Cold War International Law

by

Martin Clark, Gerry Simpson, Sundhya Pahuja, Matthew Craven

• LAST MODIFIED: 28 October 2020
• DOI: 10.1093/obo/9780199796953-0214

Introduction

Cold War International Law has conventionally been structured around a historiography of hiatus. A “gap” is posited as inhering in international law sometime between 1948 and 1989. In this gap, there is very little international law—or there is an international law of suspension or crisis or deferral. Some of the present editors (Craven, Pahuja, Simpson) are constructing an alternative vision of Cold War international law as law of improvisation, of committed nonalignment, of ideational power, of responsibility, of complicity, of imagination, and of co-constitution. The Cold War needed international law, and the international law we have now is a product of the Cold War. Given all this, compiling a bibliography of Cold War international law raises some difficulties. A first, overarching challenge is how to relate two amorphous things: “international law,” with its many meanings, subfields, instruments, and writers, to “Cold War” in its many forms, locations, experiences, and legacies. This is a problem of breadth and depth for “international law” and “Cold War” alike, but it is also a problem about the Cold War being, paradoxically, both everywhere and nowhere in postwar international law. There is no treaty, case, or juristic text from 1945 to 1991 that does not have some political and global dimension and thus a connection to the Cold War, and yet the term “Cold War” rarely appears within these texts. How to connect them? A second difficulty is about fields. Those interested in Cold War international law cannot avoid becoming well versed in the historical and political events of the era. These events are recounted and debated by scholars in new, complex ways. Cold War historiography, international relations, economics, culture, and sociology are each important, extensive, and indispensable fields, but they are also not often directed to questions of law. Third is the problem of newness. We may be on the cusp of new histories of Cold War international law, but a significant shift to thinking about Cold War international law as a subject in itself has not yet occurred. Evaluations of the Cold War’s “effect” on international law at the time tended to see impasse instead of development, a law subsumed under politics. Now it is clear enough that there is a morass of complex materials waiting to be examined, contextualized, and understood. But we are only just beginning to do that, and there are few major works to guide us. Against these challenges, this article is, then, a first guide. We acknowledge its limits. It is primarily an English-language bibliography, skewed toward writers and perspectives from the Western side of the Cold War. It favors materials that show clear connections between Cold War and international law, meaning many sources relevant to or revealing of the Cold War in more nuanced ways may be missed. Readers of these sources, then, must always take care to consider the partialities, worldviews, contexts, and projects of their authors, a task central to good source interpretation in its legal and historical meanings. This care will be at the foundation of any good work on Cold War international law. But we should also press beyond ideologies and conflicts to other kinds of engagements and understandings.

General Overviews

Craven, et al. 2019 is the first major work to be published that takes the relations between the two fields as its primary subject matter. Two short articles (Koskenniemi 2011, Afsah 2009) provide succinct overviews of international law’s Cold War history, focusing on new treaties, case law, and the development of major institutions and legal thought in the wider Cold War context. Schmitt 2003 and Grewe 2000 provide examples of how German wartime jurisprudence endured into the Cold War; and both deal directly with the conflict as part of international law’s wider history. Despite this lack, a great number of works that examine or at least touch on law’s role within the conflict can be found within the extensive historical literature. Immerman and Goedde 2013 and Leffler and Westad 2010 provide a range of wider historical discussions, as well as further bibliographies, timelines, and source collections. Where they deal with questions of law, these histories tend to focus on large and broad legal questions, sources, and institutions within pivotal events or longer trends: the role of the United Nations, the conclusion of major treaties (particularly within the nuclear arms race), or the political use of competing ideas of human rights. Consequently, they provide an excellent introduction to the major events and trends of the Cold War, and the debates between Cold War historians, as well as legal angles on these events and debates. Finally, a different kind of overview can be found in recent major works in Cold War history. Rubin 2012 and Hecht 2011 provide two such examples of excellent new histories that will be of interest to international lawyers.

• Afsah, Ebrahim. “Cold War (1947–91).” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. New York: Oxford University Press, 2009.

  This note is slightly older than Koskenniemi 2011 and provides a much more events-focused account of the history of the Cold War, without always linking legal changes to the conflict itself. The final sections turning directly to international law and “assessment” are, however, a concise introduction to the major features of Soviet approaches to international law, which is largely absent from Koskenniemi’s treatment. Available by subscription.

• Borisova, Tatiana, and William B. Simons, eds. The Legal Dimension in Cold War Interactions: Some Notes from the Field. Leiden, The Netherlands: Martinus Nijhoff, 2012.

  This collection features essays on interactions between Western and Eastern jurists throughout the Cold War. Not all chapters deal with international aspects of law and legal thought—comparative or transnational might be the more appropriate label—but, nonetheless, as a set of histories that explore the intellectual-legal history of the period it is invaluable.

• Craven, Matthew, Sundhya Pahuja, Gerry Simpson, and Anna Saunders. International Law and the Cold War. Cambridge, UK: Cambridge University Press, 2019.

  This collection—the first of its kind—offers a Cold War that is legalized, contested, spatially diffuse, and ideologically constructed. Ranging across a number of unexpected archives, a group of established writers have succeeded in rereading (indeed, rewriting) the Cold War in a number of different and imaginative ways.

• Grewe, Wilhelm G. Epochs of International Law. Berlin: De Gruyter, 2000.

  Grewe’s major and controversial history of international law ends with a consideration of the Cold War’s place in international legal history. Grewe’s final part is a narrative about influence, hegemony, world ordering, and superpower conflict amidst the “rising” Third World. This history was written during the Cold War itself and Grewe maintained strong intellectual links to German jurisprudence of World War II; it illustrates how that tradition endured in postwar international law thought.

• Hecht, Gabrielle, ed. Entangled Geographies: Empire and Technopolitics in the Global Cold War. Cambridge, MA: MIT Press, 2011.

  This collection offers histories of technology and technopolitics to show new sides of imperialism, colonialism, and development in some non-European sites of the Cold War: India, Brazil, Saudi Arabia, and South Africa, among others. Transfers of nuclear, economic, and scientific expertise all had important effects on the international law of statehood, independence, and international power politics around the world.

• Immerman, Richard H., and Petra Goedde, eds. The Oxford Handbook of the Cold War. Oxford: Oxford University Press, 2013.

  This handbook contains over thirty chapters by international historians throughout the world, assessing the Cold War’s position within world history generally and taking up thematic perspectives that move well beyond the orthodox structures of most introductions. Of particular interest to international lawyers are Sayward on international institutions and Keys and Burke on human rights, in addition to other contributors exploring Cold War regions, the transnational Cold War, trade, globalization, decolonization, and the environmental movement.

• Koskenniemi, Martti. “History of International Law since World War II.” In Max Planck Encyclopedia of Public International Law. Edited by Rüdiger Wolfrum. New York: Oxford University Press, 2011.

  A concise chronological narrative history of the major developments in international law, covering new developments in institutions, treaty relations, case law, juristic thought, and the new states of the Global South. Each of the subperiods covers the legal “climate,” changes at the United Nations, and developments in doctrine. This article serves as a starting point for understanding both the major “events” of Cold War international law and the basic historical and intellectual currents that shaped it. Available by subscription.

• Kwon, Heonik. The Other Cold War. New York: Columbia University Press, 2010.

  Against the state and leader-focused narratives of most introductory texts, Kwon’s perceptive new work draws on cultural studies, anthropology, and ethnography to unsettle these frames. This social history of the Cold War rejects its supposed uniformity and universality as a global ideological battle. While the West saw a long peace, the violence in postcolonial nations, especially Korea and Vietnam, destroyed both lives and the social and cultural ideas fundamental to those communities.

• Leffler, Melvyn P., and Odd Arne Westad, eds. The Cambridge History of the Cold War. 3 vols. Cambridge, UK: Cambridge University Press, 2010.

  Vol. 1, Origins; Vol. 2, Crises to Détente; Vol. 3, Endings. This three-volume, sixty-essay collection covers each major Cold War period (origins, crises, endings) and the full range of historical topics. Its authors are drawn from around the world and a wide range of Cold War locations, events, and approaches. Each volume also contains lengthy bibliographical essays discussing the major historical scholarship and sources used in each chapter; a useful basis for deeper research.

• Rubin, Andrew N. Archives of Authority: Empire, Culture, and the Cold War. Princeton, NJ: Princeton University Press, 2012.

  Rubin examines the role of cultural politics in shaping and moving imperial authority in the West from Britain to the United States, focusing on how governmental support for writers and intellectuals created newly global ideas of social life, world order, and political engagement. This new humanism ultimately undergirded new patterns of administration and dominance, making this work a superb global introduction to social, political, and legal thought during the Cold War.

• Schmitt, Carl. The Nomos of the Earth in the International Law of the jus publicum europaeum. New York: Telos, 2003.

  First published in 1950. Schmitt experienced a post-1990s revival among those repelled by the “New World Order” of Western hegemony and interventionism, following the USSR’s collapse and exacerbated by 9/11. This 1950 work reads the Cold War as both the culmination of American power and as a “pause,” as that power became juridical orthodoxy. Schmitt’s affection for war-limiting European order and fears that war would become mere “pest control” makes him indispensable for thinking about the Cold War as continuous with this past but also as a moment of hiatus.