26 April 2021

Expanding and remaking international legal history

In an article for the European Journal of International Law, Professor Nijman critically engages with another article in the same issue that Henri de Waele wrote on international law scholarship in the Netherlands during the interwar period. In her eyes, doing history today can no longer go without addressing “the woman question” and “the colonial question”, left unmentioned by traditional historiography. Expanding and remaking international legal history is crucial for today and tomorrow as, in her words, “the history we choose determines the people and institutions we invest with power and authority”. Interview.

Your article calls for a rectified and inclusive discipline of international law and for critical contextualism. Why is it that narrow conventional forms of academic professionalisation cannot adequately reflect the history of international law? 

First, let me thank you for the invitation to speak with you on this article. Indeed, it is an intervention in the currently somewhat heated debate on how we do history in international law and how doing history relates to contemporary politics. It deals with the question: How to expand or even correct international legal historiography? I take inspiration from the painter Kerry James Marshall, who kindly agreed to the reproduction of one of his paintings together with the article in the European Journal of International Law. Through his great art works, he is remaking the Western, masculine canon of the history of art. His dialogue with the past, however, has implications for the future. Whether it is in the arts or in law, doing history has a political dimension: the political imaginary of the future is shaped today, for example by the way in which we deal with the past. 

The article is also about explicating with which conceptions – e.g. “professional“ or “professionalisation” or “international law” one returns to the past. It means to illustrate a methodological point: be careful when you theorise notions for your analytical toolbox. In this case, when “professionalisation” is understood in a way that includes only masculine activities and practices, we end up with a masculine history of international law. Not necessarily because no women were part of the intellectual history of international law, but because the key analytical concept of “professionalisation” as it is defined simply keeps their voices beyond the scope of a historical narrative. And so, the more general and basic point I make here is that we have to think critically about our conceptualisations and blind spots. In the case of professionalisation, who and what professional practices are included or excluded from the analysis? And what are the implications thereof? 

When we return to the early twentieth century and theorise “professionalisation” in order to analyse international law (Dutch or otherwise), we should thus be wary of replicating the absence and/or invisibility of women in our own analytical toolbox by saying for instance that “professionalisation” is holding a chair. In the Netherlands, just as in other countries at the time, academia was a male bulwark and women were discriminated. But that doesn’t mean that women weren’t involved in the social and professional practices connected to international law. For example, the Dutch women’s and peace movements were highly intertwined. The lived experience of women and their actions, as I have suggested, were formative of international law ideas too. Telling the history of international law (again, Dutch or otherwise) as a profession or professionalisation needs to take into account also who and what have been part of this professionalisation so that the role of women and their international law views can be recovered, rather than excluded by the use of definitions. Beyond the case of Dutch women, I more generally call for broader contextualism or perhaps even for a more social history approach – in any case, for an approach that does not reproduce unreflectively the hierarchy and exclusion of the times but that widens the material and agents recognised in the history of international law.

Regarding the methods chosen by international lawyers engaged with critical legal history, should international legal scholarship address both “the colonial question” and “the woman question” and the intersectionality with other issues, e.g., peace and disarmament movements?

Critical engagement with the past can take different forms. But surely critical history resists linear histories of progress, as well as what Anne Orford called the “willed forgetting of international law’s imperial past”. Critical history invites, for example, the history of international law not to be defined by the sources of international law doctrine. And, to bring it closer to the present article, it resists an uncritical reading of history which leaves structures of domination untouched.

If “international law” is defined as mere interstate legal obligations, and does not include intellectual discussions and sociolegal practices in which humans participate, the women of the early twentieth century will easily remain invisible. Thus, my point is also – as you rightly suggest – a methodological one: I hold that a narrow, rather than a broader or richer contextual approach, provides too meagre a history of international law. In this case, what gets lost is the role of the women who were present and who contributed to the development of a countermovement against nineteenth- and early twentieth-century mainstream conceptions of war and international law. Women were a strong force behind the “peace through law” movement in The Netherlands and beyond. They were crucial in the creation of a space for public debate where an alternative international law programme could be discussed and take shape. Women may not have had a seat in government, but the female-led civil movements did have articulate political and international law agendas.

To the often-made argument that there were no women with a “significant” role or position that could be included in our histories, I would reply that we need to talk about what is “significant” and about how the operationalisation of a notion such as professionalisation in the present determines what we write about the past… Moreover, an all too doctrinal or formal approach to international law simply denies how it has always been embedded in political and social practices. An uncritical operationalisation of the notion of professionalisation hides from view women actors and their role in the lived experiences of international law. 

This holds true for the way we approach “international law” as a field of study during the interwar decades. At the time, international law, colonial constitutional law and administrative law were far more entangled than disentangled, and those advising on the latter were active participants in the debates on the former. An author who writes a history of Dutch international law in these decades inevitably makes choices about what to foreground and what to leave in the background. For me, critical history requires us to uncover how international legal notions have a colonial history, which is not far-fetched – to say the least – as these notions were used and shaped in the Dutch colonial empire context. A lot of work has been done on international law and colonialism in the British or German late nineteenth- or early twentieth-century context. However, the role of Dutch international lawyers and Dutch international legal thought in the justification of Dutch colonialism has been neglected. It is high time to critically examine their work as political interventions and to invoke the ideological context in order to understand how international law featured in a discussion of colonial questions and in a legitimisation of the colonial enterprise or a colonial war such as the Ache War. 

For me, a part of critical legal history is understanding that the concepts handed down to us by the past are in fact “frozen conflicts”’ or, in Unger’s terms, “frozen politics”, which we should examine to understand the implications of the ideology prevalent at the time. This goes to my previous point on making sure our conceptions about relevant practices do not have a limiting lens – in this case: are not gendered to the extent that they exclude women. And this is all the more true when it comes to how colonial domination has shaped international legal thought.

Can we say that during the interwar period Dutch academic curricula in international law “facilitated” the continuation of the colonial project?

From my preliminary research I tend to answer this in the affirmative. At the time, international law was becoming a more central course in Dutch legal curricula. The professors who taught these courses were often steeped in the Dutch colonial project. There is much more research to be done, but take for example Cornelis van Vollenhoven. He was at the time considered a progressive thinker on these issues, and he educated many Indonesian students and – at some level – resisted their discrimination; yet his scholarship was of an ambivalent nature, similar to that of other international law scholars of his generation. The “civilising mission” that was underpinning the work of so many of them was undeniably also behind Van Vollenhoven’s “ethical policy” proposals for Dutch colonial rule in the East Indies. His work and, perhaps even more, that of PCIJ Judge Bernard Loder and other Dutch colleagues demonstrate the entanglement of the Dutch empire in the thought and practice of international law. I am sure this colonial mindset was brought into the classroom. In the article, I discuss Indological education at two Dutch universities, Leiden and Utrecht, and recall how at some point professors such as Loder and Van Vollenhoven had their dispute over the identity of Dutch colonialism and Dutch colonial rule by fighting over the curriculum. I will have to dig deeper into the actual curricula, but it is hard to miss the paternalism and racism at play. Moreover, it was the Dutch sugar and oil industry that financed the education of prospective native civil servants and jurists, with an eye toward continuing the colonial system. 

*  *  *

Full citation of Professor Nijman’s article:
Nijman, Janne E. “Marked Absences: Locating Gender and Race in International Legal History.” European Journal of International Law 31, no. 3 (August 2020): 1025–1050.

Interview by Anna Beatriz Balcazar Moreno, PhD Candidate in International Law; editing by Nathalie Tanner, Research Office. 

Banner picture: excerpt from a photo by J. Willem Schut showing the sorting out of tobacco leaves in Medan, Indonesia. Date: 1897. National Archives of the Netherlands / Fotocollectie Deli Maatschappij.