Belgium and the Fabrication of the International Legal Discipline

Abstract

In recounting the interventions of Belgian lawyers in the institutionalization of the discipline of international law at the end of the 19th century and the beginning of the 20th century, Vincent Genin’s Le laboratoire belge du droit international offers new materials and documentary evidence of the complicity between the construction of the international legal discipline and the colonial project. Taking his cue from Martti Koskenniemi’s Gentle Civilizer, Genin has produced a biographical and agent-based historicization of an unprecedented archival rigour, allowing international lawyers, and especially Belgian international lawyers, to take another hard look at the dark roots of their tradition.

1 Introduction

Disciplines carry their own histories. Such disciplinary histories are indispensable to lending acceptability and legitimacy to disciplinary discourses. Disciplinary histories simultaneously foster a feeling, shared by all the members of the discipline concerned, of historical consciousness about the specific disciplinary projects that members of the discipline are meant to serve. In that sense, without disciplinary histories, disciplines could neither discipline discourses nor induce members to share ownership in disciplinary projects.¹ It is no different in international law. In fact, it is no coincidence that the emergence of international law as a discipline in the 19th century² was accompanied by a rich production of disciplinary histories.³

The dominant disciplinary histories of international law, as well as the key individuals, institutions, events and periodization by and around which these histories are articulated, are known to all those who (feel they) share an affiliation with international law. These disciplinary histories are recounted in most mainstream textbooks on international law and regularly referred to in international legal discourses.⁴ They denote a very specific ‘emplotment’⁵ built on a postulated spatial, historical and normative universe composed of a series of (white, masculine) figures (Vitoria, Grotius, Vattel, Lauterpacht, etc.) located in the West (Westphalia, Vienna, The Hague, Paris, Geneva, etc.) along a linear and carefully punctuated timeline (1648, 1899, 1919, 1927, 1945, etc.). Until recently, these sophisticated disciplinary narratives were deemed sufficient to provide international law with scientificity,⁶ universality⁷ and, above all, the feeling of ‘necessity’ without which discourses cannot be disciplined.

The capacity of such common disciplinary histories of international law to create a feeling of ‘necessity’ about international law and its main doctrines has, however, diminished in recent years. European Journal of International Law (EJIL) readers are aware of the dominant disciplinary histories of international law being discredited. At the end of the 20th century, the dominant histories had become the object of severe scrutiny, which showed that they were based on anything but ‘necessary’ choices and demonstrated the twisted universality of the universe they postulated as well as their complicity with some of the worst human disasters of the last centuries. It is noteworthy, however, that the discrediting of the dominant disciplinary histories of the field has itself contributed to their perpetuation. Not only have critical international lawyers re-affirmed the dominant disciplinary histories by subjecting them to scrutiny, they have also entrenched their new historiographical scrutiny in the same linear time-frame established by the histories they sought to scrutinize, and have presented their criticism as a moment of collective enlightenment (the so-called ‘historical turn’),⁸ just like the authors of the dominant histories had presented modern international law as a departure from the dark ages.⁹

International lawyers’ vigorous engagements with disciplinary history in the last two decades have thus testified to a greater historiographical suspicion towards, and an extensive scrutiny of, dominant disciplinary histories.¹⁰ They have simultaneously given rise to a new style of historicization, one that is focused on individual international lawyers as ethical agents. Although biographical and agent-based historicization was not absent from the modern ‘emplotment’ that drove disciplinary histories in the 19th- and 20th-century histories and their disciplining, the contemporary disruptions of dominant disciplinary histories have made such modes of historicization very common. Masterfully popularized by Koskenniemi’s 2001 Gentle Civilizer of Nations,¹¹ biographical and agent-based historicization is nowadays a very common genre in international legal scholarship, as well as one of the dominant modes of studying the discipline’s histories.¹²

2 Historicization after The Gentle Civilizer

Against the backdrop of international legal scholarship that has grown suspicious of ‘grand’ disciplinary narratives, and which now cherishes biographical and agent-based historicization, a book like Vincent Genin’s Le laboratoire belge du droit international (hereinafter the ‘Laboratoire’), which recounts the interventions of Belgian lawyers in the institutionalization of the discipline of international law at the end of the 19th century and the beginning of the 20th century, could be perceived as rather banal. A feeling of déjà vu might be exacerbated by the fact that Genin concentrates on individuals, projects and a period already amply discussed in the first chapter of The Gentle Civilizer, similarly using the 1869 creation of the Revue générale de droit international et de legislation comparée and the 1873 creation of the Institut de droit international (at 63–67) as historical turning points. The emphasis that the foreword, by Martti Koskenniemi, places on the resemblance between Genin’s work and existing critical histories of international law (at 18–19) contributes – involuntarily – to reinforcing this feeling of déjà vu.¹³

And yet, Genin’s Laboratoire is no clone of The Gentle Civilizer. Genin attempts no explicit disruption of the disciplinary histories of international law in the way The Gentle Civilizer had contemplated. Nor does Genin, in contrast to Koskenniemi, endeavour to contribute individual histories to the critique of modern liberal legal thought and to the infusion of a feeling of responsibility for what international law does. Although the introduction to the Laboratoire takes pains to sketch the state of international lawyers’ contemporary engagement with history (at 26–36), it seems fair to say that Genin could not care less about what international lawyers do with their disciplinary histories. After all, Genin is a seasoned historian who claims no affiliation with the discipline of international law and who candidly purports to do nothing more than contribute to the history of Belgium’s international relations (at 22). But Genin’s outward modesty is deceiving. It is precisely because Genin does not see himself as contributing to international lawyers’ debates on their disciplinary histories, let alone seeks to fuel international lawyers’ contemporary suspicion towards disciplinary histories, that the Laboratoire proves to be a gem for international lawyers and, somewhat paradoxically, ends up disrupting the disciplinary histories no less than The Gentle Civilizer.

3 A Potential for Sensational Anecdotes

International lawyers who work on (disciplinary) histories of international law will be humbled by Genin’s modes of inquiry (at 48–50) and the invaluable materials they have allowed him to excavate. In particular, his systematic and patient examination of the correspondence between the individuals populating his account – Rolin-Jaequemyns, Rivier, Nys, Descamps and King Leopold, to name only a few – provides insights that would not have been possible otherwise. Whilst I am of the opinion that international lawyers’ engagement with history need not follow in any way the modes of inquiry used by historians,¹⁴ it must be acknowledged that, when compared to Genin’s meticulous research, international lawyers come to look like armchair storytellers. Even Koskenniemi’s impressive research into the history of 19th-century Belgians¹⁵ – praised by Genin himself (at 34) – pales compared to the deep excavation carried out by Genin in his Laboratoire. Interestingly, Genin himself acknowledges the difference in rigour between the modes of inquiry of historians and those of international lawyers as he points to the latter’s disregard for archival research. Although short of expressing any condescendence, he – candidly – absolves international lawyers of their sloppiness, claiming that ‘ce mode de travail ne répond pas à leur formation initiale’ (‘this approach does not correspond to their original training’) (at 46).

Genin’s archival research yields rich rewards, and a few anecdotes, which international lawyers would not have had the skills, patience or flair to dig out, deserve to be mentioned. For instance, Genin recounts how Lieber, who fought in the Prussian army against Napoleon’s troops at Waterloo in 1815, contributed to the import of the German system of referencing into US law schools (at 55–56). He narrates how Rolin-Jaequemyns, alienating his French counterparts with his Prussia-friendly positions, provoked their boycott of the Revue générale de droit international et de legislation comparée and the Institut de Droit international (at 65). The reader also learns how Rolin-Jaequemyns and Mancini, after contemplating the idea of a consolidated body, decided to uphold the institutional distinctiveness of the International Law Association and the Institut de droit international (at 68). A comprehensive account is similarly provided of the severe financial problems of the Institut de droit international (at 108–109), which threw Rolin-Jaequemyns into despair and made him occasionally think the Institut was nothing more than a bad joke (‘une mauvaise plaisanterie’) which he might consider terminating (at 109). Likewise, the Laboratoire recounts how the decay of Rolin-Jaequemyns’s family business, following their investment in railways in Greece, led him to step down as Secretary-General of the Institut de Droit international, leave Belgium and settle in Siam where, Genin tells us, he engaged in the codification of civil law (at 123–125) and, Genin notes with some irony, worked for the containment of ‘French imperialism’ (at 127). In the same vein, the book elaborates on how Rivier, who succeeded Rolin-Jaequemyns at the helm of the Institut de Droit international, decided to push back the start of the 1883 session of the Institut in Munich from Monday 3 September 1883 to Tuesday 4 September 1883 in order to spare its French members the embarrassment of having to witness German celebrations of the battle of Sedan, annually held on 2 September (at 112). Equally interesting are the frequent references to the disparaging comments made by Rolin-Jaequemyns, Rivier, Nys and Descamps about Peace Societies (at 136); the friendship between Carnegie and Descamps (at 181); the nepotism of Rolin-Jaequemyns within the Institut de Droit international (at 183–184); and the divisions within the francophone community (at 193).

4 A Critical Potential

These stories, which breathe life into the Laboratoire, are not only of anecdotal value. And this is where a great deal of the book’s critical potential lies. Genin provides the reader with detailed accounts of the complicity of 19th-century Belgian internationalists in some of the worst human disasters of the time. For instance, the reader’s attention is drawn to the multiple ways in which 19th-century Belgian internationalists contributed to Leopold’s colonial project in the Congo, whose revolting brutality and cruelty have now been amply evidenced. The book reveals Edouard Descamps – the (in)famous Baron Descamps of the 1920 Committee of Jurists – to be one of the main architects of the regulatory framework of the Independent State of Congo at the end of the 19th century (at 85). The roles Rolin-Jaequemyns, Rivier and Nys played in the King’s colonial project are also mentioned a few times (at 95–97 and 100–101). Actually, throughout Genin’s multi-layered account of 19th-century Belgians and their relation to King Leopold’s colonial enterprise, the Laboratoire paints a diabolic portrait not only of the late 19th-century intellectual and political scene in Belgium, but also of the consolidation of international law as a discipline. Although this is never stated explicitly, the reader gradually comes to fathom the quid-pro-quo between these 19th-century internationalists – who were simultaneously members of Parliament or ministers (at 110) – and King Leopold, the former supporting the latter’s colonial projects and the latter supporting the institutionalization of the discipline envisaged by the former, as well as their personal advancement (at 90–91, 93–94, 196). Genin’s meticulous research sheds light on the extent to which the professionalization of international law in academic circles and the institutionalization of international law became possible because the key figures benefited from the support of the King of Belgium in return for their support for the colonialization of Congo. This means that the institutionalization of international law and the constitution of the discipline were facilitated, if not enabled, by the collaboration of leading internationalists of the time with King Leopold’s colonial enterprise. Although Genin does not expand on the possible insights generated by his well-documented findings, let alone suggest a causal link between colonization and the consolidation of the discipline, he provides international lawyers with compelling evidence, thereby making his book an indispensable tool for all those interested in the colonial foundations of international law.

It must be acknowledged that, while Genin mentions and documents the collusion between 19th-century Belgian internationalists and King Leopold, he never goes so far as to present it as one of the parameters that made Belgium the cradle for the discipline of international law. Instead, he prefers another – much less polemical – causal narrative: he views the enthusiasm and vitality of Belgian internationalists of the 19th century as a way of compensating for the restraints flowing from the country’s neutrality at the time. Indeed, Genin presents the disciplinary project of 19th-century Belgian internationalists as craving for an escape (une ‘échappatoire’) from the paralysing passivity of Belgium’s neutral position in Europe.¹⁶ This causal claim is fascinating. If pushed further, it could nurture new histories that present the discipline of international law as an offspring of the 1839 Treaty of London that imposed and guaranteed the neutrality of Belgium, and thus convey a nicely self-referential tale according to which the formation of international law as a discipline was facilitated by an international legal instrument! However appealing such a narrative could prove to be to (more orthodox) international lawyers, it must be recognized that Genin’s postulation of a causal link between Belgian neutrality and the formation of international law as a discipline is never fully explored and remains a mere conjecture, which limits the scope for such extrapolations.

The critical potential of the Laboratoire is not limited to the stories and findings about the complicity of 19th-century Belgians in King Leopold’s colonial enterprise. Genin also documents the many antagonisms which informed the relations among the 19th-century European internationalists participating in the formation of international law, and thus infused the new-born discipline. In particular, he shows to what extent the relations between 19th-century internationalists were riven by oppositions between Catholic and Protestant lawyers, between pro-arbitration and anti-arbitration lawyers, between Belgian and French as well as between German and French lawyers, between lawyers and diplomats, between internationalists and pacifists of the peace societies, etc.¹⁷ Of all these antagonisms, the confessional divide between 19th-century Belgians is most present in the Laboratoire, and Genin takes pain to systematically recall it. There is not a single protagonist in Genin’s story whose faith is not mentioned. Although Genin does not seek to adopt a post-structuralist mode of narrativization common nowadays in critical legal literature,¹⁸ the Laboratoire provides a substantial amount of material to allow further studies of the tensions driving the discipline since its origin, and the extent to which these tensions have been constitutive thereof.

In light of the foregoing, it is argued here that the Laboratoire has significant critical potential. Yet, this potential is never explicitly realized, as Genin limits himself to providing readers with thoroughly documented findings about the life and the relations of 19th-century Belgian internationalists and their central role in the constitution of the discipline. Genin’s Laboratoire thus provides a wealth of materials with high disruptive value, but which the author does not exploit at all, either because he does not elaborate on the possible consequences of his findings, or because the few causal postulations he makes are left unexplored. Even the concluding chapter does not draw any serious causal links between the state of the discipline, the antagonisms informing the relations between its architects and the association of the latter with colonization; it leaves it to international lawyers to make use of the materials so patiently assembled.¹⁹

This assessment should not be held against Genin. As noted above, contributing to the critique of the discipline has never been his ambition. Genin situates himself and his work within different disciplinary boundaries. What is more, the limited extent to which Genin capitalizes on his own valuable findings and his unsupported causal postulation does not prevent international lawyers from making the best of all the materials brought to light by Genin and which they would have been incapable of discovering themselves.

5 A Potential for Disconcertment

Whilst international lawyers will certainly appreciate the critical potential of Genin’s documented findings and hopefully exploit them further, they could be forgiven for being perplexed by a few positions defended in the Laboratoire. The last section of this review elaborates on four such positions which may look particularly disconcerting to international lawyers.

Before briefly outlining these four claims and why they can be disconcerting, an important caveat must be mentioned. The disconcertment possibly felt by a readership of international lawyers is not in itself an indication of any substantive shortcoming of the Laboratoire. It is just that the claims concerned run counter to the specific sensibilities international lawyers have developed over the years and which further distance them from historians. The following observations can thus be read as vindicating why international lawyers’ modes of historicization ought not to be patterned after those of historians.

First, the way in which Genin, a self-declared historian of international relations, speaks about international law, and the discipline centred around it, comes with very strong modern undertones. Throughout the Laboratoire, international law is presented as a social science, just like 19th-century Belgian lawyers wanted it to be (at 63, 68, 191, 197). Such modernity also permeates Genin’s constant attachment to a contextualist narrativization and his fear of indulging in anachronism (at 89). Last but not least, the Laboratoire reads as a work modern in character by virtue of its constant lamentation of the ‘political’ at work in the formation of international law in the 19th-century. Whenever the disciplinary project of 19th-century Belgians came to a halt or floundered, Genin ascribes such a halt to a return of the ‘political’, which is, for Genin, a vile state of affairs that evades the predictability of objective and determinate discourses.²⁰ This modernity will probably surprise those international lawyers that have ceased to speak of international law as an autonomous scientific discipline based on objectified practice, to seek any contextual accuracy or to construe international law as having displaced the ‘political’.

Second, the periodization which Genin’s intervention in the history of international law proposes may provoke some bewilderment among international lawyers. Genin elevates the First World War to a major moment of rupture in the discipline whereby the centre of the discipline moves from Ghent, Brussels and Liège to The Hague and Paris while opening up to American internationalists (at 44–45, 151–152, 185). This proposed disciplinary rupture is not obvious to international lawyers, let alone the causality between World War I and the relocation of the discipline to The Hague and Paris postulated by Genin.²¹ Indeed, the growing importance of The Hague dates back to the Peace Conferences as well as the creation of the Permanent Court of Arbitration. The key figures dominating the discipline post 1918 still included pre-1914 Belgian internationalists, as is illustrated by the composition of the 1920 Committee of Jurists and the decisive influence of Baron Descamps in the drafting of the Statute of the Permanent Court of International Justice.²² After all, none of the Belgians whose interventions are recounted in the Laboratoire were sent as cannon fodder to the battlefields of the Yser, Marne, Chemin des Dames or Verdun.

Third, Genin’s periodization built around World War I is put at the service of an unsettling narrative, that of a lost grandeur of Belgian internationalism. It is true that proving Belgium’s centrality in the 19th century was one of the explicit ambitions of the book (at 21, 36, 195), one which it delivers on rather convincingly. Indeed, the Laboratoire provides ample materials supporting the decisive influence of Belgium – and Belgian internationalists – in the formation of the discipline of international law at the end of the 19th century and the beginning 20th century. Such centrality of Belgium in international legal thought and practice is not in itself polemical and has been acknowledged elsewhere.²³ In this regard, it could even be said that the metaphor of the ‘laboratory’ undersells Genin’s account of Belgium being the decisive site of the creation of the discipline. The Laboratoire actually shows that Belgium was not a laboratory but a factory of the discipline. What is more disturbing to a readership of international lawyers, however, is that Genin comes close to manifesting some nostalgia for what is presented as a golden age of Belgian internationalism that was irremediably lost after World War I. Albeit never explicitly acknowledged, this narrative of the lost grandeur permeates the various chapters of the volume and comes to a head in the concluding section of the Laboratoire, especially when Genin is grieving the end of Belgium’s leading role after World War I. Such a reading seems oblivious to the Laboratoire’s wealth of research that shows the close relationship between 19th-century Belgian internationalists and King Leopold as well as the support by the former for the latter’s colonization project.

A fourth and final claim made in the Laboratoire will perplex international lawyers by the scant empirical support it relies on. In the concluding section, the Laboratoire postulates a genealogical link between the 19th-century Belgian internationalists and the continuous active presence of a critical mass of Belgian international lawyers in the 20th and 21st centuries (at 196–199). Such a claim can prove bemusing not only because it might contradict Genin’s abovementioned assertion that the centre of the discipline left Belgium after World War I but also because the kinship between 19th-century and 20th- and 21st-century Belgian internationalists is never fully demonstrated or documented, but simply postulated.²⁴

The absence of empirical support for Genin’s claim of continuity between 19th-century and 20th- and 21st-century Belgian internationalists and its possible contradiction with some of Genin’s other assertions may not matter in the end. The claim, irrespective of its empirical value, can prove much more disconcerting, especially to Belgian international lawyers, for another, more fundamental, reason. Claiming that Belgian international lawyers are the continuators of a well-established and prestigious tradition is not as benign a claim as it may seem. If read together with his simultaneous demonstration of a complicity of Rolin-Jaequemyns, Rivier, Nys and Descamps with King Leopold’s colonial project, Genin’s continuity claim can be turned against those it was meant to commend: as they follow in the footsteps of Rolin-Jaequemyns, Rivier, Nys and Descamps, contemporary Belgian international lawyers come to appear as the heirs of a tradition which, albeit well established and prestigious, was once complicit in one of the darkest human enterprises of the last 200 years.²⁵ And this is perhaps where the Laboratoire’s most critical lesson can be found. It is a lesson aimed at Belgian international lawyers. After the Laboratoire, contemporary Belgian international lawyers can no longer shun a much-needed inquiry into the dark roots of their disciplinary tradition.²⁶ Grandeur lies not in disciplinary achievement or in FIFA rankings;²⁷ if anywhere, grandeur resides in one’s capacity for critical historical introspection. Seen in this light, the days of Belgian grandeur are yet to come.

Footnotes