Martti Koskenniemi and the historiographical turn in international law

European Journal of International Law

Volumn 16, Issue 3, 2005, Pages 539-559

  Galindo, George Rodrigo Bandeira ^a  

^a UNIVERSITY OF BRASILIA   (Brazil)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 27644556743     PISSN: 09385428     EISSN: None     Source Type: Journal    
DOI: 10.1093/ejil/chi130     Document Type: Article

References (66)

1. One of the reasons for the ample dissemination of his work is the fact that Koskenniemi, instead of excluding himself from the most traditional institutions for the research and dissemination of international law, has tried to include himself in them. Examples of this are his election to the UN International Law Commission, to the Institut de Droit International, and the summer course he gave at the 2004 session of the Hague Academy of International Law.
2. See Purvis, 'Critical Legal Studies in Public International Law', 32 Harvard Int'l LJ (1991) 81.
3. Koskenniemi. 'Letter to the Editors of the Symposium', 93 AJIL, (1999) 351.
4. See Kennedy and Tennant, 'New Approaches to International Law: A Bibliography', 35 Harvard Int'l LJ (1994) 417.
5. Müllerson, 'Review of Martti Koskenniemi's The Gentle Civilizer of Nations: The Rise and Fall of International Law', 13 EJIL (2002) 732.
6. In fact, there is still a heated debate on whether intellectual history and the history of ideas have the same object of study. For a discussion on this topic, see, e.g., Chartier 'Intellectual History or Sociocultural History? The French Trajectories' (trans. J. P. Kaplan), in D. La Capra and S. Kaplan (eds.), Modern European Intellectual History: Reappraisals and New Perspectives (1982), at 13-46. In the present article, for eminently practical reasons, they will be treated as synonymous.
7. The reference Koskenniemi makes to the idea that international law is what international lawyers do or think seems to result from a silent debate he engages in with himself. Ten years ago, he said: 'International Law is a projection of what international lawyers think and do': Koskenniemi, 'Introduction', in M. Koskenniemi (ed.), International Law (1992), at p. xxvii.
8. Koskenniemi, 'Les doctrines du Droit International dans le temps', in Societé Française pour le Droit International, Le Droit International et le temps (Colloque de Paris) (2001), at 35-47.
9. Koskenniemi makes excessive use of the term 'profession' to designate the work of international lawyers. For a brief discussion of the use made by Koskenniemi of the term, see Simpson, 'Review of Martti Koskenniemi's The Gentle Civilizer of Nations: The Rise and Fall of International Law', 96 AJIL (2002) 995.
10. Two recently published works, which share this common approach as well as other methodological premises, should be acknowledged in this context: The translation by M. Byers of W. Grewe, The Epochs of International Law (2000) and Steiger, 'From the International Law of Christianity to the International Law of the World Citizen - Reflections on the Formation of the Epochs of the History of International Law', 3 Journal of the History of International Law (2001) 180.
11. Koskenniemi, supra note 1, at 136,
12. Perhaps this is the reason current German international legal thought still makes use of a series of analogies taken from domestic public law. The near obsession of German international lawyers about having the United Nations Charter become the Constitution of the world is a perfect example of this: See Tomuschat, 'Obligations Arising for States Without or Against their Will', 241 RCADI (1993) 195
13. Frowein,'Reactions by not Directly Affected States to Breaches of Public International Law', 248 RCADI (1994) 345
14. Simma,'From Bilateralism to Community Interest in International Law', 250 RCADI (1994) 217
15. Faßbender, 'The United Nations Charter as Constitution of the International Community', 36 Columbia J Transnat'l L (1998) 529.
16. The idea of giving international law a constitutional character by means of the UN Charter was criticized by the author of The Gentle Civilizer of Nations: See Koskenniemi, '"The Lady Doth Protest too Much" Kosovo, and the Turn to Ethics in International Law', 65 MLR (2002) 160. At any rate, some German international lawyers have also already begun to criticize this idea.
17. See Paulus, 'From Territoriality to Functionality? Towards a Legal Method of Globalization', at 5-10, available at http://www.cpogg.org (www.cpogg.org/paper%20amerang/Andreas%20Paulus.pdf).
18. See G. Galindo, Tratados Internacionais de Direitos Humanos e Constituição Brasileira (2002), at 9-15.
19. Koskenniemi, supra note 1, at 268.
20. This, perhaps, is what led Anthony Carty to say that Lauterpacht is partly responsible for the demise of the theory of international law in the United Kingdom: See Carty, 'Why Theory? - The Implications for the International Law Teacher', in P. Allott et al., Theory and International Law: An Introduction (1991), at 77.
21. This thesis is not exactly new. The research of Marcus Faro de Castro. e.g., arrived at similar conclusions: See Castro, 'Westfalia a Seattle: A Teoria das Relações Internacionais em Transição', Cadernos do REL No 20 (2001).
22. There is a strong link between history and the writings of many authors affiliated to the newstream. This link was strongly emphasized in the authoritative work of Deborah Cass: See Cass, 'Navigating the Newstream: Recent Critical Scholarship in International Law', 65 Nordic J Int'l L (1996) 341.
23. For this discussion, see, e.g,, Gaddis, 'History, Science, and the Study of International Relations', in N. Woods (ed.), Explaining International Relations since 1945 (1996), at 32-48.
24. See, especially, Purvis, supra note 3. at 81-127 and Kennedy,
25. 'A New Stream of International Legal Scholarship', 7 Wisconsin Int'l LJ (1988) 1.
26. Hueck, 'The Discipline of the History of International Law - New Trends and Methods on the History of International Law', 3 Journal of the History of International Law (2001) 200.
27. To mention only a few examples: Kennedy-Pipe, 'International History and International Relations Theory: A Dialogue beyond the Cold War', 76 Int Affairs (2000) 741
28. B. Buzan and R. Little, International Systems in World History: Remaking the Study of International Relations (2000);
29. Armitage, 'The Fifty Years'Rift: Intellectual History and International Relations', 1 Modern Intellectual History (2004) 98.
30. T. W. Smith, History and International Relations (1999), at 183-184.
31. For the distinction between method and style in Koskenniemi, see Koskenniemi, supra note 4, at 351-361.
32. Jay, 'Should Intellectual History Take a Linguistic Turn? Reflections on the Habermas-Gadamer Debate', in La Capra and Kaplan, supra note 7, at 86-110.
33. In a more recent work, Koskenniemi seems sympathetic towards the propositions of the so-called Cambridge School of the History of Political Ideas - which has almost nothing in common with Foucault's structuralism. See Koskenniemi, 'Why History of International Law Today?', 4 Rechtsgeschichte (2004) 61, at 64-65.
34. Noiriel, 'Foucault and History: The Lessons of a Disillusion', 66 The Journal of Modern History (1994) 547.
35. Ruppert, 'Divinatio et eruditio: Thoughts on Foucault', 13 History and Theory. (1974) 191.
36. The first chapter of From Apology to Utopia is completely devoted to objectivity; see M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989), at 1-51.
37. Sunstein,'On Legal Theory and Legal Practice', Nomos XXXVII (1995) 272.
38. Skinner, 'Meaning and Understanding in the History of Ideas', in Q. Skinner, Visions of Politics. Vol. 1: Regarding Method (2002), at 57-89.
39. Pocock, 'Languages and their Implications: The Transformation of the Study of Political Thought', in J. G. A. Pocock, Politics, Language and Time: Essays on Political Thought and History (1989), at 7.
40. For a discussion regarding the possibility of authors having thought of certain concepts even if they did not have the opportunity to express them in writing, see Prudovsky, 'Can We Ascribe to Past Thinkers Concepts They had no Linguistic Means to Express?', 36 History and Theory (1997) 15.
41. Pocock, supra note 32, at 31.
42. This seems to be the understanding also of Mark Bevir when he analyses the problem of tradition. According to Bevir, the existence of a tradition 'depends on the adequacy of our understanding of the beliefs and practices we classify as part of them, not on the principle by which we classify these beliefs and practices': Bevir, 'On Tradition', 13 Humanitas (2000) 46.
43. M. Foucault, The Archaeology of Knowledge (trans. A. M. Sheridan Smith) (1972), at 174-175.
44. Poster,'The Future According to Foucault: The Archeology of Knowledge and Intellectual History', in La Capra and Kaplan, supra note 7, at 151.
45. Robert Cryer had already noticed this when he said: 'Koskenniemi bases his argument on the fact that the Rolin's 1868 manifesto sought to break from that which went before, and did not cite earlier scholarship': Cryer, 'Déjà vu in International Law', 65 MLR (2002) 935.
46. See Skinner, 'The Practice of History and the Cult of the Fact', in Skinner, supra note 31, at 8-26.
47. See Roth, 'Narrative Explanations: The Case of History', 27 History and Theory (1988) 1.
48. As Thomas Smith has already pointed out, the treatment of history as literature is not new to historiography. It was already possible to discern views in this sense in the nineteenth century: See Smith, supra note 23, at 160.
49. See, e.g., White, 'The Question of Narrative in Contemporary Historical Theory', 23 History and Theory (1984) 1.
50. Bevir, 'Narrative as a Form of Explanation', 9 Disputatio (2000) 5.
51. Jay, 'The Textual Approach to Intellectual History', in M. Jay, Force Fields: Between Intellectual History and Cultural Critique (1993), at 165.
52. Cryer, supra note 37, at 941.
53. Ibid., at 940-941.
54. Koskenniemi, 'Legal Cosmopolitanism: Tom Franck's Messianic World', 35 NYU J Int'l L and Politics (2003) 473.
55. Kelsen, 'Legal Formalism and the Pure Theory of Law', in A. Jacobson and B. Schlink (eds.), Weimar: A Jurisprudence of Crisis (2000), at 76-83.
56. Koskenniemi, 'Theory: Implications for the Practitioner', in Allott et al., supra note 16, at 42-43.
57. Sunstein, 'Must Formalism be Defended Empirically?', 66 U Chicago LR (1999) 640.
58. Merrils, 'The Means of Dispute Settlement', in M. Evans (ed.), International Law (2003), at 553-554.
59. Paulus, 'International Law after Postmodernism: Towards Renewal or Decline of International Law', 14 Leiden J Int'l L (2001) 738.
60. The newstream of international law has already produced a vast body of work regarding the criticism directed to Western rationalism, specifically in reference to international law,
61. Metz, 'Memoria', in J. B. Metz, Por una cultura de la memoria (trans. J. M. Ortega)(1999), at 3-4.
62. Metz 'Anamnestic Reason: A Theologian's Remarks on the Crisis in the Geisteswissenschaften', in A. Honneth et al. (eds.), Cultural-Political Interventions in the Unfinished Project of Enlightenment (trans. B. Fultner) (1992), at 191-192.
63. According to Duncan Bell, critical thought in a wider sense could be characterized by the perception of how the discourse of theorists is biased and would function as a critique based on the possibility of transcendence, of the social relations currently in place, and of the current structures of thought and action: D. S. A. Bell, The Cambridge School and World Politics: Critical Theory, History and Conceptual Change, at 17, available at http://www.theglobalsite.ac.uk (http://www.theglobalsite.ac.uk/press/103bell.pdf).
64. Ibid., at 17.
65. Metz, 'Monotheism and Democracy. Religion and Politics on Modernity's Ground', in J. B. Metz, A Passion for God: The Mystical-Political Dimension of Christianity (trans. J. M. Ashley) (1998), at 143.
66. This term is used by Habermas to criticize Foucault's proposal of a genealogical historiography: Habermas, 'Some Questions Concerning the Theory of Power: Foucault Again', in J. Habermas, The Philosopical Discourse of Modernity (trans. F. Lawrence) (1987), at 279.