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.Footnote 1 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.Footnote 2 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.Footnote 3 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.
The books are part of a burgeoning effort to construct a truly global history of international law.Footnote 4 They demonstrate how the shift to multilateralism—to a world of multilateral institutions with relatively broad membership and thus enlarged debates about international law—forced international legal change. This review essay explores three enduring issues prevalent across the three books. Part I explores how intellectual histories provide insight into global historical developments. Part II explores the role of legal networks and communities of practice in changing international law. Part III examines how power is infused into international legal debates, and thus into international law. Part IV concludes with final thoughts about each book.
Before I begin, I must first acknowledge that I feel myself on thin ice reviewing Scarfi's The Hidden History of International Law. Scarfi, an Assistant Professor of International Relations and International Law at the School of Politics and Government, Universidad Nacional de San Martin in Argentina, sees American organizations “devoted to the promotion and dissemination of international law and world peace,” (Scarfi, p. 16) including the American Society of International Law (ASIL) and the American Journal of International Law (AJIL), as elitist, ethnocentric, and conservative.Footnote 5 These institutions may be guilty as charged,Footnote 6 but Scarfi often suggests that the Americans he studies are all of one type, and that American-funded efforts to promote dialogue about international law are inevitably power-moves to impose a hegemonic imperialist American empire of international law. As a former ASIL Executive Council member, an AJIL board member, and a scholar who has written about the idea of a rule of law in international relations, I worry that believed ideas—perhaps botched in articulation—might be construed as imperialistic ethnocentrism. I raise this concern at the outset because I am quite critical of the Hidden History of International Law.
I. What Intellectual Histories Can Tell Us About How International Law Is Made
For the last year, I have been trying to get my head around how the transition from the colonial to a multilateral international system (or what some might label a neocolonial system)Footnote 7 has or has not affected the content of international law. This is a surprisingly difficult task, which may explain why global history remains an underdeveloped discipline.Footnote 8 Some global histories follow the history of a single commodity—such as cotton.Footnote 9 Some authors compare similar treaties over time as a window into how global politics shapes the international legal bargains states will agree to.Footnote 10 The most prevalent strategy, however, is to construct intellectual histories of the ideas underpinning international legal orders. Each approach is partial at best.
The scholarly appeal of intellectual histories is clear—written articulations of ideas generate a rich paper trail that includes engagement with named interlocutors and detailed elaborations to justify the ideas. One can then apply tried and true scholarly techniques. Furthermore, intellectual histories of published works do not require detailed delving into archives, the approach employed by Scarfi.Footnote 11 But intellectual histories have their own pitfalls. Given the broad claims made in The Internationalists, Footnote 12 critics have focused on Hathaway and Shapiro's emphasis on the intellectual history of the Kellogg-Briand Pact (also known as the Paris Peace Pact of 1928).Footnote 13 For example, Max Boot rejects the idea that this failed international initiative can be credited with outlawing war,Footnote 14 while Isabel Hull argues that Hathaway and Shapiro pay too little attention to earlier intellectual and experimental attempts to make the resort to war more costly.Footnote 15 These criticisms raise the question of whether intellectual histories of ideas can explain the development of international law.
The root claim of intellectual histories is that ideas matter, which in turn suggests that the creators of ideas are transformative figures. There are reasons to question this claim: other factors also matter, ideas often have multiple originators, and the focus on big ideas underplays the importance of legal details. Also problematic for social scientists is that intellectual histories look in the rear-view mirror, explaining the origin of “successful” ideas often without exploring why those ideas won out over equally plausible alternatives that were also backed by powerful individuals and states.Footnote 16
The starting point of these three histories is the same. Whether you apply the pejorative label of ethnocentric or Eurocentric, few dispute that historically, great white men, writing treatises at the behest of imperial firms or countries, defined what international law was.Footnote 17 This may have been a European international law—a law that governed the activities of European states—but according to Becker Lorca, Europe's international law became universal when, “during the second half of the nineteenth century, non-Western jurists appropriated classical international law, transforming European international law into a universal regime” (Becker Lorca, p. 15). This classical international law justified imperial claims by, among other things, bifurcating states into two categories—“civilized nations” that live under international law, and “uncivilized” nations deserving of conquest and subjugation.Footnote 18 This history also sustained what Hathaway and Shapiro call the “Old World Order,” where war was a tool regularly used to resolve international disputes.
All three authors are trying to understand why this system changed. Legal intellectuals contributed to this change by debating what international law was and should be. These debates unfolded during in-person meetings that were reported in newspapers, journals and personal writings, and via published written exchanges, scholarly and more informal in nature (e.g. private correspondences and conversations recounted in memoirs). The relevant intellectuals were in some cases academics, but their views became important because scholars also served as official and unofficial advisors to the foreign policy establishment, helping them craft arguments in response to international legal claims. None of the authors naively suggest that the advocates of legal ideas—scholars or diplomats—were disinterested actors (although intellectual histories inevitably lionize idea-progenitors.) For example, Hathaway and Shapiro provide a colorful account of “Hugo the Great” (Hugo Grotius), the godfather of international law who is outed (not for the first time) as a corporate lawyer drafting international laws that justified the use of force for corporate gain (Hathaway & Shapiro, ch. 1).Footnote 19
For Scarfi, the heroes-villains are key figures in American politics who tried to displace European influence in the region by supporting or endorsing compromises that at times replaced European with American regional hegemony.Footnote 20 Hidden History focuses on the American Institute of International (AIIL). Funded by the Carnegie Endowment for International Peace, the AIIL was a scholarly association for the study and progress of international law in the Americas. James Brown Scott was the secretary and director of the Division of International Law of the Carnegie Endowment (and he also founded and served as an editor of the American Journal of International Law). Scott and Alejandro Alvarez—a Chilean legal scholar—co-founded and co-directed the AIIL. Scarfi is quite critical of Scott, and sometimes the insinuating guilt by association characterizations of Scott are very thin. For example, Scarfi juxtaposes Brown Scott's nostalgic affection for Cuba generated by his bit-part connection to Cuba's liberation as a soldier in the Spanish-American war (in 1898),Footnote 21 his later professional connection to Elihu Root (creator of the Platt Amendment),Footnote 22 his plan to translate Anglo-American legal treaties into French,Footnote 23 and his desire to locate the headquarters of the AIIL in Havana, arguing:
When referring to Cuba [as the desired institutional home for the AIIL], the language of Scott not only revealed imperial aspirations about the island, which were deeply rooted in U.S. political culture, but it was also full of geopolitical metaphors and even nostalgia … [t]herefore, it is no coincidence that Cuba was also at the core of Scott's hemispheric and geopolitical imagination. (Scarfi, P. 135)
But it is hardly clear that Scott was forever committed to the Monroe doctrine, let alone that efforts by the Carnegie Endowment for International Peace to promote debates over international law in the Americas was an attempt to assert an imperial agenda. Indeed, Becker Lorca suggests that at least for Alejandro Alvarez “the Monroe doctrine … did not signal American hegemony, but international recognition of American international law” (Becker Lorca, pp. 332–34). I return to this idea in Part III.
A more convincing view is that the legal arguments on offer—by scholars and government officials—mostly reveal what is seen as a persuasive idea. Hathaway and Shapiro, for example, investigate war manifestos for insight on how force was used in the Old World Order:
[T]he value of war manifestos has little to do with what they may or may not reveal about the inner lives of sovereigns. Manifestos matter precisely because they are propaganda. The function of propaganda is to persuade. We can therefore tell what reasons people usually found persuasive by examining the reasons that propaganda offered to persuade them. (Hathaway & Shapiro, P. 42 (emphasis in original))
In other words, publicly proclaimed legal arguments can be seen as barometers of whether certain legal justifications—imperial or otherwise—were deemed convincing or acceptable to an audience of legal peers.
Written words are not the only relevant sources for an intellectual history. For example, Hathaway and Shapiro find it interesting that in the 1891 trial of Plenty Horses, the legal argument turned on whether the Sioux believed they were at war with the United States. If the Sioux were at war, then shooting an officer who was merely seeking a conversation would nonetheless be justified because murder was justifiable in a context of war. Only if the Sioux were not at war could Plenty Horses be convicted (Hathaway & Shapiro, pp. 59–60). This esoteric trial demonstrates how the Old World Order's war doctrine was taken for granted in the U.S. legal system. Said differently, another data point for global history emerges when practices within countries reflect, and perhaps via state practice also shape, international law.
But what makes international law truly “international” is that it evolves through transnational legal debates. Sometimes, these debates fail to transform international law. This failure was the basis of Max Boot's critique of The Internationalists. Footnote 24 But for intellectual histories, failures are also of interest because they test political waters, introduce new ideas that may later be adapted or reformed, reveal where consensus and dissensus exist, and demonstrate the halting nature of international legal change. For example, Becker Lorca repeatedly returns to the Venezuelan blockade of 1902 when Great Britain, Germany, and Italy used force to extract repayment of foreign debt and damages that European citizens suffered during Venezuela's civil war (Becker Lorca, p. 148). This Venezuelan example demonstrates a point that Hathaway and Shapiro also repeatedly show: coercive intervention was how international disputes were resolved in the Old World Order. For Becker Lorca, the “unprecedented opposition” to the Venezuela blockade contributed to the rejection of the use of force to collect public debt,Footnote 25 generating the “Drago Doctrine” (expounded by Luis Drago, the secretary of foreign affairs for Argentina). Drago argued that sovereign authorities are responsible for public debt, and that sovereigns therefore determine the terms under which such debts should be repaid (Becker Lorca, pp. 152, 157). Drago's opposition, Becker Lorca suggests, signaled a split in how the Global South and imperial powers viewed the rights of sovereign states under international law. In the end, the Drago Doctrine did not prevail in that it did not get incorporated into international law: The doctrine was
not well received by Western legal scholars and diplomats … neither at the Pan-American Conference nor at the Hague did Drago manage to convert his doctrine into treaty law. Actually the Venezuelan blockade did not only elicit the Drago doctrine, but … also Roosevelt's corollary to the Monroe doctrine, according to which the United States proclaimed, vis-à-vis European nations, a special responsibility to police and chasten Latin American state's misbehavior. (Becker Lorca, P. 157)
This episode—strangely mostly unexplored in Scarfi's Hidden History of International Law in the Americas Footnote 26—supports Scarfi's view that at least some part of American legal thought sought to replace a Eurocentric international legal dominance with a regional American-centric dominance. Becker Lorca's argument also suggests that international law changes mainly when governments endorse a change.
The brilliant turn of Becker Lorca, however, is showing how peripheral scholars eventually did affect the terms of international legal debate. “During the second half of the nineteenth century,” Becker Lorca notes, “semi-peripheral jurists supported the claim to sovereignty by showing their state's progress and civilized status” (Becker Lorca, p. 165).Footnote 27 The next strategy to counter the Eurocentric vision of international law was to support an international law for the Americas. This idea resonated with American support for the Monroe Doctrine (which meant that it could be portrayed as a continuation rather than a change in U.S. policy), and it brought American and Latin American legal scholars together. This Pan-American objective is the entire focus of Scarfi's Hidden History of International Law in the Americas, but Scarfi does not contextualize why the Pan-American idea garnered regional support, or why both American and Latin American lawyers later abandoned it. To be sure, some American politicians may have seen Pan-Americanism as a way to replace European with U.S. dominance in the region. Trying to establish this claim, Scarfi returns repeatedly to Platt Amendment of 1901 where the United States claimed suzerain rights to intervene in Cuban affairs.Footnote 28
Scarfi focuses primarily on the individuals and activities associated with the AIIL, which Scarfi sees as a tool of American imperial dominance over Latin America. But Becker Lorca and Hathaway and Shapiro offer incidental evidence that calls Scarfi's imperial claims into question. First, Becker Lorca shows that Pan-Americanism existed as an idea before and beyond the AIIL, and it was at best an interim strategy, attractive insofar as it would liberate Latin America from the claims of European leaders yet not as attractive the legal protection of sovereign equality. Indeed, the AIIL's “Declaration of Rights and Duties of Nations,” adopted in 1915 two years after the institute's founding, epitomizes the idea of sovereign equality. It is thus hard to see the AIIL as wed to American regional hegemony.Footnote 29 Second, Hathaway and Shapiro's discussion of the Carnegie funded tour by Hersch Lauterpacht suggests that the Endowment mainly sought to encourage debate in the Americas about the importance of international law.Footnote 30 Third, it is hard to pin the claim of imperialistic international law on one organization, individual or set of actors, since so many countries and actors were using international law for both imperial and counter-imperial ends. Indeed, the Monroe Doctrine seems to have been both imperial and counter-imperial. I return to this idea in Part III.
Becker Lorca's larger point is that the various efforts to challenge European international law came to a head at the Montevideo conference of 1933. Key to the conference's success was a change in U.S. foreign policy:
The “good neighbor policy” towards Latin America, announced first by Hoover and incorporated into official policy in Roosevelt's inaugural address, explains the change of attitude in Montevideo. … The election of Roosevelt was important, not only because of the “good neighbor” policy obtained official recognition, but also because a conservative politician like secretary of state Hughes was replaced by a more progressive politician like secretary of state Hull. (Becker Lorca, Pp. 349–50)
Yet “success in Montevideo could only happen because, at the point in which the foreign policy of the United States changed, the projects discussed in previous Pan-American Conferences and meetings of the Rio Committee, could be easily and swiftly harnessed by Latin Americans into a codification draft” (Becker Lorca, p. 350). Thus, we see that failed ideational efforts matter because they prepare the ground for important policy pivots.
The larger point of this discussion is that intellectual histories not only discuss ideas, they also explain how these ideas shape law and policy via codification of international law and the decisions of governments. The answer is not that the most compelling ideas win. Rather, as the next section will explain, legal networks, power, and events influence whether and which ideas are adopted. Moreover, intellectual histories demonstrate that it is the interaction between ideas and practice, the goals of the powerful as well as actors in the Global South who resist certain uses and interpretations of international law, and the contingent political moments in which ideas advance, that shape what international law becomes.
II. Who Changes International Law: The Role of Legal Networks and Communities of Practice
If states are the only actors that can consent to international law, how do legal intellectuals matter? And which legal networks and intellectuals matter? Also, given that a truly global history must include actors located in various parts of the world, how does a historian identify the participants that shape international law's development? One approach follows the money, seeing which individuals and institutions support and are supported by foundations, international institutions, and donors.Footnote 31 Another approach focuses on “communities of practice,” following the individuals who are active in particular policy issues and debates.Footnote 32 A third approach uses social network analysis, examining the legal field across which ideas are debated.Footnote 33 Scarfi follows the money; Hathaway and Shapiro focus on communities of practice; and Becker Lorca examines contestations in the legal field. All are valid methods, but each book would have benefited from being a bit more reflective regarding the strengths and limits of the approach taken.
Scarfi follows James Brown Scott and the Carnegie-funded AIIL. The focus on “legal networks” is in the book's title, but for Scarfi the network node emanates from participation in AIIL activities. Unfortunately, Scarfi gets fixated on the AIIL and its leaders. He argues that Scott “dominated” the AIIL, which is why the AIIL “was rooted in a US-led approach to American international law and thus did not create a flexible environment for redefining the balance of power in the Americas” (Scarfi, p. 187).Footnote 34 Even without this fixation, which leads to the questionable claims raised in the previous section, Scarfi's focus on the AIIL is too reductive for a book that seeks to uncover the history of international law in the Americas. One can see from Becker Lorca that a much larger group of Latin American lawyers and diplomats were debating international law,Footnote 35 and these debates occurred mostly in The Hague and in the capitals of Latin American countries. Scarfi suggests that the AIIL had to be “dismantled” because its “the ideal of American international law for power balancing” failed (id.). But Becker Lorca suggests that events simply overtook the purpose of a Pan-American dialogue over international law. Once international law became a global enterprise, debated and crafted in the international legal venues of the day, the need for a regional talk shop either disappeared or was eclipsed by the Pan-American Union.Footnote 36
Hathaway and Shapiro focus on the communities of practice who built the legal arguments that dismantled the Old World Order. The Internationalists is a trade book (e.g. written for a general audience and published by a commercial press), and perhaps for this reason the book's introduction creates a very simple narrative where French Foreign Minister Aristide Briand joined American Secretary of State Frank Kellogg to sign the Kellogg-Briand Peace Pact, which Hathaway and Shapiro see as crystallizing in legal form the transition from the Old World Order—when war was a tool of international relations—to the New World Order where the use of force is outlawed, except in self-defense (Hathaway & Shapiro, pp. ix–xxii). The introduction's simplification is misleading; the book and argument are much more nuanced and interesting. The authors demonstrate step by step the demise of a regime where the “privilege to use force” had numerous corollaries: a right to conquest, a legal license to kill, a regime of gunboat diplomacy, and the idea that to remain “neutral”—a non-combatant in a war—meant that a state had to be entirely impartial in their interactions with the states waging war (Hathaway & Shapiro, pp. 93–98). All of these corollaries are outlawed or negated in the New World Order.
As the book's title suggests, credit for changing international law belongs to The Internationalists— that is, to the many people who saw war as a “barbaric way to resolve disputes” and who thus advocated using international institutions to resolve controversies (Hathaway & Shapiro, p. xxi). The truncated list of internationalists flagged in the introduction and in section headings include Salmon O. Levinson, James Shotwell, Sumner Welles, and Hersch Lauterpacht who are singled out because they are associated with the key transitions away from a right to conquest, a legal license to kill, the regime of gunboat diplomacy, and the sense that neutrality required impartiality. The internationalists are contrasted with the “interventionists,” namely those people who argued in favor of using force to promote a variety of international political ends. As Anna Spain Bradley notes, additional figures also emerge in Hathaway and Shapiro's narrative.Footnote 37 Whereas Becker Lorca and Scarfi see the ideational challenges raised by scholars from the developing world as important in shaping changes to international law, for Hathaway and Shapiro the people and ideas that count the most are those that influence practitioners, and especially practitioners from powerful states.
Hathaway and Shapiro develop the arguments of the two camps—the internationalists and the interventionists—but then the seek to demonstrate that internationalist ideas actually worked, in that state practices evolved and interstate war declined. Once the authors make this transition to showing the ideas’ effects, global history is constructed via a pastiche of vignettes, a style that emulates Darron Acemoglu and James Robinson's best-seller trade book Why Nations Fail. Footnote 38 Hathaway and Shapiro's vignettes are colorful yet rather simplistic, random, and esoteric stories told to help lay-readers grasp legal ideas, and to see how these ideas matter. If one can get past the randomness and the storytelling, there is great learned insight as the authors systematically show the demise of the “privilege to use force” regime both via examples and statistics. Readers learn that the number of states increased,Footnote 39 and thus the possible incidences of interstate war increased. Yet during the most tumultuous period in world history, when the number of national independence movements reached historically high levels,Footnote 40 and the territorial control of empires fell precipitously,Footnote 41 interstate wars declined, as did the incidence of battle deaths in war.Footnote 42 It is worth mentioning these empirical claims are neither new nor controversial.Footnote 43 Those wishing to see the empirical claims developed more fully will be disappointed, as Anna Spain Bradley notes.Footnote 44 But establishing the decline of interstate war and the rise of interstate peace is not really their point. Rather, Hathaway and Shapiro observe that although outlawing war
did not immediately stop interstate war … it helped set in motion a series of events that would eventually lead to an unprecedented period of peace between states … [where] illegal conquests would no longer be recognized and would be reversed as soon as possible. Indeed, the reversal of nearly all the post-Pact conquests at the end of the Second World War established that states could take the territory of other states, but they could not benefit from it if they did. And they would never be entirely secure in their ownership. If states could not keep what they took in war, then what was the point of going to war in the first place? (Hathaway & Shapiro, Pp. 334–35)
To be sure, many factors contributed to the change in the prevalence and terms of interstate war. Hathaway and Shapiro's effort to be comprehensive in discussing the many changes occurring simultaneously is both sweeping and overly thin on details. No book can do everything. More problematically, their treatment gives pride of place to U.S. policies and actions; the role of other actors and of individuals to fall by the wayside.Footnote 45 We thus lose focus on who is part of the “internationalist” camp and how these actors matter. Moreover, at no point do the authors seriously consider how the demands of states and actors in the periphery—where the privilege of war was practiced—mattered. It is quite possible that to be an “internationalist” required renegotiating the terms of dominance,Footnote 46 and thus consenting to the sorts of compromises that Becker Lorca discusses.
Hathaway and Shapiro do not, however, lose focus on how today's “internationalists” maintain the ban on war. Chapter 16 translates into trade book terms Hathaway and Shapiro's argument about how “outcasting” has been used to ensure that conquest does not pay.Footnote 47 The authors address the limits of outcasting, and they investigate why there is so much conflict today. I will return to this argument in Part IV. Still, the title of the book is clear even if the camp of “internationalists” is not: the internationalists changed the world; they are responsible for ensuring that the ban on war continues; and international law constitutes this ban on war.
Of the three, Mestizo International Law is the only true global history, as well as the only book where the title fully corresponds to the contents. Becker Lorca focuses most on the Hague Peace Conferences, which provides a ready venue to identify the key participants in the international legal debates of the day. But he also follows the paper trail and the conversations to the places where arguments are made, which takes him backward in time and to additional venues where legal ideas are articulated and debated. In following the arguments, Becker Lorca provides a critical history that complicates Hathaway and Shapiro's linear evolutionary narrative where decisions get made in international institutions, good ideas triumph over bad ones, and thus international law moves in a progressive direction.Footnote 48
Becker Lorca's larger claim is that we need to build a true global history by understanding the interactions between Global South critics and defenders of the older classical conception of international law.Footnote 49 Legal debates, Becker Lorca argues, produced a “mestizo” history of international law with “hybrid origins and multiple sites of articulation, an international law holding the promise for a better future for smaller nations while repeatedly breaking that promise” (Becker Lorca, p. 22). This idea of promises made and then broken—perhaps because one set of actors (e.g. legal diplomats) makes a promise that another set of actors (e.g. elected politicians) later repudiates—is a more nuanced way to understand what Scarfi sees as unmitigated American imperialism. James Brown Scott and Elihu Root—two figures that Scarfi considers to be hegemonic—may well have accepted American dominance (e.g. the Monroe Doctrine) as necessary to build American and/or European political support for a free Cuba or for compromising on the issue of Venezuelan state responsibility. Yet it is also clear that both individuals endorsed the principle of sovereign equality.Footnote 50 More fundamentally, both were constructive participants (albeit seemingly rather bit players) in the transition from classical to mestizo international law, and thus in replacing a world where international law applied only to “civilized nations” to a world of sovereign equality for all (formally recognized) states.
This comparison of the three books suggests that a spotlight focus on a single institution and a handful of individuals (Scarfi's approach) is too limited, as is a focus on the great powerbrokers of the day (Hathaway and Shapiro's approach). Becker Lorca's primary contribution is to reveal how these narrowings of the aperture overlook that the objects of study are likely responding to a larger conversation, occurring in multiple venues and among many different actors who constitute the international legal field—legal scholars, legal practitioners, state diplomats, and (today more than in the 1930s) international judges. One must therefore follow all three historical narratives—the money, the communities of practice, and the debates in the legal field—and their intersection with major events to understand how international law changes.
III. Infusing Power into International Law
I am sure that Scarfi is correct that some American diplomats were hegemonic in their beliefs, clumsily ethnocentric in how they expressed ideas and policy goals, and that some American policies reflect imperial aspirations. It is also surely true that a core group of Americans has long been committed to isolationist and “America First” policies, and that discussions of whether the United States should be isolationist or internationalist tend to unleash exceptionalist/ethnocentric arguments.Footnote 51
The question is whether, given the great power imbalances in the world, international law will always be imperial. To this day, examples of imperial inequality in international law abound. Old forms of inequality were obvious—the “civilized” versus “uncivilized” distinction, and the 1901 Platt Amendment were clearly designed to facilitate hegemonic dominance over peripheral states.Footnote 52 The changes described by Becker Lorca and Hathaway and Shapiro rendered such obvious assertions of imperial privilege unacceptable. Thus, more relevant for today is how imperial aspirations get coded within legal arguments framed around recognition, equality, and fostering debate. To ask this question is to admit that the form but not the existence of imperial privilege has evolved.
Becker Lorca expects power to underpin international law. He recognizes—as did all participants in international legal debates—that the center of action was The Hague, and that it mattered if Europeans (and later Americans) embraced the ideas of lawyers from the Global South. The centrality of international institutions, and their location in the West, is why scholars from the periphery studied international law in Europe, published in foreign languages, sought publication in top European and American journals, and why they also entered into international legal debates.
Meanwhile, it was not only Americans or Europeans who sought to use international law as a tool of empowerment, hegemony, and dominance. Becker Lorca discusses how Japanese scholars implicitly, and at times explicitly, embraced international law as a tool of imperial dominance in Asia. He suggests that Japanese policymakers abrogated unequal treaties “as a sign of Japan's entry into the international legal regime of equality,” and that Japanese scholars and diplomats embraced classical international law to further imperial aspirations in Asia (Becker Lorca, pp. 169–70).Footnote 53 Eventually, however, both Japan's government and its scholars abandoned this legal appropriation strategy because they saw Europeans and Americans as unwilling to “extend equality beyond the West” (Becker Lorca, p. 178). Hathaway and Shapiro explain this outcome somewhat differently, suggesting that Japan was upset that the Peace Pact's war ban only applied in the future, grandfathering in British and French imperial conquests while rejecting Japan's conquest of Manchuria. Meanwhile, Italy's “seizure of Ethiopia in 1935 did not spark the same condemnation” (Hathaway & Shapiro, p. 319).Footnote 54
Yet Becker Lorca observes that “[p]aradoxically, Japanese international lawyers were more effective in pursuing legal arguments and doctrines entailing inequality than in defending legal arguments presupposing equality” (Becker Lorca, p. 170). This observation suggests a subtle way that power shapes legal arguments. Why stick with a legal argument that so clearly is not resonating? Hathaway and Shapiro encapsulate this idea by reminding readers of war manifestos to observe the “old lawyerly adage: ‘When the law is on your side, pound the law; when the facts are on your side, pound the facts; when neither is on your side, pound the table’” (Hathaway & Shapiro, pp. 43–44). This adage (first law, then facts, then pounding) helps explain how legal ideas endure, locking in power advantages inherent in the law.
Becker Lorca also, however, sees peripheral actors as embracing international law as a tool of empowerment so that international legal arguments become both hegemonic and counter-hegemonic. For example, the Monroe Doctrine sometimes justified an U.S. assertion of dominance within Latin America and sometimes represented a Pan-American effort to resist European interference. A different counter-hegemonic strategy, employed by peripheral scholars, involves appropriating and transforming European ideas, seemingly endorsing them, but then turning the ideas on their head. This tactic, in no way unique to peripheral lawyers, has a very long lineage.Footnote 55 Today, appropriation is repeatedly employed by Chinese leaders who append “with Chinese characteristics” to terms employed by the West such as human rights, democracy, and constitutionalism.Footnote 56 More generally, Becker Lorca's analysis suggests that appropriation followed by transformation may be how structural global power shifts get translated into changes in international law.
The three books also teach us that certain seemingly neutral ideas are also power moves, and, in particular, that an international law of regions is an attractive idea for regional hegemons. After Japan failed to be accepted by Europeans as a “civilized” country taming the rest of Asia:
Japan like other Western powers, progressively shifted towards a legal justification of regional hegemony based on the doctrine of a sphere of influence (like the Monroe doctrine); in the case of Japan this turn definitely came about during the Sino-Japanese war (1937–45) and then the Second World War (1941–15) (The Pacific War or Greater East Asian War). (Becker Lorca, P. 171)
Finally, Scarfi's insistence that imperial hegemony was inherent to American international legal debates—while not always convincing—does highlight that great powers may be unable to escape hegemony or avoid being portrayed as callous imperialists. The unevenness through which legal norms get enforced is one way that law gives way to power, and that hegemony manifests itself. But another way is that powerful countries are often presumed to be imperial. I have just returned from China where legal scholars professed bewilderment that China's oft-stated commitment to respecting sovereign equality, to fostering peaceful relations with other countries, and to creating win-win international agreements such as free trade and Belt-Road agreements are interpreted abroad as China trying to dominate other countries.Footnote 57 For a country that has suffered from unequal treaties, the perception that China's initiatives are somehow unfair expressions of hegemonic power seems like a huge failure in messaging. In reality, when power is so unequally distributed, it is probably impossible for powerful countries to not use their “go it alone power”Footnote 58 to their advantage, generating lopsided if not hegemonic results.
This discussion of how power is infused in international legal debates suggests that international law has, for hundreds of years, been a medium of power politics employed by the weak and powerful alike. Since state codification cements international legal developments— translating legal ideas into binding international law—and because communities of practice and global events shape the development of international legal understandings in between moments of international legal codification, the debates about what international law means are consequential, even if the law does not then evolve. Finally, the great inequality of power in the world forever shapes the terms of international legal debates. Weak nations transform international law through appropriation that tries to recast legal understandings, and great powers cannot help but use their negotiating leverage in moments of international legal codification to inscribe imperial privilege into law. That said, all sides use appropriation and codification moments as tools of leverage, and international law always encodes both power and resistance.
This double encoding of power and resistance, hegemony and counter-hegemony, is key to understanding the transition from Hathaway and Shapiro's Old World Order to the New World Order, where using force to settle international disagreements was outlawed yet force could still be justified (at times unpersuasively) as an exercise of self-defense or self-determination. The coexistence also explains why legal principles can matter, yet actions justified by these principles can be contested and violations can also occur.
IV. Final Thoughts
At bottom, the problem with Scarfi's book is that he published his PhD thesis too quickly. It is perfectly fine for a history doctoral student to deeply mine the papers of a single organization—in this case the American Institute of International Law. But what works for a PhD dissertation does not work for a book. A further problem is that the book's title is deeply misleading. As Becker Lorca's study makes abundantly clear, the history in question may have been ignored by international law scholars in core states (a fault that arguably applies to the Hathaway and Shapiro book), but it is not at all hidden. Meanwhile, Scarfi's spotlight focus on a single institution does not provide a history of international law in the Americas, nor does it encapsulate the role of Latin American legal networks. Personally, I wish that Scarfi had written a history of international law in the Americas. Such an account would have complemented and deepened Becker Lorca's analysis, allowing the reader to see how regional debates reflected or differed from debates occurring in Europe. A more constructive criticism, however, is that Scarfi needed to do more to show the added value of a historical deep-dive into the history of the AIIL.
Becker Lorca is to be applauded for how clearly and empathetically he develops his arguments. The subject matter, time period, and ideas he investigates are vast, but the reader can follow the debates and arguments, so that it is clear that conversations are contributing to shifts that later emerge as codified international law. In this way, we can see how ideas matter even in a world where international law depends on state consent. The temporal linearity of the story is accomplished through discussions of real-world international events—such as the Venezuela blockade discussed earlier—which are of obvious international significance, and thus, unlike with Hathaway and Shapiro, the events and examples feel neither random nor esoteric. Subsections in the chapters help readers learn what is happening at the same time in Asia, Latin America, and the Ottoman Empire, and the book's appendix includes interesting maps that show the growth of treaties signed by Great Britain between 1800 and 1899 (in comparison to the period between 1648 and 1799), and that identify by name and location how individuals fit into Becker Lorca's global conversation among “classical” and “modern” international lawyers. The history may not be comprehensive, in that Becker Lorca does not follow all of the ideas that emerged in the fervent inter-war period,Footnote 59 but it is undoubtedly global.
For critical historians, The Internationalists is a throwback in time that ignores their many efforts to complicate the “old history” approach of linear, Eurocentric (or in this case American-centric) narratives in which international law is portrayed in purely progressive terms. Yet as Martti Koskenniemi points out, there is a place for trade books that write for a mainstream audience:
There are understandable reasons for sticking to State-centrism. A history of international law seems parasitical upon the mainstream professional understanding of “international law,” an offshoot of what international lawyers do and how they think about what they do. No doubt it is also supported by the attention paid by the media to foreign policy crises, the performance of diplomats at great conferences, and the movement of military forces shown on the map on the TV.Footnote 60
Personally, I can appreciate value added by trade books. Whereas Scarfi and Becker Lorca stick to the historical period they study, Part III of The Internationalists takes the analysis into the present to address a question that will puzzle today's readers: why if war has been outlawed is there so much violent conflict today? Hathaway and Shapiro explain that decolonization proceeded sloppily, so that some borders were not clear and others did not make much sense. Moreover, sometimes the handoff to new leaders was botched, and some states started out alright but later failed (Hathaway & Shapiro, pp. 355–58). Coming up to the near-present, the authors note that—somewhat ironically—international legal developments with respect to the law of the seas created an incentive for China to claim “islands” that would not have qualified as such, or been valuable, in the pre-law of the sea era, revealing that international legal development may also generate conflict (Hathaway & Shapiro, pp. 359–64).
The Internationalists went to press before the extent of President Donald Trump's challenge to the New World Order was clear. Hathaway and Shapiro do note, however, how Sayyid Qutb's ideas have affected the multilateral ban on interstate war. They also recognize that
it may seem like the Interventionists—Hugo Grotius, Nishi Amane, Carl Schmitt and even Sayyid Qutb—were right: War is the only possible solution. But to hold this view one must be prepared to embrace all that it entails. If we treat the United Nations Charter like Carl Schmitt treated the Weimar Constitution, the exceptions to the prohibitions on war will eventually destroy the New World Order and all it has accomplished. If the United States insists on the right to resort to war in violation of the Charter to address emergencies, it cannot stop others from arrogating to themselves the same powers—and that, in turn, threatens the entire system. (Hathaway & Shapiro, P. 417)
Hathaway and Shapiro go on to note that the United States is not alone in questioning the utility of international law's ban on war, but their primary audience is American. Should the ban on war recede in political significance, however, it may be that the shift Becker Lorca describes—the commitment to sovereign equality—will prove the most enduring change analyzed across the three books. It will endure precisely because it is what weaker states prefer, which stands as a reminder that imperial domination encoded in international law is likely to be forever challenged, and thus forever changing.
