On 15 and 16 February 2019, an international conference was held at the Max Planck Institute for Comparative Public Law and International Law at Heidelberg under the auspices of the Journal of the History of International Law
. The aim is to publish papers from the conference (upon peer review) in a special issue on ‘Politics and the Histories of International Law’ in the journal.
Theme of the Conference
L’histoire n’est pas une religion. L’historien n’accepte aucun dogme, ne respecte aucun interdit, ne connaît pas de tabous. Il peut être dérangeant.
LIBERTÉ POUR L’HISTOIRE, 2005
Almost all scholarship on international law and its history has political implications. Some say that international legal scholarship is inevitably ideological in nature and that its findings depend on concealed political preferences. Put differently, legal scholarship could be nothing more than the pseudo-objective defence of ruling ideologies. Most famously, Hans Kelsen had denounced a ‘tendency wide-spread among writers on international law’ to produce ‘political ideology’. Kelsen sought to escape this by writing books of a ‘purely juristic character’ (Principles of International Law, 2nd ed. 1967, ix). In his foreword the commentary on the UN Charter of 1950, he stressed that ‘separation of law to from politics in the presentation of national or international problems is possible’ (The Law of the United Nations, 1950, viii).
Many nowadays doubt that purging international legal scholarship of politics would work. In 2004, Martti Koskenniemi put this as follows: ‘The choice is not between law and politics, but between one politics of law, and another. Everything is at stake, but not for everyone’ (EJIL 16 (2005), 123).
So, which factors ‘politicise’ international legal scholarship? The first factor is that the object under investigation is itself a political matter. International law has throughout its history been political, because its content depends on the political power of the parties negotiating the treaties, and because it transports political values.
Scholars themselves cannot completely avoid being more or less political actors, because their value judgements, which are inescapable, often carry political implications. However, an important difference between doing scholarship and doing politics lies in the authors’ main intention: It is, ideal-typically, not the primary purpose of scholarship to make politics and unbounded evaluation but to generate knowledge − which could then be used politically, by the author herself or by others. Along this line, most scholars of history seek to uncover various aspects of past events and debates and to contextualise them, thereby realising a modicum of objectivity and neutrality. Some consciously try to avoid judgment, while others are more prone to judging deliberately and to employing historical insights in contemporary political debates.
Research on the history of international law is not only inherently political but moreover specifically ‘risk-prone’. Writing on topics such as genocide, state of exception, failed states, humanitarian intervention, asymmetrical war, or cyber-attacks is especially liable to being used and abused by participants in political controversies. In fact, when it comes to writing history, the fight over master narratives is especially fierce, among governments, in different academic camps, and between governments and academics. The notorious example are memory laws which consecrate specific views on atrocities of the past (especially genocidal massacres) and which sometimes additionally criminalise the denial of those atrocities. These attempts to close historical debates by law have been criticised by historians, most famously in the petition ‘Liberté pour l‘histoire’ by French historians reacting against various French
To conclude, the interpretations of historical events are almost inescapably political, and potentially have the power to shape international relations: ‘On résiste à l’invasion des armées; on ne résiste pas à l’invasion des idées’ (Victor Hugo, Histoire d’un crime, 1877/2009, 639). It is against this background that the rights and responsibilities of those researching on the history of international law should be seen.
is the muse of history. In the fine arts, she often appears with
parchment scroll or book and trumpet. She thus not only represents the
craftmanship of the historical discipline but also hints at its
political dimensions by spreading the message contained in the books.
The painting has further political implications: Artemisia Gentileschi
was one of the few accepted female painters in 17th century Baroque in
Italy. Her personal life shows how she was subjected to the political
convictions of her time.
Both aspects make a detail of Artemisia Gentileschi’s iconic painting of Clio (1632) a fitting illustration of the conference.