on international organizations by insisting that the place of law therein is not guaranteed, and by noticing that the forms law takes therein are variegated and tangled. From an international legal point of view, intergovernmental organizations can seem like a port in the storm of public-private, informal, jurisdiction-defying global governance. Intergovernmental organizations prize their constitutional treaties; use legal instruments like treaties and decisions to carry out their purposes; often feature adjudication as a dispute settlement mechanism; and declare their commitment to the rule of law at every available opportunity. The place of law looks like a no-brainer in such contexts.<\/p>\n

The <\/em>World<\/em> Bank\u2019s Lawyers<\/em><\/a> complicates and destabilizes these certainties. It presents a socio-legal study of the office of the General Counsel, the Legal Vice-Presidency of the World Bank. The place of law is both obvious and not obvious in the office of the General Counsel. As the seat of law in the Bank, what the office does is obviously law; but under some leaders, Van Den Meerssche\u2019s shows, what the office does is not obviously law. This review homes in on this must-be-cannot-be moment. It suggests that the book\u2019s analysis \u2013 that law is precarious and multifarious within the World Bank \u2013 could be pushed further by engaging with an old saw of a question; what is law? The World Bank\u2019s Lawyers<\/em><\/a> suggests ways of reframing this familiar question in progressive socio-legal terms. The analysis Van Den Meerssche offers is not doctrinal. His descriptions of the modes of law and lawyering cultivated under successive General Counsels draw on interviews and observations made during a three-month stint in the General Counsel\u2019s Office. And although he draws on a deluge of documentation, his analysis of this material is not an exercise in doctrinal legal interpretation. The book usefully contextualizes traditional preoccupations – notably the prohibition on interference in the political affairs of member states contained in the Bank\u2019s constitutional document \u2013 in a narrative about the slow transformation of a bureaucratic office.<\/p>\n

In this telling, law emerges as unstable, changeable, and determined in large part by the agenda of the General Counsel. Focusing on the tenures of three office holders \u2013 Ibrahim Shihata (1983-1998), Roberto Da\u00f1ino (2003-2006), and Anne-Marie Leroy (2009-2016) \u2013 The World Bank\u2019s Lawyers<\/em><\/a> describes three distinct modes of law and lawyering. Shihata elevated law\u2019s status in the Bank, sending down authoritative opinions about the limits of Bank activity established in its Articles of Association. The traditional Public International Law mode of law Shihata nurtured reflected (and held together) an institutional ensemble in which the Bank\u2019s executive leadership and managerial machinery had to pay attention to the sovereign member states on the Board of Directors. Law morphed during Da\u00f1ino\u2019s tenure; a change intensified under Leroy. Law stopped being a limit and became an enabling mechanism \u2013 enabling, that is, of the Bank\u2019s executive agenda. The wheels of change from a doctrinal ideal of law under Shihata, to law in a decidedly managerial mode under Leroy were greased by Da\u00f1ino\u2019s use of human rights to trump doctrine. Doctrinal international law came to be seen as a logjam in the way of progressive human rights, which were incorporated into the Bank\u2019s executive agenda. This laid the foundation for Leroy to institute a mode of lawyering-as-risk-management. Shihata\u2019s authoritative proclamations appeared as risk averse and not merely unhelpful in the achievement of institutional objectives, but actively inimical.<\/p>\n

In tracing the metamorphosis of law and lawyering through these General Counsels\u2019 tenures, Van Den Meerssche draws some conclusions about formal and instrumental aspects of law. Suggesting that \u201claw is a contingent cultural technique invested with evolving aspirations and ideals\u201d (p. 2), he emphasises that law is a kind of institutional glue (as one might expect from a Latourean, networked account). As such, the forms law and lawyering take are bound up with the character of the institution they hold together. Law is \u201cprecarious\u201d and \u201cever-shifting\u201d (p. 1), the book explains. Both insights invite more empirical work: to delv deeper into the workings of the General Counsel\u2019s office and to situate that office in a broader institutional landscape. The rest of the review suggests some ways in which the two insights \u2013 law\u2019s precariousness and its shifting character \u2013 might be taken further by future studies inspired by Van Den Meerssche\u2019s work.<\/p>\n

Law\u2019s Precariousness<\/strong><\/p>\n

The book reminds lawyers \u2013 especially those working in and on international organizations \u2013 that they ought not to assume the presence of law in social relations (p. 279). Van Den Meerssche productively troubles the long-held certainty that ubi societas, ibi ius<\/em>. Taking as its focus the office of the General Counsel, The World Bank\u2019s Lawyers<\/em> can safely bracket the question to the extent that where there are lawyers, there is law. I wonder, however, whether this analytical convenience hasn\u2019t affected the study\u2019s conclusions.<\/p>\n

Elsewhere<\/a>, I have argued that lawyers can sometimes be remarkably unreflective about law\u2019s presence in ensembles of global governance. Work on \u2018legalization\u2019 \u2013 whether critical or affirmative \u2013 tends to assume rather than show that law is or ought to be involved. The effect is to shelve the admittedly ennui-inducing question, \u201cwhat is international law?\u201d. It may be an unanswerable old saw of a question, but taking it seriously is necessary if we are to understand whether and how law is precarious.<\/p>\n

The main storyline of precariousness in The World Bank\u2019s Lawyers<\/em><\/a> is law\u2019s shift from issuing authoritative interpretations of the World Bank\u2019s Articles of Agreement (under Shihata) to playing an also-ran part in risk management processes (under Leroy).<\/p>\n

One direction for further study suggested by this insight is psychological. While Van Den Meerssche insists on description and wisely demurs from providing a causal account, his book made me wonder why Leroy and Da\u00f1ino so readily gave up the authority Shihata had garnered for the Legal Vice-Presidency. Renouncing authority is unusual \u2013 irrational, even. Institutional relevance means acting as a team-player and signing up to the institutional consensus. The World Bank\u2019s Lawyers<\/em><\/a> shows how lawyers have gone from standing outside institutional processes in order to judge them, to taking up a position within institutional processes of risk management \u2013 to be just another cog in the machine.<\/p>\n

What (conscious and unconscious) pressures drove Shihata\u2019s successors to prefer relevance to authority? The appointment process, professional training, and personal ambitions of particular General Counsels no doubt have a role to play, but perhaps do not tell the whole story. Teasing out the institutionalization of what was effectively a self-relegation of an entire Office \u2013 and doing so in the teeth of strongly-felt professional commitments harboured by the lawyers therein \u2013 seems to call an account of those at the sharp end of executive agendas.<\/p>\n

A second set of questions that might be taken up have to do with possible legal subplots, as it were, in the World Bank\u2019s narrative weave. Has law migrated to other parts of the institution (to offices having to do with internal accountability, compliance, integrity and anti-corruption, for instance)? Have legal functions been outsourced? Are lawyers or law graduates at work in other offices? Are people untrained in legal studies doing work we might recognise as being legal in form or substance? If we don\u2019t recognise their work as such, it seems appropriate at least to ask \u2018why not?\u2019. The answers to such questions, I suspect, would enrich and complexify the texture of a socio-legal inquiry into the place of law in the World Bank. Law\u2019s precariousness is intimately linked to the anxiety of (ir)relevance. The World Bank\u2019s Lawyers<\/em><\/a> shows how General Counsels traded institutional authority for institutional relevance. In a dynamic institutional context \u2013 and every institution pretends to dynamism these days \u2013 relevance can only be assured by adaptability. This \u2018ever-shifting\u2019 characteristic of law is the flipside of law\u2019s institutional precariousness.<\/p>\n

Ever-Shifting Modes of Existence<\/strong><\/p>\n

Van Den Meerssche\u2019s observation that law changes its form is important. Too often, as I have argued elsewhere<\/a>, international lawyers rush to see law in the lawishness of global governance. It is reassuring to think that one has encountered nothing more disturbing than old wine in new bottles \u2013 not least because it ensures our discipline\u2019s own continued relevance. If law shifts its modes of existence how do we know law when we see it?<\/p>\n

This tiresome question is, of course, another variation on the \u2018what is law?\u2019 theme introduced earlier in this review. The response \u2018law is what lawyers do\u2019 is unsatisfying; especially when lawyers end up doing things that do not readily fit the description of legal practice \u2013 like risk management, for instance. The assumption that \u2018where there are lawyers, so there is law\u2019 begs questions about what it is actually is<\/em> that the lawyers are doing. As to this second concern, Van Den Meerssche is a victim of his own success. His excellent descriptions of attempts to \u2018mainstream\u2019 executive policy changes provoked all sorts of productive associations and questions.<\/p>\n

One set of questions had to do with the coalface of lawyerly practice. I found it hard to imagine it looks like when a lawyer takes part in risk management processes. Do lawyers do risk management differently to other professions? Do they work in tandem with, or separately from, other agencies in the Bank? Does risk management occur only at the level of projects, or also at the level of programming and policy? Were particular technologies of risk management developed (matrices, indices, reporting tools, dashboards, pro forma documents of any kind)? Did such technologies have to be translated into a legal idiom in order for lawyers to use them? Were existing lawyers enrolled in the new practices of lawyering or did the change in policy provoke a change in personnel?<\/p>\n

It seems to me that answers to these questions might bring into focus both fluctuations law\u2019s modalities and identity, and Van Den Meerssche\u2019s concern with law\u2019s \u2018institutional glue\u2019 role within the World Bank. For instance, the professional risk-adversity of traditional lawyering might be a boon if lawyers had the role of identifying risks to be mitigated by others. If lawyers were meant to mitigate risks, then a more problem-solving frame of mind might be wanted. Legal expertise in the operation of criminal justice or investment law may well offer solutions to such questions. However, if law is just one expertise among many, then can it retain its institutional adhesiveness? Law is the object of enrolment and translation here; it is no longer the enrolling and translating subject of Shihata\u2019s tenure.<\/p>\n

Thinking about the nuts and bolts of what lawyers do makes me wonder about the size of the shift from juridical to managerial modes of legal practice. Reflecting on my own teaching practice, it strikes me that lawyers are no strangers to problem-solving. Getting one\u2019s client, the best possible outcome demands that lawyers not only instrumentalize legal rules and processes but also that they give their clients a sense of the riskiness of a given course of action. I wondered, in short, to what extent traditional juridical models of legal practice contain the seeds of their own transformation into managerial ones.<\/p>\n

Conclusion<\/strong><\/p>\n

Acknowledging the difficulty of knowing law when we see it seems a particularly important concession for scholars of international organizations to accept. For many years, framing one\u2019s research around international organizations like the UN or the World Bank has been a way to keep the \u2018what is law?\u2019 question at bay. Van Den Meerssche\u2019s study is a timely caution to those who see law everywhere they look and who, recognising lawishness, interpolate juridical forms into their field of vision. The World Bank\u2019s Lawyers<\/em><\/a> reminds us lawyers to be less sure of ourselves. The book invites more empirical research into international organizations like the World Bank \u2013 and demands that such work be done on terms that do not already assume that law\u2019s place is assured and stable. As such, its value to the legal literature on international organizations cannot be overstated.<\/p>\n","protected":false},"excerpt":{"rendered":"

In The World Bank\u2019s Lawyers Dimitri Van Den Meerssche does a great service to legal scholarship on international organizations by insisting that the place of law therein is not guaranteed, and by noticing that the forms law takes therein are variegated and tangled. From an international legal point of view, intergovernmental organizations can seem like […]<\/p>\n","protected":false},"author":15,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3694,5295],"authors":[7154],"article-categories":[5080,3572],"doi":[],"class_list":["post-18851","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-international-organisations","tag-world-bank","authors-isobel-roele","article-categories-book-review","article-categories-symposium"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20221121-121444-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/18851","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/15"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=18851"}],"version-history":[{"count":2,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/18851\/revisions"}],"predecessor-version":[{"id":18885,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/18851\/revisions\/18885"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=18851"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=18851"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=18851"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=18851"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=18851"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=18851"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}