Betwixt and Between: What We Write About When We Write About International Law History

Introduction 

Upon reading Janne Nijman’s elegant response to my recent article in the European Journal of International Law (A New League of Extraordinary Gentlemen? The Professionalization of International Law Scholarship in The Netherlands, 1919-1940), what immediately sprung to mind was a legendary quote from Arnold Toynbee: “The only real struggle in the history of the world is between the vested interest and social justice”. A captivating phrase, and just like Nijman’s reply, one that offers much food for thought. Toynbee’s statement, even when academically viable, forms the expression of a certain bias, and demands further verification. Similarly, in Nijman’s publication, a biased method is attributed to my study, and in her meticulous process of verification, she means to identify two ‘marked absences’ in particular. Of course, one is neither forced to subscribe to her point of view nor to that of Toynbee – yet, the two do appear to share a common agenda in foregrounding (the importance of) social justice. Accordingly, today’s international law historian should at long last discard outmoded state-centered, male-dominated approaches, electing to adopt a more critical modus operandi instead.

To avoid misunderstanding, let me emphasize that I wholeheartedly concur with the central driver behind Nijman’s reply (explained on p. 1026), that historiography as it has traditionally been done requires expansion, indeed even correction. My doubts however pertain to the question whether the subject we both chose to engage with is truly the most appropriate for launching that – in itself entirely righteous – plea. Besides, I fear a misunderstanding might have crept in concerning the setup and objectives of my research, which purported to realize an ‘absence of absences’ – at the very least avoiding latent or overt prejudices towards either race or gender. This rejoinder is thus motivated by a hesitation, as well a desire to account for the (arguably legitimate) choices made. As will become clear, it eventually builds up to a few broader reflections that could prove instructive for peers on the verge of performing kindred studies, regardless of their interest in the Dutch or any other national tradition.

The Female Factor

During presentations of preliminary findings, attentive audiences asked me more than once ‘where the women were’. The sentiment is understandable, and perhaps in the title of my talks, the wink to a 2003 cult movie was prone to misapprehensions. By now, many of us are aware of the remarkable interest of League of Nations organs in securing parity between the sexes, even if the organization did not fully manage to live up to its ideals, reinforcing the relevance of the issue. Also, as Nijman recalls with reference to Koskenniemi, ‘when writing history and drawing on, for example, Skinnerian contextualism, one has to decide implicitly or explicitly what to include in or exclude from the reconstructed context’. (p. 1027) In my publication, a gender-related decision was not made explicitly, with consequently the narrative exhibiting a male focus without a perceptible justification. At the same time, it was not an implicit methodological decision either. When assessing the professionalization trajectory in the Netherlands along the three vectors identified (academic-institutional, societal outreach, public service), the simple fact is that there were no women in exactly the same position as the depicted protagonists. Confronted with how much the Dutch professorial scene was a man’s world, readers are completely right to feel uncomfortable, provided they note that in this respect, the country was not ‘behind the curve’ compared to inter-war France, Germany or England. Nijman labels ‘professorization’ an uncouth selection criterion ex ante, whereas this phenomenon just featured in my observations ex post. Should authors be compelled to atone for an ostensible one-dimensional perspective if the neglected object falls outside the spectrum per se?

Construing ‘professional practices more broadly’, as suggested by Nijman (p. 1033), makes no sizeable difference in this regard. The two female scholars spotlighted in her reply (Bernardina de Kanter-van Hettinga Tromp and Gezina van der Molen) are definitely not without merit, yet they can hardly be considered true contemporaries of the generation placed at the center of my review. While the underlining of their presence serves mainly to underscore the need for further explorations, these ladies are somewhat pre-emptively deployed to convey the impression of multiple lacunae. Among regular students, the ones who pursued, and the ones who obtained a PhD, they formed a tiny (albeit growing) minority. Moreover, even when their names were not called out verbatim, their voices were not suppressed deliberately. With due respect, the few names that could have been mentioned expressis verbis figured at most as ‘best supporting actors’. As Nijman deftly unveils, the horrendous (judged by today’s standards) statutory provisions and societal expectations damningly inhibited their advancement, in universities and elsewhere. These factors though are part of the general story of how women were being held back in the first half of the 20^th century in many different walks of life – still surprisingly often fending for themselves, gradually managing to overcome the legal, mental and practical obstacles in their way. During the inter-war years, sex discrimination was alas not specific to the appointment procedures for international law chairs in the Netherlands, but ubiquitous across Europe. The forthcoming volume edited by Immi Tallgren is bound to illustrate handsomely how numerous women were nonetheless able to seize the available opportunities, yet only genuinely capitalize on those chances after the Second World War.

All this must not distract us from the basic legitimacy of the vectors of professionalization surveyed, which were themselves applied in a gender-neutral fashion for the studied era. That the dramatis personae in the 1920s and 1930s happened to be men is therefore merely incidental to the narrative. The impediments to the quicker arrival of female counterparts are certainly lamentable, but a reality that readers simply have come to terms with. In this key, one is somewhat startled by Nijman’s closing remarks on ‘the history we choose’ (p. 1050). Whilst methods undeniably matter, even then history as such is not ours for the choosing. Ought factual data ever be negated or downplayed in attempts to compile alternate, supposedly richer and more accurate historiographies? The other way around, that elements are not emphatically placed left, right or center does not automatically mean they were undervalued, or (sub)consciously ignored.

The Colonial Question

In the age of BLM activism, and long after the nestling of Third World Approaches to International Law, it appears totally irresponsible as well as easily avoidable to succumb to Eurocentric tunnel vision. Again though, while the colonial dimension is not to be overlooked in the unpacking of any national tradition, preferably one also heeds the tendency to overemphasize the element when the link with the subject-matter discussed is tenuous. Doing so invariably threatens to distort the picture, rather than clarify it. The core question with regard to my study then turns on how the existence of a Dutch empire itself impacted on the development of international law scholarship. The short answer might provocatively be phrased in three words: ‘not at all’. As Nijman describes, some of the protagonists did pronounce themselves on issues of the colonized peoples’ autonomy and (potential right to) self-determination. May such pronouncements not be considered very well encapsulated in the vectors of professionalization the research proposed to trace in these kinds of endeavors? Once that a main argument allows for the colonial context to be covered in a betwixt and between manner, it is believed unnecessary to bring it out as a paramount theme.

The statement in Nijman’s reply that ‘[i]n the spirit of modern imperialism, the Netherlands made efforts to secure a firmer grip on the colonies, rather than foster their independence’ (p. 1041) is factually correct. Yet, that goes for each of the Great Powers during that epoch, avidly seeking to extend their influence, e.g. to the regions formerly under the yoke of the German and Ottoman empires. Did such geopolitical moves and ambitions have repercussions on the professionalization of the scholarship, which demand to be drawn out separately? This seems all the more questionable in the Dutch case, where the studies of the overseas territories had matured into a distinct academic discipline with its own students and curricula (soon reaching a terminus already upon Indonesia’s independence in the 1940s). For sure, it cannot be denied that some of the mentioned scholars of public international law took part in debates with colonial over- or undertones. It hereby deserves noting that those debates, touching heavily on cultural, governance and economic aspects, commenced before the interbellum. It remains slightly curious anyhow to proclaim that the protagonists in the international law domain were “steeped in Dutch colonialism” (p. 1047) on the basis of the few examples proffered. Tellingly, Nijman writes about the “entangled relationship between colonial policy and foreign policy” (p. 1043), directly thereafter leaping to a statement on international law teaching and writing in the interwar period. To my mind, historians must take care to not needlessly entangle the legal realm with raw politics, international relations, public administration dilemmas – and indeed, colonial policy.

A last – crucial – point hinges on Nijman’s contention that “Dutch colonialism was an inescapable, even if mostly implicit part of the professional life of Dutch interwar scholars” (p. 1048). This resembles a truism that is extrapolatable to a multitude of other life ingredients. Inter alia, their political preferences, religious convictions, perhaps even sexual orientations are likely to have played a part in how they regarded the new world order of the 1920s and 1930s, and their own place in it. Once more, what matters is whether these left a visible imprint on their activities, enabling us to draw decisive inferences on how they evolved as professionals. Far beyond the Dutch imperial context, the conversation on the (in)applicability of international law to relations between civilized and uncivilized nations was but one of many threads in the contemporary discourse, tied to the infamous clause on general principles in Article 38 of the PCIJ’s Statute. When striving for completeness in a portrayal of the era and the lead actors therein, one should not neglect taking it on board. It is argued here that a focused inquiry can nevertheless still afford to cut the issue short without losing scientific credibility. 

Conclusions 

It is a tremendous, highly enviable feat when an author succeeds in casting a radical new light on any particular topic. My own study, in contrast, attempted to situate a hitherto underexplored local experience within the global frame, aiming to familiarize colleagues with the pervasive scholarly trends in a regularly overlooked jurisdiction. It thereby entertained no pretention of exhaustivity. As evinced by the article’s title, the concept of ‘professionalization’ was placed center stage. Whilst no exact definition of that term may be formulated, it does require operationalization in order to determine which facts and patterns are incorporated. In that process, neither the exploits of women nor the discussions on colonial affairs are to be willfully blotted out. Vice versa, advocating for their inclusion when they are merely associated with, not inextricably linked to the core thématique, borders on the artificial. Taking the creed of Koskenniemi quoted above one step further, we cannot be too careful in the passing of judgment on implications and explications in the writing of international law history, attributing motives to (alleged) remaining omissions. Consequently, it goes quite far to label a lack of consideration ‘problematic’ (p. 1049) – especially where reputable earlier studies failed equally miserably to trod the indicated path. Eventually much, if not all, seems to revolve around an awareness of what we write about when we write international law history ratione materiae – driven by the content itself, not proceeding from (disputable) methodological choices. Nijman and I are completely on the same page in that at least the ‘known unknowns’ are in need of complementing, with her reply proving just as helpfully complementary vis-à-vis the existing literature as the original publication intended to be. However, instead of a message warning for ‘marked absences’, we ought to conclude that no supplementing or correcting of the historical picture is called for when the insertions or modifications do not lead to a substantial upending of the findings.

A final, related conclusion reminds us of Barbara Tuchman’s maxim ‘One must stop conducting research before one has finished’, nicely connectable to another aphorism of Arnold Toynbee: ‘It is a paradoxical but profoundly true and important principle of life that the most likely way to reach a goal is to be aiming not at that goal itself but at some more ambitious goal beyond it.’ Even the most diligent historiographers can, in the end, only deliver so much. Of late, the novel emphasis on intersectionality confronts us with manifold additional challenges. Do historical inquiries into the role of gender (e.g. studying female voices in peace movements) structurally have to take racial aspects into account? Are ethnic and colonial researches per definition less valid if they fail to scan for possible sex discrimination practices? And does all this ultimately still amount to legal historiography, or is it the conducting of wider socio-political analyses that have little left to do with the legal realm? Though laudable on paper, the quest for a maximum of inclusivity easily risks to morph into a probatio diabolica – the carrying out of critical exposés that run a serious risk of anachronistic ameliorations. Surely that is not the best way to do (social) justice to international law’s past.