History of international law as history of international power: sovereignty and property

INTERNATIONAL LAW ASSOCIATION
(British Branch) Lecture:

History of International Law as History of International Power: Sovereignty and Property

Martti Koskenniemi, University of Helsinki

Chaired by Professor Roger O’Keeffe, UCL Laws

About this talk

The recent surge of interest in the history of international law has been inspired by an effort to examine the field’s complex relationship to the expansion of European power –imperialist tool or an instrument of resistance? International law’s relationship with European political, diplomatic and religious ideas has become subjected to increasingly close scrutiny. Scholars have questioned whether one can speak at all of a single “history of international law”. Different periods or locations may instead have instead witnessed the rise and fall of a series of different more or less overlapping “international” rule-systems? I welcome the view of the history of international law as a study of the establishment, maintenance and critique of international power. The time of histories of a single disciplinary “tradition” are over. But, I argue, this will necessitate operating with an wider notion of “international law” than has been usual so far. Instead of focusing exclusively on sovereign power, attention ought to be directed on the relations of sovereignty and property. The legal specificity of European power, I will argue, lies in the way it has always combined public law sovereignty with the powers of private ownership. In any examination of the legal forms of European imperial power, it would be wholly insufficient to examine only what sovereigns have done or how they have been resisted. Public power has often rested on the privileges of ownership – but the two have also frequently clashed against each other. But however their relations have been organized, only by considering both it is possible to have a realistic image of the role of law in the world of international power. One version of this argument is available in my ‘Expanding the Histories of International Law’, 56 American Journal of Legal History, 2016, 104–112.

About the speaker

Martti Koskenniemi is Academy Professor of International Law at the University of Helsinki and Director of the Erik Castrén Institute of International Law and Human Rights. He is presently leading a research project on “The History of International law: Empire and Religion”. Within that project Koskenniemi’s own research traces the development of thinking about the role of law in the international political world in 1300-1800. His research commences with an examination of arguments during late medieval state-formation, especially the “legists’” recourse to a political theology of French kingship in the 13th century.  He also studies the influences of Spanish scholasticism, raison d’état –thinking and (especially) political economy in international law in the relevant periods. A key role is played by the traditions of “jus naturae et gentium” in Germany, “Droit public de l’Europe” in France and the royal prerogative in external affairs in Britain. The research focuses on how the idiom of ius gentium (“law of nations”) has been used in order to buttress state power and rights of property in Europe and the colonies.