(Writing) International Legal Histories – Continuation of Politics by Other Means?

Dear Professor Peters, dear Mr. Schäfer – to begin with the genesis of your anthology Politics and the Histories of International Law: How did this publication project come about? Where would you situate it in the discipline of international law and its history?

The book was prompted by an article on the Jamestown Massacre in the Journal of the History of International Law (JHIL), which sparked fierce criticism on social media and blogs. We, the editors of the journal, do not endorse the views expressed in this article. However, after careful consideration, discussion in our Academic Advisory Board, and consultations with editors of other international law journals, with our publisher, and the Committee on Publication Ethics (COPE), we concluded that the conditions for retracting this article were not met. Instead, we wanted to address the issue of the limits of academic freedom at a more fundamental level by organizing a conference on Politics and the Histories of International Law, to which we specifically invited critics of the article in question. At the closing panel, the authors of the blog post on critical legal thinking, Aoife O’Donoghue and Henry Jones, spoke on ‘Histories of International Law and Self-Reflection within the Discipline’. Anne Peters commented as editor-in-chief. In the following plenary discussion, the responsibility of journal editors, the functions of ‘open letters’ to journals, the quality of peer review, and above all the meaning and limits of academic freedom were discussed. Naturally, this discussion did not produce a clear ‘outcome’, but it did clarify important basic questions. Unfortunately, Aoife O’Donoghue and Henry Jones did not submit their paper for publication, so it could not appear in either JHIL or the book.

In the introduction to the book, you juxtapose Hans Kelsen and Martti Koskenniemi. What do these two authors stand for, in your opinion, in the discipline’s discussion on politics and international law?

With his Reine Rechtslehre, Hans Kelsen attempted to ‘purify’ legal scholarship of political content, so to speak. This does not mean that he did not have and express clear legal-political preferences, such as in favour of democracy. However, he believed that this political reflection was ‘unscientific’ and should not be mixed with his research questions.

In contrast, Martti Koskenniemi considers law and politics, and thus legal scholarship and politics, to be inseparable. Therefore, for him, research in international law, including the history of international law, is an inescapably political process. In his opening lecture at the founding conference of the European Society of International Law, Koskenniemi said, mutatis mutandis (and we refer to this in our introduction), that the choice is not between law and politics, but only between one politics or another. That was in one of the magnificent villas of the European University Institute in Fiesole, in the outskirts of Florence, in May 2004.

Much in the spirit of Koskenniemi, you also write that the question is not whether, but why and in what way international legal scholarship and, consequently, the historiography of international law is ‘political’. What exactly do you mean by ‘political’?

With Harold Lasswell, we understand politics as the procedures in which actors decide collectively and with a binding claim ‘who gets what when and how’ in a community (in a ‘polis’). Activities and statements are ‘political’ if they refer to such procedures. These political procedures claim to promote the common good, but the question is by what steps and measures specifically. Moreover, there will always be some who benefit and others who suffer from specific measures, and already for this reason they will be controversial.

The rules of international law are tools (along with the use of money or force) to achieve goals that are intended to promote the global common good, such as securing peace, stopping climate change, and protecting the dignity of all people. Since it is, of course, controversial how this should happen in detail, and since the states and other involved actors benefit or lose to varying degrees, the rules to be established are also controversial. Therefore, these rules must be discussed and negotiated.

A legal analysis of legal norms (present and past) must inevitably focus on these controversies. The norms of international law (in treaties and even more so in unwritten customary international law) do not provide precise instructions for action or a single correct answer to a specific legal question. Rather, for each case there is a corridor of ‘justifiable’ legal answers and interpretive results, and also a corridor for legal policy proposals that fit within the existing system of international law. In order to justify one view or the other, the legal scholar must rely on her values, e.g., about a fair balance between security and freedom, or between rapid prosperity and sustainability. This is a political act.

The political has always played a major role – not only in the history, but also in the historiography of international law. An important example is Wilhelm G. Grewe’s standard work The Epochs of International Law, first published in 1984 and translated into English in 2000. How do the approaches of your authors differ from Grewe’s ‘realist’ view?

Grewe’s book divides the history of international law into epochs, which he names after each supposed leading power of the age (‘Spanish Age’, ‘English Age’, etc.). This is usually called a ‘realist’ perspective because Grewe attaches analytical and normative importance to real power relations.

In contrast, many chapters of our book undertake a ‘critical’ approach. They seek to reveal that historical international legal rules and procedures have been used by powerful states (often of the ‘West’) to oppress others and exploit their resources. Ultimately, you could say that this approach is also ‘realist’: it explains the emergence and content of international law norms primarily in terms of unequally distributed political and economic power and, in extreme cases, views international law as merely a cover-up for the exercise of power.

However, many of our authors also show how marginalized and ‘underdog’ states, as well as non-state actors, have driven the historical development of international law – and this distinguishes them from Grewe’s approach which is fixated on great powers.

This brings us to post-colonial approaches. They also emphasize the political character of law in its history very clearly. The ruling law is always the law of the rulers – but not only: it also serves as a vocabulary for social movements in their struggle for empowerment and emancipation. In your book, this issue is addressed particularly in Part 1 with regard to vulnerable groups. When reading it, I found the argument interesting that one should not simply differentiate between law as something ‘good’ and politics as something ‘bad’. Can you explain in more detail what you mean by that?

Here, we refer to Momchil Milanov’s chapter on the creation of an international refugee status after the First World War. The chapter shows that the new legal norms at that time were not only aimed at helping people fleeing the Russian Revolution, but at the same time were intended to protect the sovereignty of the refugees’ destination states. The legal regime, at first sight humanitarian, also represented tangible realpolitik.

What consequence does the insight into the highly political character of law have for the scholarly examination of its history?

The researcher should regularly keep this political character in mind. This is particularly important when working with historical sources. Especially, the frequently quoted passages of historical sources should be treated with caution because they are taken out of context. To give an example: Helmuth von Moltke, the longtime chief of the Prussian and then the German general staff, declared in his last major Reichstag speech on May 14, 1890, that the next war ‘can be a Seven-Year’s war, it can be a Thirty-Year’s war, – and woe to the man who sets Europe ablaze, who first throws the match into the powder barrel!’ This sounds like an almost pacifist orientation. But we have to evaluate this statement quite differently if we read it in its context. If we look up the Reichstag protocol, we learn that Moltke spoke on the agenda item of the strength of the German army in peacetime. He claimed that it was only the sword that held back other swords in the scabbard. Moltke thus called for a further armament of Germany.

On the other hand, there is the risk of ‘over contextualization.’ New insights can be lost between ‘auxiliary information’ on the political context. The international law historian must therefore filter the information and prepare it in a way that is comprehensible to the reader.

The British-German international law scholar Lassa Oppenheim once argued that the scholarship of international law ‘is merely a means to certain ends outside itself’. Would you agree?

Context plays an important role in this statement of Oppenheim’s as well. The quote to which you allude is from the essay The Science of International Law: Its Task and Method, and it is preceded by a subclause: ‘The science of international law is just as little as any other science an end in itself; it is merely a means to certain ends outside itself.’ It is interesting to see which ‘ends outside themselves’ Oppenheim meant. Firstly, he meant ‘peace among the nations and the governance of their intercourse by what makes for order and is right and just,’ secondly, ‘the peaceable settlements of international disputes,’ and thirdly, ‘the establishment of legal rules for the conduct of war and for the relations between belligerents and neutrals.’ The enumeration of these goals (peace, justice, settlement of disputes, rule-based) are generally recognized, in fact, essential goals of international law.

This gives a very different flavor to the statement: international legal scholarship should help secure the fundamental purpose of international law – it is not about the selfish purposes of individual states, but about political goals of the global common good. The tasks of scholarship that Oppenheim lists are still à jour: ‘exposition of the existing rules of law, historical research, criticism of the existing law, preparation of codification, distinction between the old customary and the new conventional law, fostering of arbitration, and popularization of international law.’

Yet that also means that international law both politicizes and depoliticizes, right? In other words, its application is always political – but it is not absorbed in politics, as so-called realists of all stripes claim more or less to this day.

Yes, in contrast to those views, we are of the opinion that the sphere of international law has its own, independent dimension of normativity, which cannot be completely dissolved in political procedures and discourses. In the legal discourse (of legal practitioners and legal scholars), certain procedures and forms as well as argumentative rules and substantive cornerstones must be observed to be considered as legal arguments. There is a limit beyond which a legal assertion is no longer ‘vertretbar’ (as one might say in German) and is recognized as being ‘abwegig’, as a purely political-tactical protective claim. Thomas Franck has called this the ‘laugh test’. When, for example, Russian President Putin said that the right of self-determination of the inhabitants of Crimea justified the incorporation of Crimea into the Russian Federation, he made a fool of himself in front of experts in international law. The same applies to the assertion by then U.S. President George W. Bush that waterboarding is not covered by the international ban on torture. The refutation of such strategic claims sometimes takes a while, but in the end, the international legal scholarship generally establishes a mainstream legal view that is not only espoused by members of a particular political camp, but generally shared and which also does justice to the rules that had been ‘abused’ by some.

In other words, (international) law not only provides international actors with a vocabulary with which they can dress up all political actions with the legitimizing cloak of law, but also establishes (albeit rather vaguely) normative standards against which politically motivated behavior can be measured, judged, and condemned.

To conclude: What responsibility does science have in recognizing the ambivalent relationship between politics and law? Or to put it differently: Can, may, should, indeed: must scholars of international law not ultimately always act in concrete cases on the basis of normative and political convictions and value judgments?

As we already have said, arguments in international law inevitably carry political convictions and value judgments with them – throughout history. At the same time, in our view, the discourse of international law cannot be completely dissolved into politics. Law, including international law, is not merely an epiphenomenon, but has (as a culturally deeply embedded system of ideas) its own ‘normative’ force. In our view, it is the responsibility of scholars of international law as a minimum not to undermine this normative force. This requires to call a conduct that breaches the law (of the present or in the past) what it is, namely: illegal conduct. Assertions such as ‘anything goes’ or ‘it’s all a matter of perspective’ would be of little help here, on the contrary.

With Patrick Boucheron, we write in our introduction that scholarship is inextricably linked to the search for justice, and this also inspired the subtitle of our book. In this regard, scholarly work, unlike political action, is, first, open-ended. Second, it seeks to make its arguments intersubjectively comprehensible and refutable through evidence and documentation; it is open to criticism. Every scholar and historian of international law should strive for these qualities in his or her own work – this is the responsibility.

It is then also – or especially – a personal responsibility. Where does this responsibility begin?

Scholars of international law and historians are responsible for their choice of topics. Of course, it is within the academic freedom of every researcher to address questions that are dismissed as marginal or uninteresting by the mainstream. And often, such seemingly bizarre questions can lead to exciting findings. From our personal point of view, it makes sense to devote our intellectual energy and lifetime to questions that we not only find interesting from a legal or historical point of view, but that we also consider relevant from a socio-political point of view.