In an era defined by upheaval—from the end of the Cold War to the rise of new global powers and systemic crises—Situating the Turn to History in International Law has become essential for understanding how legal scholars and practitioners harness the past to shape present debates and future norms. This blog delves into the four key conditions that propelled the turn to history since the early 1990s, examines the methodological tensions between practicing lawyers and historians, and highlights emerging plural narratives—particularly the rise of China—that redefine international legal historiography. Along the way, we draw on Anne Orford’s seminal chapter “Situating the Turn to History in International Law” as our primary reference, supplemented by complementary scholarship.
Table of Contents
Understanding “Situating the Turn to History in International Law”
Situating the Turn to History in International Law demands we recognize history not as a neutral record but as an arena of presentist intervention: lawyers and scholars invoke past events, practices, and doctrines to justify or resist contemporary legal transformations. Orford identifies four broad conditions propelling this historiographical shift:
- End of the Cold War and the “End of History” Narrative (1989–1991):
The Soviet collapse heralded liberal triumphalism and U.S. hegemony, driving expansionist internationalism. Appeals to history—whether affirming a lineage of progress toward democracy or exposing imperial continuities—became central in debates over new regimes (WTO, investment treaties, human rights tribunals). - 9/11 and the War on Terror (2001 onward):
The “war on terror” prompted reinterpretations of self-defence and humanitarian intervention. U.S. and U.K. legal advisers—Daniel Bethlehem, John Bellinger III—drew on alleged centuries-old state practices to justify pre-emptive force, while critics used history to reaffirm Charter-based prohibitions. - Global Crises of the Early Twenty-First Century:
The 2008 financial crash, food, energy, and climate emergencies weakened liberal optimism. Lawyers looked back to diagnose the legal underpinnings of these failures and propose alternatives, integrating Foucault-influenced political economy and Ordoliberal critiques. - Geopolitical Realignment and the Rise of China and BRICS:
As China’s economic ascendancy challenged U.S. dominance, new historiographies emerged. Chinese scholars invoked their own revolution, anti-colonial legacy, and “Five Principles of Peaceful Coexistence” to articulate alternative visions of global order.
Each condition spurred lawyers to wield history as either a defence of existing orders or a critique exposing colonial, neoliberal, or imperial continuities.
Situating the Turn to History in International Law amid Professional Practice
Lawyers engaging with history do so as part of argumentative practice—seeking to shape adjudication, treaty interpretation, and policy. During the 1990s, for example, advocates of the WTO’s dispute settlement system celebrated its “jewel in the crown” status, arguing that its mandatory adjudication reflected a breakthrough in the rule of law. Critics—TWAIL and postcolonial scholars—responded by historicizing the regime’s roots in colonial property protection and power politics.
H2: Situating the Turn to History in International Law underscores that legal argumentation is performative: past practice is selectively foregrounded to produce doctrinal innovations, from investor-state arbitration’s expansive expropriation concepts to humanitarian intervention’s “illegal but legitimate” doctrine.
From Lawyers’ Histories to Historians’ Histories
By the 2010s, academic historians—the so-called “new international legal historians”—began treating Situating the Turn to History in International Law as an object of study, demanding empiricist rigor. They interrogate archives, legal drafts, and correspondence, aiming to reconstruct a more “objective” past. Yet Orford cautions that historians risk missing the performative stakes of lawyers’ presentist uses of history: they may recast lawyers’ interventions as archival discoveries rather than ongoing political interventions.
Plural Narratives: The Chinese Dimension
Situating the Turn to History in International Law must account for non-Western genealogies. Chinese scholarship traces its century of humiliation, the 1949 revolution, the Korean War, and the Bandung Conference as foundational moments that inform China’s commitment to sovereign equality and non-intervention. China’s “socialist market economy” reforms, WTO accession (2001), and Belt and Road Initiative (2013) are likewise historicized as extensions of traditional tianxia principles and Bandung-era solidarity.
Chinese jurists’ appeals to history challenge Western hegemonic narratives, asserting historic rights in the South China Sea and invoking Carl Schmitt’s Großraum theories to envisage a China-centered regional order distinct from U.S.-led liberal legalism. This plural turn reframes international law as a multivocal field, where histories of imperialism, socialism, and regionalism intersect.
Methodological Tensions and the Road Ahead
Situating the Turn to History in International Law reveals a productive tension between:
- Law as Practice: Presentist, argumentative, strategic uses of history by lawyers to shape policy and adjudication.
- History as Discipline: Empiricist, archivally grounded scholarship seeking to reconstruct “what really happened,” often sidelining lawyers’ strategic motivations.
Bridging this divide calls for interdisciplinary dialogue: historians must attend to performative contexts and legal scholars embrace historiographical standards. Only then can we fully appreciate how appeals to the past continually reshape international law.
Frequently Asked Questions
1. Why is history so central to international legal debates?
Because international law lacks a single authoritative legislature; precedent, state practice, and treaty interpretation often rely on historical arguments to justify evolving norms.
2. What distinguishes lawyers’ use of history from historians’ approaches?
Lawyers use history instrumentally—to intervene in present controversies—whereas historians seek to reconstruct past events according to empirical standards.
3. How did the rise of China change historiographies of international law?
China’s scholars foreground anti-colonial revolution, Bandung solidarity, and “socialist market economy” reforms to propose alternatives to Western liberal legalism, underscoring that multiple actors shape global order.
4. What role did the 2008 financial crisis play in the turn to history?
It prompted critical legal scholarship to trace the ordoliberal and neoliberal roots of global financial regulation, diagnosing systemic failures and envisioning new governance mechanisms.
5. How can scholars bridge the gap between law and history?
By recognizing the performative stakes of legal historiography and integrating empirical archival methods with attention to contemporary argumentative contexts.
Situating the Turn to History in International Law remains vital for understanding how past narratives are mobilized in the service of present-day legal and political projects. As global power shifts continue, acknowledging the plurality of historical voices—from TWAIL to Chinese and BRICS perspectives—will be essential for crafting a more inclusive and reflexive international legal order.
In summary, Situating the Turn to History in International Law reveals how appeals to history serve as a powerful tool in the ongoing contestations over the meaning, legitimacy, and future of international law. Rooted initially in legal argumentative practices shaped by geopolitical shifts—such as the end of the Cold War, the war on terror, systemic crises, and the rise of China—this turn is both a reflection and intervention within global power struggles.
It exposes the performative nature of legal histories, where past narratives are mobilized to justify or resist current legal and political orders. Moreover, the pluralization of international legal histories, especially with the increasing prominence of Chinese and BRICS perspectives, challenges Western hegemonic narratives and invites fresh understandings of global order. Bridging the tensions between lawyers’ pragmatic use of history and historians’ empirical approaches is crucial for a nuanced appreciation of international law’s evolving role in a fractured and contested world. Read more about New Great Powers and International Law in the 21st Century: Reshaping Global Governance
