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Performing the rule of law in international organizations: Ibrahim Shihata and the World Bank’s turn to governance reform

Published online by Cambridge University Press:  27 December 2018

Dimitri Van Den Meerssche
Dimitri Van Den Meerssche*
Affiliation:
Asser Institute, R.J. Schimmelpennincklaan 20-22, 2517 JN Den Haag, The Netherlands
*
Email: [email protected]
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Abstract

In recent years, the academic field of international institutional law has taken a clear ‘constitutional’ turn. In this normative endeavour, liberal ‘rule of law’ ideals are being reinvigorated, translated and projected onto international organizations. This article trades this well-trodden path for a socio-legal inquiry into how the ‘rule of law’ is produced, practiced and performed in the everyday political and operational life of one specific international organization (the World Bank) during one contentious historical episode. To grasp what it means for ‘law to rule’, I argue, we need to expand our archives to the daily praxis of legality: the actors that embody it; the consciousness that drives it; the politics that rely on it; and the fragile institutional balances that give it meaning. Grounded in this pragmatist perspective, I retrace the intervention of legal expertise during the Bank’s turn to state reform in the wake of the Cold War. Descending from principles to practices, from norms to acts, from abstract heights to situated performances, the article not only strives for an enhanced understanding of the ‘rule of law’ within the World Bank, but also aims at a critical methodological intervention in the field of international institutional law.

Keywords

governanceinternational organizationsperformativityrule of lawWorld Bank
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 32 , Issue 1 , March 2019 , pp. 47 - 69
Copyright
© Foundation of the Leiden Journal of International Law 2018 

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Footnotes

Researcher. The episode described in this article forms part of a longer narrative – told in my doctoral dissertation – on the institutional practice and politics of legality in the World Bank. I am grateful to Nehal Bhuta for numerous inspiring and engaging conversations. They have significantly shaped the way this story unfolds. A first draft of this article was written at the LSE, where I strongly benefitted from comments by Stephen Humphreys and talks with Gerry Simpson on style and method. I also want to express my gratitude to Jan Klabbers and Guy Sinclair for their generous engagement with the argument in earlier drafts. Marie-Catherine Petersmann read and enhanced all drafts in the most constructive way. I have, finally, also benefitted from comments by Liam McHugh-Russell and Rodrigo Vallejo as well as the sharp suggestions received through the LJIL peer-review process.

A note on primary sources: This article draws on a variety of primary sources that were obtained in different ways. First of all, primarily in Section 2, reference is made to a number of documents that I was able to consult in the archives of the World Bank (in Washington D.C.) while I was working in the organization’s Legal Vice Presidency. I want to thank the helpful and resourceful staff of the archives, as well as Vikram Raghavan for passionate discussions on these old documents. Secondly, the article benefitted greatly from the World Bank’s Oral History Program, which provides a vast amount of interview transcripts with leading figures in the history of the organization. These transcripts are available at oralhistory.worldbank.org/. Third, some key observations in the article are derived from a document that was obtained through the World Bank’s ‘Access to Information’ procedure (see infra note 101). More information on this policy is available at www.worldbank.org/en/access-to-information/. Finally, the article draws on several interviews that I conducted myself.

References

1 Few of international law’s disciplines are as plagued by self-criticism as IIL. It is lamented that ‘the sub-discipline … has developed around the central enterprise of defining, conceptualizing, and applying a set of norms [that is] far from determinate, coherent, or conclusive’ and that ‘[o]ur understanding of the law of [IOs] does not run very deep’ and is ‘somewhat immature’. See Sinclair, G.F., To Reform the World: International Organization and the Making of Modern States (2017), 9Google Scholar; Klabbers, J., ‘The EJIL Foreword: The Transformation of International Organizations Law’, (2015) 26 EJIL 9CrossRefGoogle Scholar; Klabbers, J., An Introduction to International Institutional Law (2009), 3Google Scholar.

2 While such visions of legality are articulated differently across liberal and critical perspectives on international law, both converge in the notion that law has a role to play in mitigating the power of fragmented, expert-based, deformalized regimes of global governance. The ‘constitutional sensibility’ that informs liberal imaginaries has been explored productively in the heuristics international public law (IPA), global administrative law (GAL), and the turn to post-national constitutionalism. See inter alia Von Bogdandy, A., Goldmann, M. and Venzke, I., ‘From Public International to International Public Law: Translating World Public Opinion into International Public Authority’, (2017) 28 EJIL 115CrossRefGoogle Scholar; Kingsbury, B., Krisch, N. and Stewart, R., ‘The Emergence of Global Administrative Law’, (2005) 68 Law and Contemporary Problems 15Google Scholar; Klabbers, J., Peters, A. and Ulfstein, G., The Constitutionalization of International Law (2009)CrossRefGoogle Scholar. Koskenniemi defends his recourse to legal formalism as antidote to the politics of managerialism in Koskenniemi, M., From Apology to Utopia: The Structure of International Legal Argument (2005), 571Google Scholar ff; Koskenniemi, M., The Gentle Civilizer of Nations (2001), 495Google Scholar ff.

3 Epitomizing this ‘constitutional turn’ and the call for the ‘rule of law’ in IOs, see ILA, Accountability of International Organizations (2004), 12–13. See also Alvarez’s plea for an adapted ‘rule of law’ ideal for IOs in Alvarez, J., The Impact of International Organizations on International Law (2017), 398Google Scholar ff. On the liberal vision that animates international ‘rule of law’ ideals more generally see Koskenniemi, M., ‘The Politics of International Law’, (1990) 1 EJIL 4CrossRefGoogle Scholar; Carty, A. and Nijman, J., ‘The Moral Responsibility of Rulers: Going Back Beyond The Liberal “Rule of Law” for World Order’, in Carty, A. and Nijman, J. (eds.), Morality and Responsibility of Rulers: European and Chinese Origins of a Rule of Law as Justice for World Order (2018), 1Google Scholar.

4 As Klabbers observes, IIL, as a disciplinary field, is defined by both a comparative methodology (which he defines as the dominant approach to the law of IOs in the post-War era) and, increasingly, a normative (constitutionalist, public-law based) orientation towards questions of accountability and institutional reform. See J. Klabbers, ‘The Life and Times of the Law of International Organizations’, (2001) 70 Nordic Journal of International Law 287.

5 My approach seeks to answer Rajkovic’s call to move away from concepts of law focusing merely on normativity and rule compliance, towards a critical understanding of how the ‘rule of law’ operates in praxis. See Rajkovic, N., ‘Rules, Lawyering, and the Politics of Legality: Critical Sociology and International Law’s Rule’, (2014) 27 LJIL 331CrossRefGoogle Scholar, at 334: ‘[there] is a need for greater sociological and critical engagement on how the concept of law operates through juridico-political practices’.

6 Schermers and Blokker – in one of IIL’s key works – seek to retrieve the ‘unity within diversity’. See Schermers, H.G. and Blokker, N.M., International Institutional Law: Unity Within Diversity (2011)CrossRefGoogle Scholar. Similarly, Klabbers seeks a ‘background theory concerning the legal nature of [IOs]’. See Klabbers 2009, supra note 1, at 31 (emphasis added). IIL systematically seeks to reassemble what is institutionally splintered.

7 Von Bernstorff, for example, describes his archive as follows: ‘there is of course some law to turn to. It is the law which forms the basis of the functioning of each individual [IO], such as the treaty constituting a particular IO, the rules of procedure of individual organs and internal rules. [And] there are of course a number of decisions and opinions of the ICJ … but they are of a limited and rather ambiguous nature’. Responding to the perceived, Von Bernstorff proposes an enhanced procedural framework, with reference to national public law in the Weberian tradition. See Von Bernstorff, J., ‘Procedures of Decision-Making and the Role of Law in International Organizations’, (2008) 9 German Law Journal 1939Google Scholar, at 1939–40.

8 The need to select praxis as our central object of inquiry in thinking about the performativity of legal interventions and the nature of the ‘rule of law’ is elaborated in Kratochwil, F., The Status of Law in World Society: Meditations on the Role and the Rule of Law (2014), 57Google Scholar ff.

9 One example is Dann’s reconstruction of the legal framework of development co-operation. See Dann, P., The Law of Development Cooperation: A Comparative Analysis of the World Bank, the EU and Germany (2013)CrossRefGoogle Scholar.

10 For an articulation of this doctrinal approach, see Von Bogdandy et al., supra note 2, at 124 ff.

11 A remarkable exception is Sinclair, supra note 1.

12 This is, for example, what Koskenniemi’s paradigmatic ‘structural bias’ signifies. In Koskenniemi (2005), supra note 2, at 600 ff.

13 It is on this point that this project reveals its Latourian nature. The idea of ‘actants’ is introduced by Latour precisely to point out that the social meaning and performance of concepts or norms are always assemblages of mediations by people or things (‘actants’) earlier in an Actor-Network. This perspective on legality rejects both positivist modes of analytical jurisprudence as well as structuralist projects of ideology critique, and opens up a range of new archives and empirical passages. The concept ‘actants’ is developed in Latour, B., Reassembling the Social: an Introduction to Actor-Network Theory (2005), 54Google Scholar ff. The argument that law ‘passes’ through praxis (and only thereby obtains existence and meaning) is elaborated in Latour, B., The Making of Law: An Ethnography of the Conseil D’Etat (2009)Google Scholar; Latour, B., An Inquiry into Modes of Existence: An Anthropology of the Moderns (2013)Google Scholar.

14 See, for example, the tension between the heuristics of attributed- and implied powers in legally evaluating the praxis of IOs. Conceptual analyses of these doctrines tell us very little on the social effects they generate and the politics they sustain.

15 On the normative potential of a Latourian analysis, see Latour, B., ‘Why Has Critique Run out of Steam? From Matters of Fact to Matters of Concern’, (2004) 30 Critical Inquiry 225CrossRefGoogle Scholar.

16 I deliberately refer to his ‘person’ and not solely the legal opinions he drafted during this time. To understand the institutional traction of these opinions, it will prove pivotal to situate his personality in the Bank.

17 For elaboration on this invitation see Van Den Meerssche, D., ‘Scholars in Self-Estrangement (Again): Rethinking the Law of International Organisations’, (2017) 5 London review of International Law 455CrossRefGoogle Scholar.

18 This paradox plays out in many overlapping conceptual juxtapositions: consent vs. justice; sovereignty vs. humanity (or sovereignty vs. development in the economic sphere); autonomy vs. community; voluntarism vs. virtue; contractualism vs. constitutionalism, etc. See inter alia Koskenniemi, supra notes 2 (2005), 3; D’Aspremont, J., Epistemic Forces in International Law (2015)Google Scholar; Kennedy, D., International Legal Structure (1987)Google Scholar.

19 On the elusiveness of this promise see Koskenniemi, supra note 3.

20 See Teitel, R., Humanity’s law (2011)CrossRefGoogle Scholar.

21 As elaborated below, the Bank’s Articles stipulate that all ‘political activity [is] prohibited’, and that only ‘economic considerations’ are to guide its work. See IBRD Articles of Agreement, Art. IV(10), available at siteresources.worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf. Shihata clarified that this prohibition to engage in politics is ‘derived from the principles of equality of states and non-intervention in domestic affairs, enshrined in the UN Charter (Article 2 (1) and (7)) and high in the minds of the original drafters of the Articles who envisaged universal membership in the institution’. This was stated in Shihata’s Legal Memorandum on ‘Issues of Governance’, which was internally issued and which provided the foundation for his interventions discussed in Section 3 of this article. The Memorandum was issued on 21 December 1990 and was circulated to the Board of Executive Directors (SecM91-0131). It was later published as Shihata, I., ‘The World Bank and “Governance” Issues in its Borrowing Members’, in Shihata, I. (ed.), The World Bank in a Changing World – Selected Essays (1991), 66–7Google Scholar.

22 Pahuja, S., Decolonizing International Law: Development, Economic Growth and the Politics of Universality (2011)CrossRefGoogle Scholar.

23 For an exploration of taboos in the Bank see Sarfaty, G., Values in Translation- Human Rights and the Culture of the World Bank (2012)Google Scholar. For a rejection of such an ‘exotic’ style of anthropological inquiry (as adopted by Sarfaty), however, see Latour, supra note 13 (2009).

24 When asking a Senior Legal Counsel in the Bank about the nature of the restraints imposed by the political prohibition clause, for example, (s)he responded ‘I don’t know if the political prohibition reasoning is true. According to me, this political thing is garbage. We are doing political things every day. It doesn’t convince anybody’. Interview conducted at World Bank headquarters in November 2016 (transcripts on file with author).

25 This relates to the understanding of liberal equality embedded in the concept of ‘Charter liberalism’ in Simpson, G., ‘Two Liberalisms’, (2001) 12 EJIL 537CrossRefGoogle Scholar, at 541.

26 I refer to the notion of the nation state as a jurisprudential fiction, not a political reality, of course.

27 IBRD Articles of Agreement, Art. V (4).

28 The institutional and constitutional differences, of course, stretch far beyond this isolated feature. For example, while the UN Charter established the principle of non-interference (Art. 2(7)) and sovereign equality (Art. 2(1)), the IMF Articles of Agreement allow ‘the Fund’ to ‘exercise firm surveillance’ over the monetary policies of its members (Art. IV (2)), and the IBRD Articles of Agreement delegate decision-making regarding loans and conditionalities to ‘committees of experts’, appointed by the Board (Art. 5(7)).

29 In the first proposal for the creation of the IMF and the Bank, White defends his argument for the abolishment of sovereign control over monetary affairs by stating that control over exchange rate policies would be exerted by ‘an international committee’ composed of ‘men expert in their fields, international in their outlook, and scientific in their approach’. Their decisions, he concludes, ‘could not help but prove very salutary’. See White, H.D., Preliminary Draft – Proposal for United Nations Stabilization Fund and Bank for Reconstruction and Development of the United and Associated Nations (1942) (World Bank Archives)Google Scholar, II-54 (emphasis added).

30 See, again, Pahuja, supra note 22.

31 This refers to Bourdieu’s elaboration on law’s neutralizing and universalizing effects. In Bourdieu, P., ‘The Force of Law: toward a Sociology of the Juridical Field’, (1987) 38 Hastings Law Journal 805Google Scholar, at 820.

32 Note that the United Nations (plural) would only become The United Nations (singular) several years later. In this proposal, the term ‘United and Associated Nations’ referred to the nations siding against the Axis forces.

33 On the first page of the proposal, White described its aim as ‘furthering the war effort’. In White, supra note 29, at 2 ff.

34 Ibid., at 2.

35 Ibid., at II-62.

36 Ibid., at II-63 (emphasis added).

37 ‘A socialist economy like a capitalist economy engages in international trade and financial transactions which can be either beneficial or harmful to other countries’, ibid.

38 H. Morgenthau, ‘Foreword’, in U.S. Treasury Preliminary Draft Outline of a Proposal for A Bank for Reconstruction and Development of the United and Associated Nations (November 1943) (World Bank Archives), 3. There is only one provision in the Bank’s constitutional ‘purposes and functions’ that mentions developing countries, stating that ‘[t]he purposes of the Bank are … [t]o assist in the reconstruction and development of territories of members by facilitating the investment of capital for productive purposes, including … the encouragement of the development of productive facilities and resources in less developed countries.’ See IBRD Articles of Agreement, Art. I(i).

39 White, supra note 29, at 5 (emphasis added).

40 Ibid., at 6 (emphasis added).

41 On the ambiguity of White’s sympathy for Russia see Steil, B., The Battle of Bretton Woods - John Maynard Keynes, Harry Dexter White, and the Making of a New World Order (2013)CrossRefGoogle Scholar.

42 U.S. Treasury, Preliminary Draft Outline of a Proposal for A United Nations Bank For Reconstruction and Development (1943) (World Bank Archives), Sec. IV, para. 19.

43 U.S. Department of State, Proceedings and Documents of the United Nations Monetary and Financial Conference – Bretton Woods July 1–22 1944, vol. II (1948) (World Bank Archives), 202.

44 This addition by the UK delegation was included in the draft proposal at Bretton Woods, ibid.

45 IBRD Articles of Agreement, Art. IV (10).

46 Ibid., Art. III (5)(b).

47 U.S. Treasury, ‘Questions and Answers on the Bank for Reconstruction and Development’ (1944) (World Bank Archives), 75 (emphasis added).

48 Quoted in Shihata, supra note 21, at 71 (emphases added).

49 I. Shihata, ‘Prohibition of Political Activities Under the IBRD Articles of Agreement and Its Relevance to the Work of the Executive Directors’, Legal Opinion of the General Counsel (1987), 9 (emphasis added). The sections of this opinion that I refer to are included in Shihata, supra note 21, at 66, 76.

50 White, supra note 29, at II-54 (emphases added).

51 As argued by Morgenthau, the idea of the ‘scientific man’ and the created juxtaposition between the historically contingent sphere of politics and the potential for value-neutral expertise was embedded in the post-Enlightenment belief that both the social and the physical world were subject to rational control. See. Morgenthau, H.J., Scientific Man versus Power Politics (1946), 3Google Scholar.

52 Note the shared recourse to ‘barbarism’ in the preamble of the Universal Declaration on Human Rights in 1948, available at www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf.

53 White, supra note 29.

54 Mégret retraces the ‘rise and fall’ of this ‘international man’ in the period before the Second World War, exploring the liberal vision underlying this subjectivity and exposing the true features of this cosmopolitan ideal-type: white, male and elitist. See Mégret, F., ‘The Rise and Fall of “International Man”’, in Singh, P. and Mayer, B. (eds.), Critical International Law: Postrealism, Postcolonialism, and Transnationalism (2014), 244Google Scholar.

55 For a critique on this enduring rationalist creed see Easterly, W., The Tyranny of Experts: Economists, Dictators, and the Forgotten Rights of the Poor (2014)Google Scholar. See Sinclair, supra note 1; Sarfaty, supra note 23.

56 Shihata, supra note 21, at 54.

57 Boutros-Ghali, B., An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping (1992)Google Scholar, para. 8.

58 Ibid., para. 17 (emphasis added).

59 The image of the jungle keeps returning. See George H.W. Bush, ‘Address Before a Joint Session of Congress’, 11 September 1990, available at millercenter.org/the-presidency/presidential-speeches/september-11-1990-address-joint-session-congress.

60 See Bhuta, N, ‘Against State Building’, 15 Constellations 517CrossRefGoogle Scholar, at 522: ‘under the conditions of a bipolar world order, in which any international legal definition implicating the legitimacy of domestic political and social systems was subject to vigorous contestation by each bloc, thickly prescriptive visions of domestic order could not be codified’.

61 Franck, T., ‘The Emerging Right to Democratic Governance’, (1992) 86 AJIL 46CrossRefGoogle Scholar.

62 Slaughter, A.-M., ‘Law Among Liberal States: Liberal Internationalism and the Act of State Doctrine’, (1992) 92 Columbia Law Review 503Google Scholar.

63 Bhuta, supra note 60, at 521.

64 Interview with B.B. Conable, former President of the World Bank, World Bank Oral History Archives, 8 May and 19 August 1991, 31–32. I have also engaged with this quote in Van Den Meerssche, D., ‘International Organizations and the Performativity of Measuring States’, (2018) 15 International Organizations Law Review 168CrossRefGoogle Scholar.

65 ‘[A]s long as there was a confrontation between two great superpowers’, Conable observed, ‘people could choose sides and play both sides [and] the conditionality was pretty limited. Many of the Part IIs [developing countries] now see a pyramid of conditionality’. Ibid. While Sinclair convincingly argues that the Bank’s praxis of governance reform goes back to its very origins, these quotes highlight the specific momentum in the wake of the Cold War. See Sinclair, supra note 1.

66 G7 Summit of the Arch, ‘Declaration on China’, 15 July 1989, available at www.g8.utoronto.ca/summit/1989paris/china.html.

67 Interview with Conable, supra note 64, at 32 (emphasis added).

68 Ibid.

69 Interview with E.V.K. Jaycox, World Bank Oral History Archives, 23 February, 9 March, 27 April 27, 24 May 1995, at 17. He added that ‘as long as the reforms are moving at a fast pace, then we could run out of money. This would be a fortunate day’.

70 Ibid., at 28.

71 Ibid.

72 Ibid., at 31.

73 Although, as will be argued, Jaycox’s voice would be particularly influential in the genesis of the ‘governance’ concept.

74 See Pahuja, supra note 22; Sinclair, supra note 1.

75 On the question ‘eventually they came to recognize that they really didn't have any options?’, Jaycox answers ‘[t]hat’s right’. Interview with Jaycox, supra note 69, at 28.

76 This, of course, draws on the arguments of Fukuyama and his proposition that the end of the Cold War signalled the ‘end of history’, thereby elevating the Western political-institutional order to the realm of the post-historical. See Fukuyama, F., The End of History and the Last Man (1992)Google Scholar. For an elaboration of the concept of ‘history’ implicated in this claim see Marks, S., ‘The End of History? Reflections on Some International Legal Theses’, (1997) 3 EJIL 449CrossRefGoogle Scholar.

77 Interview with Jaycox, supra note 69, at 20.

78 Interview with Conable, supra note 64, at 31.

79 See, inter alia, Sajo, A., ‘New Legalism in East Central Europe: Law as an Instrument of Social Transformation’, (1990) 17 Journal of Law and Society 329CrossRefGoogle Scholar.

80 Both concepts stand out simultaneously for their universal endorsement and substantive indeterminacy. This paradox has been exposed extensively. For an elegant recent exploration see P. Zumbansen, ‘The Rule of Law, Legal Pluralism, and Challenges to a Western-centric View: Some very Preliminary Observations’, Transnational Law Institute Research Paper 47/2016, available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2869190##.

81 The notion of ‘narrative self-authorization’ is borrowed from Rajah, J., ‘“Rule of Law” as Transnational Legal Order’, in Halliday, T.C. and Shaffer, G. (eds.), Transnational Legal Order (2015), 348–9Google Scholar.

82 Kennedy frames this problem as follows: ‘[e]xpertise dictates in the name of the universal, the public good, the general will, the practical necessities of reason, or the objective truth of scientific knowledge. Sometimes it seems no one is deciding – everyone is arguing about and interpreting decisions taken elsewhere at another time by someone else’; in Kennedy, D., A World of Struggle: How Power, Law and Expertise Shape Global Political Economy (2016), 3Google Scholar.

83 See World Bank, Sub-Saharan Africa: from crisis to sustainable growth: a long term perspective study (1989), 60; see, e.g., Humphreys, S., Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice (2010), 133Google Scholar ff.

84 See Fowler’s Dictionary of Modern English Usage (1965), 230.

85 Interview with Jaycox, supra note 69, at 21.

86 See Humphreys, supra note 83.

87 Ibid.

88 Ibid., at 23–4.

89 The six countries permanently represented in the Board are France, Germany, Japan, China, the UK, and the US. These six countries and Saudi Arabia represent their own country in the Board. The other directors have mixed constituencies.

90 Consequently, the US holds 16 per cent of votes in the Board, while Afghanistan or the Gambia hold 0.05 per cent.

91 As Frank Potter, a former Canadian Executive Director, notes: ‘It's very difficult to be an independent Part II Director, if you represent countries that are major borrowers. You are simply too vulnerable to the institution.’ Interview with F. Potter, World Bank Oral History Archives, 19 July 1993, at 13.

92 This necessity was expressed by President Conable in the forward to the Bank’s 1991 study on governance, which was presented to its Board. See Conable, B., ‘Foreword’, in World Bank, Managing Development: the Governance Dimension (1991)Google Scholar.

93 See IBRD Articles of Agreement, Art. V(4).

94 This discrepancy is also addressed, although from a very different perspective, in Sarfaty, supra note 23.

95 Interview with Ibrahim Shihata, World Bank Oral History Archives, 23–24 May 2000, at 6.

96 Interview with J.H. Haralz, World Bank Oral History Archives, 11 November 1993, at 24.

97 Interview with F. Potter, World Bank Oral History Archives, 19 July 1993, at 6.

98 Interview with P. Coady, World Bank Oral History Archives, 19 April 1993, at 16.

99 A classic account is Holmström, B., ‘Moral Hazard and Observability’, (1979) 10 Bell Journal of Economics 74CrossRefGoogle Scholar.

100 As noted by Stek, the Dutch executive director: ‘[management] had to do what was right by the Articles’, and ‘[t]he World Bank needs its supporters in the Board who strongly believe in the rule of law and in not politicizing the issues’.

101 See IBRD, Transcripts of Board of Executive Directors Meeting Regarding ‘Managing Development: The Governance Dimension – A Discussion Paper’ (1991) (document cleared upon request under the World Bank ‘Access to Information Policy’ and on file with author), 14–15 (hereafter ‘IBRD 1991, Governance Transcripts’).

102 Ibid. Interestingly, Benhocine hereby provides a new ontology for the ‘international man’: a ‘crusader type’, who stands in sharp contrast with White’s prototype cosmopolitan hero: ‘expert in [his] field, international in [his] outlook, and scientific in [his] approach’. See supra note 51 and note 54.

103 Ibid., at 83. Hosny also added: ‘[i]t is absolutely important that the Bank should not exceed its legal mandate, as stated in its Articles of Agreement. These Articles clearly state that the Bank, and I quote, “shall scrupulously” – and I repeat “scrupulously”, which is a very strong word indeed, Mr. Chairman – “avoid interference in the political affairs of any member”, unquote’; ‘[i]n this respect, Bank management must be very careful so as not to trespass the boundaries defined by the Articles of Agreement’. ibid., at 78–9.

104 Ibid., at 76.

105 Ibid., at 56.

106 Ibid., at 29.

107 See, e.g., Pahuja, supra note 22. On the troubled Kantian epistemology that underlies this mode of critique, see Latour, supra note 13 (2009), 229 ff. As I argued in the introduction, Latour’s critique speaks directly to the deconstructionist turn in international legal theory.

108 For this ‘praise of description’ see Orford, A., ‘In Praise of Description’, (2012) 25 LJIL 609CrossRefGoogle Scholar. This is what Kratochwil departs from when doubting ‘the implication [of the indeterminacy critique] that in the absence of firm guidance or foundations nothing significant can be said’. See Kratochwil, supra note 8, 61.

109 On the social artifacts produced through legal knowledge see Riles, A., ‘Legal Knowledge’, in Clark, D.S. (ed.), Encyclopedia of Law and Society: American and Global Perspectives (2007), 887Google Scholar.

110 As I will elaborate below, these institutional functions culminate in law’s capacity of translation.

111 IBRD Articles of Agreement, Art. IX: ‘Any question of interpretation of the provisions of this Agreement … shall be submitted to the Executive Directors for their decision.’

112 It is therefore no surprise that since the 1980s hardly any formal interpretations have been issued by the Board. This competence has informally shifted to the General Counsel, who resides on the border between politics and management.

113 As noted above, Shihata himself later recollected that ‘I have not acted simply as the spokesman for Management, I have acted as the spokesman for the law as I understand or conceive it’ and that ‘the role of the General Counsel [is to] look into what is required in the Articles of Agreement under the applicable rule of law, and take a position that he can legally defend [despite management pressure]’. Interview with Shihata, supra note 95, 16 ff. (emphasis added).

114 Interview with Shihata, ibid., at 30.

115 Sandstrom, S., ‘Special Tribute’, (1999) 31 Studies in Transnational Legal Policy 111Google Scholar.

116 Interview with Shihata, supra note 95, at 23 (emphasis added).

117 Interview with Ibrahim Shihata, World Bank Oral History Archives, 11 May 1994, 18 (emphasis added).

118 In his ethnography of the Conseil D’État, Latour sees this as one of law’s defining features: its capacity always to import its totality into a particular case, to mobilize an artifact bigger and weightier than the concerns it encounters. See supra note 13.

119 Interview with General Counsel A.-M. Leroy, conducted at World Bank Legal Vice Presidency, Washington D.C., October 2016 (transcripts on file with author).

120 This echoes Luhmann’s well-known perspective on the function of law: ‘Law’s relation to time lies rather in the function of norms, that is, in the attempt to anticipate, at least on the level of expectations, a still unknown, genuinely uncertain future’. In N. Luhmann, Law as a Social System (2004), 147 (emphasis added).

121 Latour sees the uniqueness of law in its capacity ‘to ensure continuity through astounding discontinuities’. See Latour (2013), supra note 13. On Shihata’s use of ‘changing circumstances’, see infra note 145.

122 See Kratochwil, supra note 8.

123 Shihata, supra note 21.

124 A.-M. Leroy, ‘Legal Note on Bank Involvement in the Criminal Justice Sector’, 9 February 2012, available at siteresources.worldbank.org/INTLAWJUSTINST/Resources/CriminalJusticeLegalNote.pdf.

125 This position was articulated by Shihata in two scholarly articles: Shihata, I., ‘The Creative Role of the Lawyer – Example: the Office of the World Bank General Counsel’, (1999) 48 Catholic University law Review 1041Google Scholar; Shihata, I., ‘The Dynamic Evolution of International Organizations: the Case of the World Bank’, (2000) 2 Journal of the History of International Law 217CrossRefGoogle Scholar.

126 On the international law as ‘language of justification’ see Koskenniemi (2005), supra note 2, at 570.

127 The concept of performativity (pointing to the world-making effects of discursive acts) draws on Austin’s speech-act theory. For the argument that law is the quintessential form of world-making see Bourdieu, supra note 31, 837 ff.

128 Shihata, supra note 21, at 54 and 61.

129 Ibid., at 96 (emphasis added). We encounter the liberal promise: law as antonym to power. See ILA, supra note 3.

130 On functionalism and attribution, see Klabbers 2015, supra note 1, 25 ff. This perspective is described by D’Aspremont as the ‘contractualist’ approach to IO law, see D’Aspremont, supra note 18, 141 ff.

131 Shihata, supra note 21, at 69. After extensively describing the VCLT Articles, the opinion formulates the well-known theory that this interpretation doctrine allows for both an objective/textual and purposive/teleological approach. For the argument that the qualification of the constituent agreement as an inter-state treaty (prone to the application of traditional tools of treaty interpretation) signals a ‘contractualist’ approach to the law of IOs see D’Aspremont, ibid., at 151.

132 Ibid., at 96. On another occasion, Shihata roots the ultra vires concept in ‘the basic principle of pacta sunt servanda, the cooperative nature of the Bank and the consensual basis of its actions in a member country’: I. Shihata, ‘Introductory Chapter: Interpretation as Practices at the World Bank’, in I. Shihata, World Bank Legal Papers (2000), lvi.

133 Shihata, supra note 21, at 95.

134 As noted, the Bank’s exercise of powers (being potentially ultra vires) is not prone to any judicial oversight.

135 This identification of legal limits was essential to Shihata’s credibility and the impact of his interventions. During the meeting in which the Bank’s turn to ‘governance’ reform was discussed, Director Hosny (Egypt) noted that: ‘[D]espite this clear stipulation [of the political prohibition] in the Articles, Mr. Shihata had to note on page 47 of his paper that the coverage of governance, which has appeared in some Bank staff papers, has indeed exceeded the Bank's mandate. We, therefore, need to be absolutely clear that in taking the Bank into new areas, transgressions of the kind that Mr. Shihata noted are totally avoided.’, IBRD 1991, Governance Transcripts, supra note 101, at 79 (emphasis added).

136 Shihata, supra note 21, at 80–1.

137 This echoes the ‘constructivist’ interest in law as an ‘instrument for structuring the field of political contestation’. See Koskenniemi, supra note 2 (2005), at 570. As argued by Latour, law’s mode of existence relies on this constant process of ‘qualification’, from heterogenous ‘facts’ to legal ‘principles’. See Latour (2013), supra note 13, at 364.

138 Interview with Shihata, supra note 95, at 15, 17.

139 Shihata underlines that ‘[t]he rule of law, which the Bank strongly advocates for its borrowing members, means in the first place that the Bank has to adhere to its basic law, its Articles of Agreement’, in Shihata, supra note 132, at xxxix. The ILA defines this ‘rule of law’ as a ‘fundamental principle of constitutionality’. ILA, supra note 3, at 12–13.

140 Shihata, supra note 21, at 81.

141 See Shihata, supra note 125, at 217. For a critique of this constitutional analogy in the interpretation of IO Charters: Alvarez, J., ‘Constitutional Interpretation in International Organization’, in Coicaud, J.-M. and Heiskanen, V. (eds.), The Legitimacy of International Organizations (2001)Google Scholar.

142 Shihata, supra note 132, at lii.

143 Shihata, supra note 125, at 218.

144 Ibid., at 225.

145 Ibid. Throughout this document, Shihata repeatedly refers to ‘changing world conditions’, the ‘changing world’ and ‘ever changing situations’. The volume collecting his legal opinions is titled ‘The World Bank in a Changing World’.

146 Shihata, supra note 21, at 54.

147 On this paradigmatic tension see D’Aspremont, supra note 18, at 141 ff.

148 Shihata, supra note 132, at liv. This is an ambiguous claim but we are interested in its performance, not its validity.

149 Ibid., at lx. Contra ILA, supra note 3: ‘[implied powers should be] founded upon an express functional provision’.

150 Sinclair brilliantly historicizes this ‘hermeneutic for growth’. See Sinclair, supra note 1.

151 This poses an obvious problem: IOs are central actors in epistemically and normatively shaping the telos that legally defines them. This paradox makes it impossible for law to safeguard external limits to the internal managerial dynamics of IOs. The Bank constantly constructs the meaning of ‘development’; the constitutional boundary of its own powers.

152 Shihata, supra note 21, at 55.

153 Drawn from Bourdieu, supra note 31, at 839. I believe this legal internalization of is what Teubner hints at with the concept of ‘double reflexivity’ in the self-foundation of social systems; Teubner, G., Constitutional Fragments: Societal Constitutionalism and Globalization (2012), 103Google Scholar ff.

154 Shihata later recollects: ‘as long as you are not violating the explicit words of the text, you can add to it and interpret it without violating it. It was under this that many new concepts were introduced without a big fight. For instance, taking up governance issues in the work of the Bank but selecting those governance issues that can be defended as apolitical, because they apply regardless of the political situation’. In Interview with Shihata, supra note 95, at 18. On the concept of ‘constitutional irritant’, see Teubner, ibid. On how the concept of implied powers threatens the functionalist perspective on IO law, see Klabbers 2015, supra note 1, at 27–8.

155 Shihata, supra note 21, at 67.

156 Ibid., at 95.

157 Ibid., at 54.

158 Ibid., at 69–70, 83–4 (emphasis added).

159 Interestingly, the big argumentative leaps are merely phrased as matters of fact – e.g., ‘the more relevant meaning [of the political in the Bank] is “belonging to or taking side in politics” … as well as “the political principles, convictions, opinions or sympathies of a person or party”’; or ‘politics … for the purposes of the Bank’s Articles … should exclude … the efficient management of a country’s resources’.

160 The years following this legal opinion saw an enormous proliferation of statistical regression analyses that aim to econometrically establish the causal relationship between certain legal-institutional configuration and growth.

161 Leroy, for example, legitimizes her own position by reference to his argument and employs an identical interpretive technique and structure. It is by reference to the virtue of a preceding authority that her argument is constructed. We witness the gradual emergence of an informal rule of recognition. See also, infra note 163.

162 See supra note 145.

163 Leroy, supra note 124, para. 9. Leroy links this purposive hermeneutic to the principles of ‘effectiveness (effet utile), reasonableness, good faith and the common interest of the organization and its members as a whole’, explicitly referring to Shihata’s interpretative framework, as set out in Shihata, supra note 132.

164 Ibid., para. 2. This report plays the same role as the 1989 Study in Shihata’s opinion: it provides an epistemic source on which the teleological treaty interpretation can be grounded. This dialectic between proliferating economic research and teleological treaty-interpretation is essential to the Bank’s self-referential growth.

165 Ibid., para. 3. This claim is almost identical to Shihata argument that ‘governance’ reform was a logical continuation of the Bank’s work in structural adjustment.

166 Ibid., paras. 20, 21, 23.

167 Ibid., 8, para. 21.

168 Ibid., 9, para. 24 (emphasis added).

169 See P. Alston, UNGA, Report of the Special Rapporteur on Extreme Poverty and Human Rights, A/70/274, 2015, available at undocs.org/A/70/274.

170 Bourdieu, supra note 31, at 838.

171 The executive directors were quasi-unanimous in arguing that the Bank would need to ‘assist and persuade, rather than order and constrain’; statement by Landau (France). See IBRD 1991, Governance Transcripts, supra n. 101, at 12. See also the quotes in the same meeting by Peretz: ‘[t]he part the Bank has to play is in persuading governments that it is in their interests to take measures to improve aspects of governance’; Baijal: ‘[the] surest way to defeat our worthy objectives is to use order and constraint rather than persuasion’; Hosny: ‘[t]he Bank can certainly assist through dialogue and persuasion without treading on the political sovereignty of borrowers’.

172 Latour, supra note 13, at 247.

173 Ibid., at 362–3.

174 This move, of course, is grounded in a specific set of epistemological and theoretical commitments. Influential in this regard – aside from Latour’s ethnomethodology – is the anti-essentialism of philosophical pragmatism, as echoed in the ‘practice turn’ in international relations and international law. See Kratochwil, supra note 8; Orford, supra note 108; Rajkovic, supra note 5.

175 This narrow spatial, temporal and personal focus is an essential corollary to the chosen methodology.

176 This does not only impact the sources we turn to, but also the type of questions we ask. It seems unproductive, for example, to investigate if the legal interventions were ‘correct’ from an internal doctrinal perspective.

177 See supra note 1. As mentioned above, this intuition also drives Sinclair’s project. See Sinclair, ibid.

178 This is in reference to Wittgenstein, L., Philosophische Untersuchungen (2010)Google Scholar, para. 241; cited in Kratochwil, supra note 8, at 58.

179 This aligns with the ‘New Legal Realist Approach’, which steers away from both analytical jurisprudence and normative (or interpretative) legal theory. See Shaffer, G., ‘International Legal Theory, International Law and its Methodology: The New Legal Realist Approach to International Law’, (2015) 28 LJIL 189CrossRefGoogle Scholar.

180 See supra notes 2, 6.

181 See Koskenniemi, supra note 2 (2005), at 606–7.