Structures, Spaces, and Jurisdictions

7 The Puzzle of Freedom Structure and Agency in International Adjudication

Tommaso Soave

Introduction

For decades, critical scholars have debated the contours of agency and structure – or ‘freedom and constraint’¹ – in the legal activities of international organisations.² According to some, the inherent indeterminacy and open-endedness of legal processes enable – indeed require – institutional actors to exercise political discretion in (re)definition of norms without reifying ‘the ideas and attitudes that make the established order seem natural [and] necessary’.³ Others, by contrast, highlight the structural ‘limits and pressures, tendencies and orientations’⁴ that shape normative possibilities, ‘promote the expression of certain types of interests’, and ‘suppress that of others’.⁵ Arguably, these are two sides of the same coin, and an emphasis on either position reflects the sensibilities and preoccupations of the observer.

In this chapter, I apply the agency/structure dichotomy to a specific subset of organisations, namely international courts and tribunals. Unlike other entities, judicial bodies do not possess the power of legal initiative: they are not supposed to create law from scratch, but to interpret and apply pre-existing rules to solve concrete cases. However, much like other institutions, courts and tribunals develop recursive – and often ‘unwritten’⁶ – practices, postures, and modes of world sensemaking that shape the meaning and evolution of international norms, with systemic effects that extend well beyond the parties to individual cases.

Indeed, the rise in prominence of international adjudicative mechanisms, like the International Court of Justice (ICJ), the European Court of Human Rights (ECtHR), the dispute settlement system of the World Trade Organisation (WTO), and investor-state arbitration (ISDS), has been the object of intense scrutiny by international lawyers, political scientists, and sociologists alike. Countless studies have appeared that seek to identify patterns and strategies in the jurisprudence of the various tribunals and reconstruct the ever-elusive intention du juge.⁷ While those studies helpfully shed light on the external forces affecting the decision horizon of international adjudicators, they also tend to overplay systemic constraints and institutional biases.

Against this backdrop, it bears asking: what guides international courts in reaching their decisions? What structural limitations do they encounter? And what agency and discretion do judicial actors enjoy in the process? My main argument is that the legal production of the international judiciary reflects the internal socio-professional dynamics of the community of professionals that run the machinery in its routine operations. The ways those professionals interact, cooperate, and clash on a daily basis have a crucial impact on judicial outcomes – more so than the substantive norms that courts are called upon to interpret and apply; and more so than the external political pressures to which they are subject. To illustrate this point, I unravel some of the everyday practices that occur inside international judicial institutions. My analysis reveals that those practices are at once structured – i.e. subject to social constraints and pressures – and contingent – i.e. open to change, contestation, and restructuring.

My argument proceeds as follows. In the section ‘Determinism, Determinism Everywhere’, I problematise the notion of institutional bias that has been expounded by several authors, and call for an anti-formalist and anti-determinist account of international judicial processes. In the section ‘Sources of Constraint’, I discuss the ways in which the inner circle of adjudication experts delimits and constrains the decision horizon of international courts. In the section ‘Spaces of Freedom’, I identify some residual spaces of freedom and discretion in the construction of international judicial ‘truths’.

Determinism, Determinism Everywhere

In 1989, Martti Koskenniemi shook our disciplinary conscience by revealing the indeterminacy of the international legal argument. Because the body of international law doctrines can accommodate contrary outcomes and courses of action, expert argument enables ‘the taking of any conceivable position in regard to a dispute’,⁸ thereby delegating the solution to ‘an ultimately arbitrary choice’.⁹ Some twenty years later, the same author offered a strikingly different account: ‘in practice nothing is ever that random. Competent lawyers know that the world of legal practice is quite predictable.’¹⁰

This is intriguing. What has transpired in the meantime that has shifted the focus from indeterminacy to predictability? For Koskenniemi, the game-changer is ‘the emergence and operation of structural bias’; more precisely, ‘the creation of special regimes of knowledge and expertise’ like human rights law, environmental law, trade law, investment law, and security law.¹¹ The consolidation of ‘institutional projects [that] cater for special audiences with special interests and special ethos’ has made it possible to predetermine the outcomes produced in the international world.¹²

This change of view neatly captures the existing narratives of international adjudication. Thanks to years of critical inquiry, we now know that international courts are more than ‘apersonal’¹³ bodies ascertaining the preordained meaning of rules and mechanistically applying it to facts.¹⁴ We no longer expect the judicial interpreter to proceed in a scientific fashion, plodding through Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), to ‘deduce the meaning exactly of what has been consented to’ and reach neutral and unassailable conclusions.¹⁵ Our contemporary imagination is finally emancipated from the deterministic shackles of traditional legal formalism.

Yet, the notion of institutional bias, in its various permutations, still holds sway. To its proponents, judicial outcomes are determined by the sectoral mandate of each court, the backgrounds and entrenched ideologies of its adjudicators, and their quest for legitimacy in the eyes of political constituencies.¹⁶ These ‘external constraints’¹⁷ reinforce ‘institutionally ingrained problem definitions and strategies for solution’,¹⁸ thus framing the categories and vocabularies through which legal issues are addressed. Institutional bias is often depicted as irresistible. A human rights court will be ‘programmed’¹⁹ to prioritise fundamental freedoms over state interests; a WTO panel will invariably privilege trade liberalisation over, say, environmental protection; an international criminal tribunal will always be inclined to pierce through sovereign immunity and combat the culture of impunity; and so on.

Taken to an extreme, institutional bias is as deterministic as traditional formalism. Both tend to explain the decisions of international judges by reference to some other reality, invisible to their eyes, that guides their every action. For traditionalists, that reality is the law itself: a concrete entity with its own inherent logic and rationality, somehow independent of the human agents who routinely create, interpret, apply, resist, and are bound by it.²⁰ For institutional bias theorists, it is the context of ‘deeper, impersonal forces’ that exert their pressure and inexorably nudge courts in a set direction.²¹ In either case, the people actually involved in the process possess little agency, squeezed as they are between the Scylla of legal determinacy and the Charybdis of ideological partiality.

This sombre picture leaves many questions unanswered. How, for one, do ‘particular normative biases and preferences come to be embedded within an international regime at a particular point in its historical trajectory’?²² And how, for another, can individuals exercise responsible freedom in the definition and evolution of judicial outcomes? In the pages that follow, I seek to provide tentative answers to these questions and offer an anti-formalist yet anti-determinist account of international adjudication.

To do so, I deconstruct the notion of international courts as cohesive and monolithic entities and shed light on their micro-level practices. Seen from this angle, the ethos and the preoccupations of each court are not carved in stone, but are shaped by the evolving socio-professional dynamics of the club of legal experts that contribute to its routine functioning. This club, which I call the international judicial community,²³ comprises all the professionals that gravitate in the immediate proximity of a given judicial institution. International judges are just the tip of the iceberg. Other less visible players include the professional litigators (state agents, government lawyers, private counsel, NGOs, etc.) representing the parties in court; the legal bureaucracies (registries, secretariats, clerks, etc.) assisting the bench with the preparation, deliberation, and drafting of judgments; the specialised scholars developing the unified grammar and conceptual categories of each judicial field; and the like.

The relationships, interactions, and worldviews of the international judicial community are both constrained by existing social arrangements and open to renegotiation, contingency, and agency. As such, they are both the vehicle of reproduction of legal outcomes and the source from which legal changes originate. On the one hand, intersubjective socialisation and patterned repetition allow for shared assumptions and expectations to crystallise, thus ensuring predictability in adjudication. On the other hand, the endless struggles among community members, which in turn reflect their power relations and relative capital, enable the contestation of pre-established patterns, the opening of paths to resistance, and the creation of avenues for the gradual evolution of legal systems.

To fully understand these dynamics, we must stop treating international courts as ‘reified collectives forming separate and self-standing units of analysis’.²⁴ Instead, we must open the ‘black box’ of judicial institutions²⁵ and engage in a micro-analysis of their inner workings. This can be done through a variety of methods, including field sociology, practice theory, and ethnographic participant-observation. In the next sections, I sketch a tentative framework for this analysis and link it to the overarching theme of structure vs. agency. I begin by identifying the socio-professional sources of constraint in the production of judicial outcomes, after which I turn to the interstitial spaces of freedom where judicial actors can steer the course of proceedings in new and unexpected directions.

Sources of Constraint

If, as Koskenniemi posits, international norms are inherently indeterminate, then what limits the discretion of international courts in the definition of legal outcomes? Can adjudicators really take any conceivable position regarding a dispute? Of course not. The scope of what is ‘legitimately assertable’ in judicial discourse is subject to powerful constraints, stemming from the collective expectations and dispositions of the international judicial community.²⁶

The community plays this constraining role in an active and a passive way. Throughout the adjudicative process, it pushes and forces adjudicators by expressing views as to how certain issues should be addressed, how certain legal terms should be read, and what bodies of rules should be considered to solve the case at hand. Once the judgment is rendered, it carefully tests its analytical rigour, ascribes (in)competence based on background knowledge, and acts as the ultimate arbiter of professional recognition. In short, the community constitutes the immediate audience of international courts. Adjudicators are keenly aware of these internal pressures, and their decisions often ‘speak’ more directly to the legal professionals gravitating around them than to broader political constituencies.²⁷

The dispositions of the international judicial community are often un-reflexive, deeply entrenched, and stubbornly resistant to change, and hence the impression that institutional bias is inescapable. Yet, as I will argue in the section ‘Spaces of Freedom’, the socially constructed nature of that bias means that it can be contested and overcome under certain conditions. For now, let me discuss how the community secures and maintains its grip on the routine activities of international courts and fosters the crystallisation of their ingrained preferences. In a nutshell, the pathways of control relate to: (a) the institutional design of each court; (b) the social structures governing the relationships among community experts; and (c) the patterned practices and competent performances that those experts carry out on a routine basis.

Institutional Design

To begin with, the community plays a pervasive, if often unacknowledged, role in shaping the institutional architecture of judicial mechanisms, with obvious repercussions on the manner in which cases are prepared, filed, pleaded, and deliberated. Courts endowed with compulsory jurisdiction, like the ECtHR or WTO panels, may interpret and discharge their mandate differently from those that require the consent of the responding party, such as the ICJ.²⁸ Likewise, the relevant rules of procedure, the applicable standard of review, the remedies available, and the delimitation of the body of rules falling within a court’s purview bear on the conduct of proceedings. Less noticeably, but equally importantly, the internal organisation of a court’s bureaucracy informs the interplay and the division of labour between adjudicators and their legal advisors, giving rise to a variety of power dynamics.²⁹

Traditional functionalist narratives tend to treat these design features as an external given, dictated by the preferences of constituent states and immutable in time. After all, it is government delegates who, through protracted negotiations, define the core structure and characteristics of each court, debate its competence and powers, and eventually ratify its constituent treaty. Later, they periodically negotiate the appointment of judges and, if needed, set the agenda for institutional reform. These forms of engagement ensure the continued goodwill of political stakeholders towards international courts³⁰ and make them the ultimate arbiters of the system’s legitimacy.³¹

However, these narratives obscure the crucial contribution of professional litigators to the establishment and reform of international courts. Those litigators are not mere ‘operators’ of judicial systems, but rather ‘entrepreneurs’ who co-decide the shape those systems should take in the first place.³² If many states have embraced international adjudication as a mode of governance, it is partly because of their exposure to a transnational network of experts, who forged alliances with government departments, academic circles, and civil society organisations to promote their views and foster their agendas.³³ Lawyers ‘created’ their clients as much as clients ‘created’ their lawyers.³⁴

Take ISDS, for instance. There, in the 1980s and 1990s, a handful of pioneering practitioners developed the very legal doctrines that would later be used to consolidate the system and turn it into a core component of international economic law.³⁵ Or think of international criminal justice, where NGOs and advocacy groups played a key role in the negotiation of the Rome Statute.³⁶ More recent history is equally rich in examples. The Multi-Party Interim Appeal Arbitration Arrangement, adopted by several WTO members to compensate for the demise of the Appellate Body, was politically promoted by the EU delegation, but technically developed by a trade law firm based in Geneva.³⁷ Similarly, the ongoing UNCITRAL talks on ISDS reform see the participation of some élite arbitration practitioners and scholars, who infiltrated state delegations and secured a seat at the negotiating table.³⁸

As these examples show, the international judicial community has constrained the institutional design of international courts since their very inception, thus leaving its initial imprint on the kind of judicial discourse those courts will later develop.

Social Closure

Past the moment of genesis, the community’s control of judicial processes gets even tighter by virtue of its social closure. Community members form a close-knit network of habitués who walk the corridors of courts regularly, maintain first-name personal contacts, and cultivate friendly professional relationships.³⁹ Ostensibly, they occupy distinct and well-defined positions. However, the boundaries are blurrier than they first appear. Throughout their careers, legal professionals swap roles frequently, sometimes donning multiple hats at once. Prominent professors may take a break from their faculty chairs to serve on an international court;⁴⁰ arbitrators in an ISDS case may appear as counsel in another; registry or secretariat lawyers may later be recruited by government departments or private law firms;⁴¹ and so forth. All combinations are possible.⁴² These revolving doors among the bench, the bureaucracy, the bar, and the academe help strengthen existing bonds and forge new ties.

The closure of the network consolidates trust among its participants and perpetuates its insulation from external interference.⁴³ Court proceedings gradually come to be characterised by an increasing sense of ‘clubbiness’ and familiarity. The same handful of counsel appear at most hearings alongside their clients. Their intimate knowledge of the intricacies of international adjudication grants them a competitive edge over new entrants in the litigation market. Meanwhile, registry and secretariat bureaucrats incessantly work behind the scenes to streamline adjudicative practices, ensure consistency in jurisprudence, and serve as the institutional memory of the court. Finally, scholarly production in the field is densely populated by authors who have direct or indirect stakes in the system.⁴⁴ Being an ‘insider’ in the game means being familiar with its rules, adopting strategies that resonate with other players, and ultimately shaping judicial outcomes to an extent that is usually precluded to ‘outsiders’.

At the same time, social closure reinforces the epistemic bias of community participants,⁴⁵ each of whom becomes ‘a fully instrumentalised cog in the respective machine’.⁴⁶ Over time, the circle of professionals orbiting around each court develops a set of assumptions as to which legal sources, categories, and modes of reasoning are ‘in line with [its] philosophy’ and which others should be ‘kept largely at bay’.⁴⁷ This, as Koskenniemi had foreseen, results in a turf war among different sub-fields of expertise, such as trade, human rights, investment, or environmental law, each striving to preserve its internal rationality from ‘disturbing outside perspectives’.⁴⁸ Any attempt to export expertise, practices, and worldviews from one sub-field to another is considered a trespass that might shake the ‘context-preserving routine’.⁴⁹

Competent Practices

Besides structuring community relationships, this degree of social cohesiveness gives rise to the most powerful source of constraint in judicial activity: recursive practices. Emmanuel Adler and Vincent Pouliot have famously defined ‘practices’ as ‘competent performances’.⁵⁰ More precisely, practices ‘are socially meaningful patterns of action which, in being performed more or less competently, simultaneously embody, act out, and possibly reify background knowledge and discourse in and on the material world’.⁵¹ This definition captures the characteristics of the myriad activities the community carries out on an everyday basis, and which have a pervasive impact on the outcomes of disputes.

First, practices are ‘patterned’, meaning that they exhibit ‘certain regularities over time and space’ and ‘reproduce similar behaviors with regular meanings’.⁵² Although every dispute is unique in content, the internal steps that mark its unfolding are standardised. Every case begins with the parties’ submission of written memorials, often followed by rejoinders and counter-rejoinders. These filings are then processed by the court bureaucrats who circulate internal memoranda to summarise their analyses and help the adjudicators prepare for the next steps. After the written phase, most courts hold hearings. After that, the adjudicators convene for deliberations and cast their decisions on the issues at stake. Based on the adjudicators’ instructions, the final judgment is drafted, reviewed, approved, and circulated. Recursiveness extends to the actors involved in the process who, as discussed, tend to know each other well, communicate regularly, and entertain long-term professional relationships. Hence, judicial practices occur within a ‘highly organised context’.⁵³

Second, practices can be performed more or less ‘competently’ depending on the shared ‘background knowledge’ of the actors carrying them out.⁵⁴ This means that the hallmarks of (in)competence in judicial processes are socially attributed by the community based on collectively held standards. Through education, training, and work experience, community members are initiated to the way things are done⁵⁵ – the doctrines, argumentative techniques, ethos, aesthetics, and mythologies of their peers and superiors⁵⁶ – and reproduce them through communication and transmission of knowledge. These channels of socialisation contribute to perpetuation of the structures that ‘condense and are confirmed as a result of the system’s own operations.⁵⁷ At the same time, being socialised in the game enables each player to make arguments and take positions that will be accepted as ‘true’ or ‘valid’ by other players.⁵⁸

Background knowledge informs every aspect of the judicial process, including – and perhaps especially – the interpretation of norms. The consensus of the community determines, at any given moment, whether the reading of a given norm is (un)acceptable, whether an interpretive posture is (un)viable, whether a legal argument is (un)persuasive, and ultimately whether a judicial decision is (in)correct.⁵⁹ An interpretation that meets them will be recognised as legitimate and authoritative, and might be tolerated even if it slightly departs from established canon. Conversely, an interpretation that radically breaks from accepted standards is likely to fail to ‘find acceptance’ by the community⁶⁰ and be dismissed as anomalous or aberrant.

This, no more and no less, is what we mean by precedent in international law – a system without formal stare decisis. The authority of an interpretation stems solely from its consistent use. Judicial decisions have no other force than their patterned reproduction. Yet, no serious practitioner would dare to ignore those decisions altogether: the community backs their fragile existence and consolidates them into jurisprudence.

Spaces of Freedom

As argued in the previous section, the international judicial community constrains the discretion of courts in many ways, including by participating in their institutional design, perpetuating their operational closure, and developing patterned practices and shared standards of legal argument. Yet, these constraints do not make judicial outcomes automatic or entirely predictable. After all, stability is only ‘an illusion created by the recursive nature of practice’, whereas change ‘is the ordinary condition of social life’.⁶¹ Indeed, amid the tight socio-professional structures of the community, there remain interstitial spaces for agency, responsibility, and freedom. It is there that new paradigms emerge – and legal evolution becomes possible.

In this section, I provide an initial mapping of these spaces of freedom and suggest ways to preserve them from the deterministic tendencies of the international judicial system. In particular, I focus on the possibilities offered by: (a) the creative interpretation of norms; (b) the competition among members of the international judicial community; and (c) the many contingent and accidental occurrences that punctuate proceedings. The term ‘freedom’, of course, should be handled with care: international adjudication being a collective endeavour, no single individual is, alone, in full control of the process. If any freedom is possible, it can only emerge from the interactions of multiple actors over time.

Creative Interpretation

First, the indeterminacy of international norms enables judicial actors to promote and defend interpretations of those norms that resonate with their ethical commitments or policy preferences. Faced with competing and equally viable rationalisations of legal constructs, courts must take sides. No pseudo-scientific exercise, no rigorous application of the VCLT rules of interpretation can relieve them from the inevitable duty of making choices. Hesitation, rather than certainty, is the essence of adjudication.⁶² Why else would we speak of judicial decisions?

The moment of doubt is gleefully celebrated by the defenders of ‘false necessity’ as a tenet of moral psychology. David Kennedy, for instance, describes the exposure to the irreducible pluralism of possible solutions as a moment of supreme ‘professional freedom’, where we are ‘open to persuasion’, and we ‘have lost control’, precisely ‘because we do not know what the law determines’.⁶³ Doubt provides us with an opportunity to unlearn our ‘methodological predilections’, transcend the ‘widely shared commitments’ of our profession, and bravely leap forward into the unknown.⁶⁴ Similarly, Duncan Kennedy imagines a left-leaning judge wishing to express their ‘“political” objection’ and promote their vision of justice against a line of adverse precedent.⁶⁵

To engage in judicial creativity is akin to Lévi-Strauss’ bricolage. Unlike the ‘engineer’, who first comes up with an overarching plan and then selects the tools required to carry it through, the ‘bricoleur’ is ready to use ‘whatever is at hand’ to get the job done.⁶⁶ A certain precedent bothers you – then paraphrase and dilute it. You struggle with the legal status of a rule – then simply ‘take note’ of that rule and move on. The parties’ logical constructs give you a headache – no problem, just shift the emphasis from abstract reasoning to the factual context. Rigid textualism, open-ended reasoning, reliance on general principles, matter-of-factual analysis – anything goes, provided it sustains the flow of your narrative.

The problem with imbuing the law with your commitments is that, first, you need to know what your commitments are – at least in relation to the specifics of the case at hand. Duncan Kennedy’s idealised judge is conveniently equipped with a coherent set of beliefs that guide their strategy and positioning throughout the case.⁶⁷ Whether real-world judicial professionals share such a deep understanding of means, ends, and consequences is open to debate. Focused as it is on technical mastery, international legal practice leaves relatively little time to consider the ‘vivid odds and ends’⁶⁸ of distributive trade-offs. The ‘ideals’ moving the community can be as vague as the protection of human rights, generic support for economic development, or a ‘broad renunciation of power politics, militarism, and the aspiration to empire’.⁶⁹ Not exactly the ideal ground for principled decision-making.

Despite these limitations, self-reflexivity and overt policy reasoning can play an important role here. Instead of dissimulating their choices behind the veneer of legal objectivity and technical jargon,⁷⁰ judicial actors should openly disclose the discretional and value-laden nature of their conclusions. This would enable the audience to grasp the real intention du juge and contest it in legal and political terms in subsequent cases.

Socio-professional Struggle

But freedom is not only a matter of individual agency. The very social structure of the international judicial community presents ‘clusters and holes’⁷¹ that open up avenues for dissent and renegotiation. In fact, despite its social cohesiveness, the community is neither homogenous nor internally peaceful. Instead, borrowing from Pierre Bourdieu, it is ‘the site of a competition for monopoly of the right to determine the law’, within which ‘there occurs a confrontation among actors possessing a technical competence which is inevitably social’ and which ‘consists essentially in the socially recognised capacity to interpret a corpus of texts’.⁷²

Disagreement and conflict pervade every corner of international courts from hearing rooms to backroom corridors. Case after case, community members strive against one another to assert their authority and impose their visions of the law as dominant – agents and counsel through their submissions, court bureaucrats through their memoranda, scholars through their articles, and adjudicators through their decisions.

Every step of the process sees the deployment of schemes, postures, and strategies that, depending on the circumstances, may be ‘risky or cautious, subversive or conservative’.⁷³ Incumbents have a natural tendency to perpetuate their dominance. Challengers must come up with other plans, ranging from opportunistic deference to overt defiance, to get the upper hand. At every turn, old alliances break down and new ones emerge, in a continuous process of assertion, contestation, and restructuring.

It follows that the boundaries, priorities, and preoccupations of the community are ‘never inherently fixed or stable’, but are ‘constantly being renegotiated’ among its members.⁷⁴ The expert vocabularies in use in international courts are ‘sites of controversy and compromise where prevailing “mainstreams” constantly clash against minority challengers’.⁷⁵ Each agent modifies the form taken by arguments and the salience of texts, and traces ‘a set of divergent paths, mobilising clans who confront each other with facts, precedents, understandings, opportunities or public morality, all of which are used to stoke the fire of the debate’.⁷⁶

Over time, these tensions open the door to new legal approaches, new interpretive postures, new ways of doing things. Innovations are seldom presented as radical, lest they be dismissed out of hand. They will usually creep in through the backdoor – discussed as a side point during a meeting, inserted in the paragraph of a party submission, etc. The most successful then slowly grow in the system – first as obscure footnotes buried in a judgment, then as obiter dicta in the main text, and finally as the new standard against which the community measures the persuasiveness of legal reasoning.

Ultimately, change occurs when the dominant assumptions embedded in a judicial regime are successfully challenged and replaced by new assumptions, as a result of the piecemeal evolution of the power relationships among competing actors. Whenever this happens, ‘it is never because pure law has triumphed, but because of the internal properties of these relations of force or these conflicts between heterogeneous multiplicities’.⁷⁷

Contingency

Finally, one should not underestimate the role that contingency and accident play in the unfolding of proceedings. While formalist accounts typically depict the judicial process as an orderly endeavour guided by an overarching rationality, things are often much, much messier. The construction of judicial ‘truths’ is akin to a meandering, uncertain, painstaking knitting process throughout which community actors ‘grapple with a file’;⁷⁸ assemble, disassemble, and reassemble claims and arguments; single out the salient facts among the plethora of evidence on record; assert, resist, and test their interpretive choices and moral instincts; until, eventually, the patchwork takes the form of a coherent whole.⁷⁹

Along this ‘developing drama’,⁸⁰ countless ‘amanuenses’⁸¹ work tirelessly to reduce the amorphous factual context that gave rise to a dispute into a binary legal equation – the only form in which the case can be adjudicated. Along the way, the folders of relevant materials become thinner and thinner. The most salient information is gradually selected while the rest falls into the background. Eventually, a judgment will emerge which obscures all intricacies, inconsistencies, and hesitations that marked every phase of the process.

This process of ‘denial’, ‘abstraction’, and ‘essentialisation’⁸² entails a mutual adaptiveness of positions, an incessant construction and deconstruction of discursive possibilities, and an iterative quest for meaning and persuasion. At every turn, ‘a whole series of tensions, vectors, currents, pressures [are] slightly rearranged’.⁸³ Submission after submission, pleading after pleading, question after question, certain subjects gain or lose traction; lawyers and adjudicators acquire or forgo authority; stumble momentarily; overcome roadblocks; glide over new terrains; affirm or disavow precedents; and revise interpretations.

No litigator, not even the most prescient, can confidently forecast the exact trajectory of a case. Arguments that seemed dispositive at the early stages of the dispute may be progressively sidelined, whereas seemingly mundane elements may rise in prominence and eventually become the cornerstone of the final ruling.

These contingencies can be exploited to introduce novel approaches and unorthodox views into the gears of the judicial machinery. They go on to show that nothing is as predetermined and predictable as the proponents of institutional bias would have us believe. The challenge is to identify those critical junctures, those loopholes in the socio-professional fabric of the international judicial community, and harness their tremendous creative potential.⁸⁴ After all, as a poet once put it, it is through the cracks that the light gets in.⁸⁵

Conclusion: Structured Contingency?

In this chapter, I have started to unravel the relationship between agency and structure in the legal production of international judicial institutions. Seen from a distance, international courts appear as subservient entities, pulled apart by the competing forces of metaphysical law and unscrupulous politics. At closer examination, however, they reveal themselves as a site of socio-professional struggles, competing positions, and clashing worldviews. These micro-level relationships and practices are the source of both systemic constraint and responsible freedom in the definition of international legal outcomes.

Therefore, I would conclude that international adjudication takes place in conditions of structured contingency.⁸⁶ ‘Contingency’, because the path that leads to the formation of an international judgment is not predetermined, but susceptible to contestation and unforeseen twists. Every step of the process contemplates purposeful choices and value-judgements on the part of the actors involved. Each actor has countless opportunities to voice their opinion, assert and resist claims, and consciously exercise their discrete portion of agency to steer the course of proceedings. ‘Structured’, because while existing arrangements can be changed, ‘change unfolds within a context that includes systematic constraints and pressures’.⁸⁷ Departing too abruptly from the tacit rules of the game would lead to professional reprimand, public derision, or outright expulsion from the game. Perhaps, then, the puzzle of freedom can be solved by paraphrasing Karl Marx: international courts ‘make their own history, but they do not make it just as they please in circumstances they choose for themselves; rather they make it in present circumstances, given and inherited’.⁸⁸

8 Reassembling Transnational Legal Conflicts across Global Institutions Ethnographic Perspectives on Claims of Authority over the Mediterranean Sea

Kiri Olivia Santer

Introduction

Contemporary global governance is characterised by the deterritorialised production of law – a process in which International Organisations (IOs) play an increasingly important role.¹ Some scholars have understood this movement in lawmaking beyond the traditional sites of normative production (‘beyond the state’²) as an instance of fragmentation. This, as Koskenniemi has argued, leads to deformalism and managerialism.³ But this movement has material effects and outcomes that go beyond the normative and ideational, a fact that is often overlooked by legal scholars. Legal fragmentation within the transnational realm can lead to legal conflicts, where actors with differing power positions in the global order seek to shape particular apparatuses or issues of government in distinct ways and according to their interests,⁴ within a legal landscape lacking clear hierarchy. These legal conflicts have material outcomes since they shape the social and political world and affect parties to the conflict in differentiated ways. In transnational law, the line between informal and formal norms is blurry and so the lack of hierarchy in the fragmented international legal sphere pushes the question of authority to the forefront of theories of global governance; understanding how authority is exercised helps to grasp which norm(s) takes precedence over another in situations of global legal pluralism. And, in turn, how certain orders or ways of governing are perpetuated in time.

In this chapter, I make the proposal that an ethnographic engagement with Transnational Legal Conflicts (TLCs) can help shed light on the ways in which authority and hierarchisation within TLCs manifest and shape the social and political world and the galaxy of IOs for that purpose. In the context of the conflict over the responsibility to rescue migrants at the contentious border zone in the Central Mediterranean, I examine the struggle for control over a large stretch of international waters, where migrants attempt to make the perilous crossing having departed from Libya and where NGO vessels carry out rescue activities of the former. Feldman has proposed ‘non-local’⁵ ethnography not just to describe the dots or sites linked to governance activities or to represent daily practice but rather to decode governance processes or regimes functioning to ‘regulate large populations’.⁶ This approach, he argues, is fitted to study ‘historically particular apparatus’,⁷ which span several sites and involve many actors, overlapping policies, and different technologies. Apparatuses coalesce to produce historically contingent models and networks geared towards the management of populations or control the economy. In his words, the ethnography of global governance should ‘uncover how discourses give an emerging regime its shape and direction’,⁸ as opposed to limiting itself to the description of the components of governance.

In the following, I apply such a non-local approach to the TLC over the responsibility for rescue in the Central Mediterranean. I excavate the power dynamics at stake that manifest at sea and beyond and show how operational hierarchies are set despite all actors referring to the lawfulness of their actions. In the Central Mediterranean, international borders – both physical and immaterial – have been redrawn by the actions of international institutions, situated far away from the dilemmas of those carrying out rescues. The emergence of the Libyan Search and Rescue Region (SRR) in the International Maritime Organization’s (IMO) Global Search and Rescue (SAR) Plan in June 2018 legitimised European authorities’ handing over of responsibility to Libyan authorities to coordinate the rescue of migrants and to thus disembark survivors in Libya. This clashes with the international principle of non-refoulement and the duty to disembark rescued people in a place of safety according to the 1979 SAR Convention. With this in mind, I analyse how the emergence of this new zone enables an extremely formal interpretation of the SAR convention, ultimately meaning that European authorities can delegate the responsibility for rescue to their Libyan counterparts. I start by outlining how an ethnographic approach to TLCs can help us understand the competing and fragmented jurisdictions in spaces of transnational governance. Then, I move to the setting of the Central Mediterranean Sea and depict the materiality and situatedness of TLCs, relating to conflicts over the responsibility to rescue migrants at sea. I show how different claims of authority manifest in these TLCs, and thus, how the EU has managed to shape the governance of a large stretch of international waters shot through by multiple jurisdictions, to meet its own interests of reducing irregular migration.

Ethnographies of Transnational Legal Conflicts

The de-formalisation induced by global legal pluralism⁹ has been criticised for weakening formal rules of procedure and ‘formalised limits of competence’, and, perhaps counter-intuitively, privileging ‘power over plurality’.¹⁰ To delve deeper into the power dynamics of a TLC, it is necessary to pay close attention to time and space and empirically engage with instances in which ‘law’ is used and referred to.¹¹ An anthropological approach to ‘the transnational’ can help shed light on which ‘chains of interdependence are deemed relevant’¹² and which can be disregarded, within situations of legal overlap. Such a situational approach enables the micro study of macro-relations within situations of structured contingency.¹³ Hence, an ethnographic approach to TLCs leads to a path beyond legal formalism, helps understand the materiality and meaning of the context, and enables the excavation of power dynamics that might often be masked as references to ‘neutral’ international legal frameworks and the IOs upholding them. In the context of the externalisation of migration control in and around the Mediterranean for example containment policies, in which IOs such as the International Organisation for Migration (IOM) are often active partners,¹⁴ are underpinned by the dominant paradigm both in international and domestic law of the nation-state’s prerogative to exclude non-nationals.¹⁵ Their legal architecture masks the racialised and neo-colonial nature of the contemporary migration governance at the borders of Europe.¹⁶

As mentioned earlier, legal conflicts can be summarised as arising due to actors’ different pursuits and desires in a pluralistic global society.¹⁷ Therefore, fragmentation is not just the result of a lack of formal integrity of international law; it is also fundamentally a question of politics. For Koskenniemi and Leino, fragmentation emerges because of the utopian disposition of international law: it is used by actors in ways that try and advance the political present that has been ‘in some way or another’ revealed to be ‘unsatisfactory’.¹⁸ In this chapter, I am less interested in the worldviews and justifications of international lawmakers than I am interested in examining how to study the material and ideational outcomes of what happens when different (sometimes utopian) visions of law, or sets of international rules, come into collision with one another.

TLCs Over Responsibility for the Preservation of Life at Sea

Europe’s ‘obsession’¹⁹ with clandestine migration by sea in the last decade has had to balance the securitisation of the external border with the issue of preserving life at sea. Walters coined the term ‘humanitarian border’²⁰ to describe the rise of importance of borders for Western states, as sites concentrating a set of concerns and fears and therefore in need of being securitised. The counter-intuitive placing of ‘humanitarian’ next to ‘border’ is to signify how these sites have increasingly concentrated a variety of activities carried out by state and non-state actors, which mix dynamics of protection and control.²¹ In the Mediterranean, policing, humanitarian action, and intelligence-gathering have all become entangled in a series of networks, including states, international organisations, and NGOs within a system designed to both intercept and rescue migrants in distress at sea.

In the face of these paradigmatic tensions, the responsibility for survivors of a distress situation at sea, or for their death, has taken on geopolitical dimensions in the Mediterranean with the increasingly securitised way in which migration and maritime migration has been dealt with in the EU since the early 2000s. In 2004 already, the German humanitarian ship Cap Anamur rescued thirty-seven people from an inflatable dinghy in the strait of Sicily and was subsequently denied the right to enter Italian territorial waters. For eleven days, the ship was made to wait in international waters, whilst Malta, Italy, and Germany debated where the people should be allowed to disembark.²² At the heart of the contention lies the SAR regime and associated 1979 International Convention on Maritime Search and Rescue²³ (hereinafter: SAR Convention), which splits the high seas (the waters beyond territorial waters) into zones and distributes coordination responsibility among coastal states for rescue operations. Whereas in territorial waters (12 nautical miles (NM) off the baseline of a state’s coast) and the contiguous zone (up to 24 NM off the coast) states enjoy, respectively, quasi full and some limited policing power, on the high seas or international waters, they can exercise jurisdiction in only very limited ways.²⁴ On the one hand, the SAR regime was designed to precisely improve safety at sea by ensuring that coordination responsibilities are clear. On the other, in the Mediterranean, states like Malta have disputed the extension of their responsibility to such a large portion of international waters.²⁵

The tensions around where to disembark survivors, depending on where they were rescued and by whom, has meant that states have often engaged in a responsibility ping-pong relating to whom should intervene, which has sometimes had deadly consequences. In October 2013 for example, a boat carrying over 400 people, most of them Syrian refugees, sunk off the coast of Lampedusa, killing 200 people, about 60 of whom were children. An Italian navy ship, the Libra, was stationed a mere 19 miles aways from the distress case, in the Maltese SAR zone. The migrants had called the Italian coast guard for help, but the coast guard had repeatedly told them to call Malta instead. The Maltese eventually intervened, hours after the migrants had called and begged for support. And this even though the Libra was only about an hours’ navigational time away from the scene.

Yet the law of the sea is very clear when it comes to the duty to rescue people who find themselves in distress. The 1982 UN Convention on the Law of the Sea (UNCLOS),²⁶ the 1974 Convention on Safety of Life at Sea (SOLAS Convention),²⁷ and the 1979 SAR Convention all require that life be preserved at sea at all costs, regardless of nationality. They set out the duties of the master of a ship to render assistance and to proceed with speed to conduct a rescue, upon receival of a distress signal. According to the text of the SAR Convention, an SRR²⁸ does not entail jurisdiction but assumes duties. However, in practice, this is not a clear-cut distinction. De facto, SAR zones extend a form of jurisdiction as states carry out patrol and surveillance activities.

Shaping a Maritime Control Cooperation Partner Anew: The Genesis of the Libyan SRR

Libya has been a partner to the EU and Italy for what concerns maritime migration control since the early 2000s.²⁹ The Treaty on Friendship, Partnership and Cooperation was signed between Italy and Libya in 2008, which provided the grounds for joint patrols and off-shore pushbacks.³⁰ The fall of the Gaddafi regime in 2011 after the NATO led intervention brought about the collapse of a stable discussion and cooperation partner for the EU on migration matters. Libya has been in political turmoil since. The legitimacy of the General National Congress (GNC), established in 2012, came under threat by General Haftar calling for the GNC’s dissolution in February 2014 and the Prime Minister, Ali Zeidan, being removed from office in March of the same year. Amidst the insecurity induced by the civil unrest and fall of the dictatorship, migrant crossings increased. This led to the EU changing its external approach to Libya in 2014, shifting from an approach that promoted democracy and institution-building, to one that framed the Libyan crisis as a migration and border crisis.³¹ The increase in clandestine crossings also brought about an increase in migrant deaths at sea.

After hundreds of migrants lost their lives in a series of shipwrecks in 2013 off the coast of Lampedusa, the Italian government reacted by launching a national rescue operation Mare Nostrum. However, the operation rapidly came to an end a year later under pressure from both domestic critics and European policymakers more generally who blamed the operation for being a ‘pull-factor’ for immigration into Europe.³² This narrative was soon to be shifted onto NGO vessels, the first of which began to operate in the Strait of Sicily at the end of 2014. In April 2015, another series of shipwrecks in the Central Mediterranean prompted a special EU Council meeting in which the EU reaffirmed its commitment to preserving life at sea in the face of this ‘human emergency’.³³ Despite this, Frontex’s area of operation under Joint-Operation Triton, which was launched after the end of Mare Nostrum, did not patrol the zone where most distress cases were declared, south of the Italian SAR.

When I interviewed a retired member of the Italian Coast Guard about this period, he clearly stated that these years after 2011 had constituted a great challenge for him and his team. The Italian Coast Guard often had to intervene in scenes of impending mass casualty, sometimes far outside of their own SAR zone, whilst the Maritime Rescue Coordination Centre in Rome (ITMRCC) was overwhelmed by calls from different sources signalling distress cases. What emerged from the point of view of the ITMRCC, he told me, was a need for an authority with whom they could have a regular dialogue as expected by the conventions.³⁴ In 2017, an agreement was signed between the Italian Coast Guard and the European Commission’s DG Home to grant funds for the action ‘Assessment of the Libyan Coast Guard legal framework and capability in terms of SAR Services’.³⁵ This was to be one of the first steps towards helping the Libyan Coast Guard gain capacity for rescue in the Central Mediterranean. The action was funded by the EU Internal Security Fund (ISF) and included a feasibility study, which was to define under which conditions the LMRCC (Libyan Maritime Rescue Coordination Centre) and an associated SAR zone could be established.

Despite not yet having their own SRR, the Libyan Coast Guard (LYCG) had already massively increased interceptions in 2017. In 2016, NGOs accounted for the highest number of rescues, whilst in 2017, the trend was inverted with the LYCG intercepting more migrants than any other actor.³⁶ In parallel to the feasibility study being carried out for the establishment of the Libyan SRR, Marco Minniti, Italian interior minister at the time, struck the infamous Memorandum of Understanding with then prime minister Fayez al-Sarraj.³⁷ Italy also then approached the European Commission in May 2017 with a ‘major proposal for integrated border and migration management in Libya’³⁸ to be funded under the EU Emergency Trust Fund for Africa (EUTF),³⁹ and to complement the ISF funding. The projects caught under the North Africa window of the EUTF to be implemented in Libya focused almost entirely on improving the Libyan authorities’ ability to ‘manage’ migration and secure their borders.⁴⁰ On 10 July 2017, the Libyan Ports and Maritime Transport Authority (Ministry of Transport) communicated in a letter to the IMO the designation of the Libyan SRR. In the letter, the Libyan authorities mentioned the lack of resources and facilities of the coast guard and the air forces resulting from the destruction caused by the 2011 military operations. For some time before the actual declaration of the Libyan SRR, when the LYCG had already greatly increased their activity, the Italians were in fact acting as the coordination authority from Tripoli from a military ship.⁴¹

On 27 June 2018, the coordinates of a new Libyan SRR were uploaded to the IMO’s Global Integrated Shipping Information System (GISIS). This banal act had juridical consequences: henceforth, the LYCG had coordination priority for SAR events over a vast area of international waters. It was a unilateral declaration with a constitutive effect, the authority of which was based on the structural dominance of states in their ability to grant powers to specific actors ‘at the confluence of legal structures’.⁴² Taken alone and distinct from the socio-legal context in which it came into being, the notification could seem straightforward: it simply defined which state would take coordination responsibility for rescues in this stretch of international waters. However, it did not emerge in a neutral space. In fact, it was declared in an already saturated legal landscape: the sea, although it has long been portrayed as a ‘lawless space beyond sovereignty and justice’,⁴³ is permeated by a complex (and expanding) regulatory system,⁴⁴ which prescribes the conduct of ships in fields ranging from trade to environmental protection and rescue. The emergence of the Libyan SRR was another layer adding to the legal sediments striating the justifications for different conduct of actors passing through the Central Mediterranean. It made the LYCG into a legitimate cooperation partner for the Italian coast guard to coordinate rescues, as set by the law of the sea. Simultaneously, it formalised a practice of systematic pull-backs of migrants to Libya in violation of the 1951 non-refoulement principle. In sum, it further entrenched the conflict between a securitised approach to maritime migration and a more humanitarian and rights-conforming approach.⁴⁵

The Libyan SRR formalised the LYCG’s authority to coordinate rescues in this region, giving Libyan authorities primary responsibility to ensure rescued people be disembarked in a ‘place of safety’.⁴⁶ Although ‘place of safety’ (and the concept of ‘safety’ more broadly) has not been clearly defined in international legal frameworks, it is widely accepted that it must be interpreted in accordance with refugee law provisions where the principle of non-refoulement is guaranteed.⁴⁷ There is an obligation of result that comes with the duties of the state responsible for the SAR zone to ensure that rescued people are effectively disembarked.⁴⁸ International law scholars and human rights organisations have argued that ‘place of safety’ should be interpreted in accordance with refugee law provisions. However, it is not my goal to go into the detail of the normative interpretation of these provisions. Rather, here I want to point out that despite the existence of this framework that prohibits the disembarkation of people in a place where their lives and safety are threatened, the enactment of the Libyan SRR enabled a fragmentary reading of these provisions and attributed authority to specific officials in acting out this reading.

As I will show in the following section, the TLC at hand was shaped and hierarchised in such a way that the LYCG were able to gain operational advantage over rescue NGOs and maintained this advantage over time. The way these overlapping jurisdictions could be hierarchised in a specific way was deeply dependent on the way they connected to the priorities and ideologies of the institutions involved in governing the maritime space. In the following section, I show how hierarchy was imposed in that conflict, thus shaping the outcome of political and social behaviours and operational patterns which persist to this day.

Authority in the Libyan SRR

To delve deeper into the question of how and which kinds of authority come to shape the governance of the EU’s external maritime border in international waters, I take the following examples from fieldwork I carried out at sea onboard an NGO rescue ship in the autumn of 2018.⁴⁹ This was shortly after the Libyan SRR had been declared. At the time, NGOs and human rights organisations had already been critical of the role of the LYCG in the growing number of interceptions carried out by them.⁵⁰ Violent encounters between the LYCG and NGOs had also taken place, for example in November 2017.⁵¹ In July 2017, the Italian Minitti government had tried to impose a Code of Conduct on rescue NGOs, which was widely criticised for being legally unclear and for imposing obligations on NGOs and leaving out the responsibilities of the Italian state.⁵² The code emphasised, amongst other things, the obligation for a ship master to immediately notify the competent authorities of the flag State once a rescue had been conducted in a zone where there was no official SRR. It was a clear attempt by the Italian government to push other states to become involved in the contentious issue of disembarkation of rescued people by trying to establish responsibility through the flag state. Moreover, the wave of criminalisation against rescue NGOs had started, drastically reducing their abilities to effectively operate in the Strait of Sicily. Then, in the summer of 2018, Italy, spearheaded by far-right interior minister Matteo Salvini, declared the country’s ports shut to all foreign-flagged vessels that had rescued migrants off the coast of Libya. Thus, when I first arrived in Marseille to embark on the NGO ship Aquarius, operated by SOS Méditeranée and Médecins sans frontières, the tension, linked to the political climate in which SAR activities in the Central Mediterranean were unfolding, was palpable. Gibraltar had just announced that it would strip the Aquarius from its registers and so, after initially being told that we would leave the port on 1 September, the departure of the ship was delayed from week to week as the search for a new flag dragged on. The ship operator had made a request to the Panamanian authorities for a flag a few days before I arrived, which was finally approved.

We were finally able to leave the port of Marseille on 30 September 2018, in this jittery operational atmosphere. A few days into navigation, we encountered the first dinghy in need of rescue. It was a small fibreglass boat with eleven people on board, which had been spotted by local fishermen. The SAR coordinator on board the Aquarius tried calling Joint Rescue Coordination Centre (JRCC) Tripoli to request instruction, but his calls remained unanswered.⁵³ Since Tripoli was not picking up the phone, the captain reverted to contacting another RCC.⁵⁴ The Italian MRCC reacted to the call and the SAR coordinator informed them about the failed attempts to contact Tripoli. Once the rescue was completed, he wrote an email to the Italian Coast Guard again to inform them of the number of people who were now aboard the Aquarius, copying Malta and Tripoli in the process. By the end of the morning, JRCC Tripoli had emailed back to inform that it was taking coordination of the SAR event and gave a set of coordinates where they proposed to transfer the rescued people onto a Libyan asset. The Aquarius responded that it could not proceed to the transfer, referring to the SAR conventions, which prevented them from taking survivors back to an unsafe place; by accepting to make the transfer, they would potentially be in violation of the non-refoulement principle. The LYCG then responded by saying that the Aquarius should contact another RCC or its flag state for coordination and for attribution to a place of safety.

Shortly after this event, the Panamanian Maritime Authority released a press communiqué stating it had initiated proceedings to remove the Panamanian flag from the Aquarius. The reason stated in the release was that the vessel had ‘refused to deliver immigrants and refugees to their place of origin’.⁵⁵ The information that the Aquarius had disobeyed orders from the Libyan authorities had been delivered to Panama by the Italian authorities.⁵⁶ Panama had declared it was going to have to exclude the Aquarius from its register because not doing so would entail severe political difficulties for the many Panamanian ships operating in European ports.

A second rescue took place a couple of days later. This time, the Aquarius was alerted to a boat taking on water, which was said to have left from Zuwara, Libya. The boat was overcrowded and contained around fifty people, including women and children. After having informed the ITMRCC of the potential case – JRCC Tripoli was once again unreachable – the captain and SAR coordinator decided to head towards the area of the GPS coordinates. The Italian authorities were obviously in contact with the Libyans through other means than those that were available to the Aquarius because they knew that there was a LYCG patrol boat close by. On the phone, they gave the SAR coordinator the name of the Libyan patrol vessel (PV) and said that he should try to enter into contact with it. About an hour later and after several attempts, the bridge managed to establish contact with the PV in question, al-Kifah. Al-Kifah informed the NGO ship that it was going to be the on-scene ‘commander’. The SAR conventions give provisions for the designation of an on-scene coordinator, to ensure the smooth sequencing of events during a rescue.⁵⁷ The designation of ‘commander’ signalled the way in which roles would be distributed on the scene. This was not so much about collaboration as it was about operational hierarchy.

When, some hours later, the Aquarius reached the position of the boat in difficulty, the SAR coordinator informed the LYCG that the small inflatable rescue boats of the Aquarius had been launched and were ready to start transferring the survivors. The communication with PV al-Kifah became extremely tense and the LYCG demanded that the Aquarius’ small rescue zodiacs stabilise the situation but then stay five miles away from it. The SAR coordinator explained calmly that this would not be possible, since the boat was in distress. Both zodiacs were made to station next to the boat in distress for close to an hour, with the rescue teams wondering why they were not being given the order to transfer – they were not aware of the difficult ongoing communications between the Libyans and the bridge of the Aquarius. In the early hours of the morning, the LYCG ordered them to move fifteen nautical miles away from the scene and threatened to arrest the rescue ship teams over the radio. Another hour of fraught and volatile communication ensued, with confusing back-and-forth instructions from PV al-Kifah and attempts from the bridge to de-escalate the situation. The final order to start transferring the people to the Aquarius was only given at 7:00am, after the Libyan patrol boat had drawn itself up very close to the wooden boat and the zodiacs and had then proceeded to circle the Aquarius menacingly. The last communication through the radio from the LYCG was an order for the Aquarius to leave the Libyan SRR and not to come back.

The SAR Convention states that when multiple facilities are about to engage in SAR operations, the RCC should designate ‘the most capable person’ to act as on-scene coordinator.⁵⁸ Details are not given as to what exactly ‘most capable’ might signify. The Aquarius, with its extensive experience of rescues and accumulated collective knowledge of how to deal with these kinds of flimsy boats, as well as its medical teams onboard, could certainly qualify for ‘most capable’. UNCLOS and the SOLAS and SAR conventions all stress the duty of the master of the ship to proceed as fast as possible to the scene of distress and to offer their assistance.⁵⁹ What is clear from the earlier description of the altercation is that the LYCG took up its role as ‘competent authority’ to mean ‘authority that all assets involved in rescues should obey’. The LYCG effectively became a policing force without the mandate to act as one. This clashed with the NGO boat’s understanding of the ‘spirit’ of solidarity at sea, codified by international law and SAR procedures and which they emphasised their abidance by.

The examples I just outlined show how TLCs are not the product of a legal clash in relation to a set hierarchy, in which clearly defined legal levels conflict with one another. Rather, different actors shape the rescue situations, all the while claiming to be abiding by procedures set in legal regulations. The social and material field in which both the LYCG and the Aquarius were pitted against each other is the product of a wider conflict between frames of reference in the contested Central Mediterranean region. Beyond the situations of rescue themselves, the conflict is shaped by decisions, institutional cultures, and ideologies of institutions whose reach extends transnationally. In particular, the EU and Italy were able to institutionalise the ‘right’ procedure to adopt when conducting rescues of migrants in distress, which gave an operational advantage to the LYCG. The power to shape the legal conflict from afar was linked to coercive power (criminalisation of ‘disobedient’ NGOs) and privileged access to information and communication networks, as well as the material and financial support offered to the Libyan authorities. The legitimacy of the support given to the LYCG also came from a specific framing of the migration ‘crisis’ in the Mediterranean and the need to respond to it, which could be observed in the interviews I conducted with European officials and bureaucrats working on the Mediterranean and Libyan migration situation.

The justificatory framing discursively combined the need to act (‘Europe cannot stand by whilst lives are being lost’) with the need to secure the external border.⁶⁰ This duality could be traced down into the discourses of EU officials and civil servants. Senior officers and managers working on of the North Africa window of the EUTF whom I interviewed expressed the idea that ‘something’ had to be done to preserve life at sea in the Central Mediterranean, combined with the EU’s commitment to combat irregular migration. One manager lauded the EUTF as a successful instrument for the Central Mediterranean because of its capacity to ‘achieve results’. He brushed away the criticism of human rights and international organisations that migrants were being brought back to Libya: ‘at least we are present’, he scoffed, ‘we know that the Libyan Coast Guard is corrupt. But our strategy works! If you look at the numbers, there are way less deaths at sea now, not in absolute but in relative terms’. As the official acknowledged, this way of managing the EU’s external maritime border included risks and came with its load of controversies given the tensions. Another EU official, this time working for the External Action Service (EEAS), asserted to me that if migrants were rescued in the Libyan SRR, ‘they should go back to Libya’. She complained that some NGOs were being disruptive when they did not follow the LYCG’s instructions, adding ‘sorry, but within the Libyan SRR they need to be brought back to Libya. Each country has to manage its borders.’ NGOs, on the other hand, asserted that they were following international law by refusing to hand people over to the LYCG or step aside for the LYCG to conduct rescues.

So, what has enabled the operational advantage of the LYCG to prevail in time despite them acting within international waters which have been characterised as ‘unmanageable’⁶¹ and where freedom of navigation is a fundamental norm limiting sovereign power over the seas?⁶² To answer this question, it helps to more closely examine the issue of authority in global governance. In his recent book, Michael Zürn notes that there is something puzzling about international relations and global governance when we start to look more closely at the issue of authority and obedience.⁶³ According to him, subordination without force in global governance should be a central issue for scholarly enquiry for four reasons.⁶⁴ He says, firstly, that states rarely give up their sovereignty or only in very specific situations, then, that global governance institutions came after states in a historical perspective (so states are not ‘born’ into the authority of IOs) and states have developed many mechanisms to question obligations stemming from the international realm, and, finally, IOs (including the European Union) do not induce obedience or compliance because of a domination through resources since they do not employ large amounts of people. Moving away from rationalist and constructivist conceptions of global authority, he develops the notion of reflexive authority,⁶⁵ to revisit the concept of authority under conditions of global governance. Reflexive authorities ‘depend on the epistemic constructions that identify the limits of subordinates and the realm of superiority of an authority’.⁶⁶ Because command and deference are not at the heart of this theory of authority, the social processes in which ‘superior knowledge’ or ‘an impartial perspective’⁶⁷ is established become of utmost importance. Zürn then speaks of the objectivisation and institutionalisation of authority under global governance, which are necessary for operational hierarchy to be imposed.

With the Libyan SRR both of those processes are at play: they are essential for understanding how such a criticised, conflictual, and contested way⁶⁸ of governing the EU’s external border can be maintained in time. The authority of the IMO plays an important role here. An authority relationship is objectivised when the ‘knowledge order that underlies the relationship becomes a dominant worldview or ideology that reaches beyond the immediately involved actors to external audiences’.⁶⁹ Although the notification made by Libya to the IMO was voluntary and sovereign, the IMO participates in the process of objectivising the institutions relating to the control and coordination of the area, including JRCC Tripoli. The coordinates of the zone are uploaded to the GISIS, a centralised database of shipping information containing everything from contact for authorities and authorised organisations relating to IMO questions, to relevant regulations and marine data. The EU and European coastal maritime states such as Italy and Malta then take part in the second part of the legitimation of the LYCG, through institutionalising it; according to Zürn still, the institutionalisation of authority takes place when decisions and interpretations can be delegated or pooled.⁷⁰ This is exactly what is enabled by the establishment of the Libyan SRR: neighbouring European RCCs can delegate rescue and the interpretation of whether a case constitutes a distress case or whether a rescue needs to be coordinated by the LYCG. It is important to point out that although there is proximity between authority and legitimacy, they cannot simply be merged by defining authority as legitimate power. There is a process of legitimation which participates in the hierarchisation of authority of the LYCG. Added to the fact they are backed up by coercive force, they can act as a policing force in international waters despite having no formal mandate to act as one.

The formalisation of the authority of the LYCG provided a basis for justification of measures I described in the rescue scenes earlier. For example, disobeying the orders of the so-described ‘legitimate’ coordination authority provided state authorities with the grounds to strip the Aquarius of its flag whilst it was still at sea. Similar other capillary effects are to be observed in the augmented capacity for states to argue against NGOs in cases of criminalisation. In June 2018, the NGO ship MV Lifeline entered the port of Valetta after having rescued 234 people in the Libyan SRR.⁷¹ During the rescue operation, MRCC Rome had initially coordinated the rescue and allocated a SAR number to it but they had then informed the captain of the Lifeline that the LYCG had taken over the coordination. The captain, judging that Tripoli could not be considered a safe place of disembarkation for the survivors, had then sailed north, considering the port of Valetta as the next port of call. Malta had then not allowed the Lifeline to land. The captain had finally decided to enter the territorial water and port. Importantly, Malta accused the captain of ‘reportedly ignor[ing] instructions of the responsible authority, i.e. the Libyan Coast Guard’.⁷² The captain was subsequently arrested, and the ship was impounded.

Operating in the Libyan SRR meant having to collaborate with the recognised authority associated with the zone. However, if this given authority insisted that rescued individuals, migrants, or refugees be taken back to Libya, then NGOs or any other vessel having conducted a rescue faced a situation where they were stuck between a rock and a hard place: either they disobeyed orders and had to face the likely retaliation of European states, refusing or delaying the disembarkation of survivors on European shores. Or they obeyed the orders, and in doing so were in violation of the non-refoulement principle in international law. These frames of reference are themselves related to the ‘institutionalised power embedded in scalar relations’:⁷³ geopolitical stakes are at play in a moment of tense negotiations over the lives of those who have been turned into political chess pieces. This, to the extent that it is more than a simple clash of legal references, but a clash of who is given the right to act and operate in a newly governed zone.

Conclusive Remarks: The Power to Redraw Borders

In June 2020, over a hundred NGOs and individuals wrote to the IMO to request the revocation of the formal recognition of the Libyan SRR.⁷⁴ The signatories of the letter denounced the zone being used ‘opportunistically’ to create a ‘fictional account’ allowing states and the EU to abdicate their duties under international law. Evoking the IMO’s role as the ‘guardian of the law of the sea’, whose responsibility it was to uphold UNCLOS and the SOLAS and SAR conventions, they appealed to the IO’s legitimising role in upholding the LYCG’s authority.⁷⁵ The zone still exists today and pull-backs to Libya have increased every year since 2017,⁷⁶ despite the outcry.

An ethnographic and multi-scalar approach to the TLC over responsibility for rescue in the Central Mediterranean provides insights both into the manifestations of authority in the governance of the EU’s external border, and into how this authority can be maintained in time. The IMO objectivises the LYCG’s authority by continuing to recognise the Libyan SRR. The EU and its member states then participate in the institutionalisation of the LYCG by integrating JRCC Tripoli into the operational procedures that are adopted in case of a distress case being declared in the extensive section of international waters. The material translation of this institutionalisation is then experienced by NGOs having to negotiate or interact with the LYCG when they try to conduct rescues, but also by migrants who testify to being chased by the coast guard or intercepted repeatedly when they try to flee Libya by the sea. This institutionalisation justifies the technical and material support such as patrol boats and trainings offered by EU authorities to the LYCG since 2017.⁷⁷

The externalisation of migration control, which has accompanied other processes of privatisation of migration control and securitisation since the end of the Cold War,⁷⁸ has rendered the departure and transit of migrants wanting to head for Europe increasingly difficult. Migration policies from states of the global North are dominated by the deterrence paradigm⁷⁹ in which policies and practices of externalisation push the occurrences and manifestations of border enforcement and control, always further from the territorial borders of the states sponsoring these policies. In the Central Mediterranean, the imperative of securing the EU’s external maritime border has been mixed with the duty posed by international regulations to preserve life at sea. The empowerment of the LYCG since 2017 has enabled a form of ‘contactless control’⁸⁰ from the part of EU authorities, mixing these two imperatives of border control and ‘rescue’, whilst limiting their responsibility and accountability for the rights violations induced by these deterrence policies. In the Central Mediterranean, the policing competence of a specific actor – the LYCG – has been inflated under the discourse of increasing rescue capabilities. Simultaneously, overlapping protection regimes of international refugee and human rights law are disregarded or, as Moreno-Lax has claimed, ‘deflate[d]’.⁸¹

The actions of IOs, such as the EU and the IMO redraw international borders both physically and immaterially. The emergence of the Libyan SRR, with the forms of authority associated with it, not only renders the maritime border more impassable for migrants fleeing across the Mediterranean Sea and attempting to reach Europe. It also trickles into the argumentation of states in their attempts to criminalise rescue NGOs. The methodological flexibility offered by more ethnographic approaches to global governance helps to highlight the processual dynamics involved in the formation of authority in spaces of jurisdictional overlaps. In the case of the governance of the EU’s external border, I have shown how under the guise precisely of increasing the preservation of life at sea, the Libyan SRR has rather exacerbated a politics of irresponsibility for rescue and disembarkation in places of safety. TLCs are not just about legal fragmentation entailing dilemmas of interpretation for international lawyers longing for a long-lost single source of normative validity. They are dynamic interactions in which particular hierarchies of power and exclusion get sedimented in and through legal orders. Paying close attention to the different types of manifestations of authority within TLCs provides an analytical framework for examining how these hierarchies are made to persist in time within the multi-polar landscape of global governance.

9 Placeholders An Archival Journey into the Interim Histories of International Organizations

Daniel R. Quiroga-Villamarín

For all the great hopes placed in these organizations, Geneva in 1920 did not offer more than a disused hotel for the League of Nations (l’Hôtel National) and an old boarding school for the International Labor Organization. The first Assemblies of the League took place in the austere Salle de la Réformation, which was subject to all sorts of criticism by the international press.

G. Meyer, ‘Genève et Les Organisations Internationales: une Histoire Locale de ’International’¹

The delay in securing a permanent site of course increased the problems of organization […] At first everything [in New York] was improvised. The Assembly that year had to take place in a converted skating rink at Flushing Meadows on Long Island, in buildings which had once been part of the World’s Fair. From the end of 1946 both the Secretariat and the Assembly moved to Lake Success, outside New York, camping in the buildings of a disused gyroscope factory.

E. Luard, A History of the United Nations. Vol. 1: The Years of Western Domination, 1945–1955

Introduction

Almost exactly a century ago,² on April 26, 1921, the Establishment Officer of the League of Nations (LoN) Howard Huston alerted his colleagues about an impending “housing crisis within the Secretariat.”³ In a memorandum directed to Herbert Ames – the first Financial Director of the LoN – Huston requested an immediate increase of funds to expand the working capacity of the then headquarters of the League: a building called the National Hotel (l’Hôtel National). In his request, Huston clarified that these measures were urgently needed due to the enlargement of the Economic Section of the League and the division between the Health and the Social Section. But above all, the creation of an Armaments Section – which was later renamed as the more fitting Disarmaments Section – demanded a spatial expansion without parallel in the early years of this nascent international organization (IO). Huston, in particular, demanded the approval of an additional expenditure of 1,000 gold francs per month. This would be destined for the renting of a neighboring property. Indeed, one of the reasons that had convinced League officials of acquiring the Hôtel National for the enormous price of 5,500,000 gold francs was that this property had nearby plots or venues that could be incorporated as the IO grew.⁴ But above all, the dignified architecture and structure of the Hôtel had convinced the League to choose this site for its first permanent dwelling. In fact, Eric Drummond – first Secretary-General of the organization – considered that this was the only site in Geneva that could meet the expectations of the organization.⁵ While local press outlets saw this as a lavish choice – as it gave the staff “a kind of high life in offices which had been hotel rooms overlooking [l]ake [Leman]”⁶ – Drummond instead believed that the institution had finally settled in a building whose “dimensions, style, and architectural beauty are worthy of the great international task that lies before the League.”⁷ Regardless of this lofty statement, by the early twenties, it was becoming evident to those toiling within the Hôtel that its walls were growing increasingly small for the League.⁸

If it was raining at the LoN, next door at the International Labor Organization (ILO) it was pouring. A year or so after Huston’s memorandum, the ILO governing body adopted a similarly strongly phrased memorandum in relation to its own limitations of space.⁹ With the French national Albert Thomas at its helm, the ILO had found its first permanent dwelling in the basement of the Institut International d’Education la Châtelain in 1920, often called the Thudichum school after its rector.¹⁰ This edifice would eventually be refashioned as the Carlton Hotel, and later would become the site of the International Committee of the Red Cross – but that is a story for another occasion.¹¹ For our purposes, we must note that, by 1921, ILO officials were increasingly at odds with the basement of this boarding school. In their opinion, the limited space “does not r[e]ach even a reasonable standard from the hygienic point of view, to say nothing of it allowing the space necessary for really efficient work.”¹² In fact, these ILO bureaucrats – not unlike myself – were toiling in a cramped space in the wake of a global pandemic. For that reason, we can easily sympathize with their concerns related to their hunch that the “high rate of sickness this winter has been partly due to the inadequacy of the present accommodation.”¹³ And even in the face of these limitations, this IO was constantly expected to grow. If for Huston the main problem before the League was the inauguration of the Armaments Section, for the ILO the rising tensions came from the ever-expanding library. And these preoccupations were only related to the edifices that served as the working places for the full-time staff of these institutions. The limitations of space also extended to the lack of proper infrastructures for parliamentary meetings. At this early stage of the history of IOs, the ILO and League assemblies were held awkwardly either at the Casino Kursaal (nowadays the Fairmont Grand Hotel) or the Salle de la Réformation – also called the Calvinium(!), demolished in 1969.¹⁴ Both were fairly inconvenient in terms of logistics or acoustics.¹⁵ The former was described by its contemporaries as a “barn-like structure situated at the other end of Geneva and intended for […] Calvinist worship” while the latter was seen as “a sort of combined vaudeville show and dance hall.”¹⁶

A careful reading of the traces and silences found in the archival collections of these early IOs shows that infrastructural and spatial anxieties were the bread and butter of the everyday operations of global governance. More often than not, the lofty goals of the pursuit of peace were punctuated by the routine malfunction of machinery, the occasional industrial fire, and the general displeasures of overcrowded offices. The men – and rarely but increasingly, women¹⁷ – that served as the pioneering cohorts of international civil servants had (just like any contemporary reader) to muster the resources and navigate the constraints imposed upon them by their built environments – and often to their chagrin. This is especially true to those involved in the so-called first generation of IOs, which through luck and improvisation produced knowledge and practices that later came to define the operations of future international institutions.¹⁸

And yet, the anxieties and promises that space and architecture posed for these networks of transnational governance are, by and large, absent from our scholarly accounts. Sinclair’s recent monograph on the history of IOs in international law, for instance, tells us a nuanced and rich account of the intellectual history of Thomas’s tenure and the context of the early ILO without mentioning the frustrations that the organization faced in the crowded basements of La Châteleine or its eventual displacement to the Bloch property in Geneva – a building that today hosts the World Trade Organization – also a story for another time.¹⁹ In the neighboring fields of international and global history, the surge of interest in the study of internationalisms has not necessarily been accompanied by a careful interrogation of the spaces and venues of IOs. The Hotêl National, for example, only appears in two sentences of Sluga’s (masterful, to be sure) history of internationalisms,²⁰ while Pedersen’s groundbreaking monograph on the League’s Mandate system tell us little about the material investments behind the so-called l’espirit de Genève.²¹ Most accounts, in other words, divorce their analysis of actors, ideas, or norms from the seemingly banal histories of the “buildings, staffs, and letterheads.”²² While the “human component” of IOs has been submitted to an increased scrutiny in international history,²³ and in the aftermath of “biographical turn” to “people with projects” in international law,²⁴ the non-human and more-than-human elements of international institutions have remained largely unexplored. These elements, moreover, warrant study for it is within those very concrete “rooms” in which international lawmaking operations take place – imposing constraints and providing resources for those engaged in this sort of work.²⁵

What is more, “IOs are inclined to define their own histories by writing ‘official histories’ themselves [… and s]uch official histories maybe be written by insiders, who lack a scientific or critical regard,” as Reinalda duly noted.²⁶ This fact is even more salient when it comes to the literature on edifices of IOs, which often follows the genre of coffee table literature – highlighting hagiographic narratives of progress and downplaying moments of tension and conflict.²⁷ The literature, if at all, might present us with a rosy picture of the grand palaces that eventually came to host IOs, but will remain stubbornly silent with regards to the rather precarious and improvised locales that actually came to serve the fledging system of IOs in their infancy. Conversely, in this chapter, I draw from, and contribute to, the recent or forthcoming works that bring the study of material culture, space, and art and architecture into the conversation on global governance.²⁸ In this vein, I trace a history of the interim dwellings of IOs, arguing that a study of the built environments that haphazardly nested these institutions might reveal much about the structural limitations and jurisdictional boundaries of these “delicate machines” of world ordering.²⁹ To do so, after this short introduction, we return to (2) the ironically named Hôtel National. Then, (3) we cross the Atlantic to the early United Nations complex in Lake Success and Flushing Meadows in the state of New York. This will allow me to (4) conclude with some remarks on the relevance of primary sources and archival research in the theory and history of international law and IOs.

A Contradiction in Terms? The Hotel National, Home to the International Community

In an “irony of history,” the first permanent dwellings of one of the pioneering twentieth-century IOs was the former Hôtel National.³⁰ From there, the League “overflowed into two or three surrounding buildings.”³¹ As I mentioned earlier, its acquisition had been partly prompted by Drummond’s desire of finding a dignified site for the IO – and the Hôtel, for him, was the only serious option that Geneva offered.³² But most dramatically, the acquisition of this edifice was also prompted by the attempt of other cities to dethrone Geneva as the foremost site of interwar internationalism.³³ As noted in the epigraph, spectators in both Switzerland and abroad were painfully cognizant of the fact that, “[f]or all the great hopes placed in these organisations, Geneva in 1920 did not offer more than a disused hotel for the [LoN] and an old boarding school for the [ILO].”³⁴ To be sure, Genevese and Swiss authorities were aware of this. William Rappard, who had served as the chief Swiss negotiator at the Paris peace negotiations, knew that other European municipalities were competing to oust Geneva – something that would be unacceptable to his Swiss constituency. The mere fact the Viennese newspaper Freien Presse had published a call for furniture supply for the secretariat had angered local businessmen, as it made them doubt whether the League had “the restoration of Swiss industry from its present depression at heart.”³⁵ In fact, Brussels had almost outbid Geneva when the League’s Council recommended that the US President Wilson convene the first assembly in Belgium in 1920.³⁶ While Geneva was saved by Wilson’s “friendly and spontaneous” gesture to prefer the neutrality of Switzerland over the revanchisme of the recently invaded Belgium,³⁷ this episode convinced Rappard and the President of the Swiss Confederation, Giuseppe Motta, that now it was their turn to reciprocate. Had it not been for the personal rapport between Wilson and Rappard, perhaps Geneva “might well be nothing more than a cantonal capital.”³⁸

The first Swiss overture to sway the League to stay in Geneva came in the form of a tax exemption in 1920. At that time, the Genevese Conseil d’État decided not to charge the LoN for the droits de mutation et des transcription (a tax related to the acquisition of property) of the Hôtel National, which amounted almost to 700,000 gold francs.³⁹ The majority of the council members favored the exoneration as a way to support the League and show their commitment to its historical mission – and pivotal role in warranting Swiss neutrality and independence. And yet, a minority of socialists, led by M. Burklin, argued against the measure, claiming that the state could not afford to exonerate the payment of this tax amid the acute housing crisis which affected the local working class. Along these lines, M. Nicole stated that the League represented the interests of the international capitalist class, which is why the only stable peace could be built by the international workers’ movement. In the end, the socialist faction remained adamant, tallying twenty-two votes against the majority’s sixty-two votes to exonerate the tax. In the following weeks the Council, presided by Paul Pictet, published its official decision to exonerate, laying the first stone upon which “International Geneva” was erected.⁴⁰ Indeed, it was only after this that the Federal and local authorities began investing heavily in infrastructure “to live up to the privilege of being chosen.”⁴¹ In the years that followed, Geneva witnessed the opening of a new railway station (named Cornavin), an airport (named Cointrin), and a series of infrastructures for communications and transport technologies.

Despite this tax exemption, the League still paid a hefty amount to acquire the Hôtel. While it had been originally erected in the late 1870s to create a luxurious hotel on the right bank of the lake (rive droite), it failed to reach commercial success. Not only did its construction costs exceed the initial expectations (leading to the dramatic suicide by defenestration of one of its initial owners),⁴² but its location in the then-outskirts of Geneva failed to attract wealthy clients. Even in the 1920s and 1930s, League officials were skeptical of the Hôtel’s location “at the extremity of an industrial and working-class neighborhood, still in development.”⁴³ After the Great War, the plans to reopen the edifice as a hotel were quickly scuttled after the League manifested its interest in the property, and it was instead renovated by the architects Marc and Jean Camoletti for a bureaucratic use (Figure 9.1). But even after these repairs, it was clear that “the old hotel was not particularly well-suited for administrative functions and as the League’s work picked up pace, the leadership of the League Secretariat was struggling to fit the growing number of staff [and] meetings.”⁴⁵ The spatial layout of the League, in fact, reflected its own internal hierarchies. Unsurprisingly, the top floors were reserved for the higher echelons of staff (Drummond, for instance, used a corner office that overlooked the lake, where former Habsburg aristocrats had spent their nights), with various Sections located in the middle floors of the edifice.⁴⁶ “Ancillary services” were relegated to the basement, attic, and the neighboring villas. In 1924, the hotel complex was suggestively renamed Palais Wilson, in an homage to the Unitedstatesean President who had strongly vouched for Geneva in the struggle to find a dignified location for the League.

Figure 9.1 Genève, Hôtel National. Unknown author (1919).

Bibliothèque de Genève, vg p 0140 ©.⁴⁴

All in all, “the pattern that emerges […] is one of an organisation that is clearly bursting at its seams.”⁴⁷ The League officials were painfully aware of this, which is why they started to look for new alternatives to move out almost as soon as they moved in. Archival traces from 1925 note that the Secretary-General himself was “experiencing the utmost difficulty in finding office accommodation for the staff. All the available space in the Hôtel National has been utilised and further dividing and subdividing […] is no longer possible.”⁴⁸ The ILO – which, as seen earlier, was also in a dire place in terms of infrastructure – eventually built its own edifice in another lakeside property donated by the Genevese and Swiss authorities. The fact that they had managed to do so for much less (around 3,000,000 gold francs) was not lost on the League’s secretariat. Eventually, after receiving some land donations from the Genevese and Swiss authorities, the League also moved to erect its own purpose-built Palais des Nations, the design of which was to be selected through an international competition of architects.⁴⁹

In the meantime, the League tried unsuccessfully to sell the Hôtel National to increase the budget for the new edifice. Alas, despite the “untiring efforts which M. Motta [on behalf of the Swiss Confederacy] has made to bring these delicate negotiations to a satisfactory conclusion,” the League failed to receive even a single offer for the Hôtel.⁵⁰ Motta and the Swiss Federation even wanted an assurance that the Helvetic state would complement any private bid so that the League at least received four million gold francs (which was still one and a half million less than it had spent in 1920 to buy the venue). And yet, no offers came. As the global economic situation worsened, it was easy for League officials to look back and conclude, “the acquisition of the Hôtel National had not been a brilliant operation but was justified by urgency.”⁵¹ The Belgian architect Victor Horta – President of the Jury of Architects elected to supervise the erection of the new Palais – was even more blunt in his assessment. In his view, the acquisition of the Hôtel proved that the League had, “in their efforts to buy a draught horse, mistakenly accepted to purchase an elephant.”⁵²

The early years of the League, in other words, were tied to this white elephant. Due to the delays and complications, the official Palais open its doors only in 1937. But at that time, the League was no longer expanding but was rather on the verge of collapse due to the worsening international climate. Aloft, the Palais remained “something of a pristine haunted house,”⁵³ while most of the technical staff of the League sought refuge in Princeton at the other side of the Atlantic during the second great war.⁵⁴ The League’s lifetime, in other words, had been marked by its awkward tenure at the Hôtel. Indeed, once it became clear selling the Hôtel was not possible, the organization did its best to find respite in the limitations of this dwelling. The most salient example of this was the improvised modernist pavilion that was built by the local architect Adolphe Guyonnet in 1931, commissioned for the upcoming Conference for the Reduction and Limitation of Armaments.⁵⁵ It was there where the League witnessed one of its most remembered “failures”⁵⁶ – as the thirties witnessed a surge towards rearmament and the opening of a new chapter in the twentieth-century European civil war. In its wake, the nascent United Nations organization would also have to find a home to call its own – this time away from the shores of lake Leman. We turn to this now.

Lake Failure: Commuting to the Early United Nations

With the utopian promise of exhibiting “the world of tomorrow,” the 1939 World’s Fair opened its doors in the Flushing Meadows complex in New York. Originally conceived to promote economic recovery after the sorrows of the Great Depression, the start of the second great war four months later gave its motto a new meaning.⁵⁷ “The world of tomorrow” entailed not only a globe changed by the innovations in technology or consumer goods,⁵⁸ but also the promise of a new planetary order forged during and after the “scourge of war.” As the conflagration dawned in Europe, spectators roamed around the fair’s Court of Peace to visit the adjacent national pavilions and the Hall of Nations. While the German Reich had conspicuously withdrawn its participation at the last minute, the Italian Pavilion reminded the fairgoers of the towering vision that the Axis powers wanted to impose on European soil.⁵⁹ Not far away, the pavilion of the Second Polish Republic survived exclusively on the private support from the Polish-Unitedstatesean benefactors, as its Government-in-Exile could no longer afford to run it.⁶⁰ Defiant – as if aware of the suffering to come – the Soviet and “Jewish Palestinian” pavilions remained not far, articulating their own visions of the world of tomorrow.⁶¹ In the 1939 New York World’s Fair, just like the many other international exhibitions that have sprouted in the North Atlantic world since the nineteenth century, the aesthetical, political, and socio-technical dimensions of the world ordering were seamlessly intertwined.⁶²

After the end of the war, the infrastructure that once had heralded the coming of the “world of tomorrow” in 1939 came to serve a similar purpose in the years after 1945. Initially, the UN would come to use a variety of venues scattered in Long Island while the final headquarters were being erected in Manhattan.⁶³ The first of those was the Bronx campus of Hunter College (nowadays, CUNY’s Lehman College).⁶⁴ During the war, the campus had been vacated of students and readapted as a training station for the US Navy WAVES (“women accepted for voluntary emergency service.”) Again, improvisation marked the first steps of this new-born IO. The pool in the gym building was covered up with planks to create a makeshift press center – with the New York Times relegated to the “hairdrying room.”⁶⁵ What is more, that same gym room would be the venue for the first strike of the UN personnel of the first (out of many) walkouts of the Soviet Delegation from the Security Council.⁶⁶ Later that year, the UN moved to a more “permanent” temporary venue (insofar as they would stay there three to five years): the Sperry Gyroscope Company in Lake Success.⁶⁷ Just like Hunter College, the new house of peace had formerly had a military function, as it housed “one of the biggest war plants in the New York area, and one of the most secret, closely guarded factories anywhere in the world.”⁶⁸ While 118 residents of Lake Success voted in favor (with 70 against) of becoming “the world’s capital city,” the refurbished military factory was still far from perfect.⁶⁹ The New York Times, for instance, raised “violent objections […] on the inadequacy of press facilities” of both the Lake Success and the Hunter College makeshift headquarters.⁷⁰ Perhaps as a revenge for its time in the College’s “hairdrying” room, the Times complained that – unlike in the League’s edifices – the UN’s Long Island sites “have separated bar and lounge facilities” for delegates and the press. Moreover, the lack of space forced the UN to reject more than 2,500 requests for seats, as only 385 of the 732 places of the new Council Chamber were available for the public. The battle waged by the press for more space in the room was paralleled by a similar international dispute between the US and Soviet delegations in relation to the admission of new member states to the IO.⁷¹ In sum, the walls of Hunter College ended up being too small to host “international society.”

To resolve this, the UN turned towards the leftover infrastructure from the 1939 fair. From then on, the “New York City Building” (nowadays the Queens Museum) housed the UN General Assembly from 1946 to 1950 (Figure 9.2). This was initially confusing for the “delegates, visitors[,] and [journalists]” who were flabbergasted to arrive at an international building that had the words “[The] City of New York emblasoned in black letters across the façade.”⁷² Be that as it may, it was in the Flushing Meadows complex, in fact, that the UN’s partition plan for Palestine was voted in 1947 – not far away from the “Jewish Palestinian” pavilion, which was situated roughly halfway between the New York building and the Court of Peace. Even the old fair’s railroad service was reopened by the Long Island Rail Road system, allowing for a relatively straightforward commute from New York’s Penn Station every half an hour or so to the newly renamed “United Nations station” in Flushing Meadows. The interim headquarters at Lake Success, however, were a bit more difficult to reach, as the route required delegates and staff to take a train to the Great Neck and then hail a bus.⁷³ Tired of these “intramural headaches,” the Secretary-General Lie urged for the creation of a national home for “[t]he wandering United Nations, now shuttling between a fair building and a reconverted factory, [… desperate to] have a place to call its own.”⁷⁴

Figure 9.2 United Nations Temporary Headquarters. Unknown author (1947).

UN Multimedia, UN7720617 ©.⁷⁵

In this sense, the 1939 fair’s “Hall of Nations” was but an early dress rehearsal for the posterior negotiations related to the creation of a “United Nations Organisation.” And yet – just like the Hôtel National in the case of the League – one finds little to no references in the literature in relation to the everyday geographies of the early days of these IOs.⁷⁶ This is unsurprising, given the hegemonic hold of the methodological benchmarks of intellectual history on the field of the theory and history of international law and international institutions.⁷⁷ But for the men and women who toiled within these IOs, spatial, architectural, and infrastructural considerations were anything but ancillary. The same was true, I suggest, for the leading state and non-state actors that were involved in the financing and erection of these sites. As we have seen, both in Geneva and in New York, the “location, location, location” of an IO was a hotly contested affair – intimately tangled with questions of national jealousy, international rivalries, and the “dignity” of international institutions. As we have seen, ideas – on their own – do not erect headquarters; establish bureaucracies; or cross frontiers.⁷⁸ To do so, they require land, capital, and labor. In this chapter, I offer but a modest example of how the stories of the political economies of two pioneer IOs can be rewritten into our histories of international institutional law.

Concluding Remarks: Archival Research for International Institutional Law

Given the fixation of international (institutional) lawyers with the history of our (sub)discipline and its “founding fathers,”⁷⁹ one can understand why some might believe that we already know everything about the history of our IOs.⁸⁰ Indeed, in a discipline where teleological narratives of progress are so pervasive,⁸¹ it is easy to dismiss the early days of the League or the UN as times of inchoate experimentation, only relevant insofar as they pave the way for our own contemporary institutional arrangements.⁸² Indeed, until very recently, the League was mostly remembered as a “failed” IO – relegated as a moment of “not yet” in the history of an increasingly sophisticated international order.⁸³

But the collective memory of our discipline – just as the one of its individual members – is partial and fickle. To decide to see and remember the League’s history as one of failure was a particular disciplinary choice, with important distributive and political implications.⁸⁴ The same is true, of course, for the early UN, which quickly had to justify its mandate by contrasting its operations with those of its Geneva-based predecessor. Instead of this tired narrative of “failure,” a growing trend of interventions in international law and global history are challenging the “historiographical amnesia” of our standard accounts of the development of IOs.⁸⁵ To “unlearn some common tropes,”⁸⁶ a new generation of scholars in both fields have delved into the “archives of universal history” of IOs.⁸⁷ Within them, as I’ve tried to show in this chapter, we have found “sundry worlds within the world” – a plethora of traces and silences that bear witness to the quotidian hopes and anxieties that surrounded the lofty project of world ordering through international norms and institutions.⁸⁸ This sobering encounter with primary sources and archival collections, I hope, can push international legal scholars to note that perhaps we do not know everything about the history of international institutions. In fact, an archival journey often pushes us as researchers to come to understand our “known unknowns” – and more dramatically, to discover we might still have many “unknown unknowns.”

This is not to argue that we should take archival collections as pristine repositories of truth, nor that we should approach primary sources without a critical eye. We need not to succumb to the fever of the archive.⁸⁹ This is an important point, as some international lawyers have come to mistakenly read all primary source-based historical work as epistemologically modernist and politically conservative.⁹⁰ In fact, some of the leading interventions in the histories of internationalism precisely anchor their narrative in biases and limitations of their archival repositories.⁹¹ This is particularly true for IOs. While their archives “are an extraordinarily fertile, undervalued, underutilised, and endangered source,” they have been also compiled and curated following the geopolitical biases and pressures that these institutions faced in their day-to-day activities.⁹² It is because of these pressures and biases – and not in spite of them – that the traces and silences found in these primary sources and archival collections have much to say about the ways in which “the international” was forged, negotiated, and contested within these institutions.⁹³ It is time we, as students and scholars of international institutional law, start listening.