What are your expectations at the Graduate Institute, particularly with respect to research collaboration?
I am delighted to join the Graduate Institute. It is such an exciting place, bringing together excellent scholars and students from around the world, with different backgrounds and disciplines. I see wonderful opportunities for collaboration within the International Law Department and beyond, e.g. with the International History Department. Bringing together excellent people from various disciplines makes it a space where multidisciplinary dialogues can flourish in research, and also in teaching. That is, in my view, very attractive for students as well as for scholars and practitioners.
Within the Department of International Law, there are excellent colleagues whose work I have held in high esteem for many years now and with whom I can see good synergies. Professor Andrea Bianchi and I share long-time research interests in international legal philosophy. He has been one of the most perceptive people in the field, and was among the very first to engage with my work on the concept of international legal personality and on the French philosopher Paul Ricœur. I look forward to our collaboration, but also I envisage rich exchanges with other colleagues like Vincent Chetail with whom I share an interest in the history of international law; with Andrew Clapham who was writing authoritatively on non-state actors in international law already when I started to work on international legal personality; or with Fuad Zarbiyev who is so well-versed in international legal theory; and with Paola Gaeta to learn about her project on LAWS. I envisage fruitful collaboration with Nico Krisch and the colleagues from the Global Governance Centre, for I have high hopes there are nice links with my work on cities in international law and governance.
Can you tell us more about this research project on cities?
The project examines the role of cities in international law and governance, and vice versa. My interest in this topic was triggered around 2005 by an article in the International Herald Tribune about the then Mayor of Seattle, Greg Nickels, who was disappointed that the US Senate did not ratify the Kyoto Protocol. He was determined to translate and implement the norm locally. This has been the starting point for my research. First, mapping the phenomenon: is there really something there to write on? Subsequently, finding a suitable approach to examine how the city became more active in international law, engaging more actively – or so they often claimed – with human rights and climate justice standards. At some point I turned to a social constructivist approach to show how the city was changing through its interactions with the international level of governance and law.
In recent years, my reflections are becoming more critical, also because so much of what is happening in and with our cities is determined by our global economy. What role can international law – human rights, labour law, environmental standards, and other public-interest-induced norms – play in making the world’s cities more inclusive and just, as SDG 11 advocates? And also, how can local governments contribute to these questions at the global level? But frankly, why would cities be more just or inclusive than states? The human scale? The particular nature of the space or culture? Critical research may also show how injustices and inequalities are easily reproduced by cities mobilising international law.
I am delighted to collaborate with a dear colleague at the Freie Universität in Berlin, Helmut Aust, on the publication of an Elgar Research Handbook on International Law and Cities in which a corps of top-quality authors reflect on the relationship from different angles. We are really struck by the enthusiasm with which people contribute and engage with a traditionally invisible actor in international law and together create a new subfield in international law. Helmut and I also launched an ILA Study Group on the topic which has been joined by ILA members from around the globe and have issued an ongoing call for city reports – playing with the analogy of states’ reports, e.g. to the UN Human Rights Council. We are interested in receiving reports on how a particular city engages with international law, global policy, and international organisations, and vice versa. We hope it will provide us with new, solid data. I guess people respond so enthusiastically because cities are a place where international law impacts our lives in a concrete manner, both positively and negatively. You can see law and power dynamics hit the ground, so to speak.
What courses are you teaching during your first academic year at the Institute?
This year I am teaching History and Theory of International Law. This is a great course to teach at the Graduate Institute, with students who can afford to be interested and realise the importance of gaining knowledge of the intellectual history of their discipline. How did our intellectual legal toolbox come about? Practitioners often tell me, our new staff will develop their lawyering skills with us at the firm or in court, but we want them to come to us with a sense of how the law develops, how it plays out, how it is mobilised, and who then wins and who loses. When we read and discuss texts by Vitoria, Grotius, Hobbes, Leibniz, Lauterpacht or also Koskenniemi, we read and discuss critically texts not written by and for philosophers, but by legal advisors and practitioners. Vitoria had to advise on Spanish colonisation in the Americas. Hugo Grotius was corporate lawyer of sorts for the first part of his professional life. Martti Koskenniemi emphasises that he is writing not as a theorist, but as an international lawyer coming from practice. Theory and practice are so intertwined. One produces the other. So, it is truly a pleasure to do this course at the Graduate Institute, with active students who are in a relatively small group and who actually prepare. This is particularly significant considering that reading texts from the sixteenth all the way to the nineteenth century is often an alienating experience; it helps to discuss them together: How do you read this? How should we contextualise it? What are the authors talking about? We also deal with contemporary history and end with some reflections on the responsibility of the international lawyer. So, the course deals with concepts and structure of international law and nurtures students’ intellectual curiosity and capacities, which is something that we need independently of whether we have the ambition to develop a career in the academia or into practice. It is about understanding the law in a broader context.
Why did you to turn to the history of international law? Could we say that history is an instrument for gaining self-awareness as well as the ability to question and unveil inherited assumptions?
Absolutely. One of the reasons why I turned to history relates to my interest in understanding the foundations of international law. When I did my PhD at a time that much of the scholarly debate was about non-state actors – Professor Andrew Clapham was one of the main participants in those debates – I wondered about how we got to where we were with international legal personality. How did it emerge? Why? To address which problems? Hence my turn to history.
At that time, however, we were not well equipped to study the history of legal concepts. I did my Law studies in the 1990s and there was no such course or field as “History and Theory of International Law”. When I started to look for methodology – which was in itself something uncommon, since lawyers did doctrinal legal research without much methodological deliberations –, I found the literature of the Cambridge School. This approach to the history of political and international legal thought makes us aware of how concepts are not natural phenomena, but rather socially constructed in relation to problems or challenges. At the time, I contacted Benedict Kingsbury (Vice-Dean and Director of the Institute for International Law and Justice at New York University) to ask him whether my research question was pertinent, and he was very encouraging. Ultimately, it has been a fruitful journey. Since then, my interest in the history of international legal thought was increasingly driven by dissatisfaction with international law – an interest in questioning current inherited beliefs, assumptions, understandings, coupled with an interest in the possibility of change.
Precisely, in “An Enlarged Sense of Possibility for International Law: Seeking Change by Doing History” – a contribution to a forthcoming book – you talk about the increasing discontent with the status quo of international law and you provide us with a way forward since what the observer perceives as inexorable and natural from the shadows projected on a (Platonic) cave’s wall is not such, but political choices taken in a particular context in the past. Does discontent act as a motor for change and reimagination?
Wonderful, I like your image of the cave and your suggestion how doing history enables us to get outside the cave. I can relate to this in the sense that doing history may assist us in questioning what we take for granted – assumptions, theories, our analytical and legal toolbox. It is true that we see around us a significant resentment against international law and international law governance institutions. I am deeply concerned about the state of political societies in Europe and around the world. The latest volume of the Netherlands Yearbook of International Law is dedicated to Populism and International Law. As volume editors, Wouter Werner and I tried to present the variety of populisms around the globe and the different ways populism is coming into play with International Law and international institutions. For the last two Annual T.M.C. Asser Lectures, we deliberately invited Martti Koskenniemi and Anne Orford to examine the so-called “backlash” against multilateralism from different perspectives: Martti from a more cultural perspective and Anne from a more socio-economic perspective.
I do not agree with those who say that currently citizens are just angry, that they turn to nationalist creeds because the world has become too internationalist. Rather, I would explain the backlash from disappointment. Disappointment with an international legal order that has not been able to respond to the issues and challenges coming with a hyperconnected and globalised world. Here I draw on a philosopher I mentioned before, Paul Ricœur. Humans desire to live together (with unknown others) in “just institutions” and most of us understand that in a globalised world we need just global institutions… Here the heart of the disappointment lies, in my view. We will have to talk about the injustices produced by international law and institutions or we will be unable to prevent them; and we must talk about procedural justice: who is involved in law-making and authoritative interpretation of the law, and who isn’t? What should be regulated at the global, regional, national or local level, and how should these levels interact?
You are right that I find it hard to accept this general resentment or to accept defeat, but one has to be careful, of course, since a lot of trouble has come from utopian projects – so I don’t want to subscribe to that either. It is true that I am not in an optimistic mood at the moment, but indeed I always feel a moral duty not to oscillate between commitment and cynicism unreflectively, but to reflect on the possibility of change and to examine the possibility of agency – human choice and action – in a world so defined by deep structures.
As I write in “An Enlarged Sense of Possibility for International Law”, past and present international law and institutions may be given to us, but they may not be a “given” as we perceive them. There is that great poem by T.S. Eliot, Burnt Norton, which conveys this sense of how past, present and future are all interrelated:
Time present and time past
Are both perhaps present in time future,
And time future contained in time past.
If all time is eternally present . . .
To me “perhaps” here may refer to a moment of possible change, a moment when our choices count. So rather than reading it and the sentences that follow as if the past necessarily brings the future, it is also possible to read it as making us aware of our choices in the present – our present and future may be as socially constructed as our past.
This touches upon Roberto Mangabeira Unger’s image of “frozen politics”: it is the politics of the past that have defined our current concepts, understandings and assumptions of international law. But we should not accept these as “necessary”, they are not, we can break free. It is important for us to realise that and scrutinise these concepts. And while we scrutinise them, we would also realise that they are contingent, and that the world does not have to be as it currently is. We can remake it. Our thinking, choices, and actions matter. This is a fundamental issue for anyone working in today’s world of international law and governance. It touches also on our professional responsibility.
Both the course I am teaching this year and my research are also focused on the responsibility of international lawyers, and on how choices matter and how thinking matters. When you are a student and you wish to devote your professional life to international law, it is important to take this seriously and to be modest. But if the law is undetermined and your choices matter, then we have to reflect on the responsibilities of the legal profession. It is not enough to say that the law prescribes a conduct. This is where international lawyers sometimes show that we have lost our capacity of relying on the language of ethics and morality.
It is too easy to say that people are turning away from multilateralism and international institutions, period. We have to reimagine, and this is where I would locate my work on change in international law, not just drawing on Quentin Skinner and the Cambridge School but also on Unger, Ricœur, and others. We must be careful as we reach a point where having more international law is not necessarily better, but where it is crucial to scrutinise our current international legal order and what it yields. Some important literature analyses this question. For example The Misery of International Law: Confrontations with Injustice in the Global Economy, by John Linarelli, Margot E. Salomon, and Muthucumaraswamy Sornarajah, shows how international law is complicit in human misery.
Indeed, it is paramount to reflect on the international legal and economic order that we have created and on what it produces. This is the focus of my publication: the possibilities of change.
In this publication, you argue that “beyond ‘history for history’s sake’ and ‘history as mere theory’ lies a third possible approach: ‘history and theory of international law’. This represents a conversation between past and present international legal thought . . .” You also say that for it to be a fertile conversation we should start by doing good history. What constitutes good history?
There are many ways of doing history, good critical history. In this case, however, I was referring to the Cambridge School. But we can also benefit from a recent methodological discussion in the field of history. We have seen how Michel Foucault and Hayden White have influenced international legal history.
Certainly, texts can be read in various ways. But I have always found that one viable point of departure is the one that tries to do some justice to what the author aimed to convey. For international law, when we want to understand our concepts and when we read historical texts, it is helpful to understand when the legal choice happened, what was the issue at stake at that time and in what kind of context the author was intervening. This helps us to see how political the use of legal language is. In this process of trying to contextualise and understand a historical text, it is valuable to formulate questions since those questions help us realise that we should not take for granted our own assumptions and beliefs.
To accompany my course this year I’ve chosen a photo I took in Sydney of a sculpture, Michael Parekowhai’s The English Channel (2015):
It is a statue of Captain Cook, not in a traditional, stern painting but as a larger-than-life sculpture; yet in a rather childlike posture, lost in some memories, looking back perhaps on his past, his legacy… a legacy of colonialism… The material is wonderful, so well-tuned to a sculpture on history – it is a mirror. Everything we bring to the past, looking at the past, mirrors back to us. We look at the past, but what we bring with us is also mirrored, we ourselves are always there when we are looking at the past. This is relevant both for the issue of method and for the issue of self-awareness. You need to realise that you always bring yourself to the past and how you relate to it. How it makes you aware and shapes you in turn.
Regarding your PhD and post-PhD years, do you have any special advice that you would like to share with our PhD candidates?
Wow, this is a conversation in itself! There are several areas with interesting work to do. I would encourage PhD candidates to own their research topic and to make it a project about a question that fascinates them. At the same time I would also warn them about processing existential questions into a research project. I have been Dean to the Law Faculty’s PhD candidates in Amsterdam for seven years and it often showed that doing a PhD is such a confrontation with oneself at various levels, that before you realise it, it becomes a “life’s work” rather than a project that would help you develop from a student into an independent scholar. This is a complicated process. Immersing oneself in the literature and feeling lost is part of it; then, having mapped the debate and having found an opportunity to make your voice heard, it should be a project that defines you as researcher. First it owns you, then you own it!
We should keep reminding ourselves the privilege that this academic work is, in spite of all the pressures. The process itself is complicated. Intelligence is a sine qua non, but what makes you succeed are other skills. The setbacks are the moments in which it is necessary to persevere and, paradoxically, this is a non-academic skill. Doing a PhD is a time in which you will be confronted with yourself much more than you have ever experienced as a student. Most of the challenges are unrelated to the specificity of the PhD topic, they are more related to dealing with professional responsibility and entering in a new phase of one’s professional life.
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Full citation of Professor’s Nijman forthcoming chapter:
Nijman, Janne Elisabeth, “An Enlarged Sense of Possibility for International Law: Seeking Change by Doing History” (31 January 2020). Accepted paper, forthcoming in I. Venzke and K.J. Heller, eds., Situating Contingency in International Law, Amsterdam Law School Research Paper 2020-06; Amsterdam Center for International Law No. 2020-05. Available at SSRN: https://ssrn.com/abstract=3529358.
Interview realised by Ana Beatriz Balcazar-Moreno, PhD candidate in International Law, before the Covid-19 world crisis; editing by Nathalie Tanner, Research Office.