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Published online by Cambridge University Press: 14 January 2019
This review essay examines three intellectual histories focused on fundamental transformations of international law in the early twentieth century. Juan Pablo Scarfi's Hidden History of International Law in the Americas is most interested in debates about a Pan-American international law, meaning the idea that international law might work differently in different regions, which was debated but eventually gave way to the change that Arnulf Becker Lorca, a Lecturer in Public International Law at Georgetown Law, discusses. Becker Lorca's Mestizo International Law is most interested in how the conception that international law applied only to civilized nations transformed into the modern conception that presumes sovereign equality. The Internationalists, by Oona Hathaway and Scott Shapiro, respectively the Gerard C. and Bernice Latrobe Smith Professor of International Law and the Charles F. Southmayd Professor of Law and Professor of Philosophy at Yale Law School, and seeks to understand how the normal (and legal) recourse to force in international relations was replaced by an international law that bans the use of force, except in self-defense. Ideas regarding these issues started to evolve in the late 1800s, but the transformative debates occurred at roughly the same time because the Hague Peace Conferences and the League of Nations allowed contestations over old versus updated understandings of international law to flourish.
Thanks to Aden Knaap for helpful comments on an earlier draft.
1 Juan Pablo Scarfi The Hidden History of International Law in the Americas: Empire and Legal Networks (2017).
2 Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History 1842–1933 (2014).
3 Oona Anne Hathaway & Scott Shapiro, The Internationalists and Their Plan to Outlaw War (2017). This review essay builds on Anna Spain Bradley's excellent review published in 112 AJIL 330–35.
4 See Martineau, Anne-Charlotte, Overcoming Eurocentrism? Global History and the Oxford Handbook of the History of International Law, 25 Eur. J. Int'l L. 329 (2014)CrossRefGoogle Scholar (reviewing The Oxford Handbook of the History of International Law (Bardo Fassbender & Anne Peters eds., 2012).
5 Scarfi defines as ethnocentric people who “consider US legal values, institutions and traditions, such as the US Declaration of Independence, the US Supreme Court and the US Constitution, the common law tradition and the case method adopted by Anglo American legal traditions as standards and models.” Scarfi, supra note 1, at xxv. Later, Scarfi describes Scott as ethnocentric because in advocating for translating English and American legal treatises and texts into French, Scott noted that he found Anglo-American conceptions to be “theoretically as well as practically, more reasonable and more in accordance with the needs of international intercourse than Continental conceptions, too often based on mere theory.” Id. at 107.
6 After all, lawyers are elites; many lawyers are conservative; the American Society of International Law is American; ASIL includes members who defend the actions of the American government; and many American lawyers are very proud of U.S. legal institutions.
7 For critical and Third World approaches to international law (TWAIL) scholars, not much changed in that the multilateral rules continue to privilege the West over the rest, as does international legal discourse. See, e.g., Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (2005); Chimni, B.S., Customary International Law: A Third World Perspective, 112 AJIL 1 (2018)CrossRefGoogle Scholar; Sundhya Pahuja, Decolonizing International Law: Development, Economic Growth and the Politics of Universality (2011); Balakrishnan Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (2003).
8 For a discussion of global history's past and current challenges, see Jeremy Adelman, What Is Global History Now?, Aeon Newsletter (Mar. 2, 2017), at https://aeon.co/essays/is-global-history-still-possible-or-has-it-had-its-moment.
9 See, e.g., Sven Beckert, Empire of Cotton: A Global History (2014); Giorgio Riello & Prasannan Parthasarathi, The Spinning World: A Global History of Cotton Textiles, 1200–1850 (2009).
10 See, e.g., Michael Fakhri, Sugar and the Making of International Trade Law (2014).
11 Here my criticism of Scarfi is a bit unfair. As a PhD student studying history, Scarfi had to demonstrate his bona fides by engaging primary texts. Scarfi's bibliography includes an impressive list of primary materials consulted. Still, Scarfi can be held accountable for insufficiently contextualizing his findings, and for inferential leaps that this reader often found unconvincing.
12 In addition to explaining a key change in the history of international law, Hathaway and Shapiro seek to demonstrate that war truly has been outlawed. For this additional goal, they bring their analysis up to the present; reference social science; and develop a larger argument about how international law makes war costlier.
13 Kellogg-Briand Pact (Treaty Providing for the Renunciation of War as an Instrument of National Policy), Aug. 27, 1928, 46 Stat. 2343, 94 LNTS 57. The Kellogg-Briand Pact of 1928 was an initiative of the League of Nations wherein signatories agreed to “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.” By 1934, sixty-four nations (about 85% of the world's states) had signed the pact. Since World War II then occurred, the notion that states might—through international law—collectively outlaw war seemed utopian. This history is recounted in Isabel Hull, Anything Can Be Rescinded, London Rev. of Books (Apr. 26, 2018), at https://www.lrb.co.uk/v40/n08/isabel-hull/anything-can-be-rescinded.
14 Max Boot, When the Governments of the World Agreed to Banish War, N.Y. Times (Sept. 21, 2017), at https://www.nytimes.com/2017/09/21/books/review/the-internationalists-oona-hathaway-scott-shapiro.html (arguing “‘There are some ideas so absurd only an intellectual could believe them,’ George Orwell wrote. The notion that the Kellogg-Briand Pact was a raging success is one of them.”).
15 Hull, supra note 13 (arguing that “It is possible to conceive of Kellogg-Briand differently, as the product of a long, halting and uneven process by which European states tried to limit war among themselves.” This “long, halting and uneven” process is what Becker Lorca explains, albeit focused on a different international legal issue.).
16 My discussion of the Venezuela blockade later in this section demonstrates that Becker Lorca does not, however, fall victim to this pitfall.
17 The Eurocentrism of classical international law is well acknowledged, but critical scholars note that Western definitions of international law were not unilaterally determined, rather leaders and peoples repeatedly resisted and this resistance shaped international legal assertions. Critical scholars therefore insist that it is more historically accurate to say that early international law developed via the engagement of the West with the Global South. See Anghie, supra note 7; see also Martineau, supra note 4.
18 Becker Lorca is especially interested in how the civilized/uncivilized distinction was unseated in the Montevideo Conference of 1933 (see especially Becker Lorca, supra note 2, ch. 9).
19 For more, see Anna Spain Bradley's detailed review of The Internationalists, supra note 3, at 331.
20 Scarfi argues that “[t]he specific approach of Root, Scott, Charles Evans Hughes, who was secretary of state (1921–25) and the second president of the ASIL (1924–29), and the early leaders of the ASIL could be characterized as oriented to the projection of international law as part of the US mission and its exceptional manifest destiny in world affairs.” Scarfi, supra note 1, at 3.
21 Id. at 135.
22 For more on the Platt Amendment, see note 28. Trying to figure out why Scarfi was so focused on the Platt amendment—which figures not all in Becker Lorca's history of the era—I did a little digging to better understand the connection between James Brown Scott and the Platt Amendment. Apparently, Scott worked for Elihu Root (starting in 1906, thus after the Platt Amendment), and in 1917 Scott publicly outed Elihu Root as the creator of the Platt Amendment. Still, I am not really clear why Scarfi remains so focused on Cuba and on the Platt Amendment. For more on Scott's role and Root's vision for the Platt amendment, see Lejeune Cummins, The Formulation of the “Platt” Amendment, 23 The Americas 370, especially 374 and 387 (1967).
23 Scarfi, supra note 1, at 106–07. The reference to translating Anglo-American approaches is explained in note 5.
24 See note 14.
25 Becker Lorca, supra note 2, at 152.
26 Given his focus on an the AIIL, Scarfi barely explores the Venezuelan incident (he discusses it in Scarfi, supra note 1, at 70–71.) This is one example where the overly narrow focus of Scarfi on one institution, and a small handful of scholars involved in this institution, is a problem.
27 For example, in an effort to co-opt European colleagues, Brazil's classical international lawyer Ruy Barbosa suggested that: “If Europe and the United States itself were better acquainted with our continent, no attempt would be made to inflict this grave injustice upon nations with a future before them and already remarkable because of the progress they had achieved.” Quoted in Becker Lorca, supra note 2, at 165.
28 The Platt amendment states that “the government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property and individual liberty, and for discharging the obligations with respect to Cuba” generated by the Treaty of Paris, and the provision which ensures that “all Acts of the United States in Cuba during its military occupancy thereof are ratified and validated.” Scarfi, supra note 1, app. C, at 199. According to Cummings, Root saw the Platt amendment as an articulation of the Monroe Doctrine. See Cummins, supra note 22, at 387.
29 According to Scarfi, Scott drafted the American Institute of International Law's “Declaration of Rights and Duties of Nations,” and Root supported it. This declaration (reproduced in Scarfi, supra note 1, at 197), was one of the first products of the AIIL, and it clearly endorses the principle of sovereign equality for all states. It is therefore puzzling that Scarfi nonetheless insists that the AIIL was created “as a US-led hemispheric space for hegemonic interactions.” Id. at 32. Although Scarfi notes that the AIIL evolved (“the imperial, missionary, and civilizing approach of the organization lost its appeal,” id. at 149); the problem is that Scarfi does not let his protagonists compromise on principles or evolve.
30 Shapiro and Hathaway discuss Hersch Lauterpacht's Carnegie Endowment-funded visit to fifteen American universities. Hathaway and Shapiro see the visits as productive in that the conversations with American isolationists helped Lauterpacht hone his argument that the Peace Pact replaced the “international law of neutrality” with an international legal right that permitted neutral states to discriminate between aggressors and victims. See Hathaway & Shapiro, supra note 3, at 246.
31 See, e.g., William Korey, Taking on the World's Repressive Regimes: The Ford Foundation's International Human Rights Policies and Practices (2007).
32 This is the approach advocated by scholars embracing interactional accounts and the practice turn in international law. See, e.g., Jutta Brunee & Stephen J. Toope, Interactional Legal Theory, the International Rule of Law and Global Constitutionalism, in Handbook on Global Constitutionalism (Anthony F. Lane & Antje Wiener eds., 2017); International Court Authority, at ch. 1 (Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen eds., 2018).
33 This can be done by examining who shows up at key meetings, and by looking at who a scholar is debating with (usually identified either in the text or within citations). For more on how social network analysis works, see Vera, Eugenia Roldán & Schupp, Thomas, Network Analysis in Comparative Social Sciences, 42 Comp. Educ. 405 (2006)CrossRefGoogle Scholar.
34 Again, this claim is hard to square with the AIIL's “Declaration of Rights and Duties of Nation,” adopted two years after the founding or with the introduction of the concept of the rights of man, presented by Alvarez in the AIIL's second meeting. Scarfi, supra note 1, at 185; see also note 29.
35 Becker Lorca provides interesting maps of classical and modern lawyers mentioned in his book. Becker Lorca, supra note 2, at 359–60). Becker Lorca's list of Latin American lawyers actively debating international law is significantly larger than Scarfi's list, perhaps because policymakers did not bother to engage AIIL events.
36 Founded in 1890, this organization later became the Organization of American States.
37 See Spain Bradley, supra note 3, at 331–32. Spain Bradley suggests that the emphasis on individuals “enhances the book's readability by rendering events of global importance on a human scale. But it comes at a cost of complicating their framing of Salmon Levinson, James Shotwell, Sumner Welles and Hersch Lauterpacht as uniquely central to their 1928-based claim.” Id. at 332.
38 Daron Acemoglu & James Robinson, Why Nations Fail: The Origins of Power, Prosperity and Poverty (2012).
39 Hathaway & Shapiro, supra note 3, fig. 3, at 338 (showing the number of states in the world from 1815–2015).
40 Id., fig. 4, at 348 (showing the number of national independences per decade from 1810–2010).
41 Id., fig. 5, at 350 (showing the decline in territorial control by the United Kingdom, France, Portugal, Russia, Turkey, the United States, China, Belgium, and the Netherlands from 1820–2000).
42 Id. 334–35.
43 The decline of interstate war occurred alongside a rise in civil war. At first, civil war increased due to decolonization, but more recently civil wars occur because states are failing. Yet since interstate wars are especially bloody, the number of battle deaths has nonetheless fallen significantly over time. These findings have been investigated and picked apart by many, yet they remain one of the most robust social science findings in the international relations. The role of international law in generating this result—what international relations scholars refer to as border-fixity—is also well established. See Bruce Russett, Grasping the Democratic Peace (1993); Stephen Pinker, The Better Angels of Our Nature: The Decline of Violence in History and Its Causes (2011); Boaz Atzili, Good Fences, Bad Neighbors: Border Fixity and International Conflict (2012); see also Gary Goertz, Paul F. Diehl & Alexandru Balas, The Puzzle of Peace: The Evolution of Peace in the International System (2016).
44 Bradley, supra note 3, at 333. Personally, I think it was wise to cede the empirical jousting to political scientists who fight over the causes of peace, but not the fact of the growing peace.
45 Anna Spain Bradley makes a similar point, observing as well that “the book reaffirms a conventional approach to international legal history that many scholars have critiqued as descriptively omissive and normatively problematic.” Id. at 334.
46 This is an idea that David Lake explores conceptually. See David A. Lake, Hierarchy in International Relations (2009).
47 See Hathaway, Oona & Shapiro, Scott J., Outcasting: Enforcement in Domestic and International Law, 121 Yale L.J. 252, 302 (2011)Google Scholar (arguing that “international legal institutions use others (usually states) to enforce their rules, and they typically deploy outcasting—denying individuals the benefits of social cooperation—rather than physical force”).
48 On the history and problems of linear narratives, see Martti Koskenniemi, Histories of International Law: Significance and Problems for a Critical View, 26 Temple Int'l & Comp. L.J. 215, 217–20.
49 Becker Lorca notes that he is following Antony Anghie's lead (Becker Lorca, supra note 2, at 201, referring to Anghie, supra note 7).
50 See note 29 discussing the role of Scott and Root in generating the “Declaration of the Rights and Duties of Nations.”
51 This group has been discussed in the U.S. debate over the Bricker Amendment and with respect to Truman's decision not to submit the International Trade Organization's fully negotiated statute to Congress for ratification. See Diebold, William, Reflections on the International Trade Organization, 14 N. Ill. U. L. Rev. 335 (1994)Google Scholar; William Diebold, The End of the ITO, at § 16 (1952); Schubert, Glendon Austin, Politics and the Constitution: The Bricker Amendment During 1953, 16 J. Pol. 257 (1954)CrossRefGoogle Scholar; Nzelibe, Jide, Strategic Globalization: International Law as an Extension of Domestic Political Conflict, 105 Nw. U. L. Rev. 635 (2011)Google Scholar.
52 See note 28 for a discussion of the Platt amendment.
53 Noting that “Japanese jurists and diplomats sought the privileges classical international law conferred on great powers over ‘less civilized peoples.’ They mostly supported Japan's imperialistic expansion in Asia… .”
54 This contradiction is pointed out by Anna Spain Bradley, supra note 3, at 332, 334.
55 International relations scholars often suggest that appropriating international legal arguments for contrary ends is a modern phenomenon (see, for example, Hurd, Ian, The Strategic Use of Liberal Internationalism: Libya and the UN Sanctions, 1993–2003, 59 Int'l Org. 495 (2005)CrossRefGoogle Scholar), but Becker Lorca shows that it is a very old strategy.
56 See Chan, Phil C. W., Human Rights and Democracy with Chinese Characteristics?, 13 Hum. Rts. L. Rev. 645 (2013)Google Scholar.
57 See, e.g., Building the Belt and Road, Concepts, Practices, and China's Contribution (official document issued by China's government, translated into seven languages), available at https://eng.yidaiyilu.gov.cn/zchj/qwfb/12731.htm.
58 Lloyd Gruber explains how the ability of a country to walk away from an international agreement (go-it-alone power) provides leverage, so that international agreements will inevitably include provisions imposed by the powerful on weaker policy-taker countries that nonetheless consent. See Lloyd Gruber, Ruling the World: Power Politics and the Rise of Supranational Institutions (2000).
59 My work, for example, shows how ideas about using international courts to resolve disagreements, which did not gain traction in the inter-war era, became important later. See Karen J. Alter, The New Terrain of International Law, at ch. 4 (2014). Meanwhile Quinn Slobodian focuses on the intellectual history of neoliberal globalism, which he traces to debates occurring in the Habsburg Empire during the same period. See Quinn Slobodian, Globalists: The End of Empire and the Birth of Neoliberalism (2018).
60 Koskenniemi, Martti, Expanding Histories of International Law, 56 Am. J. Legal Hist. 104, 107 (2016)CrossRefGoogle Scholar.
