Interest Group History of International Law Pre-conference Hybrid Workshop
31 August 2022, 2 pm – 5 pm (CET)
Panel 1:
In / Exclusion in international law through the lens of literature and gender
1. Teodora Schrotter,
Cambridge University - University of London, Histories of
Inclusion/Exclusion in International (Criminal) Law
2. Anastasia Hammerschmied,
Universität Wien, Wartime Sexual Violence in 19th Century International
Law
3. Aditi Patil, Human
Rights Measurement Initiative; Rashmi Dharia, Sciences Po Law School, On
Magic and Mandates: Decolonising Witchcraft and Sorcery in the History of
International Human Rights
We heard three excellent
presentations, followed by insightful comments and questions from the audience,
chaired by IG convener, Florenz Volkaert:
1. Anastasia Hammerschmied
(Universität Wien), “Wartime Sexual Violence in 19th Century International Law”
on an aspect of prohibition of sexual violence in armed conflict under
international law from 1870 to 1914 against women, in the light of, on the one
hand, the international law institute of sources (and the related problems:
fragmentation and indeterminacy) – by that pointing to interpretation; and on
the other hand, there is politicization - the problem of ideas and what
constitutes ideas for a society or for different levels of society.
2. Teodora Schrotter
(Cambridge University, University of London), ”Histories of Inclusion/Exclusion
in International (Criminal) Law.”
The paper focused on the
linear historical trajectory of international criminal law but also made clear
that there exists a non-linear perspective besides the historical linearity, to
which the author tries to get closer by using Law and Literature approach.
Schrotter has used the book
“Waiting for Hitler: Voices from Britain on the Brink of Invasion”, which book
refers to the personal diaries of the people who lived in 1940s Britain under
the threat of German invasion. – The use of the book that way is an example of
the Law and Literature approach.
Reading the abstract, at
the first sight (as a member of the Coordinating Committee), I [J.E.] was
sceptical about this Paper because it was not clear to me, whether the area of
fiction (F with the part H [as history] within it) could be filled with only
one book compiled by only one author’s subjective account? But it actually can,
depending on the reach and general acceptance of the ideas in such a book.
Legal fiction is generated through imagination. The key is to find a powerful
denominator that could touch everyone, such as, for example, Hitler. So,
literature can add power to any (legal) decision, while literature has the
potential to cultivate a critical conscience (abstract characterizations of
law). This can be connected with psychology which teaches us that we can only
see the materialization from the outside but not the inner processes that drive
it. [J.E.]
The problem with a Law and
Literature approach based on one book could be that one book still only
achieves “another fragmentation” of the entire research field. So, we remain in
search of a common denominator with the Law and Literature approach. Literature
works similarly to theatre, movies, and the other arts. [J.E.]
3. Aditi Patil (Human
Rights Measurement Initiative), Rashmi Dharia (Sciences Po Law School), “On
Magic and Mandates: Decolonising Witchcraft and Sorcery in the History of
International Human Rights.”
I [J.E.] understood that
this Paper, talking of “the spirits of the drafters - divine in their
intuitions …”, is a perfect example of what happens if the fiction part in
judgments goes wrong!
Reading the paper, made me [J.E.]
think about Louis Althusser’s ideology division into, on the one hand, public
ideology as State ideology, community ideology including also the ideology of
masses shaped by state media, and individual ideology, on the other hand, while
the latter has always been shaped by control. The main focus, therefore, is on
the relationship between state and individual.
As examples, the paper
brings in the dimensions of Christianity vs. Paganism and polytheism, and the
opposition of civilized vs. non-civilized, as illustrations of the forms of
censorship.
So, the historicization of
witchcraft illustrates the problem already articulated - a judgment based on
the values in society because the judge is a product of the society [e.g.: has
attended school, listens to the news, music, etc.] [Beliefs can be so strong
that even stronger beliefs (e.g. emotions) could be required to change
them.-J.E.]
During the vivid discussion
following the presentation was pointed out that there is also the other side -
a judgment based on the overall intelligence of the judge shapes the society because
such judgment says what a society is about. It was also pointed out that one
cannot convict based on literature solely.
1 September 2022, 9 am – 12 am (CET)
Panel 2:
In / Exclusion in the history of international law and capitalism
1. Matheus Gobbato
Leichtweis, Universidad Federal do Rio Grande do Sul, Law, ideology and
capitalist reason: the violence of abstraction as a mechanism of
exclusion/inclusion in international law
2. Florenz Volkaert, Ghent
University, Treaties of commerce and the most-favored-nation clause in
late 19th- and early 20th-century legal doctrine: a tool for economic and/or
civilizational in / exclusion?
Panel 3:
In / Exclusion of culture and minorities in the history of international law
1. Dr. Ríán Derrig, World
Maritime University, Historicizing the Politics of Interpretation: The
Exclusion/Inclusion of Cultural Context through Legal Interpretation
2. Dr. Elizabeth Craig,
University of Sussex, Who are minority rights for? The Role of
Petitions and the League of Nations minority rights regime
Panel 4:
In / Exclusion in the history of international investment law
1. Christopher Yaw Nyinevi,
Monash University, Deconstructing the exclusion of corporations
from international legal personality
2. Yanweng Zhang,
University College London, Equitable Representation on International
Benches and the Appointment of Investor-State Dispute Settlement Tribunal
Members: A Historical Perspective
We heard six excellent
presentations, followed by insightful comments and questions from the audience,
chaired by IG convener, Prof. Markus Beham:
1. Matheus Gobbato
Leichtweis (Universidad Federal do Rio Grande do Sul) talked about law,
ideology and capitalist reason - the violence of abstraction as a mechanism of
exclusion/inclusion in international law.
The presentation continued
our Interest Group’s yesterday’s discussions concerning the dilemma of, on the
one hand, free thought, and on the other hand, the suppression of fiction or
free thought. While in theory international law is anarchical by
nature, the reference to Indians brings in a dilemma between Might and
Right. So, a
question arises, whether Might makes Right? - This
understanding was substituted by the League of Nations and the United Nations,
and these technologies of governance are based on pragmatism, while the content
of that pragmatism is decided during deliberation between state
representatives. Can we talk about the “free will” of state
representatives or are they dependent on the systems that were created before
them [like money, the banking system, adjudication system (the latter based on
the Roman understanding that the winner is s/he who knows a certain formula,
not the Truth.) – J.E.]
So, we received an overview
of the step-by-step development of the concept of governance, structurally
connected with the capitalist social relations. The author refers to Marx in his explanation: people enter into
relationships because the conditions of production necessitate them. He also
refers amongst others to the understanding by Ntina Tzouvala of “capitalism
as civilisation” uncovering the argumentative mechanisms through which the
logics of inclusion and exclusion operate in international law, while Ntina
Tzouvala shows how legal argumentation has shaped the civilisation into what it
is.
2. Florenz Volkaert (Ghent
University) discussed the turn-of-the-century practices of commercial
treaty-making, the role the most-favoured-nation clause played in European
domestic and imperial trade policy, and the complicity of Western international
lawyers in enabling colonialism. This paper won the 2022 ESIL Young Scholar
Prize.
3. Dr. Ríán Derrig (World
Maritime University), “Historicizing the Politics of Interpretation: The
Exclusion/Inclusion of Cultural Context through Legal Interpretation.”
The author has been
historicizing the Politics of Interpretation: the exclusion/inclusion of
cultural context through legal interpretation, concerning his book project
based on his Ph.D. dissertation (forthcoming in OUP) about the intellectual
history of the New Haven School that Derrig uses for entry to the field of
post-war American international law scholarship. Derrig pointed to the two basic claims that the New Haven School could
help see about the field:
1) Myres S. McDougal’s anti-formalist approach to interpretation,
and
2) when one places this anti-formalist legal method in a historical
context, one might see that legal interpretation has been conditioned by the
political cultures in which it operates.
The 1968 UN Conference
discussed ILC’s Draft Articles on the interpretation of treaties that became
Articles 31 and 32 VCLT. McDougal attacked the formalized hierarchy established
by the Draft Articles and suggested a new version of those Articles.
What to initially take with
from this Paper? One potential takeaway is that there are no fixed or natural
meanings of words that the parties could not alter – leading into the idea of
progressive international law based on Harold Lasswell’s neo-Freudian Social
Theory and the social critique based on that theory.
4. Dr. Elizabeth Craig
(University of Sussex), “Who are minority rights for? The Role of Petitions and
the League of Nations minority rights regime.”
The paper talked about the
hegemonic narrative and double standards that still remain. Elizabeth Craig was
also referring to the need for contextualizing in order to understand better.
Her conclusion is that there really is politics in law.
5. Christopher Yaw Nyinevi
(Monash University), “Deconstructing the exclusion of corporations from
international legal personality.”
In the beginning, the
author referred to the classical international law where only states had ILP
but individuals, companies, and non-state actors were objects of international
law. This view has gradually changed. He focuses on the status of corporations
in international law, specifically, of multinational corporations.
A reference was made to
James Crawford who pointed out that there was no norm in international law that
extended international criminal liability beyond states to corporations. Nyinevi showed the gradual development of international law - that
similarly to individuals, some human rights have been attributed to
corporations, still mostly through state mechanisms. The paper also discussed
the consequences of giving ILP to multinational corporations.
Professor Anne Peters
raised the question: why couldn’t multinational companies have just rights and
obligations instead of ILP. [Maybe the ILP of multinational companies could
result in a Permanent Court of Arbitration-type of control over multinational
companies? – J.E.].
6. Yanweng Zhang
(University College London), “Equitable Representation on International Benches
and the Appointment of Investor-State Dispute Settlement Tribunal Members: A
Historical Perspective.”
Yanweng Zhang demonstrated
high-level competencies and skills of analysis throughout her presentation and
the preceding and following discussions. The paper points to the diversity of
definitions concerning geography and gender in the arbitration system. Her
remarks were followed by a vivid discussion on the questions concerning the
need for a more permanent court of arbitration, i.e., internationalization of
commerce.
Jaanika
Erne
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Markus Beham - John Morss - Jaanika Erne - Florenz Volkaert
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