(image source: MPIL, Twitter)
Telling a history of international law
is every time a mode of echoing oneself in the present. The danger of a single
story and its oppressive force to identities and peoples that are
misrepresented or not represented in it have been stressed in recent years by
many scholars, but not only them. It was perhaps most remarkably and famously
spelled out by the Nigerian novelist Chimamanda Ngozi Adichie in a TED
talk already ten years
ago: “I loved these American and British books I have read [as a child], they
stirred my imagination and opened up new worlds for me. But their unintended
consequence was that I did not know that people like me could exist in
literature.”
Adichie critiques the one-way street of Euro- and U.S.-centric master narratives that make pupils, students and teachers in the Global South more acquainted with Western cultures than with their own historical heritage and identity. Would there be just one takeaway of the conference “Politics and the Histories of International Law”, it is that the traditional subject of master narratives is increasingly becoming the object of counter-narratives.
The turn to the history – or to the historiography, as it was claimed by several participants – of international law took place almost 20 years ago and has been inaugurated by Martti Koskenniemi’s book The Gentle Civilizer of Nations, published in 2001. But this account in itself of course is a particular narrative and founding myth of how the turn came about. In the pre-workshop to the conference Sundhya Pahuja, international law professor in Melbourne, contrasted this invention of the “turn” with a longer history of counter narratives from the global south. Pahuja took her study of the former Indian prime minister and icon of the independence movement Jawaharlal Nehru as example to illustrate the important role the rewriting of world history and the history of international law played in the struggle for independence. In his so-called prison letters, Nehru sketched his understanding of rival international laws and a non-Eurocentric account of world history. Despite these early efforts to historicize international law, the institutionalization of this discipline and the founding of the Journal of the History of International Law (JHIL), the co-convener of the conference, followed only after European and U.S. scholars realized the importance of new histories for international law.
The conference took a substantial effort to reflect on this bias of and within the discipline. A spring-like Heidelberg offered in the midst of February the venue for almost 40 presentations in nine panels and two plenary sessions that took place in the newly enlarged building of the Max Planck Institute for Comparative Public Law and International Law. The program included several papers that were concerned with making underrepresented groups or nations in the history of international law more visible. The following report will just be able to pick up and discuss a portion of the topics and papers at the conference.
In her keynote lecture, Sundhya Pahuja asked the question, if we can actually speak of one international law or if we have to speak of plural international laws? An argument that is in line with the recent scholarship on comparative international law. Pahuja denounced the idea of an anti-pluralistic international law as an exclusionary and racial project and she also sees tendencies towards an “imperial nostalgia” in current debates and several of the latest scholarly projects. However, her most impressive example came from popular culture. She deconstructed a scene from the movie “The Darkest Hour” that whitewashed the structural racism of that time in a fictive portray of an underground ride leading to a joint poem recitation of Winston Churchill and a black man.
Pahuja emphasized the plurality of the “laws of encounter” in the history as evidence for her claim. Her argument was based on the observation that the historiography of international law started in the course of the 19th century when European imperialism was looming. This was also the birth of the myth of Westphalia as crucial point for European international law. Subsequently, the imperial legal techniques of positivism and jurisdiction, which Pahuja described as “jurisographic” acts, served to give unity and normativity to the “Western” international law. Pahuja put the present relevance of this insight together with the “imperial nostalgia” and concluded that structural injustice should not be comforted with pointing at differences of identities or cultures as they are the pretext for prolonging the unequal status quo.
A whole stream of papers at the conference reflected how empires imposed historically such a uniform international law and with what consequences. These presentations aimed to set the stage for new discourses in different legal fields and introduce into the ambivalences and critiques of historiography master narratives in several fields in order to open up discourses and providing counter-narratives. They also stressed the resistance against the empire. Maria Adele Carrai (Leuven/Harvard) gave insights of political and linguistic specialties of introducing the discipline of international law in China; she pointed out how this discipline also produced particular images of Chinese historical international law for strategic political reasons. Angelo Dube and Lindelwa Mhlongo from the University of South Africa emphasized the importance of a fresh view on pre-colonial Africa and suggested to study the continent’s diplomatic history as early evidence for a distinct international law. The example of Hongkong served Basel based historian Madeleine Herren-Oesch to explore the use of the concept of extraterritoriality in a global microhistory.
In this line, but with a different methodological claim, appeared Jacob Cogan Katz (Cincinnati) evening keynote plea for a “social history” of international law. He requested more scholarship on subjects and actors outside the traditional box of international law. This call is also reflected in his widely read review of the Oxford Handbook of the History of International Law. Some presentations reflected this call, such as Radhika Jagtap (New Delhi), who provided a paper on a social movement perspective of the history of international law in India. Further methodological debates arose in several panels and discussions throughout the conference, such as in the presentations of Jan Lemnitzer (Odense) and Morten Rasmussen (Copenhagen).
Classical actors of international legal history were discussed in the panel on courts, tribunals and dispute settlement mechanisms in international law. The special role of courts and adjudicative bodies in international law began already before the First World War. Still shortly before 1914, many international lawyers at that time hoped that tribunals and arbitration will provide for a depoliticization and de-escalation of international conflicts. At the same time, such institutions often emerge within a certain local historical context and in the search or defense of an own narrative, such as the history of the Chile’s Truth Commission in 1990 (Valeria Vázquez Guevara, Melbourne) or the Polish-German Mixed Arbitral Tribunal after 1919 (Jakob Zollmann, Berlin). Even the avoidance of history may be foundational for the narrative of a tribunal, as Michel Erpelding (Luxembourg) demonstrated for the European Court of Justice.
International law in times of war and the use of force formed an unsurprising pillar in the program, such as in several conventional conferences about the history of international law. This focus stems not least from the significant anniversary industry in (Western) academia: 1648, 1815 and 1918, just to name three of the most recent, are all connected to peace agreements and also a realignment of international law. These events are studied by a large number of researchers and result in manifold scholarly output. However, the conference speakers took a different approach and highlighted particular aspects of the historiography of international humanitarian law (Rotem Giladi, Jerusalem/Leipzig) or the laws of war during the 19th century (Claire Vergerio, Leiden). Thilo Marauhn (Gießen) examined the role of “international peace” in Henry A. Kissinger’s justifications for the use of force and compared this with the “securitization” in international law. Political scientist Hendrik Simon (Frankfurt) traced the divergence in the scholarly work and the personal opinions in the opus of the international lawyers Rudolf von Jhering, Fedor Fedorovic Martens and Johann Caspar Bluntschli. When they argued for the actual use of force in their national interest, international legal norms tended to become fluid, overstretched or ignored.
Overall, these papers displayed a collection of more or less critical approaches to an important part of the history of international law. What doing “critical” history of international law actually means was part of the final plenary talk of Jean d’Aspremont (Manchester). He demanded more and “truly critical” scholarship and perceived the current historiography of international law still as mostly conservative. In his mind, particularly the encounter with nations outside the global north is still mostly looked at from a Western perspective.
In contrast, Nehal Bhuta (Edinburgh) described in his plenary lecture critical historiography as opposed to monumental historiography with prominent reference to Max Weber’s “politics as a vocation” (written in Heidelberg). Bhuta characterizes the current “turn” to history in international law in Nietzschean terms as driven by a change of value commitments that lead to a series of reconsiderations in the history of international law. This includes the topics that are regarded as worthy to research, the selection of sources and the ideas that we value. Bhuta reaffirmed that a certain relation to the past in the form of a particular history is always necessary for a political community and system to empower subjects. He left the audience with the epistemic question: “What is the relationship to the past that international law has that it makes it so important for us to re-interrogate?”
This last panel eventually addressed the elephant in the room: The Jamestown piece that led to the careful organization of the conference by the MPIL and the JHIL. It is a text published 2017 in the Journal of the History of International law that academically and ethically misused the term “genocide” in an anachronistic way to attribute it to an act of anticolonial violence of first nation Americans against white settlers in 1622. Henry Jones and Aiofe O’Donoghue (Durham), who drew the attention to this text in their blogpost on critical legal thinking, were invited speakers and recaptured the content of the article. Both talked about its implications and urged for more sensitivity in the teaching of international law and stressed more historical awareness as an essential part.
Jones and O’Donoghue demanded from the journal to withdraw the article. Anne Peters, the editor-in-chief, replied by describing the several steps the journal has taken and the processes that have been adopted to improve the peer review since then. They left the audience with a controversy about how far the article was an example of unreliable data and ethical misconduct in the terms of general guidelines for academic publications. Should the text have been withdrawn by the publishers as demanded by a range of scholars? And to whom does this question actually matter?
Not even a handful of the 75 signatories to the letter are affiliated in research institutions in the Global South. This is in no way meant to relativize the severity of the incident. Nevertheless, I want to draw with that fact the attention to a structural implication. The low number of signatories from the Global South should not be read as a lack of interest in the topic of scholars in that regions, but as a scarcity of resources. Often for very pragmatic reasons they are not part of the vital academic networks built up since the “turn to history” in international law; thus, the integration of some has had also exclusionary aspects for others. The access to global academic publishing is a prerequisite for a vital and legitimate of academia, however, hardly affordable outside of top universities or research institutes. The participation in a truly global legal discourse demands a number of steps, but open access to the important journals and the possibility to frequently hear their voice in them would be one very significant.
Sebastian M. Spitra is currently a Fulbright and Grotius Fellow at the University of Michigan Law School.
Adichie critiques the one-way street of Euro- and U.S.-centric master narratives that make pupils, students and teachers in the Global South more acquainted with Western cultures than with their own historical heritage and identity. Would there be just one takeaway of the conference “Politics and the Histories of International Law”, it is that the traditional subject of master narratives is increasingly becoming the object of counter-narratives.
The turn to the history – or to the historiography, as it was claimed by several participants – of international law took place almost 20 years ago and has been inaugurated by Martti Koskenniemi’s book The Gentle Civilizer of Nations, published in 2001. But this account in itself of course is a particular narrative and founding myth of how the turn came about. In the pre-workshop to the conference Sundhya Pahuja, international law professor in Melbourne, contrasted this invention of the “turn” with a longer history of counter narratives from the global south. Pahuja took her study of the former Indian prime minister and icon of the independence movement Jawaharlal Nehru as example to illustrate the important role the rewriting of world history and the history of international law played in the struggle for independence. In his so-called prison letters, Nehru sketched his understanding of rival international laws and a non-Eurocentric account of world history. Despite these early efforts to historicize international law, the institutionalization of this discipline and the founding of the Journal of the History of International Law (JHIL), the co-convener of the conference, followed only after European and U.S. scholars realized the importance of new histories for international law.
The conference took a substantial effort to reflect on this bias of and within the discipline. A spring-like Heidelberg offered in the midst of February the venue for almost 40 presentations in nine panels and two plenary sessions that took place in the newly enlarged building of the Max Planck Institute for Comparative Public Law and International Law. The program included several papers that were concerned with making underrepresented groups or nations in the history of international law more visible. The following report will just be able to pick up and discuss a portion of the topics and papers at the conference.
In her keynote lecture, Sundhya Pahuja asked the question, if we can actually speak of one international law or if we have to speak of plural international laws? An argument that is in line with the recent scholarship on comparative international law. Pahuja denounced the idea of an anti-pluralistic international law as an exclusionary and racial project and she also sees tendencies towards an “imperial nostalgia” in current debates and several of the latest scholarly projects. However, her most impressive example came from popular culture. She deconstructed a scene from the movie “The Darkest Hour” that whitewashed the structural racism of that time in a fictive portray of an underground ride leading to a joint poem recitation of Winston Churchill and a black man.
Pahuja emphasized the plurality of the “laws of encounter” in the history as evidence for her claim. Her argument was based on the observation that the historiography of international law started in the course of the 19th century when European imperialism was looming. This was also the birth of the myth of Westphalia as crucial point for European international law. Subsequently, the imperial legal techniques of positivism and jurisdiction, which Pahuja described as “jurisographic” acts, served to give unity and normativity to the “Western” international law. Pahuja put the present relevance of this insight together with the “imperial nostalgia” and concluded that structural injustice should not be comforted with pointing at differences of identities or cultures as they are the pretext for prolonging the unequal status quo.
A whole stream of papers at the conference reflected how empires imposed historically such a uniform international law and with what consequences. These presentations aimed to set the stage for new discourses in different legal fields and introduce into the ambivalences and critiques of historiography master narratives in several fields in order to open up discourses and providing counter-narratives. They also stressed the resistance against the empire. Maria Adele Carrai (Leuven/Harvard) gave insights of political and linguistic specialties of introducing the discipline of international law in China; she pointed out how this discipline also produced particular images of Chinese historical international law for strategic political reasons. Angelo Dube and Lindelwa Mhlongo from the University of South Africa emphasized the importance of a fresh view on pre-colonial Africa and suggested to study the continent’s diplomatic history as early evidence for a distinct international law. The example of Hongkong served Basel based historian Madeleine Herren-Oesch to explore the use of the concept of extraterritoriality in a global microhistory.
In this line, but with a different methodological claim, appeared Jacob Cogan Katz (Cincinnati) evening keynote plea for a “social history” of international law. He requested more scholarship on subjects and actors outside the traditional box of international law. This call is also reflected in his widely read review of the Oxford Handbook of the History of International Law. Some presentations reflected this call, such as Radhika Jagtap (New Delhi), who provided a paper on a social movement perspective of the history of international law in India. Further methodological debates arose in several panels and discussions throughout the conference, such as in the presentations of Jan Lemnitzer (Odense) and Morten Rasmussen (Copenhagen).
Classical actors of international legal history were discussed in the panel on courts, tribunals and dispute settlement mechanisms in international law. The special role of courts and adjudicative bodies in international law began already before the First World War. Still shortly before 1914, many international lawyers at that time hoped that tribunals and arbitration will provide for a depoliticization and de-escalation of international conflicts. At the same time, such institutions often emerge within a certain local historical context and in the search or defense of an own narrative, such as the history of the Chile’s Truth Commission in 1990 (Valeria Vázquez Guevara, Melbourne) or the Polish-German Mixed Arbitral Tribunal after 1919 (Jakob Zollmann, Berlin). Even the avoidance of history may be foundational for the narrative of a tribunal, as Michel Erpelding (Luxembourg) demonstrated for the European Court of Justice.
International law in times of war and the use of force formed an unsurprising pillar in the program, such as in several conventional conferences about the history of international law. This focus stems not least from the significant anniversary industry in (Western) academia: 1648, 1815 and 1918, just to name three of the most recent, are all connected to peace agreements and also a realignment of international law. These events are studied by a large number of researchers and result in manifold scholarly output. However, the conference speakers took a different approach and highlighted particular aspects of the historiography of international humanitarian law (Rotem Giladi, Jerusalem/Leipzig) or the laws of war during the 19th century (Claire Vergerio, Leiden). Thilo Marauhn (Gießen) examined the role of “international peace” in Henry A. Kissinger’s justifications for the use of force and compared this with the “securitization” in international law. Political scientist Hendrik Simon (Frankfurt) traced the divergence in the scholarly work and the personal opinions in the opus of the international lawyers Rudolf von Jhering, Fedor Fedorovic Martens and Johann Caspar Bluntschli. When they argued for the actual use of force in their national interest, international legal norms tended to become fluid, overstretched or ignored.
Overall, these papers displayed a collection of more or less critical approaches to an important part of the history of international law. What doing “critical” history of international law actually means was part of the final plenary talk of Jean d’Aspremont (Manchester). He demanded more and “truly critical” scholarship and perceived the current historiography of international law still as mostly conservative. In his mind, particularly the encounter with nations outside the global north is still mostly looked at from a Western perspective.
In contrast, Nehal Bhuta (Edinburgh) described in his plenary lecture critical historiography as opposed to monumental historiography with prominent reference to Max Weber’s “politics as a vocation” (written in Heidelberg). Bhuta characterizes the current “turn” to history in international law in Nietzschean terms as driven by a change of value commitments that lead to a series of reconsiderations in the history of international law. This includes the topics that are regarded as worthy to research, the selection of sources and the ideas that we value. Bhuta reaffirmed that a certain relation to the past in the form of a particular history is always necessary for a political community and system to empower subjects. He left the audience with the epistemic question: “What is the relationship to the past that international law has that it makes it so important for us to re-interrogate?”
This last panel eventually addressed the elephant in the room: The Jamestown piece that led to the careful organization of the conference by the MPIL and the JHIL. It is a text published 2017 in the Journal of the History of International law that academically and ethically misused the term “genocide” in an anachronistic way to attribute it to an act of anticolonial violence of first nation Americans against white settlers in 1622. Henry Jones and Aiofe O’Donoghue (Durham), who drew the attention to this text in their blogpost on critical legal thinking, were invited speakers and recaptured the content of the article. Both talked about its implications and urged for more sensitivity in the teaching of international law and stressed more historical awareness as an essential part.
Jones and O’Donoghue demanded from the journal to withdraw the article. Anne Peters, the editor-in-chief, replied by describing the several steps the journal has taken and the processes that have been adopted to improve the peer review since then. They left the audience with a controversy about how far the article was an example of unreliable data and ethical misconduct in the terms of general guidelines for academic publications. Should the text have been withdrawn by the publishers as demanded by a range of scholars? And to whom does this question actually matter?
Not even a handful of the 75 signatories to the letter are affiliated in research institutions in the Global South. This is in no way meant to relativize the severity of the incident. Nevertheless, I want to draw with that fact the attention to a structural implication. The low number of signatories from the Global South should not be read as a lack of interest in the topic of scholars in that regions, but as a scarcity of resources. Often for very pragmatic reasons they are not part of the vital academic networks built up since the “turn to history” in international law; thus, the integration of some has had also exclusionary aspects for others. The access to global academic publishing is a prerequisite for a vital and legitimate of academia, however, hardly affordable outside of top universities or research institutes. The participation in a truly global legal discourse demands a number of steps, but open access to the important journals and the possibility to frequently hear their voice in them would be one very significant.
Sebastian M. Spitra is currently a Fulbright and Grotius Fellow at the University of Michigan Law School.
The conference can also be revisited browsing through the #JHIL2019-hasthag on twitter.
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