Time, history, and international law. JUFN29, spring 2016 Faculty of Law, Lund University Matilda Arvidsson

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1 Time, history, and international law JUFN29, spring 2016 Faculty of Law, Lund University Matilda Arvidsson

2 Outline for today The turn to history: Approaches to the study of international law and its histories The Cambridge school/the Contextualist turn (Q. Skinner) TWAIL Anne Orford s call for anachronism in intenrational legal thinking

3 How to read international law and its histories in our own present time? - And why? (1) A history of the past/a history of the present? - What makes us ask about a history, or histories, of international law? (2) Where do we find our histories? Where do we find internatonal law? A material-methodology question guided by theory: In archives (which archives), in the chocholate we indulge in (which objects), in the mapping of illegal neighborhoods (whose lives), in the development of certain technologies (which innovations)? (3) A history for whom and by whom?: international law s histories are always told by someone and for someone with a persuasive aim - feminist theory - post colonial theory and TWAIL

4 Approaches to international law and its histories Grand narratives (versus local and temporary knowledge) - Universal in aim, teleological in their narrative method, Eurocentric (Becker Lorca, chap. 43). Owned by lawyers (we do not ask political philosphers, historians, architects, etc.): strictly legal - The study of singular concepts, institutions, actors as part of a grand narrative The biographical approach - tracing the conciousness of legal history (Koskenniemi) - Relevant questions: what kind of argument is formulated, at what time/place, and in relation to which other arguments existing at the time? - Relevant factors: context of ideology, religion, politics, intellectual exchange Fassbender & Peters: a global legal history - mapping the world in terms of histories of international law - a multiplicity of local histories makes international law global - deconstructs grand narratives - focus on encounters, ideologies, and a variety of actors - draws methodologically on comparative legal histories - emancipatory aim - BUT: where and when does this history start/end?

5 Approaches to international law and its histories (cont.) Unheard stories - unsettling grand narratives - focus on actors, institutions, time-periods, objects, or events which are rarely taken to matter in terms of international law and its history Mixing biographical and other approaches - tracing a particular consciousness in order to re-evaluate present conditions in intenrational law Interdisciplinarity - mapping the world in terms of histories of international law might involve thinking about the development of cartographic science - thinking about an object: the example of milk

6 Approaches to international law and its histories (cont.) Narrative perspective: - the omniscient writer (God s authoritative voice) - the subjective point of view (who tells the story, from where, and for which purpose?) Selectivity: Facts, documents, events, developments, persons: which of these furthers the particular narrative I want to pursue as a tale-teller of international law?. Ideology and theory will be the driving force. Multiplicity: Which part in a larger set of histories is this/my particular history: how to relate a particular history within international legal scholarship at large

7 The Cambridge School, or, the Contextualist school Political texts can only be understood correctly by locating them within their intellectual context and, in turn, that this intellectual context can only be properly understood in terms of the language available to individual authors. The key to understanding a text thus lies in understanding the language within which an author makes a particular statement.

8 Skinner (Skinner, Q. (2002) Visions of Politics: Volume 1: Regarding Method, Cambridge): The task of the historian of ideas is to study and interpret a canon of classic texts. The value of writing this kind of history stems from the fact that the classic texts in moral, political, religious and other such modes of thought contain a dateless wisdom in the form of universal ideas. As a result, we can hope to learn and benefit directly from investigating these timeless elements, since they possess a perennial relevance. This in turn suggests that the best way to approach these texts must be to concentrate on what each of them says about each of the fundamental concepts and abiding questions of morality, politics, religion, social life. We must be ready, in other words, to read each of the classic text as though it were written by a contemporary (2002: 57).

9 TWAIL Third World Approaches to International Law (TWAIL) Scholarly agendas associated with TWAIL are diverse but the general theme of its interventions is to unpack and deconstruct the colonial legacies of international law and engage in decolonizing efforts. objectives: Developing an understanding as to how international law perpetuates the subordination of non-europeans to Europeans through international legal norms Proposing an alternative mechanism of international law that coexists with other critiques of the neoliberal approach to international law TWAIL scholars include: Upendra Baxi, Anthony Anghie, Hani Sayed, Sundhya Pahuja, Luis Eslava, Vanja Hamzic, Usha Natarajan, Rahul Rao, Rose Parfitt

10 The north/south relation: A relation through a history of colonial subordination the relation is ongoing in terms of the postcolonial condition of the world Postcolonialism is the condition in which we have not surpassed colonialism but reworked into our present conditions

11 The north/south relation: Example: Antony Anghie (2005): Imperialism, Sovergeignty, and the Making of International Law The continuation of colonialism as part of IL is an example of a core TWAIL argument. The League of Nations Mandate system:

12 Mandate system League of Nations art 22 Class A Mandate (Palestine, Syria, Mesopotamia: former Ottoman Empire): "... have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory."

13 Mandate system Class B Mandate (Ruanda-Urundi, Tanganyika, Kamerun, Togoland: former Germain territories):...the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion.

14 Mandate system Class C Mandate (German New Guinea, Nauru, German Samoa, South Pacific Mandate, South West Africa): best administered under the laws of the Mandatory as integral portions of its territory.

15 The north/south relation: The explicit aim of the Mandate systemwas decolonialization and development (economic and social maturity and civilization ) towards self-determination International law institutoinalizes the Mandate Regieme through ongoing relations reinscribing old hierarchies: development through civilization IL of today narrates the Mandate Regieme as a misstake which contemporary law has surpassed. TWAIL scholars points to the enduring post colonial condition as telling us otherwise.

16 Anne Orford: Histories of International Law and Empire

17 References and further reading Anne Orford (2007): Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law. Cambridge University Press. Anne Orford (2011): International Authority and the Responsibility to Protect. Cambridge University Press. Luis Eslava (2015): Local Space, Global Life: The Everyday Operation Of International Law and Development. Cambridge University Press Antony Anghie (2005): Imperialism, Sovereignty, and the Making of International Law. Cambridge University Press. Rahul Rao (2010) Third World Protest: Between Home and the World. Oxford University Press James Parker The Soundscape of Justice, Griffith Law Review, (2011), vol. 20 no. 4. James Parker (2016): Acoustic Jurisprudence: Listening to the Trial of Simon Bikindi. Oxford University Press. James Parker: Law, Sound and Incitement to Genocide: Towards an Acoustic Jurisprudence Martti Koskenniemi (2006): From Apology to Utopia: The Structure of International Legal Argument. Cambridge University Press. Martti Koskenniemi (2004): The Gentle Civilizer of Nations: The Rise and Fall of International Law Cambridge University Press.