Why all this interest in the history of international law today? A partial explanation can surely be found from the end of the 20-year period of liberal-internationalist ascendancy (1989–2008) and the perplexity that has followed its demise. Mark Zuckerberg put it succinctly in a manifesto on Building Global Community in Facebook in February 2017. When his company started, he noted, it was to ‘bring . . . us closer together and build . . . a global community’. ‘[T]his idea’, he suggested, ‘was not controversial’. But suddenly there has emerged a ‘movement for withdrawing from global connection’. Nor have international law scholars rested silent. Eric Posner has termed the present moment – with glee – as the ‘backlash’ against ‘liberal cosmopolitanism’. More soberly, perhaps, Philip Alston has noted the rise of ‘challenges [to] the human rights movement’ that are ‘fundamentally different from much of what has gone before’ while James Crawford has warned against ‘large-scale retreat into nativism and unilateralism’. What used to be a clear and broadly shared objective – building of a global community – is no longer so clearly visible. So, the temptation might be to look backwards instead and ask, ‘how did we get here?’.

A wave of interdisciplinary scholarship in the last two decades has managed to place empires at the center of the history of international law. This article surveys key insights resulting from this move and assesses remaining challenges. In explaining how the study of law in particular imperial locations can illuminate global legal transformations, the article identifies cross-cutting themes of articles in this special volume.

The occupation of Iraq in 2003 involved a wide-ranging set of interventions in the domestic legal, political and economic structures of the state, interventions that provoked a debate about whether the law of occupation should recognize a category of ‘transformative’ occupation.

While the occupation itself has often been decried as an imperial venture, its administration involved a diffusion of power among international institutions as well as ratification by the Security Council through Resolution 1483. This article pursues the intuition that the transformation of norms and practices elsewhere in the international order underwrote the idea that it was the law of occupation that was problematic, at the same time facilitating the transmutation and preservation of practices that might be identified as imperial. Two developments are key: The first is the pervasive normalization of intervention in the domestic policy and legal orders of states; the second is the dissemination of norms about domestic regulation within the international order, those that touch on economic governance in particular. The orders of the occupying were infused in both form and substance with ideas of ‘normal governance’ traceable to myriad projects, policies and practices of other international institutions: development agencies, financial institutions, trade organizations. Iraq then might be a revealing case with which to consider the character and locations of contemporary imperialism, as well as the role of international law and international institutions in its unfolding.

What would happen to our understanding of international law and its relationship with violence if we collapsed the distinction between our supposedly post-colonial ‘present’ and its colonial ‘past’; between the sovereign spaces of the twenty-first century global order, and the integrated, hierarchical space of fascist imperialism? I respond to this question through an investigation into the physical contours of a precise ‘imperial location’: 30°31′00″N, 18°34′00″E. These co-ordinates refer to a point on the sea-edge of the Sirtica that is occupied today by the Ra's Lanuf oil refinery, one of Libya's three most important such facilities. In the late 1930s, however, during Libya's period of fascist colonial rule, this was the point at which a state-of-the-art motorway, the Via litoranea libica, was crossed by a giant triumphal arch, the Arco dei Fileni. Through a chronotopic reading of the temporal, spatial and interpellative aspects of this point, its architecture and its history, I suggest that fascist lawyers, officials and intellectuals accepted a horrifying truth about the relationship between international law and violence – a relationship that twenty-first century doctrinal international law is loath to confront, concerning the inherently expansionist logic of the sovereign state, and the inevitably hierarchical ordering of the ‘international community’ which stems from it.

Between 1935 and 1937, the International Missionary Council conducted the Bantu Educational Kinema Experiment. The objective was to produce silent educational films and screen them to ‘native’ people via mobile cinemas in the British territories in East and Central Africa. Embracing the principle of ‘indirect rule’, and its role in training colonial subjects in economic self-sufficiency and political self-rule, as then advocated by leading colonial figures and the League of Nations, the films strived to capture ‘the native point of view’ through an ‘ethnographic sensitivity’ towards local cultures, concerns and needs. Hoping to educate the natives from ‘within’, they used local actors, familiar locations and pedagogical instructions that were believed to meet the target audience's cognitive capacity. Though in many respects unsuccessful, the experiment cemented the use of cinema in the late colonial project and, more importantly, embodied the clear move at the time towards a more dynamic and disaggregated, yet perhaps never fully post-imperial, international order. I argue in this article that the Bantu Experiment is thus a telling instance through which to examine both the mobility and multiplicity of late imperial locations and the system of modern international administration that emerged during the interwar period. I suggest that this mobility and multiplicity continue to characterize the workings of today's international order, indicating the key role that ‘indirect rule’, as a silent principle of international law, still plays in its functioning today.

The thematic horizon within which this article takes place is the colonial expansion of the Western powers in China between the nineteenth and the twentieth centuries. Focusing on the foundation of the British, French and American concessions in Tianjin, it aims to reconstruct the Western strategies of colonial governance and the role played by law in the process of production of a new social space. Opened as a treaty port in 1860, Tianjin is the only Chinese city where up to nine foreign concessions coexisted, becoming a complex, hybrid space (in)between East and West, defined by social practices, symbolic representations, and legal categories, which does not coincide simply with the area defined by the entity as a state, nation, or city.

Before 1492, European feudal practices racialized subjects in order to dispossess, enslave and colonize them. Enslavement of different peoples was a centuries old custom authorized by the law of nations and fundamental to the economies of empire. Manumission, though exceptional, helped to sustain slavery because it created an expectation of freedom, despite the fact that the freed received punitive consequences. In the sixteenth century, as European empires searched for cheaper and more abundant sources of labour with which to exploit their colonies, the Atlantic slave trade grew exponentially as slaves became equated with racialized subjects.

This article presents the case of Haiti as an example of continued imperial practices sustained by racial capitalism and the law of nations. In 1789, half a million slaves overthrew their French masters from the colony of Saint Domingue. After decades of defeating recolonization efforts and the loss of almost half their population and resources, Haitian leaders believed their declared independence of 1804 was insufficient, so in 1825 they reluctantly accepted recognition by France while being forced to pay an onerous indemnity debt. Though Haiti was manumitted through the promise of a debt payment, at the same time the new state was re-enslaved as France's commercial colony. The indemnity debt had consequences for Haiti well into the current century, as today Haiti is one of the poorest and most dependent nations in the world.

Over the course of the nineteenth century, the question of state responsibility for injuries done by rebels to foreign nationals, or ‘aliens’, in its territory became an important one for international law. Initially, it was common for disputes regarding such responsibility to be resolved through diplomacy, backed up, not infrequently, by the threat and even the use of force. Later it became a matter which also led increasingly to arbitration; beginning around the middle of the nineteenth century a growing number of arbitral tribunals dealt with claims against states for injuries done to aliens by rebels. From the first, established in 1839, there followed a series of 40 mixed claims commissions which touched on state responsibility for rebels. Nearly three-quarters of these arbitrations involved a Western state against one of the new Latin American republics. In this article, I explore how intervention in Latin America, and particularly its turn to arbitration, produced the highly-contested doctrine of state responsibility for rebels. Reading this history in the context of decolonization, capitalist expansion and economic imperialism in Latin America, I argue that the doctrine of state responsibility for rebels was produced out of and used to manage the transition from old colonialism to new imperialism in the region so as to guarantee foreign trade and investment. Understanding this history, I argue, helps us to put back together the pieces of alien protection which fragmented after 1945 and illuminates how international law continues to protect foreign investment against rebels in the decolonized world.

In 2009, the International Court of Justice introduced plausibility as a requirement for indicating provisional measures under Article 41 of its Statute. Upon its introduction, plausibility was conceived as a test to establish that the rights asserted by applicant states might exist under international law. However, the Court subsequently developed the plausibility test into a higher standard, which requires the Court also to assess that the alleged conduct of the respondent state might breach that applicant state's asserted rights. This development has important implications for provisional measures proceedings before the Court. First, one could distinguish two aspects of plausibility, legal and factual. Second, plausibility has different functions in requests for provisional measures depending on whether the applicant state asserts rights arising under a treaty or under customary international law. Third, the Court's enquiry into plausibility could overlap with the enquiry into prima facie jurisdiction ratione materiae, although these two requirements conceivably entail different thresholds. Fourth, plausibility in provisional measures indicated in interpretation proceedings could be seen to be different from plausibility in provisional measures indicated in ordinary contentious proceedings.

Between 1945 and 1949, the British military conducted a large number of war crimes trials in Europe and Asia. Based on historical archival records, among other sources, this article evaluates and compares the British authorities’ implementation of the 1945 Royal Warrant and war crimes trials in Europe and Asia, with a specific focus on trials organized in Germany and Singapore. By examining the British war crimes trial experience in those two jurisdictions, the article analyzes factors shaping the evolution of the Royal Warrant's legal framework and trial model in different contexts. It therefore contributes to the growing historical work on post-Second World War trials and current debates among scholars of transitional justice and international criminal law on the contextual factors that impact on war crimes trials.

The theories of joint criminal enterprise and joint control over the crime have often been cited as the paramount example of fragmentation in the jurisprudence of the International Criminal Court and the UN Tribunals. While the analyses on these two forms of co-perpetration have generally focused on contrasting the different definitional criteria that they rely on to distinguish between principals and accessories to a group crime, this article shifts the focus to one legal element that, although common for both theories, has actually caused a deeper dissonance in the topical case law of the international courts and tribunals: the ‘common plan’ requirement. It is argued that the varying interpretations of this element have given rise to three materially distinct constructions of co-perpetration responsibility in international criminal law. Several normative and practical concerns stemming from the adoption of broad definitions for the common plan element, and the related idea of ascribing responsibility for ‘excess’ crimes of the executed plan, are analyzed to emphasize the need for having a critical discussion on this element of co-perpetration.