Ensayo sobre palestina

The History of International Law Today
(Published in Rechtsgeschichte, 2004)
Martti Koskenniemi

I Situation at present

International law emerged as a specialised profession and a branch of law studies with a
chair at universities only in the latter part of the 19th century. Before that, it was usually
studied in connection with – and sometimes merged into – diplomatic history orpolitical
philosophy. From the outset, its self-understanding was historically informed. This
undoubtedly reflected the sense among international lawyers that they were part of a
cosmopolitan project that had a long pedigree sometimes derived from Enlightenment
philosophy but increasingly from earlier times, from Hugo Grotius, 16th century Spanish
humanists or even Stoic cosmopolitanism. Stillduring the inter-war era, international law
was understood and examined in intensely historical terms.

But the collapse of the inter-war order put also to question the well-foundedness of such an
orientation. Clearly, the cosmopolitan project – or at least the manner in which it had been
conducted – had failed. As in most branches of the law, the increasing specialisation of
international lawdirected attention away from history and general reflection on the
profession's past. Pragmatic and instrumental tasks such as supporting the United Nations,
construction of an international human rights framework, the development of special rules
for trade law, environmental law and work for a proliferating number of international
institutions since the 1950's, have left little room forhistorical studies. For a functionally
oriented generation, the past offered mainly problems, and few solutions.

Although little has happened in international legal history in the past half-century, there
have also been clear signs of an atmospheric change. Perhaps the most obvious of these
was the inauguration of the European Journal of International Law in 1990 which from the
outset includedsymposia on the "European tradition in international law", explorations in
the life and writings of some of the more important European internationalists from the
first half of the 20th century. The series understood the denomination of "international
lawyer" in an appropriate broad fashion, including studies on theorists such as Hans Kelsen
and Alf Ross, whose work only occasionally touched uponquestions of international law -

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though when it did, made points of lasting relevance. Many of the studies have been pathbreaking in examining their subjects in their political and intellectual context, seeking
distance from the formal and sometimes hagiographic tradition of biographical writing in
the field. 1

Another significant event was the inauguration of the Journal of theHistory of
International Law / Revue d'histoire du droit international in 1999. The Journal is
published twice a year and provides an eclectic forum for writings on different aspects of
international legal history from the Roman Empire until the 20th century. It is the first
periodical specialised in the field's history and an important competitor to the handful of
international relations anddiplomatic history periodicals that had published studies in the
history of international law so far. Occasional historical pieces have come out in regular
international law journals and yearbooks such as, for example, the British, Finnish,
German and Italian Yearbooks of international law as well as the Annuaire de droit
international in France. Although the Hague Recueil (Recueil des cours del'Académie de
droit international, published since 1923) carried historical articles in its early volumes,
that practice has been discontinued. Special mention should be made of an increasing
interest in international law and the colonial encounter from mid-1980's onwards. Studies
on this question in regular law journals in the United States and elsewhere have been of
mixed quality but shown...