The new volume edited by Marcus Payk and Kim Christian Priemel for the “History and Theory of International Law” Oxford University Press series is a collection of meticulously investigated case studies which jointly advance a compelling claim: that, between the nineteenth and the twentieth centuries, a most relevant contribution to international law came from those legal actors who got their hands dirty with the realities of power and politics. Among these “practitioners”, some were professional jurists who engaged in international relations while others were politicians who conceived of their tasks in legal terms. These figures were lawyers, judges, diplomats, arbitrators, and advisors who played a key role in manufacturing world order by translating the practical challenges they faced into the grammar of international law and subsequently capitalising on their proficiency in this legal language to impact the concrete changes occurring during this period.
By appreciating the role of individual actors, several chapters in this book adopt a biographical approach. To study international law through the prism of legal biographies means understanding it no longer as the product of states and governments but rather shifting the focus towards single individuals, groups, family, and professional networks. Moreover, it means providing empirical evidence of an only seemingly obvious truism: that the law is a human construct and one which must always be formulated, discussed, interpreted, and applied by someone. Chapter 6 (Michael Jonas) focuses on the life and career of a prominent Swedish jurist and politician in order to highlight the participation of the supposedly “smaller players” in the Hague Peace Conferences (p. 114). Chapter 7 (Marcus M. Payk) examines the composition of the drafting committee of the Treaty of Versailles, whereas Chapter 9 (Kim Christian Priemel) reveals the acquaintances and ambitions of the lawyers who participated in the trials of the International Military Tribunal at Nuremberg. Chapter 11 (Morten Rasmussen), in turn, investigates the experiences and efforts of five actors who promoted a federal and constitutional interpretation of European law in the mid-twentieth century.
By focussing on the interplay between theory and practice and the interpenetration of the doctrines and rules of law on the one hand and the practical opportunities, agendas, and tactics it engenders on the other, the chapters in this book reject any artificially clear-cut dichotomy between the “raw power” of politics and the “normative reason” of law (p. v). By stressing the extent to which power relations are intrinsic to international law without presenting the law as a mere formality, the case studies show the degree to which legal provisions mirrored existing power dynamics but could also be used to alter them. In addition, they demonstrate how such provisions afforded the weak shelter from violence while simultaneously being enacted by the strong to legitimise themselves. This use of the law is displayed in Chapter 5 (Benjamin A. Coates), which shows how the United States utilised international law as a tool of imperialism by imposing treaties which granted extraterritoriality to US citizens abroad.
The manifold applications of international law also produced interesting geopolitical configurations. Chapter 3 (Fabian Klose) examines the nineteenth-century transnational rebounds of Britain’s abolitionist commitment. This led to the establishment of one of the earliest forms of international jurisdiction, the “Mixed Commissions for the Abolition of the Slave Trade”, located in port cities throughout the Atlantic region. Meanwhile, Chapter 4 (Gabriela A. Frei) investigates another international agenda developed in London: Britain’s neutrality policy from 1870 to 1914, which urged the need to staff the Foreign Office with legal experts. Just as provisions of international law could emanate from a specific place transnationally, so a single location could become, conversely, a hub of international politics. This is what happened to London during World War II, as recounted in Chapter 8 (Julia Eichenberg), which focuses on the need for international recognition of the European heads of state who fled to the United Kingdom from the Nazi-occupied continent.
It was World War II in particular, that highlighted the inner inconsistencies of international law by questioning the actual protection it could provide and undermining Europe’s self-arrogated position as the moral touchstone of the international community. As Chapter 2 (Andrew Cobbing) and Chapter 10 (Katharina Rietzler) show—by examining Japan’s reception of Western international law after 1868 and the post-1947 dispute between India and Pakistan over the partition of the Indus River’s waters, respectively—, international law was fundamentally entangled in Eurocentric standards and compromised by the legacies of colonial empires. Even in the postcolonial world, the imperial hierarchy between ‘civilisation’, ‘barbarism’, and ‘savagery’, and the different rights and privileges that these supposed conditions granted, were still foundational to and thus imbued international law.
If, as the book editors remark in the Introduction, the scholarship on international law struggles to disentangle itself from its Western, Christian, white, and male origins, the growing interest in its history will help to reveal its most enduring fallacy: its self-narrative as a set of supra-historical and universal principles. Rather, these principles were contextually determined as well as influenced by specific actors and their agency. By resorting to history, this book demonstrates how the international order was and is a veritable “historical artefact”, literally “crafted” by individuals through the law (p. 12).
Funding
Open Access funding enabled and organized by Projekt DEAL.