Parfitt on the history of international law

Rose Parfitt, University of Kent has published The Process of International Legal Reproduction: Inequality, Historiography, Resistance with Cambridge University Press. From the publisher: 

That all states are free and equal under international law is axiomatic to the discipline. Yet even a brief look at the dynamics of the international order calls that axiom into question. Mobilising fresh archival research and drawing on a tradition of unorthodox Marxist and anti-colonial scholarship, Rose Parfitt develops a new 'modular' legal historiography to make sense of the paradoxical relationship between sovereign equality and inequality. Juxtaposing a series of seemingly unrelated histories against one another, including a radical re-examination of the canonical story of Fascist Italy's invasion of Ethiopia, Parfitt exposes the conditional nature of the process through which international law creates and disciplines new states and their subjects. The result is a powerful critique of international law's role in establishing and perpetuating inequalities of wealth, power and pleasure, accompanied by a call to attend more closely to the strategies of resistance that are generated in that process.

Praise for the book:

"What a wonderfully engaging and important book this is. Out of a sophisticated, non-dogmatic Marxist perspective on international law and history, Rose Parfitt develops an analysis of the fundamental inequality of the international legal system by a complex reading of the Italian invasion of Abyssinia in the 1930s and the treatment of the matter by the Great Powers and the League of Nations in Geneva. Including the perspective of the Ethiopians themselves and situating the events in the larger history of Western power and on military and diplomatic manoeuvres in the 'Orient', she constructs the most inspired - and inspiring - postcolonial study of modern statehood and international law that I have read." - Martti Koskenniemi 

"Parfitt’s The Process of International Legal Reproduction is a major event in international legal scholarship - at the levels of historical methodology, critical theory, and archival research. In lucid and persuasive prose, Parfitt synthesizes the broadest range of critical approaches, ranging from heterodox Marxism and post-colonial theory to materialist linguistics and aesthetic modernism - yielding a thoroughly original conception of ‘modular’ historiography. Her case-studies, above all her magisterial analysis of the ‘Abyssinia Crisis’ of the late 1930s, are based not only on meticulous treatment of often previously unexamined documents, but on a perspectival presentation of them in accordance with her theoretical conception. The book is a monumental achievement that should decisively shape the field for years to come, compelling a rethinking of the basic categories of international legal doctrine, historiography, diplomacy, and resistance" - Nathaniel Berman 

"In this remarkable book, Rose Parfitt offers us an entirely new way both to understand ostensibly familiar legal processes of state formation, and to write the history of those processes. International legal reproduction describes of the way existing states usher new subjects of international law into being and subject them to discipline, political, fiscal, and military. Scanning half a millennium, Parfitt explores the terms new subjects must meet even to qualify, and the prerogatives claimed by those according them conditional 'sovereign' legitimacy. Multiple case studies, including a detailed history of the 'Abyssinia Crisis' of the 1930s, put demonstrative flesh on these macrohistorical bones. This is an unapologetic call for revisionism in both the substance and method not just of international law but also of legal history, and a trenchant demonstration of the advantages that will accrue." - Christopher Tomlins

Further information is available here.

--Mitra Sharafi

Koskenniemi, Rech, Fonseca and others on international law and empire

We missed this one back in 2017. Martti Koskenniemi, Walter Rech, and Manuel Jiminez Fonseca (all at the University of Helsinki) co-edited International Law and Empire: Historical Explorations, out with Oxford University Press. From the publisher:

In times in which global governance in its various forms, such as human
rights, international trade law, and development projects, is increasingly promoted by transnational economic actors and international institutions that seem to be detached from democratic processes of legitimation, the question of the relationship between international law and empire is as topical as ever. By examining this relationship in historical contexts from early modernity to the present, this volume aims to deepen current understandings of the way international legal institutions, practices, and narratives have shaped specifically imperial ideas about and structures of world governance.

As it explores fundamental ways in which international legal discourses have operated in colonial as well as European contexts, the book enters a heated debate on the involvement of the modern law of nations in imperial projects. Each of the chapters contributes to this emerging body of scholarship by drawing out the complexity and ambivalence of the relationship between international law and empire. They expand on the critique of western imperialism while acknowledging the nuances and ambiguities of international legal discourse and, in some cases, the possibility of counter-hegemonic claims being articulated through the language of international law. Importantly, as the book suggests that international legal argument may sometimes be used to counter imperial enterprises, it maintains that international law can barely escape the Eurocentric framework within which the progressive aspirations of internationalism were conceived.

The Table of Contents follows the jump. We believe that only two of 16 chapters (including the introduction) are by women (Julie Saada, Hatsue Shinohara):

Boston University Seeks Assistant Professor of International Law & Organization

We have word of a law-related job opening at Boston University. Historians are encouraged to apply:

The Pardee School of Global Studies at Boston University invites applications for a tenure-track Assistant Professor position in the study of International Law & International Organization beginning July 1, 2020, subject to budget approval. We seek applicants who focus on the impact and uses of international law in any functional areas, including (but not restricted to) human rights, development, diplomacy, security, global environment, international trade and finance, and international organization. We welcome applications from scholars in any relevant discipline, including law, political science, sociology, history, and international relations, and are open to all methodological approaches and regional specializations. Successful candidates would be expected to have completed a Ph.D. by August 15, 2020. The Pardee School of Global Studies is committed to multidisciplinary, policy-relevant research and teaching. Candidates who have demonstrated policy experience are especially encouraged to apply.

More information is available here.

-- Karen Tani

Tunnicliffe on Canada and the International Bill of Rights

Jennifer Tunnicliffe (University of Waterloo) has published Resisting Rights: Canada and the International Bill of Rights, 1947-76 in UBC Press' Law and Society series. From the publisher:

From 1948 to 1966, the United Nations worked to create an international bill of rights that would provide a common standard for human rights protection around the globe. Canadians celebrate their country’s central role in this endeavour every Human Rights Day. Yet a detailed study of government policies toward these early UN documents tells a different story.

Resisting Rights analyzes the Canadian government’s initial opposition to the development of international human rights law, exploring how and why this position changed from the 1940s to the 1970s. Jennifer Tunnicliffe takes both international and domestic developments into account to explain how shifting cultural understandings of rights influenced policy, and to underline the key role of Canadian rights activists in this process.

In light of the erosion of Canada’s traditional reputation as a leader in developing human rights standards at the United Nations, this is a timely study. Tunnicliffe situates current policies within their historical context to reveal that Canadian reluctance to be bound by international human rights law is not a recent trend, and asks why governments have found it important to foster the myth that Canada has been at the forefront of international human rights policy since its inception.

Resisting Rights will appeal to students and scholars of the development of domestic and international human rights, and more generally of Canadian history, politics, diplomacy, and foreign policy, particularly at the United Nations. It will also find an audience among individuals or organizations interested in Canada’s human rights history.

Praise for the book:

"A blow-by-blow account spanning nearly thirty years, Resisting Rights provides a detailed history of the Canadian state’s transformation from an initial opponent of universal human rights in the late 1940s to one of its leading proponents by the mid-1970s, a journey made possible only by the persistence and tenacity of Canadian human rights activists. A welcome addition to the growing body of scholarship on the history of human rights in Canada." - Andrew S. Thompson

Further information is available here.

Weekend Roundup

• David Sugarman, professor emeritus at the law school at Lancaster University, has posted a truly lovely appreciation of the law W. Wesley Pue (1954-2019) that appeared in the Newsletter of the Research Committee of the Sociology of Law.

• Professor Sugarman’s assessment of the work of the late Christopher W. Brooks, entitled "Law, Law-Consciousness and Lawyers as Constitutive of Early Modern England: Christopher W. Brooks’s Singular Journey," published in Law, Lawyers and Litigants in Early Modern English Society. Essays in Memory of Christopher W. Brooks, ed. Michael Lobban, Joanne Begiato, Adrian Green (Cambridge: Cambridge University Press, 2019),  32-57, is not available online, but the abstract is here.

• Out online from Law and History Review and Cambridge Core: Law of Nations Theory and the Native Sovereignty Debates in Colonial India, by Zak Leonard, and Of “Masculine Tyranny” and the “Women's Jury”: The Gender Politics of Jury Service in Third Republic France, by Sara L. Kimble. 

• Joanna Grisinger (Northwestern), Kimberly Welch (Vanderbilt), Logan Sawyer (Georgia), and Kathryn Schumaker (Oklahoma), the co-organizers of the Law and History Collaborative Research Network of the Law and Society Association, have posted a call for legal history panels for LSA’s annual meeting in Denver, Colorado, May 28-31, 2020.  They also seek volunteers to join their ranks as co-organizers.

• We can't possibly keep up with historically informed, impeachment-related posts, but here's a few: U.S. Whistleblowers First Got Government Protection in 1777 (History).  HNN rounded up hot takes from seven historians.  A brief history of presidential impeachment (BBC History Extra).

• In other news: A descendant of a Virginia slaveholders sues a professor et al. for saying as much, apparently on the theory that in noting this and his opposition to the removal of Charlottesville’s statue of Robert E. Lee, the defendants claimed he was “a racist and an opponent of people of color” (Roanoke Times). Meanwhile, at Chapel Hill, UNC professors bring the history of Jim Crow to the present.

• The Franklin D. Roosevelt Presidential Library and Museum will present Freedom of Speech and the First Amendment, a conversation and book signing with Ronald K. L. Collins, coauthor of We Must Not Be Afraid to Be Free: Stories of Free Expression in America at 2:00 p.m. on Saturday, October 12, 2019.

• Over at Nursing Clio: "'Immoderate Menses' or Abortion? Bodily Knowledge and Illicit Intimacy in an 1851 Divorce trial" by Sara Lampert (University of South Dakota)

• CNN's "Black in America" series recently featured Martha Jones (Johns Hopkins), author of Birthright Citizens. Video here.

• From the Washington Post's "Made by History" section: David Farber (University of Kansas) on "how drug-related violence complicates criminal justice reform." And more.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Loeffler on Jewish International Legal Biography

James Loeffler, University of Virginia, has posted Promise and Peril: Reflections on Jewish International Legal Biography, which is forthcoming in Émigré Lawyers and International Law, ed. Annette Weinke and Leora Bilsky:

The burgeoning field of Jewish legal biography has produced a profusion of new studies of Jewish lawyers, lawyering, and legal thought in the international arena. This biographicalization of legal history promises obvious rewards. Biography can unlock deeper chains of influence and forgotten acts of invention. It possesses the moral potential to restore lives displaced or disrupted by the Holocaust to their rightful places in the history of the law and law’s memory. In our own fraught moment of historical reckoning, the European Jewish experience beckons as a rich historical resource with which to rethink transnational activism and individual agency, migration and statelessness, antisemitism and fascism. Yet biography is never a neutral art. The very choice of which life to deem worthy of attention depends on an often implicit set of assumptions about relevance and uniqueness that risk historical essentialism.

In this chapter, I explore these challenges by discussing the specter of “interest” in the writing of Jewish legal biography, past and present. I take “interest” in a variety of senses: the reasons why so many Jews gravitated in disproportionate numbers to international law as a profession; the biographer’s underlying motivation for choosing which specific Jewish legal lives to chronicle; and international law’s own image of itself as a neutral sphere of human action transcending political interests. Reviewing assorted key moments in the past century of attempts at Jewish legal biography, I posit that two different approaches have governed these biographical efforts vis-à-vis the concept of interest: a liberal cosmopolitan meta-narrative that frames international Jewish lawyering as a form of legalist anti-politics; and a liberal nationalist meta-narrative that hails Jewish politics as the proper starting point for a necessary legal reordering of the world. As we shall see, the links and tensions between these different kinds of interest are crucial to questions of method and meaning. They come together in the challenge at the root of all contemporary legal biography: How do we relate the one to the many without flattening individual lives into essentialist fables in the process?

Conference: League of Nations and international law

[We have the following announcement.]

A conference on the League of Nations and International Law during the Interbellum will take place in Brussels on Oct. 25-26, 2019. It will focus on the role of international law and lawyers in the formation of the League and of the League in the development of international law. Registration is possible until Oct. 15, 2019 (registration form here). Here's the program, after the jump: 

Tang on early modern European literature and international law

Chenxi Tang, University of California at Berkeley, published Imagining World Order: Literature and International Law in Early Modern Europe, 1500-1800 in 2018 with Cornell University Press. From the publisher; 

In early modern Europe, international law emerged as a means of governing relations between rapidly consolidating sovereign states, purporting to establish a normative order for the perilous international world. However, it was intrinsically fragile and uncertain, for sovereign states had no acknowledged common authority that would create, change, apply, and enforce legal norms. In Imagining World Order, Chenxi Tang shows that international world order was as much a literary as a legal matter. To begin with, the poetic imagination contributed to the making of international law. As the discourse of international law coalesced, literary works from romances and tragedies to novels responded to its unfulfilled ambitions and inexorable failures, occasionally affirming it, often contesting it, always uncovering its problems and rehearsing imaginary solutions.

Tang highlights the various modes in which literary texts—some highly canonical (Camões, Shakespeare, Corneille, Lohenstein, and Defoe, among many others), some largely forgotten yet worth rediscovering—engaged with legal thinking in the period from the sixteenth to the eighteenth century. In tracing such engagements, he offers a dual history of international law and European literature. As legal history, the book approaches the development of international law in this period—its so-called classical age—in terms of literary imagination. As literary history, Tang recounts how literature confronted the question of international world order and how, in the process, a set of literary forms common to major European languages (epic, tragedy, romance, novel) evolved.

Praise for the book: 
 "Imagining World Order is one of the most engaging books to appear in the field of early modern comparative literature. Tang’s analysis of the histories of early modern literary genre and the emergent discourse of international law is ambitious, significant and could not be more convincing."
- John Watkins

"Chenxi Tang’s work is remarkable, as is the scope of the study: spanning texts of the sixteenth, seventeenth, and eighteenth centuries while situating its discussion in relevant classical and medieval antecedents. This book will make a welcome contribution to scholarship on the history of law and New Diplomatic History."
- Mark Netzloff

Further information is available here.

--Mitra Sharafi

Smiley on the Ottoman Empire, Russia, and International Law

Will Smiley, Reed College published From Slaves to Prisoners of War: The Ottoman Empire, Russia, and International Law with Oxford University Press in 2018. From the publisher: 

The Ottoman-Russian wars of the eighteenth century reshaped the map of Eurasia and the Middle East, but they also birthed a novel concept--the prisoner of war. For centuries, hundreds of thousands of captives, civilians and soldiers alike, crossed the legal and social boundaries of these empires, destined for either ransom or enslavement. But in the eighteenth century, the Ottoman state and its Russian rival, through conflict and diplomacy, worked out a new system of regional international law. Ransom was abolished; soldiers became prisoners of war; and some slaves gained new paths to release, while others were left entirely unprotected. These rules delineated sovereignty, redefined individuals' relationships to states, and prioritized political identity over economic value. In the process, the Ottomans marked out a parallel, non-Western path toward elements of modern international law. Yet this was not a story of European imposition or imitation-the Ottomans acted for their own reasons, maintaining their commitment to Islamic law. For a time even European empires played by these rules, until they were subsumed into the codified global law of war in the late nineteenth century. This story offers new perspectives on the histories of the Ottoman and Russian Empires, of slavery, and of international law.

 Praise for the book: 

"This is an extensively detailed history of Ottoman Turkish relations primarily but not entirely with...the Russian Empire, the Hapsburgs, and the West, dealing with the numerous wars in which it was involved between 1700 and 1876...Recommended" -- CHOICE

Further information is available here.

--Mitra Sharafi

Tallgren & Skouteris, eds, "The New Histories of International Criminal Law"

Oxford University Press has released The New Histories of International Criminal Law: Retrials (May 2019), edited by Immi Tallgren (University of Helsinki) and Thomas Skouteris (The American University in Cairo). A description from the Press:

The language of international criminal law has considerable traction in global politics, and much of its legitimacy is embedded in apparently 'axiomatic' historical truths. This innovative edited collection brings together some of the world's leading international lawyers with a very clear mandate in mind: to re-evaluate ('retry') the dominant historiographical tradition in the field of international criminal law. 

Carefully curated, and with contributions by leading scholars, The New Histories of International Criminal Law pursues three research objectives: to bring to the fore the structure and function of contemporary histories of international criminal law, to take issue with the consequences of these histories, and to call for their demystification. The essays discern several registers on which the received historiographical tradition must be retried: tropology; inclusions/exclusions; gender; race; representations of the victim and the perpetrator; history and memory; ideology and master narratives; international criminal law and hegemonic theories; and more. 

This book intervenes critically in the fields of international criminal law and international legal history by bringing in new voices and fresh approaches. Taken as a whole, it provides a rich account of the dilemmas, conundrums, and possibilities entailed in writing histories of international criminal law beyond, against, or in the shadow of the master narrative.

More information, including the TOC, is available here.

-- Karen Tani

Moyn on human rights and inequality

Samuel Moyn, Yale University has published Not Enough: Human Rights in an Unequal World with Harvard University Press. From the publisher:

The age of human rights has been kindest to the rich. Even as state violations of political rights garnered unprecedented attention due to human rights campaigns, a commitment to material equality disappeared. In its place, market fundamentalism has emerged as the dominant force in national and global economies. In this provocative book, Samuel Moyn analyzes how and why we chose to make human rights our highest ideals while simultaneously neglecting the demands of a broader social and economic justice.

In a pioneering history of rights stretching back to the Bible, Not Enough charts how twentieth-century welfare states, concerned about both abject poverty and soaring wealth, resolved to fulfill their citizens’ most basic needs without forgetting to contain how much the rich could tower over the rest. In the wake of two world wars and the collapse of empires, new states tried to take welfare beyond its original European and American homelands and went so far as to challenge inequality on a global scale. But their plans were foiled as a neoliberal faith in markets triumphed instead.

Moyn places the career of the human rights movement in relation to this disturbing shift from the egalitarian politics of yesterday to the neoliberal globalization of today. Exploring why the rise of human rights has occurred alongside enduring and exploding inequality, and why activists came to seek remedies for indigence without challenging wealth, Not Enough calls for more ambitious ideals and movements to achieve a humane and equitable world.

In praise of the book:

“No one has written with more penetrating skepticism about the history of human rights than Samuel Moyn… In Not Enough, Moyn asks whether human-rights theorists and advocates, in the quest to make the world better for all, have actually helped to make things worse… This book, like the author’s last, is the rare academic study that is sure to provoke a wider discussion about important political and economic questions.”—Adam Kirsch

“[Moyn] effectively provincializes an ineffectual and obsolete Western model of human rights… Moyn’s book is part of a renewed attention to the political and intellectual ferment of decolonialisation, and joins a sharpening interrogation of the liberal order and the institutions of global governance created by, and arguably for, Pax Americana… [The book’s] critical—and self-critical—energy is consistently bracing, and is surely a condition of restoring the pursuit of equality and justice as an indispensable modern tradition.”—Pankaj Mishra

Further information is available here.

-Mitra Sharafi

Zunino, "Justice Framed: A Genealogy of Transitional Justice"

Cambridge University Press has published Justice Framed: A Genealogy of Transitional Justice, by Marcos Zunino (British Institute of International and Comparative Law). A description from the Press:

Why are certain responses to past human rights violations considered instances of transitional justice while others are disregarded? This study interrogates the history of the discourse and practice of the field to answer that question. Zunino argues that a number of characteristics inherited as transitional justice emerged as a discourse in the 1980s and 1990s have shaped which practices of the present and the past are now regarded as valid responses to past human rights violations. He traces these influential characteristics from Argentina's transition to democracy in 1983, the end of communism in Eastern Europe, the development of international criminal justice, and the South African truth commission of 1995. Through an analysis of the post-World War II period, the decolonisation process and the Cold War, Zunino identifies a series of episodes and mechanisms omitted from the history of transitional justice because they did not conform to its accepted characteristics.

A sample of advance praise:

"Zunino’s careful and sophisticated genealogy of transitional justice is a major achievement with revolutionary implications. From its identification of the Argentine template in the origins of the field to its thrilling coverage of the ‘prefabricated history’ for transitional justice retroactively located in the Nuremberg trials, Justice Framed should force a reckoning with the selective politics of recent causes." -- Samuel Moyn

More information is available here.

-- Karen Tani

Witt and Osdiek, "The Czar and the Slaves: Two Puzzles in the History of International Arbitration

John Fabian Witt (Yale Law School) and Bennet Osdiek (J.D. candidate, Yale Law School) have posted "The Czar and the Slaves: Two Puzzles in the History of International Arbitration," which is forthcoming in the American Journal of International Law. Here's the abstract:

In 1822, the Russian Czar Alexander decided an arbitration between the United Kingdom and the United States over the fate of 5,000 enslaved persons who fled to British lines at the end of the War of 1812. American observers have asserted for more than a century that the Czar’s decision, which has gone down in history as one of the canonical Anglo-American arbitrations of the Early Republic, favored the United States. But did the U.S. really win? Secretary of State John Quincy Adams complained at the time that the decision was not sufficiently clear. And new debate has broken out in the historical literature. This article resolves the question, relying in part on new evidence from diplomatic archives in the United States and the United Kingdom. We show that, as a formal matter, the Czar sided with the United States, though the arbitration proved useful to U.K. statesmen as well. The curious case of the Czar and the slaves also poses a second puzzle about the relationship between slavery and the emergence of modern international law. Even as the U.K. was beginning to use international law to oppose the slave trade, the United States aimed to turn some of international law’s institutions into powerful bastions of support for slavery.

The full article is available here.

Koskenniemi, Rovira, Amorosa and friends on international law and religion

Martti Koskenniemi, Monica Garcia-Salmones Rovira, and Paolo Amorosa (all of the University of Helsinki) have co-edited International Law and Religion: Historical and Contemporary Perspectives with Oxford University Press. From the publisher: 

This books maps out the territory of international law and religion challenging received traditions in fundamental aspects. On the one hand, the connection of international law and religion has been little explored. On the other, most of current research on international legal thought presents international law as the very victory of secularization. By questioning that narrative of secularization this book approaches these traditions from a new perspective. 

From the Middle Ages' early conceptualizations of rights and law to contemporary political theory, the chapters bring to life debates concerning the interaction of the meaning of the legal and the sacred. The contributors approach their chapters from an array of different backgrounds and perspectives but with the common objective of investigating the mutually shaping relationship of religion and law. The collaborative endeavour that this volume offers makes available substantial knowledge on the question of international law and religion.

The Table of Contents is included on the book's Amazon.com preview here.

 Further information about this edited volume is available here.

Loeffler on Jewish cosmopolitans and human rights

James Loeffler, University of Virginia, has published Rooted Cosmopolitans: Jews and human rights in the twentieth century with Yale University Press. From the publisher: 

The year 2018 marks the seventieth anniversary of two momentous events in twentieth-century history: the birth of the State of Israel and the creation of the Universal Declaration of Human Rights. Both remain tied together in the ongoing debates about the Israeli-Palestinian conflict, global antisemitism, and American foreign policy. Yet the surprising connections between Zionism and the origins of international human rights are completely unknown today. In this riveting account, James Loeffler explores this controversial history through the stories of five remarkable Jewish founders of international human rights, following them from the prewar shtetls of eastern Europe to the postwar United Nations, a journey that includes the Nuremberg and Eichmann trials, the founding of Amnesty International, and the UN resolution of 1975 labeling Zionism as racism. The result is a book that challenges long-held assumptions about the history of human rights and offers a startlingly new perspective on the roots of the Israeli-Palestinian conflict.

Praise for the book: 

“This absorbingly narrated and brilliantly researched masterpiece reshapes Jewish and human rights history alike.”—Samuel Moyn

“James Loeffler’s pathbreaking research reconstructs the forgotten role of Jewish leaders in creating the architecture of human rights. Loeffler offers a nuanced account of the common origin of Zionism and human rights organizations—and of their increasingly tortured relationship. His story is an intellectually arresting but intensely human drama.”—William A. Galston

"Building on a trove of archival material, this extraordinary book challenges orthodoxies both on the right and on the left.  It has the potential to transform popular understandings of this critical period of history and is a must-read for anyone involved in Jewish communal life or human rights work."—Rabbi Jill Jacobs

"Rooted Cosmopolitans is intellectual history at its most admirable. It's daring in its ambitions to rewrite our received narratives about human rights and Zionism. Loeffler presses his arguments with unfamiliar characters and tells their fascinating stories with nuance, humanity, and verve."—Franklin Foer

Further information is available here.

Pitts on international law and empire

Jennifer Pitts, University of Chicago, has published Boundaries of the International: Law and Empire with Harvard University Press. From the publisher:

It is commonly believed that international law originated in relations among European states that respected one another as free and equal. In fact, as Jennifer Pitts shows, international law was forged at least as much through Europeans’ domineering relations with non-European states and empires, leaving a legacy still visible in the unequal structures of today’s international order. 

Pitts focuses on the eighteenth and nineteenth centuries, the great age of imperial expansion, as European intellectuals and administrators worked to establish and justify laws to govern emerging relationships with non-Europeans. Relying on military and commercial dominance, European powers dictated their own terms on the basis of their own norms and interests. Despite claims that the law of nations was a universal system rooted in the values of equality and reciprocity, the laws that came to govern the world were parochial and deeply entangled in imperialism. Legal authorities, including Emer de Vattel, John Westlake, and Henry Wheaton, were key figures in these developments. But ordinary diplomats, colonial administrators, and journalists played their part too, as did some of the greatest political thinkers of the time, among them Montesquieu and John Stuart Mill. 

Against this growing consensus, however, dissident voices as prominent as Edmund Burke insisted that European states had extensive legal obligations abroad that ought not to be ignored. These critics, Pitts shows, provide valuable resources for scrutiny of the political, economic, and legal inequalities that continue to afflict global affairs.

Praise for the book:

“Illuminat[es] the ways in which international law was an artifact of empire, a system for organizing the world so as to perpetuate Western dominance.”- G. John Ikenberry

“In this masterful study, Jennifer Pitts examines universalist claims about the law of nations alongside rising European global power, uncovering a set of linked contradictions within eighteenth- and nineteenth-century political thought. A tour de force of interpretation and historical analysis, this subtle and persuasive book places the problem of empire at the very center of the history of international law—where it will now surely stay.” - Lauren Benton

“An outstanding history of international law and its entanglement with empire from one of the leading historians of political thought in the world today.” - Andrew Fitzmaurice

“Boundaries of the International adds much nuance to existing literature, and challenges some of the past analytics through which the history of international legal thought has been written. A first-class book by a recognized leader in the field of history of international political and legal thought.” - Martti Koskenniemi

Further information is available here.

Lange on German International Law Scholarshgp

Felix Lange, Humboldt University of Berlin, has posted Between Systematization and Expertise for Foreign Policy: The Practice-Oriented Approach in Germany’s International Legal Scholarship (1920–1980):

German international legal scholarship has been known for its practice-oriented, doctrinal approach to international law. On the basis of archival material, this article tracks how this methodological take on international law developed in Germany between the 1920s and the 1980s. In 1924, as a reaction to the establishment of judicial institutions in the Treaty of Versailles, the German Reich founded the Kaiser Wilhelm Institute for Comparative Public Law and International Law. Director Viktor Bruns institutionalized the practice-oriented method to advance the idea of international law as a legal order as well as to safeguard the interests of the Weimar government before the various courts. Under National Socialism, members of the Institute provided legal justifications for Hitler’s increasingly radical foreign policy. At the same time, some of them did not engage with völkisch-racist theories, but systematized the existing ius in bello. After 1945, Hermann Mosler, as director of the renamed Max Planck Institute, took the view that the practice-oriented approach was not as discredited as the more theoretical approach of völkisch international law. Furthermore, he regarded the method as a promising vehicle to support the policy of Westintegration of Konrad Adenauer. Also, he tried to promote the idea of ‘international society as a legal community’ by analysing international practice.

Drumbl on Defining Genocide

Mark Drumbl, Washington and Lee University School of Law, has posted Genocide: The Choppy Journey to Codification:

The Genocide Convention’s definition of genocide derives from but also shrinks the concept as initially coined by Raphael Lemkin. This chapter unpacks the notion Lemkin had originated and traces how it narrowed through the treaty-making process. The path that genocide took from invented concept to proscribed crime in turn evokes questions about how the formation of law through treaty can deform the ideas that may have prompted the push towards law. Counterfactually, this chapter contrasts the path of crimes against humanity, which only in very recent years has become cogitated as something that ‘needs’ an owner-occupied international convention. In the end, perhaps, an alternate route for the crime of genocide – which Lemkin did not pursue – would have been for it to have been taken as a term of art, organic and open-ended, and then left to stew and brew at a variety of discursive levels before becoming codified: bricolage from below rather than vulcanization from above. Perhaps had this counterfactual path been taken the legal definition of genocide would have been broader and more congruent with Lemkin’s original understanding. That said, it is clear that the legal definition matches many, though certainly not all, of the fundamental values that Lemkin intended the criminalization of genocide to protect. Moreover, codification permitted an interpretive baton to be passed to judges, who may over time incrementally align the crime of genocide closer to Lemkin’s original framing.

Freedman on the first ICC trial

Jim Freedman, Western University published A Conviction in Question: The First Trial at the International Criminal Court with the University of Toronto Press in 2017. From the publisher:

A lively narrative account of the first case to appear at the International Criminal Court, A Conviction in Question documents the trial of Union of Congolese Patriots leader and warlord, Thomas Lubanga Dyilo. Although Dyilo’s crimes, including murder, rape, and the forcible conscription of child soldiers, were indisputable, legal wrangling and a clash of personalities caused the trial to be prolonged for an unprecedented six years. This book offers an accessible account of the rapid evolution of international law and the controversial trial at the foundation of the International Criminal Court. 

The first book to thoroughly examine Dyilo’s trial, A Conviction in Question looks at the legal issues behind each of the trial’s critical moments, including the participation of Dyilo’s victims at the trial and the impact of witness protection. Through eye-witness observation and analysis, Jim Freedman shows that the trial suffered from all the problems associated with ordinary criminal law trials, and uses Dyilo’s case to further comment on the role of international courts in a contemporary global context.

Praise for the book:

"While containing a startling amount of scholarly content, A Conviction in Question reads like a well-told detective story, and I read it from cover to cover in one sitting, turning page after page to get to the next revealing detail." -Joanna Quinn

"Freedman delivers a rich and comprehensive account of the prosecution of warlord Thomas Lubanga. Including lively trial quotes, A Conviction in Question is gripping and accessible." -Mark Drumbl

Further information is available here.

Edling on "An International Interpretation of the Constitution of the United States"

Currently un-gated in the August 2018 issue of Past & Present: Max Edling, "Peace Pact and Nation: An International Interpretation of the Constitution of the United States." Here's the abstract:

The origin of the United States Constitution is a perennial question in American historiography. In the last two decades a new ‘International’ interpretation has appeared that challenges an older ‘economic’ interpretation associated with Charles Beard and the so-called ‘Progressive’ tradition of historical analysis, which dominated scholarship for much of the twentieth century. The two interpretations assume different positions on what is known in American historiography as the ‘dual revolution’ thesis, i.e. the idea that the American founding was at the same time a struggle for home rule and a struggle over who should rule at home. Whereas the Progressive tradition has concentrated on the latter question, the International interpretation calls for renewed investigation of the former. The International interpretation presents the Constitution as a federal treaty that allowed thirteen newly independent and comparatively weak republics to maintain peace among themselves and to act in unison against competitors in the Atlantic marketplace and in the western borderlands of the continental interior. Whereas the Progressives identify the principal outcome of the founding to be the creation of a bourgeois state that faced inwards to make North America safe for capitalism, the Internationalists identify it as the creation of a stronger federal union that faced outward and allowed the United States to stand up to European powers and to conquer the North American continent. Yet despite the focus on the question of home rule, the Internationalist redefinition of the Constitution as a federal treaty also makes possible a fresh view on the old question of who should rule at home.

Read on here.