A Six-Tiered Typology of Periodization in the History of International Law

Periodization has been rightly described as “the more elusive task of historical scholarship” and “as an analytical issue, perhaps the fundamental intellectual issue in historical thinking.”Footnote ¹⁴ To provide a balanced perspective on periodization in international legal history, this first part discusses Randall Lesaffer's survey of the “hegemonic approach,” the “Eurocentric approach,” and the “state-centric type of periodization” with reference to contemporary literature. Lesaffer identified these approaches to periodization as the “three main types of periodization in the historiography of international law since the Late Middle Ages,” further noting that they are “not mutually exclusive and can be combined into a single narrative.”Footnote ¹⁵ I will furthermore identify the existence of three other conventional approaches to periodization that are widely influential in the modern historiography of international law and that can also be found combined and recombined with both each other and Lesaffer's three approaches to different degrees into multiple narratives. As I will subsequently discuss, this complementary three-tiered typology consists of “intellectual idealist,” “institutionalist,” and “normative” approaches to periodization in the history of international law.

Periodizations in the History of International Law Based on Imperial Power, Western Universalism, and the Sovereign State

The first type of periodization surveyed by Lesaffer is the “epochal realist” approach. This approach was proposed by Wilhelm Grewe in his modern classic The Epochs of International Law to overcome the biases of an “idealist intellectual” historiography of international law. This, in Grewe's view, had become lost in “an abstract history of the theory,” because it did not take enough account of the “close connection between legal theory and state practice.”Footnote ¹⁶ Instead, Grewe opted to divide the history of international law into epochs characterized by the dominance of particular hegemonic powers. According to Grewe's reading of the historical evolution of international law as epiphenomenal to major power structures, the history of international law should be divided into the Spanish Age (1494–1648), the French Age (1648–1815), the British Age (1815–1919), the Age of the Anglo-American condominium (1919–44), and the Age of American–Soviet rivalry (1945–89).Footnote ¹⁷ To this sequence of shifting major imperial constellations since the end of the Middle Ages, one could add the contemporary post-Cold War period (1989–2018) of North American hegemony, which has been punctuated by the enlargement of the European Union and, for the first time going beyond the Western-centric framework proposed by Grewe, the rise of China as a major global power.

Grewe's “hegemonic epochal” periodization of the historical development of international law was methodologically ingrained in a hyper-realist characterization of the intertwined development of international relations and international law in which the latter plays the instrumental role of an “ideological façade” to facilitate power aggrandizement and hegemonic domination.Footnote ¹⁸ Recent years have witnessed a revamping of the classical view of international law as a “superstructure” in the form of a postcolonial historical meta-narrative proving the “historical role of international law as an instrument of (Western) expansion and hegemony.”Footnote ¹⁹ This reinterpretation, in a Marxist vein, of international law as a mere epiphenomenon of a particular power arrangement in the Western world, has proceeded by challenging the received interpretation of central historical episodes in the discipline. One noted historical focus of this revisionist trend was Francisco de Vitoria’s work at the time of the Spanish conquest of America. According to Antony Anghie, Vitoria's opus should “be read as a particularly insidious justification of conquest precisely because it is presented in the language of liberality and even equality.”Footnote ²⁰

This postcolonial reinterpretation has expanded to include other classic Western thinkers and episodes in the history of international law from the sixteenth century to the post-World War II decolonization decades. It has also reached the contemporary period, in which postcolonial approaches to international law have described international institutions as a “global imperial state in the making,” dominated by Western powers and managed by “transnational capitalist classes.”Footnote ²¹ With its interpretation of the past in the light of Western hegemonic relations with other peoples as the determining factor in the historical progress of international law, this counterimperial historical narrative has forged new historical periods. In each of them, different “colonial encounters” are interpreted as stages in a Western-led imperial genealogy of international law and, alternatively, as sites of resistance to it.

Both the Western hegemonic epochal approach to periodization (in which a sequence of historical events is condensed into a discernible hegemonic age), and its most recent “shadow” counterimperial periodization (with its focus on “the great shifting currents of global imperialism”) can be questioned for their historical reductionism and their either explicit or “hidden” Eurocentrism.Footnote ²² However, these criticisms do not diminish the pervasive influence of the Western-centric epochal approach to periodization, or of its counterpart, in the construction of historical international legal narratives. Neither should the practical influence that these have had, and continue to have, as a means of instrumentally contesting aspects of the international legal order in the discourses of non-Western countries, be underestimated.

Alongside these two conceptually intertwined periodizations of international legal history, one can find another “Eurocentric and universalist” approach.Footnote ²³ Lesaffer exemplified this approach with reference to the work of Heinhard Steiger,Footnote ²⁴ who subdivided the history of international law since the Late Middle Ages into the “Age of Christianity” (from 1300 to 1800), the “Age of the Civilized Nations” (from the nineteenth century to 1918), and the “Age of Mankind” (since 1919). Steiger also considered that the pattern of gradual universalization of the ius publicum europeaum had accelerated toward an “Age of the Global Citizen”Footnote ²⁵ since 1945.

Contrasting with the realist underpinnings of the “hegemonic epochal” approach and its postcolonial reinterpretation, Steiger's “Eurocentric universalist” periodization is aligned to a Western-led narrative of human-centered progress. In this perspective, the Western political model is the linchpin of the evolving path of the international legal order. It axiologically portrays the role of international law as a force for good in the inexorable progress of world history toward a global realization of the ideals of the Enlightenment.Footnote ²⁶ Its key landmarks underpin multiple accounts of the historical evolution of the discipline from an international liberal perspective. These can variously be found based on, for example, the comparative liberal constitutional evolution of different states by making reference to their joining international institutions, their domestically applying the liberal principles of the rule of law and the separation of powers, their making constitutional arrangements concerning international human rights, or their ratifying and implementing international treaties in different areas.

However, this liberal forward-looking approach to the historical periodization of international law has been criticized as a form of “Whig history.” This is a term often pejoratively applied by international legal historians to histories of the discipline based on a reading of its past as a “progress narrative” that conceals, embellishes, or altogether ignores the sheer inequalities underlying both past and present international legal arrangements.Footnote ²⁷ As I will discuss subsequently, the charge that international lawyers often rely on a common type of historical “ascending periodization” that entrenches a correlation between the progress of international law and its role as an agent of social progress underlies the critical problematizing of periodization in the history of international law.Footnote ²⁸

Completing the foundational triad of the conventional historiographical paradigm in the history of international law is what Lesaffer termed the “state-centric” approach to periodization. According to Lesaffer, this approach is the “most foundational one” as “it underlies the vast majority of grand narratives of the history of international law, either because it is consciously used, because it is implicit, or because it is contested.”Footnote ²⁹ The historical depiction of an international legal order in which “state sovereignty” is, as the principal judicial organ of the United Nations famously noted in the Nicaragua v. United States of America, “the fundamental principle … on which the whole of international law rests” remains a locus classicus in the historical ordering of the evolving path of the discipline.Footnote ³⁰ The centrality of the sovereign state in a longue durée perspective of the evolution of international law is retraced back to the origins of classical international law at a time when the jus publicum europaeum emerged from the collapse of the medieval Respublica Christiana. The first stage in the classical periodization of international law is, consequently, often identified as beginning in 1648, the date of the Peace of Westphalia, which put an end to the Thirty Years’ War. Westphalia constitutes the most representative illustration in the history of international law of what Stéphane Beaulac has termed an “etiological myth,” that is, a myth about the origin of things.Footnote ³¹ Since then, international lawyers have variously interpreted Westphalia as a converging point of the principles of equal sovereignty of European states in both their internal and external facets, or as a crystallizing moment in an intellectual transition from a natural law-dominated worldview toward an increasing role for voluntary law.Footnote ³²

However, the importance of Westphalia as a departure point for the history of international law in the state-centric approach has been both temporally and geographically contested in the literature.Footnote ³³ Traditionally, this contestation has revolved around the definition of international law that underpins each chronological periodization. Wolgang Preiser relied on a sociolegal understanding based on the axiom “ubi societas inter potestates, ibi ius gentium [wherever there is a society among polities, there is international law]” to define international law as the law of “several independent political entities that had relations with each other on an equal footing and acknowledged that their relations were governed by legal norms.”Footnote ³⁴ From this definition, a shift in the temporal and geographical localization of the historical origins of international law logically ensues. Since these earlier works, which adopted a universal perspective on the historical evolution of international law, new scholarship has investigated the history of international law in the Middle Ages and ancient civilizations both within Europe and in extra-European geographical spaces.Footnote ³⁵ This new literature has also touched on the myth-constructing role of the Western historiographical reconstruction of the “origins” of international law.Footnote ³⁶ This began to take place in the mid-late nineteenth century during a period when the professional study of both “history” and “law” at the national level, and alongside them the study of international law and the history of international law themselves, emerged intellectually linked to “methodological nationalism” in the Western world.Footnote ³⁷

New literature has also been particularly critical of the archetypal Eurocentrism of Westphalia. This, which equates the beginning of the “classical” period of international legal history with the advent of the principle of sovereign equality among secular states, makes Westphalia the leitmotiv of the ulterior historical development of the discipline. However, this is an overstatement for Europe itself and, arguably, merely false for non-European states.Footnote ³⁸ As Lauren Benton argues, for many non-European states, the origins of international law may be found in empires.Footnote ³⁹ Aside from being historically distrusted, the absolute centrality of the state-centric periodization of the history of international law becomes further undermined when it is examined from the perspective of the debated decline of state sovereignty. This questioning of state sovereignty has been brought about by globalization and the increasingly important role of international organizations and supranational regional institutions, as well as of non-state actors, in the shaping of contemporary international law.Footnote ⁴⁰

Shifting constellations of imperial power, liberal Western universalism, and the centrality of the sovereign nation-state are, as has been mentioned, the respective foundations of the “epochal hegemonic,” the “Eurocentric universalist,” and the “state-centric” approaches to the periodization of the history of international law. They are, as such, the three symbiotic pillars of the conventional historiographical paradigm implicitly underlying most conventional international legal periodizations.Footnote ⁴¹ However, alongside this foundational triad one can identify at least three other equally widely influential types of periodization. These are also often used as the square and triangle of historical time in the international legal historian's toolkit. The writings of the most highly qualified academics in different schools of international legal thought, the historical development of international institutions, and the historical evolution of international legal norms and principles are, as I will discuss, also widely used as ordering factors to categorize the history of international law into discrete named blocks of time.

Periodizations of the History of International Law Based on International Legal Ideas and Theories, International Institutions, and International Norms

A fourth type of widely used periodization is the “idealist intellectual” approach. This approach divides the past into a succession of intellectual frameworks proposed in canonical texts by philosophers and international lawyers, and it relies on a Western canon of intellectual landmarks in the history of the discipline.Footnote ⁴² In the Western tradition, the intellectual periodization of the history of international law usually originates with the Seconda Scholastica, represented by the School of Salamanca, over which Francisco de Vitoria presided. Broadly speaking, it later extends through Alberico Gentili, Hugo Grotius—whose De iure belli ac pacis (1625) served to attribute to him the “fatherhood” of international law—and later still to Protestant thinkers such as Samuel Pufendorf and Christian Wolff. During the Enlightenment, some of Immanuel Kant's essays, including The Idea of a Universal History with a Cosmopolitan Purpose (1784), established the basis for what would become, according to Martti Koskenniemi, a teleology of progress in international legal thought that extends to the present.Footnote ⁴³ Another common eighteenth century landmark in this type of intellectual periodization of the history of international law is Emer de Vattel's Le droit des Gens. Following its publication in 1758, de Vattel's work was widely circulated in various translations and subsequent editions around both Europe and the United States.Footnote ⁴⁴ This intellectual genealogy continues through the rise of positivism and the first efforts to systematically codify the law of nations in the mid-late nineteenth century, where one can encounter, inter alia, figures such as James Lorimer and other founders of the Institut de droit international. It progressed through the twentieth century with “the greats” of the discipline in the interwar period, including towering intellectual international legal figures such as Hans Kelsen, Alfred Verdross, Georges Scelle, Hersch Lauterpacht, and even seminal international relations theorists, such as Hans Morgenthau.Footnote ⁴⁵

In a snapshot perspective, this intellectual idealist approach, which periodizes the history of international law in terms of a succession of intellectual frameworks put forward in canonical texts by representatives of international legal schools of thought, developed throughout the Cold War. This witnessed the emergence of the ideologically opposite “New Haven School” and the Soviet-Marxist theory of international law punctuated by the emergence of postcolonial voices during the decolonization era.Footnote ⁴⁶ The latest period in this intellectual approach is one characterized by the central doctrinal preeminence of liberal internationalism. However, this has been compounded by the unparalleled rise of critical and alternative approaches to international law, methodological pluralization, and interdisciplinarization of the academic study of international law, and also the study of its history.Footnote ⁴⁷

Revitalization of the doctrinal approach to periodization is one of the defining characteristics of the recent wave of historical scholarship in international law. Indeed, contemporary literature has expanded in the direction of contextualist rereadings of intellectual classics of the discipline from different periods. This move has also fostered the addition of authors such as Nicolo Machiavelli, Johannes Althusius, Baruch Spinoza, the Baron de Montesquieu, Jean Jacques Rousseau, and Friedrich Hegel, who were traditionally not considered international legal thinkers.Footnote ⁴⁸ Under the influence of postcolonial approaches, this revisionist trend has already impacted on the modern understanding of classic figures.Footnote ⁴⁹ These include Hugo Grotius, who, from being traditionally celebrated as the founding father of international law, has, according to Arthur Weststeijn, “turned into a founding father of a Dutch empire by law.”Footnote ⁵⁰ The list extends to include many other classic Western authors such as Francisco de Vitoria, discussed earlier.Footnote ⁵¹ Furthermore, the intellectual history of international law has extended into examination of work by previously neglected less-prominent figures in international law, including for the first time a group of international legal historians.Footnote ⁵²

The renewed cultivation of the historical biographical genre has brought more acutely to the foreground the connection between the personal and the academic and, on occasions, also the advisory and adjudicative facets of the work of highly qualified writers in different historical contexts.Footnote ⁵³ This contemporary literature, which delves into the “life, works and times” of international thinkers, scholars, legal advisors, judges, and lawyers is also adding new landmarks to the mainly Western intellectual periodization of international law by gradually encompassing the contribution of international law scholars from non-Western traditions.Footnote ⁵⁴ Historians of international political thought and international intellectual historians, often informed by the “Cambridge school,” have long cultivated the contextual intellectual biographical genre.Footnote ⁵⁵ Some of their works have tackled traditional figures in the canon of the history of international law, such as Thomas Hobbes, Jean Bodin, the Spanish Scholastics, and Hugo Grotius.Footnote ⁵⁶ Moreover, Martti Koskenniemi has recently argued that the canon of the disciplinary history of international law should be extended further to include within its boundaries other excluded voices who, in his view, contributed to the history of the formation of knowledge about the law of nations from different disciplines.Footnote ⁵⁷ The historically nuanced work of these contextualist historians of political thought is often used by international legal historians to question the international jurist's received interpretation of the significance of classical figures and their relative positions in doctrinal intellectual periodizations. However, the treatment of the question of periodization of international law by historians of political thought is not one generally informed by international lawyers’ distinct understanding of the complexities of the past and present of international legal thought and practice. Therefore, it remains first and foremost defined by traditional periodization schemes in its own field of the history of political thought.

The fourth main type of “master periodization” in the historiography of international law, and the most influential in the coverage of the twentieth century, is the “international institutionalist” approach. This approach identifies major “historical moments” with the transformative impact of the creation of international institutions. The three main waves of establishment of international institutions in the twentieth century have indeed much influenced the approach to the historiographical splitting of the history of international law since the establishment of the League of Nations roughly 100 years ago. Major international institution-building processes have taken place during what historical institutionalism terms “critical junctures,” understood as “relatively short periods of time during which structural economic, political and cultural conditions are in flux, so that the choices available to powerful actors expand.”Footnote ⁵⁸ The setting up of major international institutions often marks a “before” and “after” in the historical study of international law in the twentieth century.

Only with the utmost difficulty could one, indeed, find any historical account of the historical evolution of international law in the twentieth and twenty-first centuries that is not informed by its major international institution-building processes as structuring historical caesurae. The three major instances of what David Kennedy calls, with reference to the establishment of the League of Nations, the “move to institutions,” correspond with the ends of the First World War, the Second World War, and the Cold War.Footnote ⁵⁹ Indeed, the significance for the contemporary periodization of the history of international law of the historically unprecedented character of the “new world order” ushered in by the Covenant of the League of Nations is only matched by that of the establishment of the United Nations system inaugurated by the Charter of the United Nations in 1945.Footnote ⁶⁰ Likewise, the relevance of these two major international institutional efforts in enabling historians to contemplate different normatively and historically intertwined international contexts is only equaled in the literature by the contemporary proliferation of international institutions and the multiplication of international courts and tribunals since the end of the Cold War.Footnote ⁶¹ Completing the standard periodization of the history of international law in the twentieth century, the international institution-building effort that characterized the 1990s and the early 2000s is indeed today often referred to as having given birth to a new “age of global governance” in the historical evolution of law that Mirabeau told us “one day will rule the world.”Footnote ⁶²

Either implicitly or explicitly, such moments of major international institution-building are omnipresent in every work of international legal history that concerns the twentieth century, either as background or foreground temporal ordering factors. Indeed, international institutions can often be found drawing a temporal boundary between two periods. An example of this is the history of international courts. According to Cesare Romano, this “can be divided into two main phases, with the end of the Cold War, in 1990, being year zero.”Footnote ⁶³ Moreover, recent years have witnessed a rise in new international historical legal scholarship devoted to the establishment of major international institutions.Footnote ⁶⁴ This has included new work on the League of Nations such as Susan Pedersen's recent work on the mandates system.Footnote ⁶⁵ The wave of new writing has also extended to the establishment of the United Nations.Footnote ⁶⁶

Alongside the development of this varied new literature, the history of international institutions has itself become the central object of interest in the emerging methodological trend of “historical institutionalism” in international law. Having grown from the discipline of political science and sociology in the early 1990s, historical institutionalism “is aimed at enhancing political scientists’ understanding of the origins, evolution and consequences of institutions across time and space.”Footnote ⁶⁷ In addition to the aforementioned notion of “critical junctures,” the conceptual toolbox of historical institutionalist theory includes others that interact with it, such as “antecedent conditions and permissive factors.” All of these are increasingly used to illuminate “questions of timing, regional matter variation and subject matter variation” in the history of international institutions.Footnote ⁶⁸ They have also been applied to the history of international courts and tribunals.Footnote ⁶⁹ Other key concepts in historical institutionalism include path dependency, with its focus on factors that generate “self-reinforcing feedback effects” in international institutions, and the roles of “intercurrence” and “incremental change” as occasional bases of “radical change.”Footnote ⁷⁰ These concepts underlie recent historical investigations into the history of international organizations from an international legal perspective.Footnote ⁷¹

Last, but not least, in this brief appraisal of periodization in the history of international law is the “international normative” approach to periodization. This can be described as an approach that uses an “analytical prism” that is “less concerned with contextual features of an ‘order’ and more with the lineage of individual rules, systemic perceptions of those rules by the subjects of the system, and doctrines.”Footnote ⁷² This perspective, which involves a periodical “concentration upon intrinsic rather than extrinsic approaches to the history of international law,” is one that stresses the diachronical aspect of the normative evolution of international law. It concerns itself with the internal evolution and change over time of international legal norms, principles, and doctrines.Footnote ⁷³ The international normative approach to periodization is, needless to say, the most juridical—and therefore the most intrinsic to the strictly normative legal history of the discipline—of the six conventional approaches to the periodization of the history of international law. It represents the clearest exponent of what has been defined as international “jurists’ history.”Footnote ⁷⁴ In its archetypical form, “internal” normative approaches to the history of international law are traditionally conditioned by the main tenets and parameters, and also the methodological boundaries, of what are often known as the traditional, positivist, formalist, black-letter, and source-based approaches to norm identification in international law.Footnote ⁷⁵ Therefore, for the most part, the authors in these fields tend to be international lawyers both by training and profession. Moreover, the “internal” normative approach is inherently connected to a “narrative of normative progress” insofar as it hints at a background idea of international normative evolution being the result of evolving and constantly updating programming of the international legal system, for which the strictly normative study of the past offers useful material.

The internal normative approach to periodization is closely related, at least as far as the study of twentieth-century international legal history is concerned, to the institutional approach to periodization, with which it can often be found either explicitly or implicitly combined. The prohibition of the “threat or use of force” in international relations (as established by Art. 2.4 of the constitutive treaty of the United Nations, which was founded to “save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”) provides a paradigmatic example of a watershed event for the periodization of the history of the legal discourse on ius ad bellum. This periodization is inter alia retraceable to moral theological writings on the “just war” doctrine in the middle ages and early modernity.Footnote ⁷⁶ By contrast, an “external” normative approach to the history of international law is one that focuses on international norms, principles, and doctrines embedded in their historical contexts, typically international political, social, intellectual, and/or economic ones. Consequently, the cultivation of the “external variant” is more permeable to interdisciplinary contextualist methods and overtly politico-epistemological perspectives.

The presence to a lesser or greater degree of a juridical prism in a historical narrative is ultimately the differentiating factor between an inquiry into international legal history and other types of historical analysis. However, the promise of the purely internal international “normative approach” to allow international legal history to develop its own periodizations, distinct and independent from periodizations based on other criteria, can be questioned from a historical point of view. This is, first, because, in its concentration on “intrinsic” approaches to the history of international law, this perspective exhibits a marked antidisciplinary ethos to studying the past. The legalistic exclusion of other approaches to the history of international law generates a doctrinarian ahistorical normatization of the past of international law as a solipsistic discipline completely separated from sociology, economics, and politics. Moreover, the use of such an intradisciplinary methodology brings the approach closer to what Quentin Skinner would call the “mythology of doctrines.”Footnote ⁷⁷ This makes this approach to periodization more susceptible to falling prey to a normative reductive “precursorism” and its elated anachronistic reading of the present in the past. This is a consequence of a tendency to constantly identify normative antecedents of present-day institutions or ideas in earlier historical periods with little or no regard for the unique societal historical contexts from which international legal norms emerge and the shifting background against which they have evolved and which they continually impact upon.

The Postmodern Critique of the Periodization of International Law

The abovementioned six approaches to periodization in the history of international law (based on hegemonic power, Western liberal universalism, state sovereignty, intellectual or doctrinal history, international institutions, and international legal norms and principles) can be found constantly combined and recombined to different degrees as functional reference points in the narratives of those who investigate what was “hitherto known as the most neglected field of international law.”Footnote ⁷⁸ However, in the wake of the “historical turn” in international law, as is “typical of times of cognitive dissonance when new forms of thought are challenging traditional horizons,” the practice of periodization itself has been made the object of a powerful critical problematization.Footnote ⁷⁹ This revolves around the idea that “any periodization is inherently problematic as any period is an abstraction from the historical process.”Footnote ⁸⁰

Lurking behind this critical questioning of the concept of periodization is the influence of the methodological toolkit of critical technologies associated with “New Approaches to International Law” (NAIL) in international legal scholarship.Footnote ⁸¹ Critical historians, who are often overtly militant in their wish to stress recourse to history as a means of intervening politically in contemporary international legal debates, have endeavored to place themselves at the avant-garde of the rejuvenation of the hitherto dormant field of international legal history.Footnote ⁸² This is apparent in a recent characterization of the “turn to the history of international law” in an authoritative specialized bibliography highlighting historiographical topoi commonly associated with postcolonial, postmodernist, and intellectual biographical approaches.Footnote ⁸³ Critical contributors to the field have also variously reflected on historiographical matters, including by defending a legitimate role for anachronism in international legal methodology.Footnote ⁸⁴ This controversial statement is based on the argument that historical contextualism cannot claim any methodological predominance over critical history because the notion of historical context is ultimately boundless and subject to inevitable choices and assessments that are inevitably informed by contemporary considerations.Footnote ⁸⁵ The critical problematization of the study of periodization in the history of international law is part and parcel of a broader critical historiographical rereading of the role of international law in shaping the contemporary world. It is also a connecting thread to foster greater doses of reflexivity, awareness of “false necessity,” and a sense of agency in international legal scholarship.Footnote ⁸⁶

In this revisionist context, periodization has, first, been foundationally attacked for reinforcing the “commonplace view that there are single homogeneous periods when international law has been either this or that.”Footnote ⁸⁷ Against the reductionism involved in splitting historical time into different periods, critical historiography has instead taken on the mission of stressing the value of focusing on the tension between discontinuity and continuity and on the roles of contingency and agency as critical historiographical topoi.Footnote ⁸⁸ This is very much in syntony with the interpretation of the history of international law made by Marxist post-colonial international law scholars such as Bhupinder S. Chimni as a “site of struggle and of promised emancipation” that is “here to stay.”Footnote ⁸⁹

Second, the study of periodization in the history of international law has also been impacted by the postmodernist trashing of the grand historical narrative of international law.Footnote ⁹⁰ Critical perspectives are ontologically pitched to invariably politicize and critically antagonize historical accounts that project a narrative of progress and normative accomplishment in international law, and to highlight instead the permanence of background sociologically unequal factors in world society. They have, in particular, stressed how certain types of conventional periodization contribute, as previously examined, to an axiologically driven narrative of disciplinary progress wherein international lawyers become, as Martti Koskenniemi put it, the handmaidens of “humanity's telos.”Footnote ⁹¹ Other authors, such as Nathaniel Berman, have built on Michel Foucault's significant impact on the social sciences and humanities in making space for new paths of critical inquiry to argue in favor of a “genealogical approach” to the history of international law.Footnote ⁹² According to Berman, this consists of an examination of “the appropriation and re-appropriation of law by the heterogeneous forms of power, as well as the constitution and reconstitution of power by the heterogeneous forms of law.”Footnote ⁹³

However, critical international law historians have not limited themselves to challenging established periods in order to “challenge established interpretations of history.”Footnote ⁹⁴ Their ontological and deconstructive critique of historical periodization is, more often than not, a back door to nurturing the ground for the advancement of alternative forms of periodization of the history of international law. Critical international law scholars consider that all history writing constitutes a “political intervention in the present.”Footnote ⁹⁵ In practice, this understanding becomes translated into an effort to make space for the production of new critical historical meta-narratives, which end up, in turn, fostering alternative periodizations in the history of international law. For example, as Oliver Diggelmann highlights, a “socialist theory of international law” would look to “history through the lens of class struggles and expected gradual progress for the working class.”Footnote ⁹⁶ Inspired by a Marxist historiography, this approach tends to identify particular events (such as the Bolshevist Revolution) as the most influential turning points or critical junctures in a socialist periodization paradigm of the history of international law.Footnote ⁹⁷ A similar case of emergence of a critical periodization has followed from the attention accorded by critical approaches to the so-called “others” of international law.Footnote ⁹⁸ A postcolonial periodization of the history of international law has emerged as a counterpoint to the historical narrative of international law punctuated by a Western periodization in the twentieth century gravitating around the watershed dates of 1919, 1945, and 1990. According to its critics, this serves an ideological purpose by contributing to universalizing and legitimizing the Western historical perspective.Footnote ⁹⁹ By contrast, the key historical turning points in such a new postcolonial periodization may include events, or sequences of events, oriented to fleshing out the bones of an alternative 1880s–1970s periodization that moves Western imperial schemes and their colonial architecture into the foreground. A look into the contribution of recent literature toward an expansion of the available histories of international law indeed shows semiconcerted efforts by members of a network of international law scholars known as Third World Approaches to International Law (TWAIL) in this direction.Footnote ¹⁰⁰ This postcolonial periodization is built on events, or sequences thereof, such as the regimes of colonial unequal treaties, the Berlin Conference, the Mandate System in the Covenant of the League of Nations, the struggle for the principle of sovereignty over natural resources, the gradual emergence of the principle of self-determination of peoples during the decolonization era, the conference of nonaligned countries in Bandung, and the proclamation of a New International Economic Order (NIEO) in the early 1970s.Footnote ¹⁰¹

A Multiperspective Approach to Periodization in the History of International Law

The challenging theoretical contributions of critical historians to the elusive question of periodization in the history of international law have drawn attention to an under-studied area within the historiography of international law. However, somewhat muffled by the maximalist tenets of critical and post-modernist historiography is the fact that both international lawyers and historians of all persuasions are continually making use of multiple periodizations of the history of international law in developing their historical crafts. This is because, ultimately, every historian feels obliged to explain his or her choice regarding the “time and scale” of any historical research undertaken, and to present the selection of the resulting “temporal canvas” as meaningfully proportionate and objective to his or her academic peers.

As a heuristic device enabling international legal historians to make more conscious periodization decisions in today's highly polarized field of the history of international law, a multiperspective approach steers a middle course between its critical and its descriptive analytical historiographical functions. On the one hand, a multiperspective approach allows us to point to the blind spots and biases of the different approaches to periodization that it encounters; on the other hand, it allows us to clarify the typical assumptions and drivers behind the interpretative historical frameworks underlying them. It is also an approach that acknowledges that in historical writing in international law, rather than being mutually exclusive, periodizations are useful prisms that overlap in their historiographical utility. This approach to the question of periodization is one that emerges from the practice of historical writing itself as well as from an analytical reading of how different periodizations are combined and recombined in the contemporary literature. In my view, it has the potential to result in a gradual healthy juxtaposition of new periodizations alongside conventional ones as part of the toolkit available to international legal historians in a more conscious construction of new historical narratives. If, as Charles Renouvier wrote, the formula of science is “to make and in making to make itself,” as the field of international law extends into new areas of specialization, and historical research expands into new topics and engages with more diverse standpoints, so does the catalogue of periodizations that can be added to the functional toolkit of the international legal historian. A multiperspective approach to periodization in the history of international law cherishes this development and does historiographical stocktaking of it with a view to nurturing further innovation in historical writing on international law.

In 1975, one of the founders of the critical legal studies movement, Duncan Kennedy, provided an example of an influential alternative periodization of the history of legal thought in the United States.Footnote ¹⁰² Kennedy used the metaphor of “the rise and fall” of what he termed “classical legal thought” in the United States by placing it between the dates 1850 and 1940.Footnote ¹⁰³ Twenty-five years later, building on exactly the same metaphor, in his The Gentle Civilizer of Nations, Martti Koskenniemi produced a highly influential periodization of the intellectual and sociological history of international law. He selected the date 1870, the prelude to the foundation of the Institut de Droit International in 1873, to mark what he referred to as the beginning of the “rise of international law,” and he selected the date 1960 for its “fall,” interpreting this as coinciding with the “emergence of a depoliticized legal pragmatism on the one hand, and … the colonization of the profession by imperial policy agendas on the other.”Footnote ¹⁰⁴

In what follows, I present four different typologies of alternative periodization. These are, first, derived from the effects of the contemporary phenomenon of diversification and expansion of international law in the history of international law. At a time of revitalization of historical writing on international law,Footnote ¹⁰⁵ a second source is that international legal historians now pay more specific attention to geographical factors in developing their histories of international law. The third novel alternative approach to periodization mirrors how research on international legal history has expanded in scope toward global and cross-cultural studies. Finally, attention is paid to the role that traditionally neglected research subject matters in the history of international law can play in fostering new periodizations as prisms that intersect in their historiographical utility.

Alternative Periodizations in the History of International Law Derived from Fragmentation, Geography, Cross-Cultural Interaction, and Unexplored Research Topics

The question of the fragmentation of international law, characterized by Pierre Marie Dupuy as the “doctrinal debate par excellence of the globalization age,” has attracted enormous attention among international law scholars over the last decade.Footnote ¹⁰⁶ Martti Koskenniemi, the special rapporteur for the International Law Commission, in his report to the United Nations General Assembly in 2006 entitled Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, stressed that “the fragmentation of the international social world,” has “attained legal significance especially as it has been accompanied by the emergence of specialized and (relatively) autonomous rules or rule-complexes, legal institutions and spheres of legal practice.”Footnote ¹⁰⁷ From an academic viewpoint, the outcome of the expansion and diversification of international law in recent decades has been an increasing fragmentation of the study of international law more generally into niches of specialized international legal scholarship. This diversification and specialization of international legal scholarship has, in its turn, resulted in a more pronounced diversification and expansion of the study of different branches of the history of international law itself.

The ensuing fragmentation of the history of international law as an academic discipline can be observed insofar as each subdiscipline tends to generate its own subdisciplinary historical narrative. This tendency mirrors (but also greatly influences) the progress of specialization within domestic legal orders across multiple jurisdictions. The effects of fragmentation on the history of international law can be observed in new histories that have examined different branches of international law such as international criminal law, international investment law, and, inter alia, international environmental law.Footnote ¹⁰⁸ The new efforts to document the history of these subdisciplines within international law has resulted in a constant search for precedents and landmarks corresponding to their own genealogies of normative, sociological, and intellectual subdisciplinary development.Footnote ¹⁰⁹ As a result, each subdiscipline or specialized branch of international law is becoming increasingly studied with reference to its own historical expansion in an independent fragmented manner. However, much more work is still needed on the historical synergies and mutual interactions of specialized sectors of international law and on the comparative legal history of different legal branches in domestic settings across both time and space.

The overall result of this subdisciplinary fragmentation of the history of international law is an emergence of new subdisciplinary periodizations. Each of these, which are based on their own subdisciplinary landmarks and corresponding subperiodizations, tends to reflect a different chronology from the traditional general periodization of the discipline as a whole. The history of international human rights law, whose modern origins are conventionally retraced to the Universal Declaration of Human Rights (UDHR) in 1948, is one of the subfields that more clearly exemplifies this latest trend in contemporary literature, partly as a result of a polemical work produced by Samuel Moyn that situated the emergence of contemporary international human rights law in the 1970s.Footnote ¹¹⁰

Second, as in other fields of historical research, periodization tends to be geographically specific. Needless to say, spatial considerations, or more simply geographical factors, have played an integral part in the study of international law since the inception of modern study of it. Back in 1883, soon after the foundation of the Institut de droit international, one of its members, James Lorimer, mirroring the impact of the apogee of the doctrine of the “standard of civilization” at the height of the imperial age, proposed a differentiation of peoples for the purpose of recognizing them as members of the international legal system and subjects of international law.Footnote ¹¹¹ According to his influential classification, “humanity is divided into three zones or concentric zones: civilized humanity, barbarous humanity, and savage humanity.” The first sphere included Europe and its colonies (or former colonies) in America, including the United States and the Latin American Republics. This civilized sphere was accorded plenary recognition. The second sphere was composed of Turkey, Persia, China, Siam, and Japan, which were granted partial recognition of their barbarian identity as independent political communities. The remaining sphere comprised “the rest of humanity” to whom, being savages, mere human recognition was available.Footnote ¹¹²

Questions of universalism and particularism and the role of regionalism in international law continued to be debated by international law scholars in the early twentieth century, particularly within the League of Nations.Footnote ¹¹³ Influenced by the infusion of the strong identities of “emerging nations” from the decolonization era, and partly as a reaction to globalization, contemporary postcolonial authors investigating regionalism in the history of international law followed in the footsteps of earlier pacesetters.Footnote ¹¹⁴ Among these is Alejandro Alvarez, judge at the International Court of Justice between 1946 and 1955, who investigated regional particularities and dynamics in the development of a distinct regional normative order in Latin America in the first third of the twentieth century.Footnote ¹¹⁵ The shift in perspective that characterizes the contemporary approach was further consolidated in the wake of the emergence of the world-system theory in the field of international political economy.Footnote ¹¹⁶ This underlying influence can be observed in new semiperipheral and alternative periodizations in the history of international law from geographically distinct viewpoints.Footnote ¹¹⁷

This stress on the role of geographical factors in shifting the perspective from which the history of international law is written, and in questioning the standing of Western events as gravitational centers of the standard periodizations in the history of international law, has been one of the preferred topoi of recent postcolonial contributions. A recent example is provided by Arnulf Becker, who proposed one of these semiperipheral historical periodizations of international law. Becker framed a period between 1842 (when Britain and China signed the Treaty of Nanjing, which put an end to the first Opium War) and 1933, the date of the adoption of the Montevideo Convention on the Rights and Duties of States. In proposing this alternative periodization, Becker put emphasis on what he termed the “universal particularism” and the “strategies of appropriation” of international law developed mainly by semiperipheral nations, and in particular by Latin American scholars.Footnote ¹¹⁸ Also revolving around the history of international law in Latin America is another recent work by Juan Pablo Scarfi. This explores the “emergence and development of a distinctive hemispheric discourse and practice of American international law in the Western hemisphere between 1890 and 1943” mainly with reference to the American Institute of International Law (1912–43). This was a pan-American legal organization established with the aim of advancing a distinct United States-led conception of international law for the Americas.Footnote ¹¹⁹

Similar semiperipheral regional periodizations of the history of international law could be developed from other regional or continental geographical settings. For example, Oliver Diggelmann has highlighted how a history of international law “from an African perspective” could develop by “distinguish[ing], for example, the periods of “ancient and pre-Medieval Africa,” “indigenous African states,” the “beginnings of European trade” and the “period of colonial rule.”Footnote ¹²⁰ Likewise, analogous alternative periodizations could be developed for Asia and subregional and national units within it, such as, for example, China.Footnote ¹²¹ This shows that the usefulness of generally accepted periodizations of the history of international law is to a large extent geographically specific.

However, alternative regional, or subregional periodizations in the history of international law from ancient to modern times do not need to be limited to only account for historical extra-European or extra-Western experiences. There is also ample scope for possible alternative European periodizations beyond the homogenizing perspective of a “European tradition” of international law often constructed around the history of a limited number of Western European powers to the exclusion of many others.Footnote ¹²² If certain myths regarding the history of international law in Europe are to be dispelled, it seems that a far more complete history of international law within European states themselves would be required, from which new relevant geographically and culturally specific “national” periodizations may also emerge. A recent history of international law in Spain from 1770 (“when the study of public law, natural law and the law of peoples was included for the first time in a Spanish curriculum”) to the year 1953 (which “marked the beginning of the end of the post-war period of international ostracism of Spain as a relic of the interwar rise of fascist ideologies across Europe”) offers an example of such a novel “national” periodization for a semiperipheral European country.Footnote ¹²³

Third, besides the above described new types of “alternative periodization” emerging from the fragmentation and specialization of international law and the spatial factors brought into sharp relief by globalization, the history of international law is also a research area well positioned for historians wishing to investigate the extent to which it is “possible to identify periods that are both meaningful and coherent across the boundary lines of societies and cultural regions.”Footnote ¹²⁴ The development of international law, being a truly global process transcending individual societies and cultural regions, is no stranger to multiple and significant political, social, economic, and cultural ramifications for all peoples and cross-cultural interactions. Processes of cross-cultural interaction affecting international law, as with any other cross-cultural process,Footnote ¹²⁵ can, thus, also contribute to “identifying historical periods from a global point of view.”Footnote ¹²⁶

Dubbed the “fastest-growing field within the discipline,” the rise of “global history” is widely considered a reaction against the blind spots “affecting interactions and connections that have made the modern world.”Footnote ¹²⁷ These blind spots have largely resulted from a “compartmentalization of historical reality” into the chief “container-based paradigm” of national history. The conception of the most cosmopolitan discipline in the legal curriculum as a truly global historical “process,” as one transcending individual societies and cultural regions, positions its history as an ideal “global” research area. The history of international law is a perfect ground on which to apply a historiographical methodology based on “transfers, networks, connections and cooperation, transformation and translation,”Footnote ¹²⁸ and also interfaces and nodal points.

A globalized world in the early stage of an unprecedented technological revolution that is fostering unique forms of interconnectivity and cultural exchange naturally brings in its wake the application of global lenses to new forms of international legal history writing. In the image of the contemporary world, these lenses paradigmatically transpose the centrality of “connections” to the multiple pasts of the most global of all legal disciplines. Likewise, a growingly multipolar world engaged in hitherto unconceivable processes of regional and global economic, political, social, and cultural integration fosters new academic efforts to overcome “the traditional reluctance of many scholars to examine international law's reception by and transformation in the extra-European world.”Footnote ¹²⁹

The neglected history of the contribution of Islam to the history of international law through cross-cultural interaction is one of many examples where by using “cross-cultural interactions as their criteria, historians might better avoid ethnocentric periodizations that structure the world's past,” including that of international law, “according to the experiences of some particular privileged people.”Footnote ¹³⁰ Although recent literature has shown a greater interest in the history of international law in the Islamic world and its influence on the international normative corpus over time, including through cultural osmosis, this still remains a neglected area of study.Footnote ¹³¹ However, study of the intercultural origins of the law of nations could well transcend the Westphalian paradigm and bring the intellectual history of international law several centuries back to an earlier departure point for the historical periodization of the intellectual evolution of the discipline. In 1937, Ahmed Rechid devoted a course at The Hague Academy of International Law to proving that “Muslim authors had written in this area long before the Christians had published their first books on topics more or less connected to the law of peoples.”Footnote ¹³² Although some of these references can be found scattered in general works and books that address other subjects, such as the Qur'an and its exegesis, the Hadith and its commentaries and books of jurisprudence, Rechid pointed to a large number of volumes on a proto-form of international law produced between the ninth and the thirteenth–fourteenth centuries starting with the Siyar-i-Kebir. Divided in two volumes and written by bin-Hassan-el-Shaybani (804–952), this is considered a true treatise on the law of nations.Footnote ¹³³ More recently, Frederic Megret and Pierre-Alexandre Cardinal have also highlighted how “international law's debt to its encounter with its Muslim Other, despite its evident linkages to early modernity, remains curiously absent from the discipline's historiography.”Footnote ¹³⁴

Likewise, other non-Eurocentric periodizations of the history of international law would also be able to transcend the “hidden Eurocentrism” that still remains the gravitational core of most of the new narratives of “historical encounters” with Western international law's “others.” Ideally, these non-Eurocentric periodizations would be able to fruitfully combine the current temporal and spatial expansion of the research scope of the history of international law to investigate interactions among non-Western/European peoples over time. These developments could further contribute to fulfilling the goals that, according to Thomas Duve, global legal history should set for itself.Footnote ¹³⁵ These, according to Duve, include “a critical, sometimes even deconstructive function” because a “fundamental aspect of historical research involves the disclosure, examination, and, when necessary, revision” of both explicit and implicit understandings and conceptions about the past.Footnote ¹³⁶ Further development of historiographical awareness in the most inherently relational of all legal fields is, therefore, part and parcel of the fulfilment of such a global legal-methodological promise.Footnote ¹³⁷

Finally, a traditionally little-studied area or neglected topic of study in the history of international law can provide new historical reference points that may in turn serve as the basis for deeper and more nuanced historical narratives. One original historiographical example of this type is provided by Martti Koskenniemi in his “History of International Law Histories.”Footnote ¹³⁸ Koskenniemi's presentation of a “sketch of forms of historical consciousness”Footnote ¹³⁹ within the discipline from early Christianity up to some of the most recent historiographical approaches in the twenty-first century provides a basis for an original intrahistoriographical periodization of the history of international law from a meta-historical viewpoint. Another example of such a research topic is a global history of international law journals that allows for a mapping of the patterns of global geographical diffusion of them since the launch in 1869 of the first one, La Révue de droit international et de la législation comparée.Footnote ¹⁴⁰ These, and other examples that could be provided from recent literature, show that the present enlargement of the history of international law as a field of research also offers great potential for the development of alternative periodizations in the history of international law based on hitherto neglected areas of study in the same discipline.