Foreign Office International Legal History

Abstract:     
International law as a discipline appears to be rooted in historical trends and realities to a far larger degree than other realms of law and jurisprudence, but the relationship between the domains of international law (as both an academic study and professional practice) and historiography remain cloudy and uncertain. In the United States, at least, because of the strong tradition of original intent in constitutional interpretation, recourse to historical sources and insights has become a consistent feature of both judicial decisions and academic commentary. The methodologically weak and (some might say) indiscriminate and instrumental uses of history in American legal discourse have resulted in a backlash, with such writing and decisions being derided as law office history, or, even worse, History Lite.

Do we have - or could we have - the same problem with the international law decisions reached by both domestic and international tribunals? What should be the standards of quality international history and historiography when advocates and judges attempt to canvass historical data and trends in order to either assert or resolve particular legal submissions? I propose to offer two case studies of relatively recent decisions in which international legal history figures prominently in the resolution of albeit very different kinds of disputes.

The U.S. Supreme Court in June 2004 handed down a ruling in the Sosa v. Alvarez-Machain case, concerning the status of the Alien Tort Statute, adopted by Congress in 1790, which gives a right of action to aliens seeking redress for violation[s] of the law of nations or a treaty of the United States. After extensive and hotly-contested briefing by the parties (including the United States government), the U.S. Supreme Court reached a ruling on the meaning of the law of nations in eighteenth century English, American and international parlance and practice. But this was no academic exercise; the Court went on to rule that private rights of action were available under the Statute, and that the set of violations so actionable could change and evolve with time. The Court sought to examine the intent of the drafters of the Alien Tort Statute and measure their understanding against the prevailing intellectual currents of international law at the time of creating the American constitution. The Sosa decision thus reflects international legal historiography sketched on a broad, compelling canvas.

A somewhat more prosaic application of historiographic techniques to international decision-making is the International Court of Justice's 1999 decision in the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia). This was a boundary dispute, the successful resolution of which has become a staple of the I.C.J.'s work. In boundary disputes, historical materials concerning the effective occupation of territory by the contesting nations are often implicated and often become decisive for the determination of the outcome of the case. Kasikili/Sedudu is not itself a significant decision, save for some disagreements registered by the parties and the members of the Court (particularly Judge Higgins) over the significance of particular historical documents and evidence. Unlike the Sosa decision, Kasikili/Sedudu is international legal historiography writ small. Nevertheless, the standards of quality history in international legal advocacy in such cases should be no less important.

In recognizing the significance of historical inquiry in international legal pursuits, we need to be prepared to pass judgment on what are, and what are not, legitimate and proper techniques of historiography. Without such standards, the discourse of history and international law could well be relegated to the level of foreign office international legal history.

Working Paper Series