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The evidence from Hersch Lauterpacht’s private correspondence that he sought “to renew the Law of Nations and the Jewish nation together” is quite persuasive. Like many other Jewish professionals of the early twentieth century, Lauterpacht is likely to have felt no conflict whatsoever between his Jewish nationalism and his cosmopolitanism. Each had a moral-historical content; each informed the other. Like international law, Zionism was fed by impulses that were in part idealist, in part realist. This is no surprise. As I have explained elsewhere, any political-legal theory needs both elements so as to seem persuasive. Jurists have long ago learned to respond to the interminable critiques that international law is just a moral utopia by demonstrating that its very foundation lies in state will, diplomacy, and the division of the world into territorial states.
Why all this interest in the history of international law today? A partial explanation can surely be found from the end of the 20-year period of liberal-internationalist ascendancy (1989–2008) and the perplexity that has followed its demise. Mark Zuckerberg put it succinctly in a manifesto on Building Global Community in Facebook in February 2017. When his company started, he noted, it was to ‘bring . . . us closer together and build . . . a global community’. ‘[T]his idea’, he suggested, ‘was not controversial’. But suddenly there has emerged a ‘movement for withdrawing from global connection’. Nor have international law scholars rested silent. Eric Posner has termed the present moment – with glee – as the ‘backlash’ against ‘liberal cosmopolitanism’. More soberly, perhaps, Philip Alston has noted the rise of ‘challenges [to] the human rights movement’ that are ‘fundamentally different from much of what has gone before’ while James Crawford has warned against ‘large-scale retreat into nativism and unilateralism’. What used to be a clear and broadly shared objective – building of a global community – is no longer so clearly visible. So, the temptation might be to look backwards instead and ask, ‘how did we get here?’.
This essay is a friendly response to the colloquium on From Apology to Utopia (FATU). It restates the way critical research examines the exercise of power through analysis of (legal) language. Attention is directed especially to the empowering and enchanting effects of the law. The main point has to do with the continuing power of structuralism as a form of legal analysis.
This study was conceived and planned in 2008–2009 when we were colleagues at Cambridge, during Martti’s tenure as Goodhart Distinguished Professor of Law. We were able to discuss some of the contributions in draft at a mini-conference held at the Lauterpacht Centre for International Law in February 2010.
In selecting authors for the Companion, we sought to incorporate a wide range of views, including interdisciplinary and critical approaches, as well as ensuring a reasonable coverage of the various sub-fields of international law. As the reader will observe, the discipline/profession of international law is approached in different ways by different scholars: the subject looks subtly (and sometimes unsubtly) different from India or the United States or Australia than it does from different parts of Europe or Africa. We would have wished for an even more catholic range of contributors, but the demands of space and time precluded this.
We are grateful to Cambridge University Press, notably the responsible subject editor, Sinead Moloney, for a judicious combination of support, encouragement and patience. Much of the editorial burden fell on our graduate student at NYU and Cambridge, Surabhi Ranganathan, to whom we owe a lot. Lesley Dingle produced an admirable guide to electronic sources of international law; the guide is also available at the website of the Squire Law Library* where the links will be periodically updated: they were correct when the manuscript was submitted to the Press.
From an exotic specialisation on the fringes of the law school, international law has turned during the twentieth century into a ubiquitous presence in global policy-making as well as in academic and journalistic commentary. With internationalisation first, globalisation later, questions about the legality under international treaties or customary law of this or that action were posed with increasing urgency in the media and by citizen activists as well as by governments and international institutions. International law exited the chambers of diplomacy to become part of the debates on how the world is governed. With good reason, the last ten years of the old millennium were labelled by the United Nations General Assembly the ‘Decade of International Law’. The decade saw such impressive developments as the establishment in 1995 of the World Trade Organisation (WTO) with a powerful system for settling trade disputes. In 1998 the Rome Treaty was adopted that led to the setting up of the International Criminal Court (ICC) to try suspected war criminals and those committing grave violations of human rights. The system of multilateral human rights and environmental treaties expanded and, as many said, henceforth needed more deepening rather than widening. The UN Security Council arose from its Cold War slumber to take action in many regional crises, sometimes with more, sometimes with less success, but always surrounded by much legal argument. Cooperation in development and in the organisation of international investment took a legal turn: the rhetoric of ‘rule of law’ penetrated everywhere. The same trends continued in the first decade of the new millennium. At the same time, however, new concerns emerged. Violations of human rights and humanitarian law kept occurring, especially in the Third World but also in Europe, while only little progress was attained in the eradication of poverty and global economic injustice. Some activities led by the Great Powers such as the bombing of Belgrade by the North Atlantic alliance (NATO) in 1999 or the campaign to oust Saddam Hussein from Iraq’s leadership in 2003 became the subject of heated debate. The relationship between the fight against terrorism and the protection of human rights divided opinions in Europe and elsewhere. While the number of democratic countries increased, democracy also brought popular restlessness and conflict out in the open.