INTRODUCTION: INTERNATIONAL LAW AND ITS HISTORIES

Developments in International Law

Volumn 58, Issue , 2007, Pages 1-25

  Craven, Matt ^a  

^a UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85202468576     PISSN: None     EISSN: 09245332     Source Type: Book Series    
DOI: None     Document Type: Editorial

References (118)

1. Oppenheim, 'The Science of International Law: Its Task and Method', 2 American Journal of International Law (1908) 313.
2. Oppenheim, 'The Science of International Law: Its Task and Method', 2 American Journal of International Law (1908) 314.
3. Oppenheim, 'The Science of International Law: Its Task and Method', 2 American Journal of International Law (1908) 316.
4. Oppenheim, 'The Science of International Law: Its Task and Method', 2 American Journal of International Law (1908) 317.
5. See e.g., R. Redslob, Histoires des grands principes du droit des gens depuis l'antiquité jusqu'à la veille de la gande guerre (1923);
6. J.H.W. Verzijl, International law in Historical Perspective (1979);
7. A. Nussbaum, A Concise History of the Law of Nations (1954);
8. M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002).
9. For an attempt of something of this kind see E. Carr, The Twenty Years' Crisis 1919-1939 (1939);
10. W. Grewe, The Epochs of International Law (Trans M. Byers, 2000).
11. But see: A Anghie, Imperialism, Sovereignty and the Making of International Law (2005).
12. For an account of Oppenheim's positivism as that of a 'Noble Lie' see Perreau-Saussine, 'A Case Study on Jurisprudence as a Source of International Law: Oppenheim's Influence' in this volume, 91.
13. See also, Kennedy, 'International Law and the Nineteenth Century: History of an Illusion', 17 Quinnipiac Law Review (1997) 99.
14. A view echoed in Grewe, 'International Law and the Nineteenth Century: History of an Illusion', 17 Quinnipiac Law Review (1997) note 7, 1.
15. See generally Hueck, 'The Discipline of the History of International Law', 3 Journal of the History of International Law (2001) 194.
16. Lesaffer, 'The Grotian Tradition Revisited: Change and Continuity in the History of International Law', 73 British Yearbook of International Law (2002) 103.
17. Spiermann, 'Who Attempts too Much does Nothing Well: The 1920 Advisory Committee of Jurists and the Statute of the Permanent Court of International Justice', 73 British Yearbook of International Law (2002) 187.
18. Foxton, 'International Law in Domestic Courts: Some Lessons from the Prize Court in the Great War', 73 British Yearbook of International Law (2002) 261.
19. Marston, 'Early Attempts to Suppress Terrorism: The Terrorism and International Criminal Court Conventions of 1937' 73 British Yearbook of International Law (2002) 293.
20. Simpson, 'Britain and the Genocide Convention', 73 British Yearbook of International Law (2002) 5.
21. Murase, 'Thomas Baty in Japan: Seeing Through the Twilight' 73 British Yearbook of International Law (2002) 315.
22. H. Bloom, The Anxiety of Influence: A Theory of Poetry (1973).
23. Lesaffer, 'International Law and its History: The Story of an Unrequited Love', in this volume, 27.
24. Lesaffer, 'International Law and its History: The Story of an Unrequited Love', in this volume, 29.
25. Koskenniemi, 'Why History of International Law Today?', 4 Rechtsgeschichte (2004) 61.
26. Koskenniemi, 'Why History of International Law Today?', 4 Rechtsgeschichte (2004) 64-5.
27. For an example see Marston, 'Why History of International Law Today?', 4 Rechtsgeschichte (2004) note 15, 313, in which following an account of the Terrorism and International Criminal Court Conventions of 1937, he observes that the UK's potential participation foundered upon the perception of the law officers that Parliament was unlikely to tolerate amendments to national criminal law insofar as they would have extra-territorial effect. In noting that the UK is now party to the European Convention on the Suppression of Terrorism 1977 and that the Terrorism Act 2000 created several extra-terrirorial crimes, he concludes that '[t]hese considerations are no longer constraining'.
28. See e.g., G. Fox and B. Roth, Democratic Governance and International Law (2000).
29. N. Wheeler, Saving Strangers: Humanitarian Intervention and International Society (2000);
30. S. Chesterman, Just War or Just Peace (2001).
31. E.g., K. Kittichaisaree, International Criminal Law (2001);
32. W. Schabas, Genocide in International Law: the Crime of Crimes (2000).
33. E.g, Farer, 'Beyond the Charter Frame: Unilateralism or Condominium?', 96 American Journal of International Law (2002) 359;
34. Franck and Yuhan, 'The United States and the International Criminal Court: Unilateralism Rampant', 35 New York University Journal of International law and Politcs (2002-3) 519.
35. M. Byers and G. Nolte (eds), Hegemony and the Foundations of International Law (2003);
36. N. Krisch, 'International Law in times of Hegemony: Unequal Power and the Shaping of the International Legal Order', 16 European Journal of International Law (2005) 369.
37. G. Simpson, Great Powers and Outlaw States (2004).
38. Cf. P. Sands, Lawless World: America and the Making and Breaking of Global Rules (Penguin, 2005).
39. For authors who emphasise historical research as an imaginative resource see e.g., Berman, 'Between “Alliance” and “Localisation”: Nationalism and the New Oscillationism', 26 New York University Journal of International Law and Politics (1993-94) 449, 451-2. ('The ultimate goal of my inquiry is to provide historical and theoretical context for critically evaluating current debates about the appropriate international response to nationalist conflicts... This historical approach explores the deep legal and cultural assumptions that underlie seemingly technical doctrinal argumentation and seeks to initiate reflection on the persuasive power and tenacious persistence of certain policy alternatives. Technical legal debates concerning widenened U.N. competence under the Charter appear rather differently when one realizes that they replicate strikingly similar arguments concerning the scope of the League competence under the Covenant.').
40. Koskenniemi, 'Between “Alliance” and “Localisation”: Nationalism and the New Oscillationism', 26 New York University Journal of International Law and Politics (1993-94) note 6, 5 ('I hope that these essays provide a historical contrast to the state of the discipline today by highlighting the ways in which international lawyers in the past forty years have failed to use the imaginative opportunities that were available to them, and open horizons beyond academic and political instrumentalization, in favour of worn-out internationalist causes that form the mainstay of today's commitment to international law.... The limits of our imagination are a product of a history that might have gone another way.)
41. E.g. Koskenniemi, 'Between “Alliance” and “Localisation”: Nationalism and the New Oscillationism', 26 New York University Journal of International Law and Politics (1993-94) note 6.
42. O. Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (2005).
43. F. Northedge, The League of Nations: Its Life and Times 1920-1946 (1986).
44. B. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (2001).
45. S. Neff, War and the Law of Nations (2005).
46. S. Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996).
47. L. Frey and M. Frey, The History of Diplomatic Immunity (1999).
48. See e.g., J. Castellino and S. Allen, Title to Territory in International Law: A Temporal Analysis (2003).
49. One finds recognition of this in diverse places. See e.g. I. Brownlie, Principles of Public International Law (5th ed. 1998) 126 ('In one sense at least law is history, and the lawyer's appreciation of the meaning of rules relating to acquisition of territory, and of the manner of their application in particular cases, will be rendered more keen by a knowledge of the historical development of the law.')
50. Also, D. Kennedy, 'The Disciplines of International Law', 12 Leiden Journal of International Law (1999) 88 ('an argument about a rule or principle, or institutional technique in international law is almost always also an argument about history - that the particular norm proffered has a provenance as law rather than politics, has become general rather than specific, has come through history to stand outside history'.)
51. Kennedy, 'The Disciplines of International Law', 12 Leiden Journal of International Law (1999) 88-98 (in which he identifies international lawyers as using history in two different types of argument - one as a question of provenance; one as a question of progress).
52. Cf. Allott, 'International Law and the Idea of History', 1 Journal of the History of International Law (1999) 1 in which he describes international law as having its own history which is both 'intrinsic and extrinsic'. Its intrinsic history is the history of its structures and systems, its legal substance and its philosophy. Its extrinsic history is the history of its relationship to 'all other social phenomena, other social structures and systems'.
53. Kennedy, 'International Law and the Idea of History', 1 Journal of the History of International Law (1999) note 41, 83.
54. It has frequently been observed that the translation of Grewe's Epochen der Völkerrechtsgeschichte was erroneously retitled in its English version bearing the definitive article 'The Epochs of International Law'. This, despite Grewe's insistence that he was not actually writing the history of international law or describing the epochs.
55. See, D. Bederman, International Law in Antiquity (2001).
56. For an early critique of the Europeanization of international law in the 19th Century see C. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (1967).
57. Lesaffer, An Introduction to the History of the Law of Nations in the East Indies (1967) note 19, 32.
58. Lesaffer, An Introduction to the History of the Law of Nations in the East Indies (1967) 34. He notes that few (with the exception of work such as Bederman's International Law in Antiquity) have attempted to look at the past for its own sake.
59. See Cass, 'Navigating the Mainstream: Recent Critical Scholarship in International Law', 65 Nordic Journal of International Law (1996) 341, 354-9. She identifies four reasons for the discomfort: first that the narrative is simply wrong or distorts a far more complex and ambivalent story; secondly that it inhibits proper engagement with contemporary problems; thirdly that it wrongly assumes that the mysticism and universalising ideologies of the past have been effectively displaced; and finally that it buries the colonial heritage that lies at the heart of many doctrinal developments.
60. See, Foucault, 'Nietzsche, Genealogy and History', in P. Rabinov (ed.), The Foucault Reader (1986) 76.
61. One should note, here, the different meaning ascribed to genealogical legal history by Lesaffer, on the one hand, and Foucault/Berman on the other. Whilst Lesaffer associates 'genealogical history' as one concerned with the search for origins, Foucault sees genealogy as explicitly 'opposed' to such an endeavour (Foucault, 'Nietzsche, Genealogy and History', in P. Rabinov (ed.), The Foucault Reader (1986) 77).
62. Berman, 'In the Wake of Empire', 14 American University International Law Review (1998-99) 1523.
63. Berman, 'In the Wake of Empire', 14 American University International Law Review (1998-99) 1524.
64. G. Simpson, 'Piracy and the Origins of Enmity', in this volume, 219.
65. G. Simpson, 'Piracy and the Origins of Enmity', in this volume, 225.
66. G. Simpson, 'Piracy and the Origins of Enmity', in this volume, 230.
67. G. Simpson, 'Piracy and the Origins of Enmity', in this volume, 224.
68. G. Simpson, 'Piracy and the Origins of Enmity', in this volume, note 29.
69. For a review of Simpson's work which appears to miss almost all of these points see, Sellers, 99 American Journal of International Law (2005) 949.
70. Lesaffer, for example, insists upon an appreciation of context, and is critical of excessive reliance upon doctrine rather than practice, Sellers, 99 American Journal of International Law (2005) note 19, 27.
71. His target, in that respect appears to be accounts such as those of Grewe, 99 American Journal of International Law (2005) note 7.
72. For a critique of 'monological' historicism see Greenblatt, 'Introduction', to 'The Forms of Power and the Power of Forms in the Renaissance', 15 Genre (1982) 5, in which he suggests that such accounts usually reduce historical periods to a single homogenous tradition which are then related as facts rather than the product of the historian's imagination. He suggests, alternatively, that historical practice should be considered as presenting two kinds of dialogue: one within the past, the other with it. Not only thus, should the heterogeneity of the past be recognised, but also the constructive role of the historian in representing that past.
73. Greenblatt, 'Introduction', to 'The Forms of Power and the Power of Forms in the Renaissance', 15 Genre (1982) note 6, 5-6.
74. Greenblatt, 'Introduction', to 'The Forms of Power and the Power of Forms in the Renaissance', 15 Genre (1982) 8.
75. For similar 'experimental' works of historiography see P. Cohen, History in Three Keys: The Boxers as Event, Experience and Myth (1997);
76. O. Figes, A People's Tragedy (1996).
77. For an intelligent review that examines Koskenniemi's historiography see Galindo, 'Martti Koskenniemi and the Historiographical Turn in International Law', 16 European Journal of International Law (2005) 539.
78. M. Lobban, 'English Approaches to International Law in the Nineteenth Century', in this volume, 65.
79. Royal Commission on Fugitive Slaves, Parliamentary Papers 1876 [C 1516-I] XXVIII 285.
80. (1876) 2 Ex. D. 173.
81. For two of the few accounts of this tradition see D. Johnson, 'The English Tradition in International Law', 11 International and Comparative Law Quarterly (1962) 416;
82. J. Crawford, 'Public International Law in Twentieth-Century England', in J. Beatson and R. Zimmerman (eds.), Jurists Uprooted: German Speaking Émigré Lawyers in Twentieth-Century Britain (2004) 681.
83. Perreau-Saussine, Public International Law in Twentieth-Century England', in J. Beatson and R. Zimmerman (eds.), Jurists Uprooted: German Speaking Émigré Lawyers in Twentieth-Century Britain (2004) note 9.
84. Perreau-Saussine, Public International Law in Twentieth-Century England', in J. Beatson and R. Zimmerman (eds.), Jurists Uprooted: German Speaking Émigré Lawyers in Twentieth-Century Britain (2004) 93.
85. For criticism of the reliance upon doctrine in historical research see Lesaffer, Public International Law in Twentieth-Century England', in J. Beatson and R. Zimmerman (eds.), Jurists Uprooted: German Speaking Émigré Lawyers in Twentieth-Century Britain (2004) note 19, p?
86. See e.g., Carty, 'Distance and Contemporaneity in Exploring the Practice of States: the British Archives in Relation to the 1957 Oman and Muscat Incident', in this volume, 231.
87. For a thorough examination of the role that 'time' plays in decision-making, see Higgins, 'Time and the Law: International Perspectives on an Old Problem', 46 International and Comparative Law Quarterly (1997) 501.
88. As Kennedy suggests there might appear to be something of a transatlantic divide on this issue - international lawyers in the United States being less convinced of the significance of the pedigree of legal rules than those in Europe or elsewhere. He also suggests, however, that this divide is largely superficial, 'Time and the Law: International Perspectives on an Old Problem', 46 International and Comparative Law Quarterly (1997) note 41, 91.
89. D. Bederman, 'Foreign Office International Legal History', in this volume, 43.
90. D. Bederman, 'Foreign Office International Legal History', in this volume, 46.
91. One may recall Oakshott's description of writing history as an act of restoration in which we discover from fragments of evidence 'what may be inferred from them about a past which has not survived' in M. Oakshott On History and Other Essays (1983) 52.
92. Lesaffer, On History and Other Essays (1983) note 19, 34.
93. Kennedy, Disciplines, On History and Other Essays (1983) note 41, 82.
94. See e.g., T. Franck, Recourse to Force: State Action against Threats and Armed Attacks (2002) 135-173.
95. Kennedy, Recourse to Force: State Action against Threats and Armed Attacks (2002) note 41.
96. See generally, Skinner, 'Meaning and Understanding in the History of Ideas', 8 History and Theory (1969) 3;
97. Tuck, 'History of Political Thought' in P. Burke (ed.), New Perspectives on Writing History (2001) 218.
98. Skinner, 'History of Political Thought' in P. Burke (ed.), New Perspectives on Writing History (2001) 30 ('to suggest... that a knowledge of the social context is a necessary condition for an understanding of the classic texts is equivalent to denying that they do contain any elements of timeless and perennial interest, and is thus equivalent to removing the whole point of studying what they said.')
99. Brownlie, 'History of Political Thought' in P. Burke (ed.), New Perspectives on Writing History (2001) note 40, 126.
100. See further A. Carty, The Decay of International Law (1986) 43-60.
101. It is evident, for example, that the changing understanding of 'territory' and hence the implications of its 'cession' had particular relevance for purposes of questions of nationality. See generally P. Weis, Nationality and Statelessness in International Law (2nd ed. 1979).
102. See, T. Franck, The Empowered Self: Law and Society in the Age of Individualism (2001).
103. Such historiography was decisively undermined by Karl Popper in The Poverty of Historicism (1957).
104. Island of Palmas Case II UNRIAA (1949) 845.
105. Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria, (Cameroon v. Nigeria, Equatorial Guinea intervening), Merits, ICJ Rep. 2002, 103, para. 207.
106. For a discussion of this issue see Klabbers, 'Reluctant Grundnormen: Articles 31(3)(c) and 42 of the Vienna Convention on the Law of Treaties and the Fragmentation of International Law', in this volume, 148.
107. There is some question as to how far this may be squared with the ICJ's position in the Western Sahara case, Advisory Opinion, ICJ Rep. 1975, 12, para. 80 in which it was held that State practice of the relevant period (1884) 'indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through “occupation” of terra nullius by original title but through agreements concluded with local rulers.'
108. See Dissenting Opinion of Judge Koroma in the Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria, supra note 94, 479, para 15.
109. See generally M. Lindley, Acquisition and Government of Backward Territory in International Law (1926).
110. Cf. Carty's observations about the Agreement of Sib, Acquisition and Government of Backward Territory in International Law note 76.
111. The general sense of the 1884 agreement as spelled out in articles 1 and 2 was that Britain undertook to extend to the Kings and Chiefs 'her gracious favour and protection' (art. 1). In return, the Kings and Chiefs agreed 'to refrain from entering into any correspondence, Agreement, or Treaty with any foreign nation of Power' (art. 2).
112. Remnants of this kind of pragmatism in relation to claims of sovereignty are evident in the literature today. Thus Crawford observes, in commenting on the case, that the terms of the treaty itself did not really matter - what was important was the 'position which the parties themselves took and which were applied in practice'. He thus concludes that 'even if, after 1884, a party existed that might have espoused such a claim [to sovereignty], no claim contrary to Britain's own claim appears to have been made, and at the international level the Kings and Chiefs of Old Calabar... disappeared from view.' in J. Crawford, The Creation of States in International Law (2nd ed. 2005) 314.
113. Carty, The Creation of States in International Law (2nd ed. 2005) note 76, 234.
114. Carty, The Creation of States in International Law (2nd ed. 2005) 243.
115. Lobban, The Creation of States in International Law (2nd ed. 2005) note 69.
116. Carty, The Creation of States in International Law (2nd ed. 2005) note 76, 243.
117. Carty, The Creation of States in International Law (2nd ed. 2005) 231.
118. R. Cooper, The Breaking of Nations: Order and Chaos in the Twenty-First Century (2003).