Editor’s Book Choices 2014: Christian J. Tams

I have 3 picks:

* Douglas M. Johnston, The Historical Foundation of World Order: The Tower and the Arena (2008)

* Mark Mazower, Governing the World: The History of an Idea (2012)

* W. Michael Reisman and Christina Skinner, Fraudulent Evidence Before International Courts and Tribunals: The Dirty Stories of International Law (2014)

An eye-opening ‘anti-tweet’: Douglas M. Johnston, The Historical Foundation of World Order. The Tower and the Arena:

My first pick is Douglas M. Johnston’s Historical Foundation of World Order: The Tower and the Arena, a hugely ambitious attempt to trace the role of international law in the gradual emergence of world order. Published posthumously (the author having completed the manuscript just weeks before his death), the book was quickly hailed as a major achievement, and in 2009 won an ASIL Certificate of Merit. But notwithstanding the early praise, I am not sure the book has been widely read or even noticed. If academic search engines are to be trusted, references to it remain scarce: to give just one example, it is quoted exactly once in the 1200 pages of the Oxford Handbook on the History of International Law, published in late 2012. (Once!)

This neglect is a mistake. Johnston’s book is exciting, engaging and eye-opening; it was my favourite read of the year 2014. Its historical sweep is vast, taking the reader on a journey from early Mesopotamian cultures into the new millennium. The focus is not (or not just) on international law as a set of rights and obligations, but on ‘the larger concept of world order’, understood to combine ‘an evolving, rather technical, “system” of laws, institutions and procedures designed for the inter-state community, … [and] a universal heritage of shareable values and sentiments that have gradually built the political and ethical foundation for a more equitable world society’ (pp. xvii-xviii). With a self-set brief like this, no reader can expect a comprehensive account, and Johnston’s treatment is eclectic and personal. This opens his particular account to criticism, but makes it a much more engaging read. It is, as Mary Ellen O’Connell said at the 2009 ASIL meeting, ‘the anti-tweet’ of legal scholarship.

To organize the vast amount of material, Johnston relies on fairly clear-cut categories and assumptions: Not all of these will find favour with contemporary scholarship: in Johnston’s account, the Middle Ages remain a ‘dark era’; and despite concerns about Eurocentrism, 1492 keeps its place as the watershed dividing the historical account into two parts entitled ‘Out of the Mists’ and ‘Into Clear View’. But I felt that in the broader scheme of things, this does not really matter. And Johnston’s scheme of things is very broad. He is serious about integrating non-European approaches; especially Chinese conceptions of international order are taken seriously and integrated into the narrative. Alongside predictable themes (war, diplomacy, conquest), he assesses other factors facilitating the emergence of the international legal order: trade and profit-making; the maturing and diversification of national legal orders; the common language of early modern scholars, and many more. As for the issues covered, Johnston is all over the place, but in a good sense. His account shifts between the grand lines of political history to short vignettes of the personalities involved and crisp accounts of key moments. The ‘tower’ of scholarship is described, as is the ‘arena’ of international affairs in which international law over time came to be accepted as a relevant force. Law is presented in context – and Johnston’s is a CONTEXT writ large: not just that of international relations, it includes cultural history, musical traditions, Hindu philosophy and archaeology – eight pages on the discovery and gradual integration of Hawaii here, three pages on the Jesuit missions in China there, with four pages on Hawkins’ and Drake’s raids on the Spanish Main thrown in for good measure.

Readers used to ‘nutshell’ treatments – the ‘tweets’ of legal writing, with clear structures and immediately identifiable learning outcomes for each section – will struggle. But those willing to be taken along on Johnston’s journey across time and space will be hugely enriched, as indeed, ‘the stream of learnedness that pours from … every page is Amazon River-like in its relentless power’ (Brian Flemming).

***

A book like this could have gone terribly wrong. No one can possibly master such a vast amount of material. Johnston cannot either: his Amazon of learnedness flows unevenly and occasionally meanders. But it is just so rich. And written so well: ‘“Legalese” has a lethal effect on those who read for pleasure as well as information’, Johnston says relatively early on (p. 124).  As he does what he says, namely to write ‘disengaged from the mainstream of legal terminology’ (ibid.), this book actually can be read for pleasure. Johnston’s characterisations of the personalities are fantastic – Sir Eric Drummond, the League of Nations’ first Secretary-General, is said to have ‘mastered the British art of discreet, behind-the scenes, manipulation immortalized by Sir Humphrey in the more appealing world of fiction’ (p. 82) – and his accounts of incidents and events can almost be gripping – Drake’s and Hawkins’ raids, of course, but also the Teheran Hostage crisis, the Hague Peace Conferences, Arvid Pardo’s speech on the common heritage of mankind, and many more. And the historical narrative is interspersed with sets of ‘reflections’ and ‘final reflections’, which allow Johnston to step back and situate developments.

Does all of this detail matter, or is it necessary to an understanding of our contemporary world order? Probably not, at least not all of it, and rigorous academic editing might have purged the book of many of its little stories and vignettes. But it would have lost its distinctive trait. As its stands – with its vignettes, chance observations, and the occasional meandering – the book brings the Historical Foundations of World Order to life. Its 900 pages fly by: among law books, this was the closest to a page-turner I have read in a while – my ‘anti-tweet’ of the year.

Bringing internationalism to life: Mark Mazower, Governing the World. The History of an Idea

Like Johnston, Mark Mazower is interested in world order, and in the role of international law as a means to that end. He, too, writes accessibly, is able to tell a story, and brings his subject to life. His focus is more targeted than Johnston’s, but still impressive in its scope: he assesses almost two centuries of internationalist thinking and international government, beginning with the Congress of Vienna and ending with current debates about R2P and the ICC. Jochen von Bernstorff has reviewed Mazower in one of the last issues of EJIL, and as I largely agree with his assessment of the book’s many strengths and few weaknesses, I will only highlight two cross-cutting points here.

The first concerns Mazower’s ability to synthesise. Drawing on research on 19^th century pacifism, nationalism, workers’ leagues, administrative unions and scientific associations, he manages to identify the roots of an internationalist movement – a broad church no doubt, but one church: comprising do-gooders, statesmen, and international law professors alongside bureaucrats and scientists. This is not a new story, to be sure, but it is narrated well and with an eye for the curious detail and the role of participants. (One of them, incidentally, is Sir Eric Drummond, who reminded Douglas Johnston of Sir Humphrey: unlike Johnston, Mazower stresses Drummond’s ‘hard work and unassuming character’, but also notes that ‘a Scottish Catholic, he had a strength of character and modesty that allowed him to build an international bureaucracy from the ground up’.) More importantly, in Mazower’s account, the forces that drove internationalist thinking are brought into sharp relief. International law features prominently, and long sections are devoted to the rise and subsequent fall of the international arbitration movement, ‘probably the most influential strand of internationalism’ by 1914. Alongside law, and perhaps less predictable for his ‘legal’ readership, Mazower includes an intriguing chapter on ‘science the unifier’. In it, he succinctly describes the 19^th century move to government by rationality and scientific organisation (with Auguste Comte as ‘the real Plato’) and adds a short excursus on the Esperanto movement. Yet I  most liked (and learned most from) Mazower’s benevolent re-assessment of Paul Otlet’s Office of International Institutions, an early attempt to turn Brussels into the global capital of standardisation and a central database of internationalist projects. (Otlet’s Universal Bibliographical Repertory, a global index of research and writing, by 1914 comprised 11 million entries, all “painstakingly transcribed onto individual cards”.) On all these issues there exist more detailed studies; but I found Mazower’s an excellent general account, and the best-written by far.

My second point is related: While many histories of international relations and international law remain focused on the grand questions of war and peace, Mazower mounts an impressive defence of technical and expert cooperation. Or rather: he tells the story of successful cooperation on questions of science, transport and communication alongside the many failures of collective security, not just as a short appendix to them. Not only does he devote a full chapter to scientific cooperation. His sections on internationalism of the inter-War period go beyond the predictable turf of Locarno, Manchuria, Abyssinia, etc. They also cover the League of Nations’ successful fight against typhus in Poland as well as early public private partnerships between Rockefeller Foundation, League and ILO in matters of international health governance. And as these other stories are included, Mazower’s account of the League is not just one of a naïve vision ending in tragic defeat, but far more nuanced: one of cumbersome, but ground-breaking attempts at organised cooperation with often lasting effects; one that explains why, below the surface, so many of the newly-established UN agencies would simply continue the League’s work, often led by the same people. Again, this nuanced assessment is not revolutionary – in fact, as far as the League is concerned, it is probably reflective of a new, more appreciative trend in historical and IR scholarship. But amidst the general accounts, it is a welcome exercise in re-balancing.

There is a lot more in Mazower’s book, especially in his long second part that assesses the UN’s experience under dominant US influence (‘Governing the World the American Way’). But as much of this may be familiar to an international law audience, I would recommend Governing the World mainly as an intriguing and inspiring account of the early phase of internationalist thinking.

An overdue breach of courtesy: W. Michael Reisman and Christina Skinner, Fraudulent Evidence Before International Courts and Tribunals. The Dirty Stories of International Law

If Mazower’s account of internationalism, despite critical analysis, overall can be read as a nice story featuring quiet heroes (like Drummond, and like-minded pioneers of internationalism, such as Sweetser, Monnet and Fosdick), my third pick is a collection of ‘dirty stories’: W. Michael Reisman and Christina Skinner recount seven dirty stories of fraudulent evidence in international litigation, stories that risk ‘mar[ring] the noble vision and ennobling practice of sovereign States voluntarily submitting their disputes to courts and tribunals for peaceful resolution in accordance with international law’ (p. x). (Incidentally, Sir Eric Drummond – to mention him again, though Reisman and Skinner, unlike Johnston and Mazower, do not mention him – at one point described the establishment of the first world court as ‘the greatest mark … in the progress of mankind’: he would not have liked these dirty stories.)

Some of the material presented in Fraudulent Evidence has been covered before – straightforward (and shocking) instances of fraud such as Qatar’s reliance on fabricated documents in its case against Bahrain, or the disputed witness testimony of Foreign Minister Miguel d’Escoto in Nicaragua (which 25 years after the merits judgment continued to prompt passionate exchanges in AJIL). Some of Reisman’s and Skinner’s other dirty stories are lesser known, or at least were not known to me. Perhaps not quite as obviously ‘dirty’, they lead us to question the limits of ethical conduct in adversarial litigation: Did Israel – in the Taba arbitration – have to disclose information about engineering works in the disputed boundary area? Should Lybia have volunteered information that could have harmed its claim against Tunisia before the ICJ?

Reisman and Skinner insightfully dissect the well-known and the lesser-known incidents. Their focus is on the diagnosis, not on the cure, so they do not end with ready-made solutions.  But the main thrust of their argument is clear: ‘the contribution of international courts and tribunals to world order and their very credibility depend, in no small measure, on the accuracy of the factual basis of the decisions which they render. That factual accuracy depends, in turn and in large part, on the probity of the states and state representatives who appear before them’ (p. 200). And while not advancing a code of conduct for counsel or courts, Fraudulent Evidence Before International Courts and Tribunals can be read as a plea for a more robust approach, one that sees courts no longer side-stepping problems caused by dubious evidence but expressly affirming basic standards of integrity in proceedings.

In the preface to their book, Reisman and Skinner state they would ‘leave it to our readers to decide whether, in narrating these international dirty stories, we have succeeded in provoking a useful discussion or merely breached courtoisie internationale’ (p. ix). 200 pages on, I felt international lawyers owed them a debt of gratitude for their discourtesy (if indeed it is one): as a discipline still largely accepting the ‘noble vision’, we could do with the occasional whistleblower or a few more ‘behind the scenes’ accounts: not only are the dirty stories necessary to provoke a useful discussion; if told as well as here, they also make for highly interesting reading.