Bardo Fassbender, Anne Peters, Simone Peter, Daniel Högger. The Oxford Handbook of the History of International Law. Oxford: Oxford University Press, 2013. XL, 1228 S. ISBN 978-0-19-959975-2.
Reviewed by Kim Christian Priemel
Published on H-Soz-u-Kult (August, 2015)
B. Fassbender u.a.: Oxford Handbook of the History of International Law
To most historians law seems to be a subject best left to lawyers. Its apparently hermetic doctrines, its rigid categories and, not least of all, the substantial advantage of those already trained in the law mean that legal history has traditionally been a field dominated by jurists rather than historians. Historiographical interest in legal matters has long been strongest with an eye to legislation, i.e. political decision making, and executive action whereas both jurisdiction and jurisprudence have received much less, in some respects scant attention. The recent surge in Human Rights historiography, some of which shows a manifest lack of interest in the legal side of its subject, attests to this blind spot.
The Oxford Handbook of the History of International Law illustrates the general tendency – of some sixty contributors two thirds are jurists whereas the remainder are drawn from history, philosophy, political science, international relations studies, etc. – while at the same time offering a welcome opportunity for historians to familiarize themselves with key ideas, concepts and debates in international law. The massive, rich volume with 65 chapters and more than 1,200 pages will particularly appeal to historians on account of its consistent self-reflection and disciplinary introspection which the four editors, all of them lawyers, and their collaborators show throughout the anthology. As a handbook on the history of international law it is as much about the genealogy of the contemporary global legal order as it is interested in the way this order has been (and still is) conceptualized. Indeed, it is a central point made in many chapters that theories of international law cannot be meaningfully separated from the politics of states and other legal actors. That Grotius, usually hailed as the father of international law and ubiquitous in the pages of the present volume, penned his famous “Mare liberum” as part of a commissioned tract which justified the seizing of a Portuguese vessel by the Dutch East India Company, the lawyer’s clients, amply illustrates this point, as Koen Stapelbroek’s chapter shows.
The Handbook is organised in six parts, five of which deal, respectively, with (a) “Actors”, (b) “Themes”, (c) “Regions” – this is the volume’s empirical core, subdivided into “Africa and Arabia”, “Asia”, “The Americans and the Caribbean”, “Europe” and “Encounters” –, (d) “Interaction or Imposition” and (e) “Methodology and Theory” before a final section (f) portrays twenty-one lawyers and legal philosophers in brief biographical sketches. Though interesting, this latter part might, in the age of online encyclopaedias, be the least indispensable in an otherwise highly rewarding volume which will be essential reading for lawyers and historians alike, offering both engaging argument and enlightening detail. Inevitable in such a broad undertaking, though, redundancies appear both within and between sections – viz., the opening chapters by Jörg Fisch and the late Antonio Cassese on “Peoples and Nations” and “States” respectively, Cecilia Lynch’s contribution on peace movements and civil society vis-à-vis the introduction to international organisations by Simone Peter and Anne Peters, or the Chinese, Japanese and Indian regional chapters which overlap considerably with those subsumed under “Encounters”. But as very few people will read the whole tome this might well be an asset rather than a weakness. The same is true for two major but apparently deliberate omissions: neither international criminal law nor international private law figure prominently in the present volume and while this obviously limits the volume’s scope it greatly enhances its thematic coherence.
Two other editorial decisions, however, are less fortunate. None of the eight chapters which deal with the protagonists of international law tackles enterprises although corporations with a transnational radius are no invention of the past few decades. Accordingly the question raised by Upendra Baxi, mindful of the Indian experience with trading companies which were fully vested with powers to conduct war and sign treaties, applies, mutatis mutandis, also to the Handbook: “How does it come to pass that juridical histories of international law could have ever maintained, with positivist innocence, that only ‘States’ are the subjects of international law?” (p. 754). Likewise, the limitation to pre-1945 developments severely curtails the volume’s scope. The editors’ explanation that “the international law in force is still the law of the era of the United Nations founded in 1945”(p. 3) – in other words that it is not past but present – articulates a surprising, rather idiosyncratic understanding of what contemporary history is about. If taken to its logical end, the argument would imply that we could write the history of the “United Nations era” (for what this epithet is worth) only after its demise at some future point. Here, in turn, the jurists might have benefitted from greater familiarity with the work of their historiographical colleagues.
With these premises it is not all that surprising that the volume, despite its temporal and spatial breadth, follows several thematic threads which come up throughout the volume. Among these, ‘sovereignty’ in its many guises, contested meanings and complex implications clearly stands out. Nearly all chapters engage with the concept in one or another way, discussing what it meant before the rise of the nation-state and in different contexts such as the tributary structure of China’s Celestial Empire or the tribal organisations in the Americas, and depicting how the concept mutated in time and space. While the American Revolution’s proclamation of the sovereignty of the people, in Fisch’s words “one of the great victories of a people in world history” (p. 34), excluded the First Nations as well as the enslaved African deportees, the Versailles Treaty in 1920 “contributed to a new international legal system based on sovereign inequality” and correlated the granting of sovereignty to minority protection guarantees, as Janne Nijman argues (p. 115).
Closely intertwined with this focus on matters of sovereignty and independence, autonomy and authority, is the overarching theme of the Handbook, the Eurocentrism of international law which is found on two, interrelated levels: the use of law as an instrument of and justification for colonial and imperialist rule on the one hand and the academic identification of international law with its European legacies on the other. The volume resonates strongly with the arguments of what has come to be known as the TWAIL movement(s), i.e. Third World Approaches to International Law, and notably Antony Anghie’s “Imperialism, Sovereignty and the Making of International Law” is invoked more than once. Anghie’s own contribution, which winds up the anthology, points to the pitfalls of identifying regions as homogenous entities in terms of legal thought and practices, and attests once more to the Handbook’s remarkable degree of self-reflection. Indeed, the volume’s regional pattern itself shows a perhaps unavoidable, yet considerable imbalance. Despite symbolic gestures such as choosing the visit of a French delegation to the Sublime Porte for the cover illustration or putting Europe in the last rather than the first place in the “Regions” section, the European tradition in international law clearly dominates the anthology. In the thematic chapters it provides the empirical backbone when subjects such as territory, peace treaties or arbitration are discussed, although there are exceptions such as Antje von Ungern-Sternberg’s analysis of “Religion and Religious Intervention”. Likewise, the chapters which constitute the Methodology-and-theory part largely focus on European traditions until Anghie and Arnulf Becker Lorca step in to question the heuristic dangers of Eurocentrism in the historiography of international law. As Lorca reminds us, the DNA of Eurocentrism can be deciphered in many postcolonial readings, despite widely different normative implications. The same is true for the present volume. Whereas the European subsection of the “Regions” part is a systematic, chronological account of the evolution of international law (continental style) the chapters making up Africa, Asia and the Americas (there is none on Oceania) are sorted geographically. And the “Encounters” uniformly follow a Europe + X formula while contacts and interaction between, say, Arab and Asian legal cultures are missing. In the final biographical section, Muhammed Al-Shaybānī, an eighth-century jurist from what is today Iraq, is the only of the twenty-one portrayed thinkers (with Bertha von Suttner the solitary woman) who does not hail from Europe or North America. And although he is praised as a precursor of Grotius with an older claim to fatherhood of international law, his name is not mentioned once in the rest of the volume.
Strangely, therefore, the farther the reader advances in the anthology, the more doubtful he becomes if Eurocentric accounts of present-day international law are so misrepresented after all. They certainly are in the sense that there were alternative roads not taken and that there was no intrinsic teleology which drove international law to where it stands today. But as an analysis of how the world’s contemporary legal order evolved the Handbook indeed supports a master narrative of an imperialist project which became hegemonic from the sixteenth century onwards and has occupied this position ever since. In his chapter on maritime law David Bederman thus deplores “the existential Eurocentrism of the law of the sea” but also points out that this is explained by its rapid development during various stages of intense, European-dominated globalization, from the first age of exploration and expansion to late nineteenth-century imperialism (pp. 360f.). And Kinji Akashi soberly notes that “the Japanese encounter with international law did not have any specific significance for the creation or development of specific rules or principles in international law” (p. 742).
True, some chapters point to such influences, e.g. Arab concepts of the laws of war or the relations between India’s princely states, but overall the story seems to be rather straightforward in that international law as we know it is, at its core, one of the lasting legacies of European imperialism. This is also reflected on the meta-level, as Martti Koskenniemi concludes. Quoting Dipesh Chakrabarty, the Finnish jurist finds that despite new approaches to the historiography of international law “it still remains the case that ‘Europe rules as the silent referent of historical knowledge’. It is hard to see what could be done with this […].” (p. 970). Yet it remains to be seen whether the oft-predicted transformation from a transatlantic or ‘Western’ into a truly multipolar order, or one possibly dominated by China and India, might change the trajectory of international law along with its concepts, terminology and identity. In the meantime, the Oxford Handbook of the History of International Law gives us much food for thought on where we stand and why.
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Kim Christian Priemel. Review of Fassbender, Bardo; Peters, Anne; Peter, Simone; Högger, Daniel, The Oxford Handbook of the History of International Law.
H-Soz-u-Kult, H-Net Reviews.
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