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The History of International Law – or International Law in History? A Reply to Alexandra Kemmerer and Jochen von Bernstorff

Published on January 8, 2015        Author: 
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Can international law scholars be historians, and should they be? This question, arguably at the centre of Alexandra Kemmerer’s post, might initially seem surprising. At first glance, most research on the history of international law does not reveal any major differences between the disciplines. Lawyers of a historical bent are just as familiar with, and adept at, the methodical standards of the historiographical approach, encompassing proximity to and critique of sources, transparency in terms of the approach and the assumptions made, insight into the historian’s own subjectivity and into the construed nature of all narratives.

If, nonetheless, there does exist a communication gap between the respective examinations of the history of international law, then this is attributable less to these kinds of methodical requisites and more to the fact that it isn’t always very clear why we are interested in international law and why we undertake research on it. Evidently, the discourses within the legal and historical disciplines on the state of the art in the field do not run parallel to one another; indeed they may in fact be incommensurable. What might help is an interdisciplinary dialogue, particularly when it is understood that interdisciplinarity is not about adopting the objectives of another discipline but instead debating the potential scope – and the limits – of one’s own work.

This might help us to understand why international law’s much-discussed ‘historiographical turn’ has gone largely unnoticed by professional historians. This is starting to change, but a programmatic mapping of contemporary research, as undertaken in the formidable Oxford Handbook of the History of International Law, clearly shows how much the research is still indebted to legal discourse. Or take the German Studies on the History of International Law, a series set out to contribute to the discussion of the historical foundations of the current international legal order. It seems that despite the recent interest in fashioning a global history and in the postcolonial turn, as discussed on this blog by Jochen von Bernstorff, little has really changed. In other words: lawyers, even when working on historical topics, are predominantly interested in understanding the law itself. This, of course, is a legitimate source of scholarly interest for jurists — but historians might find something lacking. Read the rest of this entry…

 
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German International Law Scholarship and the Postcolonial Turn

Published on January 7, 2015        Author: 
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International law scholarship from the German-speaking world has an impressive and much-invoked theoretical tradition. Nineteenth century German positivism centring on the will of the state as the formal basis of law (Jellinek and Triepel) made a lasting impression on modern Western international law scholarship and also induced two highly influential in depth critiques of Staatswillenspositivismus just after the First World War, those of Kelsen and Schmitt. These were contributions to the theoretical construction and critique of an international law moulded in European capital cities and expounded in European universities, an international law whose influence could be felt in almost every corner of the world by the end of the 19th century.

European colonization and land appropriation and in particular through economic intervention, in which the German Empire played a significant role in the last two decades of the 19th century, led not only to the establishment of global capitalist structures and the spread of European lifestyles, but also to the so-called ‘universalization’ of European international law (on the latter see the entries in the Oxford Handbook of the History of International Law and the critiques of these). From the very beginning, colonized societies made a variety of efforts to resist the invading economic exploitation, racist violence and socio-cultural hegemony. This resistance was also directed against the European international law and in particular against institutions and norms that served to reinforce the political and economic dominance of the West.

The postcolonial challenge

It’s no coincidence that this postcolonial struggle for a new international law reached its initial global peak during the era of decolonization (1955-1975) and was shaped by renowned international law authors from the Third World, many of whom had themselves taken part in anti-colonial liberation struggles (of particular note here are EliasAnandAbi-SaabBedjaoui). A second global wave of postcolonial criticism of international law has emerged since the mid-2000’s and is often identified with Antony Anghie’s pioneering book Imperialism, Sovereignty, and the Making of International Law. From the perspective of the Third World, the thread that unites this line of criticism is the continuity of asymmetrical North-South relations after decolonization: the South as an ongoing object of intervention by the North and a global economic order that remains fundamentally unjust. Read the rest of this entry…

 
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Völkerrechtsgeschichten – Histories of International Law

Published on January 6, 2015        Author: 
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This is the first of a series of posts on the history of international law that first appeared in German language on the new international law blog voelkerrechtsblog.com, run by the Association of Young International Lawyers based in German-speaking countries but with an international outlook. The post was translated by Fiona Nelson, University of Potsdam. The German version can be accessed here. Further posts in the series will be published here shortly.

The history of international law comes in plural forms, and with multiple perspectives. International law does not have a history; it has histories. Martti Koskenniemi writes about ‘histories of international law’. His book ‘The Gentle Civilizer of Nations’ played a significant role in international law’s ‘historiographical turn’ around the turn of the millennium. Before this point, all had been rather quiet on the international legal history front. Back in 1952, the history of the discipline had been described as the ‘Cinderella of the doctrine of international law’ by Georg Schwarzenberger. The Cold War marked an ice age for the history and theory of international law. Pragmatists were dominant not only in practice, but also in scholarship. And ‘The Epochs of International Law’ by Wilhelm Grewes, published in German in 1984 and in English translation in 2000, were still firmly rooted in the pre-San Francisco era.

The study of international law has always involved historical and geographical background knowledge. Yet, the real move toward historical reflection only came with the growing awareness of the inadequacies of the ‘New World Order’ that had evolved after 1989. The emergence of new international institutions, the rapid proliferation of international and supranational courts, new human rights regimes and the blossoming of international criminal law were all soon overshadowed by Srebrenica, 9/11, transnational terrorism and the global financial crisis. The ‘fragmentation’ of the international legal order, the collision and competition of various normative orders, prompts questions about concepts and genealogies. Read the rest of this entry…