What do we mean by the turn to history in international law? We are speaking about a growing body of scholarship that is engaged in the task of bringing history to international law in a number of ways: telling the history of international law, contextualising international law within modern history, bringing non-Eurocentric philosophies of modern history and its crisis to bear on the theory of international law, and historicising international law discourse.
It is also possible to say that we are experiencing a turn, or an intellectual shift, because the default position of international law theory has been, for centuries, a systemic and synchronic one, accompanied by a reluctance to deal with its own history and its embeddedness in the history of the modern world. This can be seen in the standard handbook and in the syllabus or curriculum of international law, in which it is common to find chapters or sessions dedicated to sources, subjects, recognition, etc., and, at the very beginning, only a very few pages dedicated to the history of international law.
And what do we mean by ‘the politics’ of the turn to history? ‘Politics’ alludes here to the interaction between different interests and positions in the middle of an agonistic dynamics. In the academic realm, this translates into a debate that is grounded, in the short and long term, in history and political conflict. In the current context, when speaking of the politics of the historical turn we are referring to, among others, the intellectual debate going on, tacitly or explicitly, between the Third World Approaches to International Law and the Eurocentric Visions of International Law, or in short, between TWAIL and EVIL — no pun intended.
George Galindo has said that The Gentle Civilizer of Nations by Martti Koskenniemi triggered the turn to history in international law. This is correct in the sense that this is one of the key contributions to the field; but when defining the contours of intellectual traditions it is not possible to point to a single father. What about TWAIL’s contribution in bringing history to international law?
In what follows I will first examine three books, respectively by Anghie, Rajagopal, and Pahuja, that have been written with a distinct TWAIL outlook, and then contrast them with a fourth book by Fassbender and Peters that represents an important contribution to international legal scholarship from a Eurocentric perspective. Finally, I will bring into critical dialogue my own book with that of Samuel Moyn’s, which will demonstrate a parallel disjunction in the field of human rights.
The first book, then, is the groundbreaking Imperialism, Sovereignty and the Making of International Law by Antony Anghie. The key contribution of this book has been to bring the history of colonialism to the field of international law, and in a bold way, pointing to colonialism as the origin of modern international law.
This book offers a history of modern international law starting in the 16th century with the works of Francisco de Vitoria, passing through 19th century colonialism, the League of Nations and the process of decolonization in the 20th century, and ending in the War on Terror of the 21st century. This is a history of international law that extends over five or six centuries.
The second book to mention is Balakrishnan Rajagopal’s International Law from Below: Development, Social Movements and Third World Resistance. The transformation accomplished by this book is the move from international law conceived as created by lawyers and diplomats, to a conception in which international law and human rights are created by social movements that resist colonial oppression.
Again, this book is organized following a historical set up, starting with the League of Nations in the 1920s, followed by the Bretton Woods and the Bandung conferences in the 1940s and 1950s, and ending with the Indian Working Women Forum in the 1970s.
The third book is Sundhya Pahuja’s Decolonizing International Law: Development, Economic Growth and the Politics of Universality, which examines the path international law took after the Second World War in the aftermath of US president Harry Truman’s first address, through to the process of decolonization and the emergence and proliferation of the discourse of development. The focus of this historicised approach to international law is on the themes of the nation, natural resources and political economy. Pahuja’s book won the American Society of International Law’s Prize in 2012.
A first common trait of these three books is the adoption of a methodology based on the postcolonial strategy of contextualising international law within the geography and history of modern colonialism and present day neocolonialism. They also share a substantial commonality: by adopting a double systemic and historical approach, TWAIL has contributed to sparking off the historical turn, not only creating another school of thinking but also redefining modern international law. In this sense I agree with Rose Parfitt, who describes Anghie and B. S. Chimni, another key TWAIL scholar, as downright ‘historians’.
On this basis it is possible to conceive TWAIL in relation to the turn to history. In as much as Anghie, Rajagopal and Pahuja’s books are key contributions to this intellectual movement, it is reasonable to say that TWAIL has constituted itself through the historicisation of international legal discourse, or that TWAIL was born out of an historical theory of international law. This is the theoretical horizon of TWAIL’s intellectual project— international law becomes part of a history of modernity in which colonialism plays a constitutive and central role.
Let’s now look at a Eurocentric perspective: book number four is the Oxford Handbook of the History of International Law, edited by Bardo Fassbender and Anne Peters. The Handbook is a 1200-plus page compendium of all types of discourses on the history of international law. While it includes contributions by ‘TWAILERS’ or ‘TWAILINGS’ like Antony Anghie, Upendra Baxi, James Thuo Gathii, Mathew Craven, Liliana Obregón and Arnulf Becker Lorca, the bulk of the Handbook is made up of European authors writing on key European themes and figures of the theory of international law in the context of European history. Third World discourse, although invited to participate, is kindly kept to the margins. Pointing to what she perceives as the exclusion of Islamic international law from the history of international law as a whole, Nahed Samour concludes that ‘by the very definition provided by the editors, this is not what a global history approach to international law should look like’. And despite parts three and four of the Handbook being dedicated to the ‘regions’ of the world and their ‘interaction’ with Europe, ‘its very design and structure perpetuate rather than overcome Eurocentric analysis’, as Stefan B. Kirmse has written.
A paragraph in the introduction to the Handbook is particularly telling about the abyssal way of thinking that orientates this colossal volume. With the concept of ‘abyssal thinking’, Boaventura de Sousa Santos refers to the idiosyncratic Western way of thinking that establishes distinctions between European and non-European points of view, radicalises such distinctions, and creates a hierarchy between the two in such a way that the European perspective always occupies the top, while other visions are labelled as nonsense or contradictory.
And evaluating, in the same paragraph, recent scholarship that establishes a connection between international law and the ‘brutal power’ of colonialism, the Handbook states that ‘guided by the best intentions, this scholarship, however, is also in a sense Eurocentric’. And referring to those who think of international law as traversed by the ‘distinction between the Europeans and Others’, the Handbook adds: ‘Jouannet, in our view correctly, points out that the “counter-narrative” in fact perpetuates what it seeks to condemn, and basically reproduces the conservative effects of “classical conservative historiography”.’
In these two phrases it is suggested that, despite their best efforts, people working in a line of reflection like that of TWAIL do not only adopt a regressive conception of international law. According to the Handbook, the naivety of TWAIL scholars is such that it would completely invalidate their whole intellectual project and would reduce it precisely to the epistemic position they oppose: Eurocentrism. And the self-evident character of this critique of TWAIL is such that it requires only a single paragraph to back it up.
In short, the Handbook not only claims to be the first to make a step towards the construction of a truly global and non-Eurocentric history of international law while still being Eurocentric, but it is also one of the first to condemn TWAIL as simpleminded, reactionary and Eurocentric. Nahed Samour ponders: ‘It seems that this Handbook reflects […] once again the difficulty for the dominant voices to listen to the marginalised ones’. And considering a particular chapter of the Handbook in which Eurocentrism is elaborated at its best, Ann-Charlotte Martineau concludes that ‘this is the epitome — or the caricature — of the Eurocentric voice that still thinks of itself as the true, universal one’.
Turning to book number five, we have Samuel Moyn’s The Last Utopia: Human Rights in History. Moyn’s first strategy consists of accusing recent histories of human rights of being flawed because, according to him, there is a weakness in the way the arguments have been constructed. However, Moyn is rather unconvincing as his discourse is usually made up of rhetorical claims. In the words of Philip Alston, Moyn’s thesis ‘is driven home with single-mindedness, selectivity and lack of nuance’. And I agree with George Galindo, when he says that there is a sort of incongruity in Moyn’s historical discourse because, despite his claims to write following the principles established by Koselleck’s school of Intellectual History, Moyn does not apply them.
The second problem of Moyn’s book is that, while he aims at providing us with ‘a true history of human rights’, he ends up destroying such a history. For Moyn there is no history of human rights before the 1970s, or beyond the present. His concept of human rights is so restricted that he cannot find antecedents in the entire history of the West — neither in the French Revolution and the Declaration of the Rights of Man, nor in the Universal Declaration of Human Rights — and even less in anti-colonial struggles. In general, the construction of Moyn’s history is made through a reductionist procedure that allows for the exclusion from the tradition of human rights of every other historical event and theoretical antecedent bar the present. This is evident in the next two objections formulated to this book.
The third problem is that, despite assuming or announcing it as a truthful and universal history of human rights, his vision is not only Eurocentric, but also US-centric. Moyn highlights as the key hallmark of his history President Carter’s first address and later foreign policy, together with the struggles for democracy in the countries of the Iron Curtain, and the recognition of organisations like Amnesty International. In doing so, Moyn ascribes an excessive and even counter-factual meaning or weight to the Carter administration as a beacon of human rights, particularly if we consider that at the same time the US was supporting a number of authoritarian or dictatorial regimes around the world, including some in Latin America. Above all, it could be said that Moyn’s theory does not even qualify as a US-centric vision of human rights as it does not include other hallmarks of the well-established tradition of human rights in the United States like the Declaration of independence, the very same US Constitution, the struggles against slavery in the 19th century, and the 1950s and 1960s Civil Rights Movement and Martin Luther King.
The fourth problem has been already pointed out by Antony Anghie. It has to do with Moyn’s dismissal of a number of events that are related to the process of decolonisation, such as the adoption of the UN Convention against Genocide and the Anti-Apartheid struggle in South Africa, as not even belonging to the tradition of human rights. This exclusion would be justified because, according to Moyn, these events can only be seen as part of nationalist struggles against colonialism, as if decolonisation and the rights to self-determination and not to be discriminated on the basis of race were intrinsically incompatible with human rights.
Finally, the sixth book is Human Rights from a Third World Perspective. Critique, History and International Law, edited by the author of this blog entry. The reason to speak about this book in the middle of this debate is that two of the three parts in which it is divided are dedicated to rewriting the history of human rights. This is made on the basis of a philosophy of history that understands the crisis of modernity as already accomplished with the conquest of America and colonial genocide. The book, first, puts into question and supplements long standing Eurocentric histories of human rights, as well as the 70s type of US-centric histories like the one recently written in The Last Utopia.
And second, this book puts forward the idea that there are at least two streams of human rights in modern history: One that developed in Europe out of struggles against absolutism and totalitarianism, and another that sprang out of the advance of, and the struggle against, colonialism. This other history starts with the conquest of America, and the works of Las Casas, Suárez, Vitoria and Sepúlveda, and continues today in the struggles advanced by social movements that in the Third World, or in the Global South, resist neoliberal globalisation and neocolonialism as they are mobilised by contemporary empires, transnational corporations and international financial institutions. There also exists a distinct intellectual tradition of anti-colonial theory of human rights that is to be retrieved from the work of authors like Guamán Poma, Toussaint Louverture, Sojourner Truth, Mahatma Gandhi, Martin Luther King, Sylvia Winter, Rigoberta Menchú, Domitila Chungara and Upendra Baxi.
Despite strong critiques of Eurocentrism developed by different schools of thinking like Postcolonial and Subaltern Studies, the Black Atlantic, Caribbean and African Philosophy, the Epistemologies of the South and Decolonial Theory, the European consciousness, as it is expressed in these recent historiographies of international law and human rights, remains characteristically Eurocentric. This is the case even after the deployment of European critiques of Eurocentrism like those developed by Martti Koskenniemi and, to a certain extent, by postmodern thinking.
On the other side of the debate, TWAIL has elaborated alternative histories and standards, and continue to advance productive South-South dialogues, while calling for the end of Eurocentric claims to universality, as well as for abandoning the practice of marginalising non-European perspectives. Thus, non-Eurocentric, anti-colonial and Third-World perspectives look to establish themselves as intellectually and politically valid, and to create the conditions for a horizontal and critical dialogue with their European counterparts, one in which all participants understand themselves as equals coming from different provinces of the world and not from the centre. All of this is made within the rationale of strengthening the capacity of social movements, international law and human rights to resist in the political and legal arenas, today and in the centuries to come, the violence deployed by agents of both the state and imperialism.
José-Manuel Barreto is a Fellow of the Kate Hamburger Kolleg, University of Bonn.
This text was presented at the Cairo 2015 TWAIL Conference, in a panel on ‘International Law, Empire and the Politics of History Writing’. I would like to thank Gustavo Gozzi for his encouraging comments, and Gilbert Leung for substantially improving the wording of the original paper.