TY - JOUR
AU1 - Sakr, Rafael, Lima
AB - Abstract History and boundaries are the foundations of international economic law (IEL) as a professional and intellectual field. History is often told to support a wide variety of present projects, norms, and ideas by appealing to the past. Boundary is a technique frequently used to map and defend an exclusive domain for applying the IEL expertise to a broad range of programmes, rules, and theories. This article first describes how history and boundaries interact to produce a ‘traditional’ view of IEL past and present place in the world economy. This interaction structures how lawyers assert the authority and legitimacy of IEL in global economic governance. It then argues that the commitments of the traditional approach to Anglocentrism and Modernism limit lawyers’ ability to understand and solve the present-day issues, since it produces lessons only in support of the dominant programmes, norms, and ideas under contestation. Consequently, it constrains, instead of empowers, lawyers’ imagination. Building on this critique, the article outlines an alternative approach devised to rethink the IEL field and, more importantly, which past or new projects, norms, and theories do or do not count (or should or should not count) as part of it. It concludes with reflections on how we might go about reimagining IEL in response to the contemporary challenges to global economic governance. INTRODUCTION In the early 21st century, international law literature has been marked by the so-called ‘turn-to-history’–a resurgent interest in the historical origins and development of legal norms, institutions, ideas, and practices. This ‘rediscovery’ of history has led to a certain level of reflection, which has posed fundamental questions about how lawyers uncover the ‘past’, tell it as historical narratives, and translate these into normative lessons. The consequence has been to challenge theoretical and methodological assumptions underlying the concept of what today we call ‘international law’ and also to foreground how its history is produced. In parallel, a different strand in international law scholarship has been engaged in studying the work of lawyers as expert practices and their collective professional behaviour and intellectual projects as a disciplinary field. The focus is on the role of lawyers and their expertise in shaping and operating global regimes through international law. In this sense, international law is understood as a type of mode of institutionalized governance. The result has been to re-conceptualize what nowadays we call ‘international law’ and also to place at the centre stage the legal field’s disciplinary boundaries in global governance. The impact of those two interdisciplinary projects on international economic law (IEL) has been varied. The turn to history has prompted an increase in the interest of past but has not led to a consistent rethinking of historical method. Conversely, sociological frames have been more successful in penetrating and reshaping themes, preoccupations, ideas, and techniques of IEL literature. While the study of the effects of these two forms of scholarly engagement on the IEL expertise is undoubtedly fascinating and important in its own, this article raises a different question: what is the nature and significance of the interaction between history and boundaries of IEL? This article describes and analyses the disciplinary consensus on the interaction between the history and boundaries of IEL. The purpose is to create some space for international lawyers to reflect on the ways they have approached and dealt with foundational and present-day questions about global economic law and governance. Specifically, I question what a study of the history and boundaries can tell us today about the current limitations of IEL expertise and the possibilities it provides to reform, or transform, itself and the contemporary international economic order. Hence, my ultimate goal is to invite the IEL field to consider the political and intellectual consequences of the self-imposed disciplinary limitations. It is a commonplace to acknowledge that the field of IEL holds in high esteem its own history and boundaries. From its founding fathers to today’s highly specialized lawyers, debates about the origins and evolution, autonomy, and frontiers of IEL have been an essential part of the discipline. Yet, both–history and boundaries–seem to be experienced as unrelated, or perhaps contrasting, ways through which lawyers engage with IEL. On the one hand, history tends to trigger lawyers’ imagination of IEL as a disciplinary technique that governs the movement of meanings across time. ‘History lessons’ are regarded as a way of providing support to a wide variety of IEL projects, norms, institutions, and ideas by connecting their past to the present. On the other hand, boundaries tend to cause lawyers to think of IEL as a disciplinary technique that controls the movement of meanings across space. ‘Expert demarcation’ is considered a way to vindicate the existence of a(n) (exclusive) domain for the application of IEL expertise to a broad range of programmes, rules, regimes, theories, and methods, by distinguishing it from other domains. In this sense, I propose to think of both techniques as ‘modes of disciplinary governance’, which are commonly understood as situated on opposite sides of the IEL expertise. The article unfolds in three parts. Section I presents and analyses what I shall call the ‘traditional approach’ to the history and boundaries of IEL. This is followed up by a discussion in section II about the limits of the traditional approach. Building on this critique, section III proposes to rethink how history and boundaries relate to one another by offering the building blocks for an alternative approach. In the Conclusion, the article returns to the central issues involving the interplay between history and boundaries inside and outside of the field of IEL. From an external viewpoint, I argue that the disciplinary boundaries have done a great deal of work in preventing international lawyers from offering effective or satisfactory solutions to contemporary challenges facing global economic governance. From an internal perspective, I assert that the field’s boundaries result from the interaction between intellectual debates meaningfully grounded in history lessons and the political disputes arising out of collective and individual pursuits of authority and legitimacy. To begin to break up the imaginative gridlock on the IEL expertise, I propose to move away from the traditional approach towards to an alternative approach. This new approach rests on four strategies that seek to (i) widen the scope of, and (ii) examine the social process underlying, the interaction between the history and boundaries of IEL, with the purpose of preventing that interplay from suffering with (iii) Modernist teleology and (iv) Anglocentric universalism. I. FROM THE PRESENT TO THE PAST, THE TRADITIONAL APPROACH TO THE HISTORY AND BOUNDARIES OF IEL The purpose of this section is to depict what I call the traditional approach to the history and boundaries of IEL from the scholarly literature. The analysis suggests that the traditional approach is widely employed to construct lessons grounded in historical narratives and articulated within disciplinary boundaries. Teachings play, in turn, a fundamental role in influencing the ways lawyers understand the functions of IEL and offer solutions to contemporary challenges to global economic governance. A. Robert Howse and the present boundaries of IEL In a recent publication, the Canadian professor Robert Howse1 invites us–international lawyers–to rethink the boundaries of the field of IEL.2 He calls our attention to the fact that only a few of us possess appropriate knowledge of economics to reflect upon and deal with contemporary problems of global economic governance.3 He has in mind our limitations when coping with the political, social, and economic consequences arising out of the unequal distribution of the gains and losses of the past three decades of globalization. It seems that his concern lies, particularly, in the apparent mismatch between the powerful position held by international lawyers in the world economy and our lack of satisfactory understanding of economics or perhaps uncritical acceptance of dominant economic doctrines as valid and legitimate. To understand the ways in which international lawyers have been implicated in managing the present-day international economic order, as well as in shaping the conditions of possibility for transforming it, Howse offers a brief account of his own experience as a junior scholar in North America to illustrate how law students have been trained in IEL since the late 1980s. In his recollection, Howse describes the steps he undertook to accede to the IEL field.4 At university, he was initiated into the characteristic ways of thinking of and arguing about IEL rules and institutions. A combination of historical, theoretical, and doctrinal lessons taught him, implicitly, where, why, and how the field’s boundary was established and sustained. Following a long jurisprudential tradition across Western countries, the disciplinary line was drawn by attributing an ontological definition to IEL, which would carry with it implicit normative and epistemic consequences. Howse recalls that IEL has been taught as ‘an instrument that serves rational international economic policy; rational policy is about efficiency; efficiency leads to growth; efficiency requires open markets, with strong protections for property and contractual rights and disciplines on government intervention. Questions of justice or redistribution should remain “elsewhere”: they do not belong to international economic law.’5 To my mind, Howse’s recollection calls attention, consciously or otherwise, to the effects of disciplinary boundary. Indeed, disciplinary boundaries can be regarded as a fundamental, and yet often neglected, mode of expert governance6 employed by the IEL field.7 The notion of boundaries tends to drive lawyers to think of IEL as a technique8 for controlling the movement of meanings across space through demarcation. In this sense, drawing of boundaries is regarded as a disciplinary and disciplining process that is directly implicated in ascertaining what and who count or not as part of IEL, and, indirectly, in determining which rules, actors, and knowledge are authoritative and legitimate. Within the IEL field, boundary-drawing is a disciplinary/disciplining process involving decision-making and consensus-building. The consensus around the authority and legitimacy of norms, actors, and ideas is built up by a discipline’s ritualized process of framing and answering questions.9 The responses are choices about intellectual, normative, and political matters. They may take the form of a project, theory, method, or argument. If successful in achieving internal consensus, these responses are likely to produce powerful spatial effects over legal expertise and might be used to affect global policymaking. They, therefore, serve not only to establish and sustain IEL frontiers today but also to structure the ways in which lawyers understand and respond to the problems arising from the world economy. Moreover, disciplinary demarcation is sensitive to political and intellectual dynamics of expert differentiation. Within the IEL field, boundaries are shaped by continuous professional practices and intellectual debates carried out by international lawyers with themselves and also with non-lawyers. In the context of international economic regime, boundary-drawing is a disciplinary/disciplining process of relational contestation undertaken by distinct professions engaged in influencing policy- and law-making. In this sense, demarcation serves as a disciplinary technique employed to vindicate the existence of a(n) (exclusive) domain for the application of IEL expertise to a broad range of programmes, rules, regimes, ideas, and methods. Therefore, the boundaries of IEL are not set in stone but are continuously restated by lawyers as a strategy of reaffirming the field’s identity and mission, and this redefining its influence in global economic governance. Rethinking Howse’s narrative through the lens of disciplinary boundaries opens the possibility of retelling his own recollection from a distinct angle. As I shall discuss below,10 some lawyers, situated predominantly in North America in the late 1970s, proposed to use a combination of theories and methods grounded in legal realism, functionalism, and pragmatism, to reimagine the international law of world economy as a distinct, specialized domain of expertise. They offered a new conceptual definition11 and employed it to rework a set of legal norms and ideas in order to support and universalize normative programmes for IEL and governance. This involved demarcating the authority of their expertise inside and outside of the legal domain.12 Externally, they employed IEL expertise to claim ultimate competence over legal rules and institutions that constituted and regulated the international economic order. This mainly involved disciplinary disputes with other international economic policymakers to exert legitimate authority over the international laws of the International Bank for Reconstruction and Development (later the ‘World Bank’), the International Monetary Fund (IMF), the General Agreement on Tariffs and Trade (GATT), and international investment agreements (IIAs). Internally, historical narratives were amalgamated with legal and economic theories so as to assert the existence of a special body of positive norms and regimes, which required a specialized set of knowledge and skills distinct from other (public/private and international/domestic) law provinces. These unique characteristics led to the gradual formation of a distinguished intellectual and professional field, holding a specific identity and mission. This view of IEL was chiefly developed in the late 1980s in the Anglo-American context. It quickly spread out after the end of the Cold War and the rise of the USA as the economic hegemon. By the early 2000s, when I was initiated in the IEL field, what today can be called the ‘Anglo-American vision’ had already become the orthodoxy as much as in the Bretton Woods institutions, the Bank for International Settlement, the World Trade Organization (WTO), and the International Centre for Settlement of Investment Disputes (ICSID) as in Brazilian law schools and firms, companies, and government.13 What this brief reinterpretation of Howse’s account suggests is that drawing boundaries has less to do with finding the field’s normative, economic, or natural foundations. Rather, it appears to be more related to strategic positions taken by historically situated lawyers who intended not only to exercise influence by claiming exclusive expertise over certain institutional and jurisprudential domains but also to engage in the realization of specific projects for global economic governance. These decisions are not made in the abstract.14 Indeed, they often involve lawyers pledging their commitment to intellectual traditions and affiliating to professional groups. Consequently, decision-making is affected by preoccupations, moral values, and interests of national elites, other transnational experts and, of course, legal communities. Three such choices seem particularly important since they are at the core of the IEL field’s identity and mission. They might be useful as stepping stones to find responses to the current issues facing global economic governance. First, by ascribing a specific definition to IEL, ideas and practices are ex ante framed in and out of the IEL expertise. Second, by qualifying particular methods as authoritative to identify which norms and processes are parts of IEL, certain techniques are included, while the rest is excluded from IEL as unsuitable for generating valid and authoritative responses. Third, by agreeing on a normative programme, alternatives are marginalized and perhaps even turned into either ideological rivals or expert competitors to the IEL field itself. In the Anglo-American environment where Howse is situated, the majority of international lawyers seem to regard themselves as liberal, cosmopolitan experts who, alongside other specialists and policymakers, are committed to promoting the rise of living standards through the application of expert knowledge and techniques to rules and institutions of international economic regime, but whose efforts have been historically slowed down by political, ideological, or economic forces.15 As emphasized by Howse, the acceptance of IEL as a neutral instrument devised for promoting and sustaining–what has been called–a neoliberal programme16 for global economic governance, through a particular set of international and domestic rules and institutions, is significant, to the extent that it singles out a much wider constellation of potentially applicable legal ideas, practices, projects, and norms.17 The unproblematic understanding and the commitment of contemporary lawyers to neoliberalism often marginalize relevant questions related to social justice and economic redistribution by setting humans rights and development policies outside the field’s domain.18 This conventional understanding–dominant since the 1980s–has recently lost its external appeal.19 The succession of political, social, and economic crises of the early 21st century has caused people across jurisdictions to either distrust or challenge the widespread consensus around the benefits of the neoliberal style of governing the world economy. This entailed a challenge to the legitimacy and authority of international economic regimes and organizations, on the one hand, and policymaking experts (generally) and lawyers (particularly), on the other. The 2000–02 Dot-com bubble, the 2001 Turkish crisis, the 2007–09 global financial crisis, the 2010–12 European sovereign debt crisis, the 2014 Russian crisis, and the 2014–17 Brazilian crisis are perceived as having exposed the vulnerabilities of global economic law and governance. These crises have also unveiled that the international management of economic globalization and its crises, through expert application and interpretation of IEL rules and institutions, has impacted countries and individuals in uneven ways. Additionally, the lack of effective or satisfactory responses by political and expert elites has increased popular dissatisfaction.20 Many people in developed countries discovered what their peers in the developing world had figured out a long time ago: globalization produces structural imbalances between winners and losers. Using their privileged position, these individuals, who believed they were left behind, expressed their frustration by attacking important pillars of the international economic order. The years of 2016–17 have witnessed two more significant and effective assaults in the Anglo-American context: Brexit and Trump’s election.21 B. Steve Charnovitz and the present history of IEL At present day, The Field of International Economic Law by the American professor Steve Charnovitz22 embodies the disciplinary consensus on the history of international law of the world economy.23 Yet, accounting for the history of a field is not as straightforward as some would believe. It involves analysing the past in order to select and articulate facts and ideas that seem to explain the present. As described below, Charnovitz’s article provides a brief but compelling account of institutional and jurisprudential developments of IEL that elucidate our contemporary understanding of the field. In the article, Charnovitz starts off by providing in section I a brief introduction to the most acceptable views on the two core ontological (What is IEL?) and epistemological (How is IEL identified?) questions underlying the field. By pointing out that both questions are still unsettled, he offers his own concept by merging the very broad meanings of ‘international + economic + law’ with a functionalist method.24 However, he notice that ‘[that definition is] perhaps too broad. Consequently, a reconsideration of method may be required.’25 To deal with the over-inclusiveness, Charnovitz uses legal functionalism to acknowledge tactically the existence of ‘specialized bodies of public international law without necessarily classifying them as part of [IEL].’26 The result seems not to be satisfactory since, in order to draw a line between IEL and the rest, he falls back to considerations about the complexities in determining the nature of IEL itself. In an attempt to move forward, Charnovitz strategically moves away from boundary-drawing and towards history, in order to find in the past evidence to fill his abstract concept of IEL with concreteness. II. THE INSTITUTIONAL HISTORY OF IEL In section II, Charnovitz retells the history of the IEL field as a series of progressive moments that tie economic crises to institutional responses and legal justifications.27 Very similar to other conventional accounts,28 he provides a timeline of the IEL evolution, indicating the existence of legal rules and institutions that had been used from the golden age of British-led free trade to the interwar period and then to the post-war international economic order. He also chooses, as many others, to emphasize the international regulation of trade affairs as a consequence of its exceptional importance to IEL history.29 This conventional narrative tells that from the late 19th century until 1914 the world trade was governed by the so-called liberal international economic regime centred on the classical principle of freedom of commerce.30 The outbreak of World War I massively disrupted the international trading system of bilateral and preferential arrangements rudimentarily tied by most-favoured-nation (MFN) clauses. The peace did not repair the fractions. Rather, the 1919 Versailles Treaty contributed to produce long-term, deleterious impacts on Germany’s economy, pushing it to adopt a predatory economic strategy. This contributed partially to a general surge in beggar-thy-neighbour measures throughout the 1920s. Consequently, the MFN clause fell into disuse forcing countries to enter into bilateral arrangements. The international trading system was already severely cracked by the end of the 1920s when the Great Depression caused the downfall of many domestic economies.31 To preserve national production and employment, extreme forms of discriminatory and protectionist measures were adopted. The Smoot–Hawley Tariff Act enacted by the USA in 1930 was the most notorious for quickly provoking comparable retaliatory reactions by its major trading partners.32 All these predatory policies not only exacerbated the effects of the Great Depression but also led the international trade regime to an institutional paralysis. When the 1934 Reciprocal Trade Agreements Act was passed, the time for peaceful free trade policies was gone. The outbreak of World War II cemented the end of the liberal international economic order. The combination of Franco-German economic revanchism, generalized trade wars, and Great Depression, with an ineffective liberal trading system and marginal classical international law, served as traumatic lessons for what was supposed to be a new international economic order.33 These understandings were used, during and after the Second World War, for choosing economic policies and designing legal norms and regimes to lay the foundations for a new international economic governance. When it had become reasonably clear to the allies that World War II would be shortly over, the Anglo-American diplomacy paved the way for concluding the Bretton Woods Agreement in 1944. This agreement set forth a comprehensive plan to establish specialized international organizations for reconstructing and governing the world economy under the future United Nations.34 Following the end of the war, the IMF and World Bank were effectively created; however, the International Trade Organization (ITO) failed to come into existence, largely because of the USA’s refusal to ratify its Charter in 1947, arguing that its rules would impose excessive constraints on domestic economic sovereignty.35 Alternatively, the GATT, an interim agreement, negotiated in 1947 among 23 major trading countries, as a prelude to the ITO, became, ‘through the magic of practice’, the permanent institutional architecture for the multilateral trading system until the establishment of the WTO in 1995.36 Between 1947 and 1994, the GATT not only evolved institutionally but also had its mandate and membership expanded.37 Under the GATT, eight multilateral rounds of trade negotiations were concluded. The first six rounds (from the 1947 Geneva Conference to the 1963–67 Kennedy Round) focused almost exclusively on tariff negotiations. The 1973–79 Tokyo Round, although also promoted substantial tariff reductions, sought to negotiate for the first time new rules and policies, directing attention to various areas of non-tariff barriers to trade. The 1986–94 Uruguay Round was the last and most complex negotiation under the GATT, entailing a profound transformation in the world trading system. The establishment of the WTO was one of its central achievements followed closely by the unprecedented expansion of regulatory competence over trade in agriculture, textiles and services, intellectual property, and investments.38 Thus, the adoption of the WTO agreements in 1994 closes the final chapter of the institutional storyline. From ITO’s tragic failure to GATT’s defective birth and its incremental improvements throughout multilateral rounds until the acceptance of the WTO ‘constitution’, conventional narratives teach that the contemporary world trading system is the product of a progressive evolution of institutional trade practices of sovereign states in pari passu with the continuous expansion of global economic interdependence. III. THE JURISPRUDENTIAL HISTORY OF IEL Juxtaposed with this institutional storyline, Charnovitz provides a historical account that identifies the IEL field with the progression of canonical writings.39Section III retells the conventional evolution of legal ideas and practices that led up to the formation of a vernacular of concepts and techniques employed by the ‘champions’ of IEL to make sense of international economic relations.40 The jurisprudential story begins by acknowledging the German-American Ernst Feilchenfeld (1898–1956) as the patron of the term international economic law.41 Yet, Charnovitz asserts that ‘[i]f anyone should be recognised as the father of [IEL], it is the German-British Georg Schwarzenberger (1908–91), a professor of international law at the University of London, who began writing on [IEL] in 1942.’42 Schwarzenberger authored seminal works in IEL over three decades. In his classical 1966 course delivered at The Hague Academy of International Law, IEL is defined as a specialized province of public international law constituted of a sufficiently coherent, self-contained corpus of legal rules created by legal subjects, and not by deductions from abstract principles, with the purpose of regulating public law aspects of international economic transactions.43 The term international trade law is not employed in this work. Rather, the regulation and institutionalization of interstate trade affairs are regarded under the realm of IEL. Until the 1980s, Schwarzenberger was the leading, but not the only, scholar of IEL. The British Leslie C. Green (1920–2011) and David Hughes Parry (1893–1973) and the Hungarian-American Stephen A. Silard also employed the term IEL and advocated for the existence of a new branch of international law.44 Despite their scholarly efforts, Charnovitz points out that the concept ‘international economic law’ was not ‘extensively used in international law literature during the 1950s, 1960s, or 1970s. But it does occasionally appear.’45 As a branch of international law, IEL only took off in the early 1980s.46 The Dutch Pieter VerLoren van Themaat (1916–2004) rediscovered the IEL field in his treatise The Changing Structure of International Economic Law of 1981, whereby the Schwarzenberger’s definition was reintroduced and updated in light of the new context. The term gained currency shortly after among the 1980s generation of international lawyers.47 Nevertheless, Charnovitz confers to John Jackson the title of ‘the greatest champion of the concept of [IEL]’ for his extensive contribution to the field.48 Jackson’s first significant publication on the topic was an entry on the term international economic law in the Encyclopaedia of Public International Law of 1985. More importantly, he employed it in his masterpiece of 1989, The World Trading System. In this book, he acknowledges that IEL is not a well-defined concept; nonetheless, a functional approach is offered by him to identify IEL rules and institutions, while avoiding the rigid demarcations between financial, monetary and trade law, and between international and domestic law.49 For Jackson, international trade law is a branch of IEL, whereas the GATT/WTO law is perceived as the centrally organized system of the most complex and extensive trade rules and institutions. Charnovitz accounts not only for John Jackson’s scholarly contribution but also for his leading role in the IEL field.50 Coincidently or not, the year of 1994 was not only remarkable for international lawyers due to the conclusion of the WTO agreement but also for the professional acclamation of Jackson as the creator of the field.51 This celebration symbolizes the end of the jurisprudential journey. From the precursory work of Schwarzenberger to Jackson’s masterpiece, IEL as a history of legal ideas and practices evolved from a formalist claim for normative autonomy to a functional approach to governing the world economy. IV. LEARNING FROM THE HISTORY OF IEL The history of the IEL field told by Charnovitz is neither novel nor controversial. Rather, it represents the conventional narratives that are widely accepted, complemented, and repeated by mainstream literature. As explored below, two questions are central to understand the role of history in IEL and governance. The initial one asks as to what we–international lawyers–have learned from these historical accounts. The above analysis suggests that the conventional accounts are constructed according to a characteristic style of legal history, which often combines an institutional story with a jurisprudential story. These narratives convey two central lessons aiming to organize the discipline’s moral values, ideas, and methods around a normative core, which sustains the imagination of IEL as an autonomous province. Their ultimate aim is to provide the legitimacy and authority to support the IEL field’s identity, mission, and influence in global economic governance. The first lesson is learned from the story about the progressive institutionalization of the world economy.52 The turn to institutions in international economic relations teaches that the foundation of contemporary IEL going from 1944 to 1994 was realized through two gradual stages. The initial stage was precursory serving to set up the normative architecture underscoring global economic governance.53 IEL rules and institutions negotiated by states are perceived as mostly defective, weak, or incomplete, while their application is regarded as highly dependent on economic preferences and material power of contracting parties. This notion of imperfect institutionalization is used to explain the prevalence of the diplomatic and technical character, rather than legal or juridical, of post-war international economic regimes. The situation began to change in the 1970s, when the IMF, then the World Bank, and finally the GATT and IIAs, had their normative and institutional features reformed and advanced.54 This second stage was characterized by the institutionalization of international trade, monetary, and financial regimes, furthering the implementation of liberal policies by constraining state discretion and incrementally moving their governance towards more rule-oriented international systems of economic cooperation. While the 1940s are perceived as the constitutive period in which countries committed to the contemporary international economic order, the 1980s are regarded as a period when international law rules and agreements began to be used more extensively to govern interstate economic relations. Therefore, this institutional story has been traditionally told not only as holding singular significance to today’s global economic governance but also as having a foundational role in constituting the contemporary IEL field. It teaches, particularly, that IEL results from the successful institutionalization of the neoliberal programme through the gradual transformation of the international economic regimes from politics to diplomacy to law. The second lesson comes from the advancement in jurisprudence as a response to the post-war move to institutions.55 The conventional narratives chronicle some lawyers having discovered that international law norms and institutions devised to regulate international economic relations possessed a special quality. This led them to differentiate this ‘branch’ of international law from other provinces.56 The 1940s generation led by Schwarzenberger is perceived by the traditional literature as primarily concerned with formal and conceptual dimensions of IEL.57 This formalist-oriented mindset is regarded as responsible for letting international lawyers enclose themselves in excessive academicism, while other fields of policymaking occupied the central position in international economic regimes.58 Sidelined for three decades, the IEL expertise is considered to have been reborn to global economic governance only in the 1980s thanks to the determination of more pragmatically driven, rather than academically oriented, international lawyers. They sought to rethink legal expertise as a way of reclaiming their participation in the fabric of IEL and policy.59 The conventional account chronicles how they gradually shifted the mindset towards functionalist, realist, and pragmatic attitudes and mentality.60 They were less interested in ontological and epistemological disputes over the existence of IEL and more preoccupied with its functions, effectiveness, and the application of its expertise to solve problems of the world economy. By strategically linking considerations of validity and effectiveness, the 1980s generation led by Jackson significantly transformed the IEL field.61 Those central lessons provide the normative consensus underlying the contemporary IEL field. The history of its constitution is regarded as having undergone through three steps: the 1940s as its formal, normative, and intellectual roots; the 1950s–70s period as its institutional maturation but professional marginalization; and, finally, the 1980s–94 as its effective foundation. Legal functionalism, realism, and pragmatism are the building blocks of the field’s identity, while its core mission is the progressive implementation of the neoliberal programme for global economic governance through international law norms and institutions. This leads to the second question: what is the function of history in the IEL expertise? It is common sense that international lawyers use ‘history-telling’ as a mode of governance to control the movement of meanings across time. The traditional literature often offers narratives alike to manage and support a wide variety of projects, rules, and processes that constitute the IEL expertise. As analysed above, these accounts may take the form of institutional histories of the formation and development of IEL rules and regimes that nowadays underscore the international economic order. Likewise, they may contribute to the understanding and diffusion of current legal ideas and methods by retelling the evolution of IEL jurisprudence. By connecting past and present, these history lessons organize and mould legal knowledge and techniques, which in turn affect law-making and interpretation. Moreover, they are continuously reasserted as a strategy to sustain the authority and legitimacy of the IEL field’s identity and mission. This suggests that the way in which lawyers tell their own history plays an important role in shaping (directly) the boundaries of the IEL domain and influencing (indirectly) global economic governance. A. The traditional approach to the history and boundaries of IEL Reflecting on Charnovitz’s work in the light of that of Howse’s allows grasping the operation of what I have called the traditional approach, a characteristic style of history-telling and boundary-drawing that widely dominates the field of IEL. Charnovitz’s article illustrates how institutional and jurisprudential stories are habitually organized and merged into a ‘grand narrative’ about the origins and development of IEL, while Howse’s personal recollection exemplifies the way in which this conventional account is routinely translated into history lessons and then taught worldwide. Together they show how the traditional approach has been used to combine institutional and jurisprudential teachings with the purpose of drawing lines dividing whom and what are parts of IEL. This dominant approach is employed, therefore, to determine what and who matters (or not) to the field’s past and also to control which lessons should be taken into consideration today by international lawyers to make or interpret IEL projects, rules, and institutions. Against this backdrop, I argue that international lawyers, who have identified themselves or accepted those conventional narratives and disciplinary borders, have employed the traditional approach to construct and sustain the identity and mission constituting the contemporary field of IEL. More specifically, this traditional style has been continuously used as a mode of governing the legitimacy and authority of knowledge, actors, norms, and regimes. On the one hand, it is used to draw a temporal timeline dividing past and present for the IEL domain. Legal norms, actors, and knowledge that are not understood as being part of the 1980s (re-)foundational moment are mainly regarded as belonging to the past. Consequently, they have little or no influence over today’s practices and ideas. On the other hand, it is employed to draw spatial lines, separating which substantive and formal elements fit in and out the IEL discipline. Legal rules and institutions closely related to the neoliberal programme for global economic governance are often acknowledged as part of IEL,62 while the ones identified with environmental, social, labour, and development issues tend to fall at the fringes or outside the field. Specifically, the mainstream canons of IEL literature either overlook or sideline the existence and function of the United Nations Conference on Trade and Development (UNCTAD), the United Nations Industrial Development Organization, and the International Labour Organization.63 Similarly, theories, methods, and arguments associated with legal functionalism, pragmatism, and realism are habitually received without ideological suspicion or intellectual scepticism, whereas the ones grounded, for instance, in legal positivism, post-colonialism, legal feminism, and human rights are frequently required to be justified to avoid marginalization or rejection. For instance, international trade law has embraced legal pragmatism from the 1980s onwards. Since the establishment of the WTO, trade lawyers have developed varieties of legal pragmatism that merge technical managerialism and formalism.64 Jackson’s ‘functionalist approach’65 to balancing competing policy goals, legal rules and constitutional provisions, and Petersmann’s ‘constitutional approach’66 to integrating human rights and trade law are well-known examples.67 The consequence has been the consolidation of a theoretical and methodological framework that structures law-making and legal interpretation as a formal technical analysis, through which legal norms, policy considerations, and moral values are objectively determined and impartially balanced, in order to achieve a valid and legitimate conclusion. Furthermore, the disciplinary consensus produced through the traditional approach around IEL boundaries entails important external consequences. By using the conventional narratives to assert the present field’s frontiers, international lawyers intend not only to claim exclusive authority over certain (and not other) institutional and jurisprudential domains but also to legitimize their pursuit of specific (and not other) projects for global economic governance. This, in turn, affects their interaction with other communities of international economic policymaking as well as with international regimes for economic affairs. A central purpose of using the traditional approach is, therefore, to empower international lawyers with legitimate authority to make sense of and arguments about official documents and behaviours of state and non-state actors (related to what they understood to be part of international economic affairs) to politicians, diplomats, judges, other policymakers and scholars, students, and, very importantly, to themselves. This suggests that the traditional approach operates less as a means to reflect upon how past acts and choices led up to the present. Instead, it works backwardly by selecting and mobilizing historical events to legitimize and validate the consensus around the linear connection between the IEL field’s origins, development, autonomy, and present-day frontiers. In this sense, lessons that are ‘discovered’ in history tend to reflect collective or individual commitments of international lawyers to intellectual traditions, normative programmes, and professional groups. In particular, my analysis indicates that the majority of international lawyers who read Charnovitz’s article as canonical or uncontroversial are most certainly applying the traditional approach to entrench and sustain (consciously or otherwise) the neoliberal programme into the IEL expertise. Therefore, I believe that the limitations of international lawyers in addressing the current challenges to the international economic order have a great deal to do with the ways in which historical narratives have been used to legitimize and validate norms, actors, and expertise. I aim to explore what an analysis of the IEL field’s history and boundaries can tell us today about the repertoire of ideas, practices, rules, and institutions that was relegated to the dustbin of past due to disciplinary consensus. I am specifically interested in uncovering and exploring the strategies undertaken to entail demarcation effects. Such engagement purports to assist in broadening the horizons of possibility to propose alternatives to transform IEL and governance. V. BETWEEN HISTORY AND BOUNDARIES: THE LIMITS OF THE TRADITIONAL APPROACH TO IEL As the previous section suggests, boundary-drawing and history-telling tend to be assumed as unrelated, or perhaps contrasting, modes of governance situated on opposite sides of the IEL expertise. By contrast, the traditional approach has combined them to legitimize and validate the IEL field’s identity and mission. This disciplinary strategy empowers, in turn, the international lawyers to control the intra-expertise production of knowledge and norms and to ensure its extra-expertise influence by carving out an exclusive space for policymaking in global economic governance. By instrumentalizing history to drawing boundaries, the past is subordinated to the present in order to determine as to whether a project, norm, or idea is either a present-day outcome of progressive development (and so belonging to the field), an old (and non-applicable) relic of the past, or just simply not part of IEL. I suggest, therefore, that one possibility to rethink the current constraints of the IEL expertise is by understanding how the traditional approach has structured the interaction between history and boundaries. There are numerous possibilities to approach the history of the field of IEL rather than the traditional style.68 One avenue that has gained currency in the past decade is articulated by Martti Koskenniemi. He argues that conventional narratives of ‘international law histories of late 20th century have usually combined accounts of the development of the States system with brief excursions into a well-defined circle of canonical texts.’69 This also seems to capture how IEL has been historicized, since mainstream literature often combines stories of the institutional development of contracting parties’ practice with brief doctrinal analysis of official documents and canonical texts. For instance, the previous section examined the ways in which Charnovitz accounts for the field’s origins by merging a linear account of crises and institutional responses with a story of jurisprudential evolution moving from formalism to functionalism. As I shall discuss below, the traditional approach tends, consciously or otherwise, to instrumentalize IEL history in order to justify and legitimize a particular programme by claiming it is the natural or logical consequence of a neutral and universal set of lessons. Indeed, this traditional style often blurs the line drawn to differentiate historical reconstructions from normative projects.70 The peril consists of emphasizing aspects of history that support one’s underlying policy–ideological–intellectual commitment as factual determinants while leaving others necessarily (and perhaps strategically) in the forgotten realm of the past. As shown by the previous section, there are two types of storylines, which might be combined or not, that have been conventionally employed to tell the history of the IEL field with the aim of demarcating its boundaries. The institutional story chronicles the evolution of IEL as the progressive development of practices of states and international organizations pari passu with the continuous expansion of global economic interdependence.71 It tends to overemphasize political or economic forces as structural drivers, while downplaying the role of moral, social, or legal norms and institutions.72 Hence, the traditional style is used to sustain lawyers’ understanding of the GATT, IMF, World Bank, and IIAs as servants of, by-products of, or determined by, international economic relations. The jurisprudential story accounts for IEL as the succession of canonical writings that provides a vernacular of concepts and techniques to understand the prevailing institutional interactions and state behaviour under global economic governance.73 The conventional narratives often overemphasize the evolution undergone by IEL jurisprudence from the 1940s mindset characterized by a scholarly attitude and formalist–positivist views towards the 1980s mentality, which combined a pragmatic attitude and functionalist–realist visions.74 Thus, the traditional approach is employed to narrow the intellectual history to support lawyers’ instrumental efforts to justify and legitimize the (re-)foundation of the IEL field, with the aim of closing the gap between legal expertise and the rival policymaking disciplines. These two types of legal storylines are often united through the commitment of the traditional approach to the Modernist view of history and boundaries as single and universal phenomena.75 Contemporary international lawyers often try to merge intellectual and institutional stories by assuming that both are somehow intertwined teleologically and progress linearly. The purpose of the mainstream literature in providing these two accounts following one common trajectory seems to be an attempt to capture scientifically the transcendental reason driving IEL history. Indeed, this grand narrative is conventionally remembered as a conflict against autocracy, nationalism, discrimination, unilateralism, and protectionism, as well as against legal idealism, and excessive formalism, legal positivism, and academicism. By contrast, an ‘effective’, ‘legitimate’, and ‘fair’ IEL results from cooperation, multilateralism, non-discrimination, reciprocity, and (neo-)liberalism, as well as legal pragmatism, functionalism, realism, and problem-solving. At the core, IEL is imaged as a universally accepted mode of institutionalized expert governance of the world economy that aspires to impose formal and effective constraints upon sovereign discretion over trade, monetary, and financial policies, while promoting a more peaceful world and economic welfare through interdependence. By resorting to IEL history, mainstream literature seeks to validate and legitimize its normative programmes through conventional narratives and borders, which combinedly serve to vindicate the naturalness, necessity, or superiority of contemporary IEL norms and knowledge. The traditional approach is employed to root the rules, ideas, and techniques related to the WTO/GATT, IMF, World Bank, and IIAs in history lessons, so as to ascribe them meaning as part of an unfolding story of institutional and jurisprudential progress that serves to support the dominant, neoliberal project.76 These historical reconstructions create, in turn, a disciplinary boundary by framing what is desirable in the IEL domain, while bracketing all other elements as ‘marginal’ or ‘outsider’.77 The dangerous consequence of combining the institutional and jurisprudential stories through the lens of the traditional approach is to produce a teleological view of the conventional narratives as the single, neutral, and universal history of IEL. The ultimate result is, therefore, to blur the line between past and present. A recent trend in legal literature has extensively criticized the traditional approach for its ontological and epistemological shortcomings.78 For the aim of my discussion here, the critiques of mainstream scholarship’s commitments to Modernism and Anglocentrism seem to bear great explanatory power. The combination of these two features appears to impose disciplinary limitations that have adversely impacted IEL. These constraints result from the effects of the traditional approach over the interaction between IEL history and boundaries.79 The critique of Modernism starts off by calling attention to the argumentative structure embedded in the traditional approach. The preliminary step is to define IEL.80 This definition is habitually constructed upon two moves. It first assumes that lawyers are able to isolate IEL from other social phenomena, such as morality, politics, and economics, as well as from domestic and international law, in order to provide a somehow definitive, abstract concept. Such a concept is often a specialized variation of the notion of IEL as a universal and neutral set of norms and regimes that are legitimately produced and can be objectively interpreted. The second move is to accept that the positive rules and processes underlying the IMF, World Bank, GATT/WTO, and IIAs constitute the only (or the most relevant) body of IEL. This Modernist premise entails blind spots that often lead the traditional approach to overlook how intra-expertise political and intellectual struggles have shaped the contemporary IEL field. This implies that, to produce a universal history and border, conventional narratives and teachings frequently fail to take into consideration socio-economic contexts, political compromises, or intellectual concessions responsible for making and interpreting IEL norms and regimes, while obscuring disciplinary bias and marginalizing alternative ideas and practices within the IEL expertise.81 Embedded in the traditional approach, the Modernist commitment to teleology requires the adoption (preceded or not by theoretical justification) of a universal concept of IEL as the condition sine qua non to begin the process of telling its history and drawing its boundaries. This restricts, in turn, the IEL field to the conventional narratives and lessons that often support the dominant normative programmes underpinning the concept chosen ex ante. My analysis of Charnovitz’s and Howse’s articles offers a good example of the perils to IEL arising from Modernism. Mainstream literature confines the notion of IEL to the international laws of the GATT/WTO, IMF, World Bank, and IIAs, accompanied or not by methodological reasons. The consequence is to impose a disciplinary demarcation that marginalizes or disregards any rule, institution, or idea existing between 1944 and 1994 that falls outside such a narrow concept. Moreover, to reinforce this ontological and epistemological frame, the conventional narratives and teachings seem to function as an apologetic conduit providing legitimate and authoritative justifications for the prevalent body of contemporary IEL norms, regimes, methods, and theories. The second critique is concerned with the overwhelming Anglocentrism surrounding and embedded into the conventional lessons and stories.82 From physical places to intellectual debates to global policymaking, IEL is frequently experienced in the present-day mindsets and routines as an Anglo-American phenomenon. Locations such as Bretton Woods, New York, and Washington in the USA, London, and Torquay in the UK are central to the historiography, where international lawyers have been constantly found, in some way, even today. Of course, other key places such as Geneva, Paris and Annecy, Brussels, Tokyo, as well as Havana, have also been historically important; however, the traditional approach seems to portray these places as islands, or perhaps containers, of Anglocentrism elsewhere. In fact, it seems discouragingly difficult and sometimes impossible to engage with IEL without delving into Anglo-American diplomatic history, referring to ideas and practices about economic liberalism, multilateralism, and rule of law as imagined and implemented in the USA and the UK or even communicating in the English language. This suggests the existence of an affinity between international lawyers’ disciplinary preferences and their acceptance of Anglocentrism. Thus, the IEL expertise is experienced as dominated by Anglocentric-inspired or -reconstructed rules and processes, as well as concepts and techniques. This Anglocentrism causes one to wonder what kind of IEL history would be possible without summarizing it to the role of the US (mainly), the UK (secondarily) and Western Europe, and Japan in the construction and maintenance of the international economic governance? Indeed, the overwhelming majority of contemporary teachings and narratives, drawing from either institutional or jurisprudential storylines, seem to drive back to what and how British and Americans have done and written. Institutionally, the literature tends to equate IEL with the IMF, World Bank, GATT/WTO, and IIAs, by either foregrounding their ancestors in the 19th century, liberal economic system led by Great Britain, or stressing their origins in the Anglo-American negotiations that led to the Atlantic Charter. More specifically, it often retells and justifies the establishment of the international economic order through the debate between the American Cordell Hull and Harry Dexter White and the British John M. Keynes. Jurisprudentially, it does not and should not come as a surprise that mainstream literature unequally emphasizes ideas and practices produced by Anglo-American (trained) lawyers. As already mentioned, in the 1940s, the father of IEL, Georg Schwarzenberger, developed his scholarship on the province of IEL as a Jewish professor at the University of London after fleeing Nazi Germany. In the 1980s, the great champion of IEL, John Jackson, was an American-born professor who, on different occasions, served the Office of the US Trade Representative. Therefore, the traditional approach seems to make it quite an impossible task to offer a credible account of IEL and governance without adopting an Anglocentric viewpoint. VI. TOWARDS AN ALTERNATIVE APPROACH TO THE HISTORY AND BOUNDARIES OF IEL In an attempt to address or avoid some of the shortcomings inherent to the traditional style, I provide below the contours of an alternative. Four strategies that I articulate herein are inspired by the work of lawyers, sociologists, and historians, who have sought to think how (international) law can be historicized and conceptualized without subscribing to the traditional approach. All these four strategies have been extensively discussed, but there is rarely an effort to put them together in a single methodological framework. This approach that I propose seeks to integrate historical methods with sociological techniques throughout the development of a legal method as the basis for examining how history-telling and boundary-drawing are jointly deployed as disciplinary modes of governance to shape IEL. Thus, the alternative I offer is less a formalized theory and a more coherent legal approach devised to framing questions, selecting primary and secondary sources, choosing research techniques, structuring narratives, and crafting arguments. A. Widening the history and boundaries of IEL The first strategy purports to place the origins and development of IEL within a broader historical trajectory and professional context. I propose to widen the scope so as to analyse the ways in which IEL was ‘founded’ in relation not only to the ‘rest’ of international law but also to the ‘other’ international economic policymaking domains existing between 1944 and 1994. From a historical perspective, this consists of reinserting the excluded ‘others’ back into narratives. From a sociological viewpoint, this means to account for the expert processes by which lessons are constructed and deployed to justify the settlement of disciplinary boundaries between IEL and other realms of policymaking and law-making.83 By placing IEL within a more comprehensive frame, the alternative approach would open the possibility to inquire why and when specific rules, regimes, ideas, and practices are regarded as (not) belonging to the IEL province. Hence, I aim to prevent the biases and blind spots created by conventional narratives and lessons from constraining today’s IEL expertise in, at least, two concrete ways. The acceptance of the idea of the GATT/WTO, the Bretton Woods institutions, the ICSID, and IIAs as the unique, or perhaps ultimate, institutional, and normative experiments of international economic governance since 1944, is a disciplinary pillar of the IEL field. This traditional perspective locks up IEL within dichotomous debates around utopian, liberal, and multilateralism versus apologetic, welfarist, and unilateralism. For instance, the history of international trade law looks very different from the conventional narratives if, instead of focusing only on the GATT and its internal conflicts, it accounts for the role of GATT in the battle against the UNCTAD and the Council for Mutual Economic Assistance (COMECON) for governing the transnational production and distribution of goods and services.84 The other way is to question contemporary consensus on the superiority of the Anglo-American jurisprudence. Between the 1940s and 1980s, debates on central matters for IEL were mainly carried out by international lawyers working out of places like Algeria, Egypt, France, and Nigeria.85 The re-engagement of American and British lawyers in the 1980s led them to introduce a particular style of legal pragmatism, functionalism, and realism. Backed up by the rise of the USA as economic hegemon, the Anglo-American jurisprudence became dominant, employing, among other techniques, the traditional approach to legitimize and validate such a position. The consequences over the IEL expertise are two-fold. The use of the traditional style relegates to the dustbin of the past a rich repertoire of programmes, theories, and techniques, which was produced outside the Anglo-American world between the 1940s and 1980s. It also crystallizes a disciplinary boundary that prevents certain preoccupations, concepts, theories, and methods from growing or entering the field.86 These effects do not result from an explicit disciplinary process, but rather as a consequence of controlling the movement of meanings across time and space through the combination of historical narratives and lessons. When international lawyers retell the history of the world trade system (as exemplified by Charnovitz’s account above), it is clear that they share a collective understanding of what and who constitute it is implicitly taken for granted and functions as the basis for reinforcing the importance of teachings and problems arising from GATT/WTO history while rejecting or marginalizing questions and takeaways related to (non-trade) social justice and economic redistribution.87 The conventional narratives construct certain norms as embedded with ‘economic values’ and others with ‘non-economic values’, creating a bias in favour of the former in the process of drawing the borders of the discipline. Additionally, they tend to overemphasize the ‘constitutive’ and ‘incremental’ teachings and questions rather than the ‘controversial’ or ‘disruptive’ ones. Therefore, the alternative approach purports to provide ways to resituate IEL in a wider historical and contextual frame. B. Endogenizing the history and boundaries of IEL I suggest that we suspend our habit of imagining IEL as a special body of legal rules and institutions that can be empirically identified and scientifically analysed. By contrast, IEL can be conceived not as a result of a unilateral process of normative, jurisprudential, or institutional specialization or fragmentation, which is possible to be ‘discovered’ and ‘apprehended’ by international lawyers, regardless their historical context, through the identification of a distinguishable group of universal norms and regimes holding a natural or logical speciality. Instead, I propose to approach the foundation, evolution, and demarcation of IEL as (part of) the creation, advancement, and differentiation of the IEL field, which were carried out by a contextualized group of legal practitioners and intellectuals between the late 1940s and the early 1990s. In methodological terms, historical narratives and lessons are not understood as sources of timeless truths or universal statements about IEL concepts, norms, and regimes. Rather, they are conceived of as arguments produced by international lawyers with the aim of intervening in the constitution and development of IEL as a field.88 Since no field can exist without a distinct professional and intellectual character, history-telling and boundary-drawing need to be conceptualized as modes of governance that control the production, institutionalization, and differentiation of IEL’s identity, mission, and expertise.89 Although the making of stories and borders is commonly undertaken within other domains of policymaking, those techniques are exceptionally important within legal expertise, to the extent that lawyers are ‘traders of meaning’ who take raw materials from the past and transform them into normative lessons in the present. This differs from history (which studies the past in order to explain the meaning of norms and ideas in the temporal context in which they were produced) or economics (which examines the past aspiring to discover positive and universal truths). Hence, lawyers are specialized in the art of making meaning move across time and space by learning how to produce authoritative and valid narratives and lessons about why a particular rule, institution, or concept should (or should not) be treated as part of IEL today. It is, essentially, about constructing legitimacy. Three consequences derive from understanding that the ‘origins’ and ‘progress’ of IEL (as history) were intertwined with the ‘invention’, ‘maturation’, and ‘defence’ of IEL (as a field).90 First, IEL is regarded as not only a formal body of rules and institutions but also a way of thinking and practising those norms and regimes. It involves the production, selection, and transmission of meanings between lawyers so that projects, ideas, and methods, which are routinely embedded into the rules and expertise of IEL, ceasing, in turn, to be politically or intellectually contested. Thus, the conventional narratives and lessons represent, symbolically, the continuous labour of lawyers to encapsulate a specific set of political decisions, intellectual commitments, historical facts, and normative positions into the IEL field’s identity and mission. Moreover, historical accounts are regarded as carrying out central lessons that serve to smooth the process of decision-making and consensus-building within IEL. These teachings are employed to ‘construct’ the IEL field having more or less influence depending on contingent factors related to the authority and legitimacy of their proponents and reasoning. In this sense, jurisprudential and institutional stories are neither neutral nor apolitical. Rather, they are produced by lawyers pursuing personal or collective projects, who are located in different jurisdictions, educated according to distinct legal traditions, and committed to divergent political groups and ideological mindsets91. The consequence of this view is to contest the field’s traditional claim to universalism and perpetuity of IEL, since it cannot be sustained empirically, but only aspired to intellectually. Thus, I suggest that the making of IEL history and boundaries should combine an analysis of IEL as an intellectual enterprise with an investigation of the performance of lawyers as builders and managers of IEL as a profession. The purpose of an alternative approach is to examine how inside disciplinary struggles and outside political-economic conflicts shape the construction, contestation, and validation of historical narratives and lessons that constitute the contemporary understanding of the IEL field. C. Breaking up with Modernism: IEL history as temporal contestations of disciplinary boundaries My proposal is to depart from the Modernist commitment to a progressive, linear, and universal style of IEL history that often instrumentalizes institutional or jurisprudential stories to reassert disciplinary boundaries so as to support particular normative programmes.92 This means to resist our impulse born out of the traditional approach to constructing narratives by working backwards in order to ‘uncover’ a single lineage that justifies the natural or logical teleology we want to see hidden in history. The initial step is to reject the commitment embedded into the traditional approach so as to sustain the existence of a ‘universal’ and ‘neutral’ body of rules and knowledge produced by Western developed countries for governing the world economy by articulating a ‘universal’ and ‘neutral’ history. Building on the shift from positive norms to differentiated expertise, the focus of history-telling should not be on accounting for how legal rules, regimes, ideas, and techniques have continuously and progressively evolved over time into their contemporary manifestations. Rather, the aim should be to historicize and foreground the ways in which narratives and lessons are produced by lawyers who pursue their projects through practice as well as the underlying struggles and contestations. Such move opens out two avenues for telling the history of IEL disinvested with teleology. The first is to conceive lawyers as contextualized authors whose discursive practices are political interventions in (particular) intellectual and political struggles inside and outside the IEL field.93 This allows us to consider that lawyers are themselves inserted within a historical context, which shapes both the IEL expertise that enables them to acknowledge their history, identity, and mission as members of the profession and also the wider political and intellectual limits of what it is possible to think and argue about the origins and development of IEL. The second avenue drives the attention towards rewriting the history of IEL in a way that it does not simply replace the underlying teleology, maintaining intact the notion of triumphal progress. Rather, I propose to rethink history-telling not as a method of discovery of historical truths but as a mode of disciplinary governance that links present to past through the production of historical narratives and normative lessons. This does not mean advocating a dogmatic separation between past and present aiming to sterilize, completely, IEL history and boundaries from critical engagements. The alternative seeks to emphasize, instead of erasing, intellectual conflicts and political battles that historically produced compromises and ruptures that maintain or transform IEL boundaries. Therefore, a new approach enables us to better understand the means by which the field’s boundaries have constrained legal imagination by continually embedding the conventional narratives and lessons through history-telling. By breaking up with Modernist teleology, the alternative aims not only to highlight the conditions of possibility that frame legal decision-making about and under IEL but also to empower a critical engagement with international lawyers’ past and present expertise and choices. D. Departing from Anglocentrism: IEL history as spatial contestation of disciplinary boundaries A key step in this process consists in departing from Anglocentrism.94 If IEL is understood as a transnational field that aggregates lawyers from and working in multiple jurisdictions, historical narratives shall also be conceived as produced in sites located outside the Anglo-American world.95 This move entails two consequences. It is necessary to take into consideration that IEL has been thought and practised in distinct contexts. Nonetheless, the validity and legitimacy of ideas and techniques hinge on the dynamic interplay between different legal communities within the IEL expertise. This disciplinary interaction is affected by the unequal distribution of authority and resources. Hence, it is particularly important to be aware of the effects of certain ‘spatial’ differences over the production and assimilation of narratives and lessons, as well as of the extent to which some approaches to boundary-drawing have come to control what counts or not as IEL in a way that can make them appear, or be presented as, neutral and universal. The aim must then be to explore the variety of historical accounts and normative teachings produced according to different approaches, each of them resulting from the interplay of contextualized groups of international lawyers (within and across jurisdictions) facing political and intellectual communalities, dissimilarities, and conflicts. This also means to highlight the causes of the increasing movement of lawyers across jurisdictions and its effects over IEL boundaries.96 Different from other international economic policymakers, lawyers’ expertise is attached to insider knowledge of specific institutional, normative, and epistemic settings. The migration of lawyers tends to challenge the localized barriers built around those sites by intervening in the professional and intellectual commitments and alliances. Thus, the interaction between history and boundaries would be different if narratives and lessons crafted by lawyers situated in distinct regions, countries, cities, and institutions and often associated with different communities were to be accepted as part of the IEL expertise rather than obfuscated by Anglocentrism. Locations such as the European Geneva, Moscow and Belgrade, the Mediterranean Algiers and Cairo, the African Yaoundé, Lomé and Lagos, the Latin American Santiago, Montevideo and Georgetown, and the Asian Bandung and Beijing have been among the most relevant places where narratives and lessons have been constructed not only to draw the boundaries of IEL but also to determine and justify the ideas and practices to be used in making or interpreting legal norms and regimes underlying global economic regime. For instance, it was in Moscow where lawyers inspired by socialism worked for the establishment of the COMECON in 1949, with the aim of implementing as an international regime for economic assistance and development of the world socialist system. Likewise, in Algiers, Santiago, Bandung, Belgrade, and Geneva, lawyers sharing a developmentalist mindset were engaged in the making of policies, norms, and ideas that led up to the creation in 1964 of the UNCTAD, an international regime for governing trade and development. E. Towards an alternative approach to history and boundaries of IEL Since the early 2000s, history has become a major theme in international law scholarship.97 With a few exceptions, the theoretical and methodological reflections underlying this recent ‘turn-to-history’ have not found fertile soil in IEL. The traditional approach has remained dominant in mainstream literature. However, the current problems of global economic governance and the unsatisfactory solutions provided by the IEL field open the possibility to rethink how lawyers have engaged with IEL history and boundaries. I have argued above that the traditional approach suffers from two related biases: (i) Modernist bias in favour of conceiving IEL as a neutral, singular, and universal product of a historical evolution that is independent of political or intellectual causation and (ii) Anglo-American bias against stories and lessons about IEL produced in accordance with projects, ideas, and methods with no traction in the Anglo-American world. I aspire to contribute to the study of history and boundaries of IEL by applying the alternative approach in three ways. First, I seek to (re)conceive IEL history as a window to unveil how different groups of lawyers have participated in the foundation and development of IEL. The alternative approach assists us in understanding how jurisprudential and institutional stories have been produced to govern the constitution and management of IEL boundaries. In particular, it enables us to unveil the means in which these historical accounts have connected a ‘certain’ past to a ‘certain’ present in order to establish and sustain relations of difference, dominance, and disruption inside and outside the IEL field. Thus, this new style purports to reveal how lessons have been extensively employed to draw the field’s boundaries in ways that have affected international lawyers’ understanding of and engagement with IEL. In the second place, I aim to make sense of the ways in which IEL have been employed to control the formation, management, and contestation of normative, institutional, and jurisprudential projects operating within the international economic order. For instance, the alternative approach helps us to highlight the continuous involvement of lawyers in the entrenchment of programmes (liberal welfarism98, socialism99, developmentalism100, and neoliberalism101) into IEL. In particular, it allows us to unveil how lawyers collaborate with other non-legal experts to embody those programmes into legal rules and institutions (e.g. GATT, Comecon, UNCTAD, and WTO, respectively), through expert processes of law-making and interpretation. With this in mind, the new agenda aims to historicize how legal ideas and techniques have been reworked through continuous practice in order to create and sustain normative, institutional, and jurisprudential projects, which have in turn provided the underlying vocabulary and the boundaries around what today we call IEL. My third aspiration is to contribute to debates on contemporary issues of IEL by rethinking the history of the present. Understanding IEL history as part of today’s practice involves revealing how the work of embedding projects through historical narratives and normative lessons has shaped the field’s identity, mission, and influence in global economic governance. Nowadays, it is common sense to argue that IEL is somehow losing its effectiveness or perhaps heading towards a critical moment. The reasons lie partially in the doubts about the limits of the neoliberal programme itself and partially in the fears about the capacity of IEL, as expertise and mode of governance (limited by the traditional approach), to provide solutions to present-day problems. In offering a new way of understanding the interaction between history and boundaries, the alternative approach assists us to penetrate the field deeper so as to illuminate how it has constituted and shaped the conditions that enable and constrain lawyers in their conceptualization and practice of IEL when facing the present-day challenges to global economic governance.102 VII. CONCLUSION: AN ALTERNATIVE RESEARCH AGENDA I opened this article by suggesting that the interaction between history and boundary is the key to understanding the participation of international lawyers in the construction, operation, and contestation of international regimes for regulating the world economy. It has become clear that IEL boundaries result from the interplay between intellectual debates meaningfully grounded in historical narratives and normative lessons and the political disputes arising out of collective and individual pursuits of authority and legitimacy. In this context, the function of the traditional approach is two-fold. It has enabled the past to be told as present teachings to support jurisprudential and institutional projects for governing transnational economic affairs. It has allowed the past to be articulated as present teachings, serving to conceive, frame, argue, and solve international economic problems through law. Thus, the traditional style bears much responsibility for producing the conditions of empowering and constraining lawyers’ imaginative interaction with the world economic regime. Specifically, I claim that this approach has excessively limited the IEL imagination, thus preventing lawyers from offering inventive solutions to dealing with contemporary issues. Furthermore, the upheavals within the Western developed countries (as mainly provoked by the Trump Administration and the Brexit negotiations) and the rise of China are reshaping IEL and governance. It is reasonable to assume that these challenges will not vanish by themselves or wait for the IEL expertise to move beyond the consensus around the traditional approach. It is also expected that, if lawyers fail in participating in the construction of innovative proposals or alternatives, other experts and policymakers will fill in. The consequence of inadequate or unsatisfactory engagement might cause the marginalization of the IEL expertise within the global economic governance and the disruption of its core disciplinary features. If my analysis is correct, the IEL field should seek to lessen its disciplinary frontiers in order to produce alternative ways to reform and transform the international economic order. This would include welcoming imaginative projects, new ideas, and inventive techniques from legal and non-legal experts located outside Anglo-American, orthodox sites. To blur or expand its borders, the IEL expertise should rethink its own history in order to recover the sense it once had, when the field was characterized by normative heterogeneity, institutional experimentalism, and jurisprudential innovation. The proposed alternative approach purports to assist in broadening IEL boundaries so as to lessen the disciplinary constraints while empowering lawyers to reimagine IEL in response to contemporary challenges. Therefore, I want to conclude by suggesting some research avenues through which this new approach can expand our comprehension of history and boundary interaction. First, I have suggested that the IEL field is critical in shaping the role of law and lawyers in global economic governance. It is directly implicated in the ways legal practitioners and thinkers cope with present-day issues. Indeed, its influence is chiefly experienced through the control over the production and transmission of understandings, meanings, and knowledge related to the world economy. Boundary-drawing and history-telling operate as modes of expert governance, constituted by political and intellectual dynamics, which determine the authority and legitimacy of who and what matter (or not) for IEL. In doing so, the IEL expertise structures the means and governs the range of choices that can be made as to whether certain norms, actors, ideas, and projects are (part of) IEL. Studying the IEL field as practices of disciplinary differentiation, domination, and disruption is thus studying the conditions of possibility sustained by the IEL expertise for lawyers to engage in new or alternative ways to reform and transform global economic law and governance. Through the analyses of the scholarly work of Robert Howse and Steve Charnovitz, I demonstrated that the traditional style is pervasively used to instrumentalize history in support of boundaries. More concretely, past events are often selected and articulated by international lawyers, according to the neoliberal programme, into storylines that provide institutional and jurisprudential teachings. Against this backdrop, a second avenue of promising research is to foreground the role of the traditional approach in the construction of historical narratives and normative lessons for evidencing the universal connection between the origins, development, purpose, content, and form of IEL rules and institutions. This opens the possibility of shedding light to a critical but often neglected function of the traditional approach, the use of history by (or as) disciplinary demarcation between IEL and ‘the others’. The definition of the others relies upon the spatial and temporal dedifferentiation carried out by the IEL expertise. This includes drawing a line between IEL and other branches of international law and other expert domains of international economic policymaking, as well as between norms, regimes, ideas, and methods that are part of the present or the past of IEL. If one wishes to overcome the ontological and epistemological limitations of the traditional approach, it is necessary to tackle the Modernist and Anglocentric biases embedded therein as it constrains rather than empowers international lawyers to provide new and alternative responses to the current issues. In particular, these disciplinary commitments seem to have adversely impacted the IEL expertise in two ways. At the intellectual level, they have narrowed the broad understanding the field once had of its origins and development. The consequence is that narratives and lessons have been produced to vindicate the naturalness, necessity, or superiority of a specific set of legal norms and ideas. At the professional level, those commitments have shaped the field’s core elements, narrowing what and who do or do not count as (part of) IEL. Therefore, the third line of scholarly inquiry is to unveil the constraining effects produced by the traditional approach over the IEL field through the teleological construction and maintenance of disciplinary boundaries. All in all, a new agenda would seek to resituate the foundation and development of IEL within a wider temporal trajectory and spatial context. This does not mean rewriting conventional narratives in order to add what was missing in mainstream literature. My research proposal is different. It purports to move away from the Modernist teleology and Anglocentric universalism by retelling the past so as to take into consideration not only the ‘rest’ of international law but also the ‘other’ international economic policymaking domains and institutionalized regimes of economic governance existing between 1944 and 1994. Thus, history lessons should be learned, not as the outcome of a unilateral process of normative or institutional specialization or fragmentation, which remains ripe for ‘discovery’. Instead, they should be conceived as part of the internal disciplinary struggles and external political-economic conflicts that underscore the ‘invention’, ‘maturation’, and ‘defence’ of the IEL field itself. Furthermore, I propose to retell IEL history not as single, universal, and neutral accounts of past events, but rather as contingent and partial stories carrying out normative programmes, institutional visions, and jurisprudential projects. The alternative style has the potential to uncover the moral and material roots of Modernism and Anglocentrism that are entrenched in the mainstream literature. Morally, the Anglo-American view of IEL as an instrument for realizing a specific (initially, liberal welfarist and, now, neoliberal) agenda has been tied up with the Modernist idea of universal and linear evolution. The result has been the development of institutional and jurisprudential stories to legitimize the field’s contemporary identity and mission, by demonstrating that its origins and development go back to past events that are central for neoliberalism and Anglo-American diplomacy. Materially, the dominance of Modernism and Anglocentrism has a great deal to do with the political and economic power of the USA and the UK in shaping IEL and governance since the post-war period, but, especially, after the Cold War. Hence, this research avenue aims to use the alternative approach intends to provide a better map of the conditions of possibility that frame legal decision-making about and under IEL, and so critically engage in a dialogue with lawyers’ past and present expertise and choices. I am grateful to Andrew Lang, Jan Kleinheisterkamp, Martin Clark, Dagmar Myslinska, Aaron Wu, and Mackenzie Common. Errors are mine alone. I am thankful to the Society of International Economic Law, the JEIL Editors and Reviewers, and the Oxford University Press for awarding the original manuscript of this paper the 2017–2018 SIEL/JIEL/OUP Essay Prize. Footnotes 1 Robert Howse is a Canada-born law professor at the New York University School of Law, located in the USA. 2 For an overview of the legal field as a professional and intellectual arena structured and organized by shared core features, vide Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’, 38 Hastings Law Journal 805 (Richard Terdiman trans., 1987). For the application of Bourdieu’s view to international trade law field, vide Andrew Lang, World Trade Law after Neoliberalism: Reimagining the Global Economic Order (Oxford: Oxford University Press, 2011) 186–188. 3 Vide Robert Howse, ‘Economics for Progressive International Lawyers: A Review Essay’, 5 London Review of International Law 187–196 (2017). 4 Howse, above n 3, at 188–189. 5 Howse, above n 3, at 188. 6 Inspired by science and technology studies (STS) literature, modes of expert governance are understood as disciplinary mechanisms for the production, management, and application of knowledge, norms, and identities. They are created and used to coordinate expert systems and purposive action. In this sense, they are relatively institutionalized structures of governing decision-making constituted by a characteristic range of substantive and procedural assumptions as well as styles of thinking and reasoning. Consequently, they are employed to make, sustain, and transform knowledge, norms, and identities with the purpose of applying them to frame the issues under consideration and craft arguments in order to influence concrete situations or to prevent and resolve disputes. The political and intellectual process through which knowledge, norms, and identities are constituted and adapted is defined as governance. For an STS overview of expert governance, vide generally Alan Irwin, ‘STS Perspectives on Scientific Governance’, in Edward J. Hackett et al. (eds), The Handbook of Science and Technology Studies (Cambridge: MIT Press, 2008). 7 For an overview of disciplinary demarcation and professional boundary, vide generally Michel Callon, ‘Introduction: the Embeddedness of Markets in Economics’, 46 The Sociological Review 1–57 (1998); Sida Liu, ‘The Legal Profession as a Social Process: A Theory on Lawyers and Globalization’, 38 Law & Social Inquiry 676–677 (2013). 8 For lawyers, a ‘technique’ is generally understood as an expert style of organizing material, procedural, and aesthetical features into formal methods, skills, and routines that produce outcomes associated with universality, durability, stability, scientific objectivity, and political neutrality. Specifically, ‘legal techniques’ tend to include some of the following elements: ‘(1) certain ideologies–legal instrumentalism and managerialism […] (2) certain categories of experts–especially scholars, bureaucrats and practitioners who treat the law as a kind of tool or machine and who see themselves as modest but expertly devoted technicians; (3) a problem-solving paradigm–an orientation toward defining concrete, practical problems and toward crafting solutions; (4) a form of reasoning and argumentation, from eight-part tests to reasoning by analogy, to the production of stock types of policy arguments to practices of statutory interpretation or citation to case law’, Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (Chicago: Chicago University Press, 2011). 9 There are disciplinary questions that entail powerful demarcation effects, such as the following: what is IEL? What are the sources of IEL? What are the interpretative methods? How does IEL relate to other provinces of (public/private; domestic/regional/international) law and to other domains of international economic policymaking (e.g. economics, international relations, political, and social sciences)? Who has competence/jurisdiction/expertise over the matter? 10 Vide generally below n 46–49, and accompanying text. 11 Already described by Howse (vide above n 5, and accompanying text). 12 Robert Howse, ‘From Politics to Technocracy–and Back Again: The Fate of the Multilateral Trading Regime’, 96 The American Journal of International Law 98–99 (2002). Vide also David Kennedy, ‘The International Style in Postwar Law and Policy’, 1 Utah Law Review 7–103 (1994); Arie Reich, ‘From Diplomacy to Law: The Juridicization of International Trade Relations’, 17 Northwestern Journal of International Law & Business 775–776 (1996–1997); Joseph H.H. Weiler, ‘The Rule of Lawyers and the Ethos of Diplomats’, 35 Journal of World Trade 194–197 (2001). 13 Julio Faundez, ‘International Economic Law and Development: Before and After Neo-Liberalism’, in Julio Faundez and Celine Tan (eds), International Economic Law, Globalization and Developing Countries. Cheltenham: Edward Elgar (2010) 10–33; Gregory Shaffer, Michelle Ratton Sanchez, and Barbara Rosenberg, ‘The Trials of Winning at the WTO: What Lies Behind Brazil’s Success’, 41 Cornell International Law Journal 383–501 (2008). 14 David Kennedy, ‘The Twentieth Century Discipline of International Law in the United States’, in Austin Sarat et al. (eds), Looking Back at Law’s Century (Ithaca: Cornell University Press, 2002) 409–414. 15 Ibid. 16 For the definition of Neoliberalism, vide below n 101, and accompanying text. 17 Howse, above n 3, at 188–189, and accompanying text. 18 Howse, above n 3, at 188–189. Vide also Robert Howse, ‘The World Trade Organization 20 Years on: Global Governance by Judiciary’, 27 European Journal of International Law 9–77 (2016). 19 Vide generally Timothy Meyer, ‘Saving the Political Consensus in Favor of Free Trade’, 70 Vanderbilt Law Review 985–1026 (2017). Vide also Michael Spence, ‘Donald Trump and the New Economic Order’, (2006), https://www.project-syndicate.org/commentary/nationalist-approach-to-economic-policy-by-michael-spence-2016-11 (visited 31 January 2019); Anatole Kaletsky, ‘The Crisis of Market Fundamentalism’, (2016), https://www.project-syndicate.org/commentary/populist-revolt-crisis-of-capitalism-by-anatole-kaletsky-2016-12 (visited 31 January 2019); Kemal Derviş, ‘The Win-Win Fantasy of Liberal Democracy’, (2017), https://www.project-syndicate.org/commentary/failure-to-predict-brexit-and-trump-by-kemal-dervis-2016-12 (visited 31 January 2019); Michael J. Sandel, ‘Lessons from the Populist Revolt’, (2017), https://www.project-syndicate.org/onpoint/lessons-from-the-populist-revolt-by-michael-sandel-2017-01?barrier=accesspay (visited 31 January 2019); Rohinton Medhora, ‘The Future of Trade’, (2017), https://www.project-syndicate.org/onpoint/the-future-of-trade-by-rohinton-p--medhora-2017-06?barrier=accesspay (visited 31 January 2019); Helmut K. Anheier, ‘Rage Against the Elites’, (2017), https://www.project-syndicate.org/onpoint/rage-against-the-elites-by-helmut-k--anheier-2017-10?barrier=accesspay; Paola Subacchi, ‘Economic Crises and the Crisis of Economics’, (2017), https://www.project-syndicate.org/commentary/economists-should-restore-lost-credibility-by-paola-subacchi-2017-01 (visited 31 January 2019); Richard Baldwin, ‘Trump’s Anachronistic Trade Strategy’, (2017), https://www.project-syndicate.org/commentary/trump-trade-policy-tariffs-by-richard-baldwin-2017-02 (visited 31 January 2019); Dani Rodrik, ‘Too Late to Compensate Free Trade’s Losers’, (2017), https://www.project-syndicate.org/commentary/free-trade-losers-compensation-too-late-by-dani-rodrik-2017-04 (visited 31 January 2019); Dani Rodrik, ‘Straight Talk on Trade’, (2017), https://www.project-syndicate.org/commentary/trump-win-economists-responsible-by-dani-rodrik-2016-11 (visited 31 January 2019). 20 Vide generally Anthea Roberts, ‘Being Charged by an Elephant: A Story of Globalization and Inequality’, (2017), https://www.ejiltalk.org/being-charged-by-an-elephant-a-story-of-globalization-and-inequality/ (visited 31 January 2019); Kaushik Basu, ‘Inequality in the Twenty-First Century’, (2017), https://www.project-syndicate.org/commentary/profit-sharing-basic-income-by-kaushik-basu-2017-12 (visited 31 January 2019). 21 The British citizens voted in the 2016 referendum to take the UK out of the European Union. Trump campaigned and now has sought to implement America First, a nationalist and protectionist policy that has led the USA to withdraw from the Trans-Pacific Partnership Agreement, to pull Canada and Mexico into renegotiations of the North American Free Trade Agreement, and to attempt to dismantle, or threaten to exit from, the WTO. 22 Steve Charnovitz is a US-born law professor at the George Washington University Law School, located in the USA. 23 Vide generally Steve Charnovitz, ‘The Field of International Economic Law’, 17 Journal of International Economic Law 607–626 (2014). For like-minded conventional narratives about the history of IEL, vide generally the widely accepted works of Gerhard Loibl, ‘International Economic Law’, in Malcolm Evans (ed.), International Law (Oxford: Oxford University Press, 2003); Aust Anthony, Handbook of International Law (Cambridge: Cambridge University Press, 2005); Asif H. Qureshi and Andreas R. Ziegler, International Economic Law (London: Sweet & Maxwell, 2007); Andreas F. Lowenfeld, International Economic Law (Oxford: Oxford University Press, 2008); Ernst-Ulrich Petersmann, International Economic Law in the 21st Century: Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods (Oxford: Hart Publishing, 2012); and Matthias Herdegen, Principles of International Economic Law (Oxford: Oxford University Press, 2016). 24 ‘A [international] law of the world economy could possibly apply to three phenomena: (i) rules as between states, (ii) rules for how states treat individuals, and (iii) rules for individual to individual transactions’ (Charnovitz, above n 23, at 607–611). 25 Ibid, at 610. 26 Ibid, at 611. 27 Ibid, at 611–616. 28 Vide generally Loibl, above n 23; Aust, above n 23; Qureshi and Ziegler, above n 23; Lowenfeld, above n 23; John H. Jackson, ‘Part I: The State of International Economic Law–2005’, 8 Journal of International Economic Law 3–15 (2005); John H. Jackson, ‘International Economic Law: Complexities and Puzzles’, 10 Journal of International Economic Law 3–12 (2007); Gilbert R. Winham, ‘The Evolution of the World Trading System–The Economic and Policy Context’, in Daniel Bethlehem (ed.), The Oxford Handbook of International Trade Law (Oxford: Oxford University Press, 2009); Michael J. Trebilcock et al., The Regulation of International Trade (London: Routledge, 2012); Petersmann, above n 23; and Herdegen, above n 23. 29 Charnovitz calls particular attention to a group of bilateral and multilateral initiatives that produced embryonic international law norms and regimes, which later would evolve into the GATT or other international economic regimes. For instance, the 1890 International Union for the Publication of Customs Tariffs would become today’s International Customs Tariff Bureau, while MFN and national treatment standards established under peace, friendship, and commerce treaties were widely used in drafting the GATT. He justifies the focus on international trade law on economics: [a] timeline for all of [IEL] would be too lengthy for a short essay, but it would be possible to construct a timeline underlying the construction of the world trading system in the late 1940s. He adds, ‘[f]rom the scholarship that I am aware of, the trading system is a common element of everyone’s concept of [IEL]’ (Charnovitz, above n 23, at 611–612). Qureshi and Ziegler notice that ‘the trend in IEL of orienting discourse in IEL from the bias of international trade is noticeable’ […] for example, the first issue of the [JIEL] (1998) where in all four main contributions relate to international trade in the context of the WTO (above n 23, at 6, fn 32). 30 Charnovitz, above n 23, at 611–614. Vide also Trebilcock et al., above n 28, at 23–24; Lowenfeld, above n 23, at 21–23; Winham, above n 28, at 9–13; Herdegen, above n 28, at 14–15; John H. Jackson, ‘The Evolution of the World Trading System–The Legal and Institutional Context’, in Daniel Bethlehem (ed.), The Oxford Handbook of International Trade Law (Oxford: Oxford University Press, 2009) 31–33. 31 Ibid. 32 The 1930 Smoot–Hawley Tariff Act was responsible for raising USA’s duties on imports to an average of 60, its highest tariff rates in the 20th century (Trebilcock et al., above n 28, at 23). 33 Charnovitz, above n 23, at 614–616; Jackson (2007), above n 28, at 3–4; Jackson, above n 30, at 31–34; Lowenfeld, above n 23, at 21–26; Winham, above n 28, at 14; Trebilcock et al., above n 28, at 24–25; Herdegen, above n 28, at 195–197. 34 More precisely, the Bretton Woods Agreement envisaged the creation of three new international economic organizations: IMF, World Bank, and ITO. The IMF was responsible for governing global monetary policy through the maintenance of exchange rate stability and the provision of assistance to countries facing balance of payment crises. The World Bank was in charge of international financial policies, which consisted initially of providing reconstruction to countries whose economies had been devastated by the Second World War. After having successfully contributed to the Marshall Plan, the mandate of the World Bank was expanded to focus on providing development capital to developing countries. The ITO was conceived to govern the negotiation and administration of a new international trading regime (Trebilcock et al., above n 28, at 24–25). 35 Interestingly, the conventional literature often goes beyond the negotiations leading up to the draft ITO Charter. Notwithstanding, Charnovitz’s institutional storyline stops at this historical landmark, leaving the impression that the events prior to the GATT rest on the past while placing the post-1947 institutions in the present. This understanding would make sense if Charnovitz’s jurisprudential narrative followed the same timeline; however, as I shall discuss below, it does not. Instead, he tells the evolution of IEL jurisprudence from the interwar period until the early 1990s and then to the present. 36 Hélène Ruiz Fabri, ‘Chapter 16–Regulating Trade, Investment and Money’, in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012) 365–366. 37 Jackson, above n 28, at 4; Jackson, above n 30, at 34–37, 42–43; Lowenfeld, above n 23, at 46–67; Winham, above n 28, at 14–21; Trebilcock et al., above n 28, at 24–26; Herdegen, above n 28, at 15–16, 195–199. 38 Other important achievements were the following: the replacement of the ‘GATT à la carte’ approach for the ‘single understanding’ approach ensured that all members would be subject to the entire body of WTO agreements and the creation of the Dispute Settlement Body represented the passage from a power-oriented to a rule-oriented system. 39 Charnovitz, above n 23, at 616–624. 40 The jurisprudential development is closely knitted to the continuous institutionalization of international economic governance. In contrast to section II, section III focuses almost exclusively on the IEL jurisprudence developed from the 1940s until the 2010s, leaving aside canonical texts that were older or solely dedicated to international trade law. This far-reaching storyline differs not only from the institutional story but also from the conventional literature. Since Charnovitz does not explain these differences, I will follow the mainstream accounts, which means to limit the canonical narrative to 1994 and complement it with international trade law. 41 Ernst Feilchenfeld, firstly, coined the term in his 1938 book The Next Step. A Plain Man’s Guide to International Principles (Charnovitz, above n 23, at 2014: 616–617). Vide also Ernst H. Feilchenfeld, The Next Step. A Plain Man’s Guide to International Principles (Oxford: B. Blackwell, 1938) 22–23. 42 Charnovitz, above n 23, at 2014: 617. 43 ‘International Economic Law is concerned only with such aspects of economic phenomena as come within the purview of Public International Law. The reasons for this delimitation are not metaphysical. They are, partly, doctrinal and, partly, pragmatic’ (Georg Schwarzenberger, ‘The Principles and Standards Of International Economic Law’, 117 Recueil des Cours 7–8, 1966). Vide also, Georg Schwarzenberger, ‘The Province and Standards of International Economic Law’, 2 The International Law Quarterly 405–405 (1948); and Georg Schwarzenberger and Edward Duncan Brown, A Manual of International Law (London: Stevens, 1976). 44 Charnovitz, above n 23, at 619. Vide also Leslie C. Green, ‘Book Review of International Arbitral Awards and International Tax Agreements’, 1 Journal of the Society of Public Teachers of Law 322–324 (1949); David Hughes Parry, ‘The Place of Constitutional Law and International Law in Legal Education’, 2 Journal of Legal Education 428–432 (1950); Stephen A. Silard, ‘The Impact of the International Monetary Fund on International Trade’, 2 Journal of World Trade Law 121–132 (1968). 45 Charnovitz, above n 23, at 619. 46 Ibid, at 620. 47 VerLoren van Themaat was followed by the German Norbert Horn and Ernst-Ulrich Petersmann, the Austrian Ignaz Seidl-Hohenveldern (1918–2001), and the American John H. Jackson (1932–2015) and Robert Hudec (1934–2003). 48 Ibid, at 620. For the wide acknowledgement of John Jackson as the inventor of IEL, vide generally Kennedy, above n 12, expanded in David Kennedy, ‘The International Style in Postwar Law and Policy: John Jackson and the Field of International Economic Law’, 10 American University International Law Review 671–716 (1995); Robert Howse, ‘The House that Jackson Built: Restructuring the GATT System’, 20 Michigan Journal of International Law 107–119 (1999); Robert B. Thompson, ‘John Jackson’s Legacy: Defining a Field’, 19 Journal of International Economic Law 317–322 (2016); Tomer Broude, ‘A Field of his Own: John Jackson and the Consolidation of International Economic Law as a Scholarly Domain’, 19 Journal of International Economic Law 329–331 (2016); Gary Clyde Hufbauer, ‘Worthy of a Nobel: An Appreciation of John H. Jackson’, 19 Journal of International Economic Law 353–354 (2016). For the role of John Jackson in IEL practice, vide generally Debra P. Steger, ‘John H. Jackson—WTO Institution Builder’, 19 Journal of International Economic Law 339–341 (2016); Gary Horlick, ‘John Jackson as a Resource for Scholars and Others’, 19 Journal of International Economic Law 401–402 (2016); William J. Davey, ‘John Jackson and the Rule of Law’, 19 Journal of International Economic Law 333–334 (2016). 49 Charnovitz, above n 23, at 620; John H. Jackson, The World Trading System: Law and Policy of International Economic Relations (Cambridge: MIT Press, 1997) 25. 50 Charnovitz explains (above n 23, at 621) that John Jackson, in his International Economic Law: Reflections on the “Boilerroom” of International Relations, argues that IEL ‘embra[ces] the law of government regulation of economic matters; and related legal relations including litigation and international institutions for economic relations. Indeed, it is plausible to suggest that ninety percent of international law work is in reality international economic law in some form or another’ (John H. Jackson, ‘International Economic Law: Reflections on the “Boilerroom” of International Relations’, 10 American University Journal of International Law and Policy 596, 1995). Jackson also notes that [IEL] cannot be separated from public international law. In addition, he points to the value of a multidisciplinary approach to [IEL] that embraces not only economics, but also political science, cultural history, anthropology, and geography (Ibid, at 598). Charnovitz goes further to show how the notion of IEL ‘becomes further solidified’ by the contribution of other international lawyers and foundation of specialize law journals (above n 23, at 621–622). 51 The 1994 Conference on Interdisciplinary Approaches organized by the American Society of International Law celebrated Jackson’s work as fundamental to the consolidation of the field’s intellectual and professional pillars. In the rest of section III, Charnovitz covers the contemporary developments, involving the solidification of IEL jurisprudence until 2011. In brief, this process encompassed the publication of three specialized journals and new books and treatises and the creation of International Economic Law and Policy Blog in 2006 and the Society of International Economic Law in 2008 (Charnovitz, above n 23, at 621–624). 52 For the institutional story of IEL, vide above n 27–38, and accompanying text. 53 Vide generally above n 27–37, and accompanying text. 54 Vide above n 37–38, and accompanying text. 55 For the jurisprudential story of IEL, vide generally above n 39–51, and accompanying text. 56 Chronicled as a ‘eureka’ moment, they later found out that this unique domain was, in fact, an autonomous field, and so named it as IEL. Despite the efforts of those frontrunners, the emergence of the IEL expertise is conventionally regarded as having had little or no influence over IEL or governance. Three factors are considered to have collaborated for its disempowerment. The political and economic challenges pervading the 1950s, 1960s, and 1970s would have accrued a chilling effect on international lawyers’ aspirations. Moreover, the post-war international economic order would have been operated and managed mostly by non-legal experts, to the extent that international economic affairs were considered of ‘low’ political priority and dominated by more ‘technical’, and less or none ‘juridical’, matters. Finally, the 1940s generation led by Schwarzenberger was too scholarly inclined and committed to stronger legalist and positivist views of IEL (Vide above n 41–51, and accompanying text. Vide also Kennedy, above n 12, at 61; Reich, above n 12, at 775–776; Weiler, above n 12, at 194–197; Howse, above n 12, at 98–99, 2002). 57 They focused on the formal question as to whether IEL was ontologically and epistemologically distinct from international law. Consequently, legal theory occupied a prominent place in debates about IEL’s nature, driving the choice of methods to identify formal concepts and legal sources. More specifically, IEL was conceptualized, examined, and applied as if it were a coherent and self-contained system of distinguished positive rules and institutions (Vide above n 46–51, and accompanying text). 58 Vide Charnovitz, above n 23. Vide also Weiler, above n 12, at 194–197; Howse, above n 48, at 107–119 and n 12, at 98–99; Reich, above n 12, at 775–776; Hufbauer, above n 48, at 352–353; Broude, above n 48, at 329–331; Thompson, above n 48, at 317–320; Davey, above n 48, at 333–334. 59 Vide above n 23, 46–51, and accompanying text. 60 Vide above n 58. 61 The 1980s generation led by Jackson is praised for having introduced the central transformations that revived the IEL field. First, they bracketed the controversies over the formal autonomy of IEL and recast their different views not as mutually exclusive responses to theoretical questions, but rather as alternative realist methodologies that could be chosen and applied to solve IEL-related disputes and problems according to personal conviction and contextual necessity. Charnovitz’s article depicts the move to functionalism in sections I and III. While section III accounts for the jurisprudential story, section I introduces the different ‘concepts’, ‘methods’, or ‘approaches’ to IEL. These legal ideas and techniques are presented not as ontological responses framed as true or false hypotheses provided by legal scholars in historically situated contexts. Rather, they are juxtaposed as ahistorical, neutral, and scientific methodologies to be chosen by lawyers not due to their inherent validity or legitimacy but according to contextual considerations and personal belief (Charnovitz, above n 23, at 607–611, 616–624). Second, the move from grand theories to functionalist methods of analysis was combined with an instrumentalist approach to IEL, through which the validity and legitimacy of a legal norm or regime were tested against its effectiveness in providing the legal basis for dealing with concrete cases of international economic affairs. The instrumentalist turn is clearly reflected in section IV, whereby Charnovitz does not analyse the relationship between IEL and international law from a formal or normative viewpoint. In contrast, he examines whether and how IEL should influence or interact with international law with the aim of solving current challenges faced by global governance (Charnovitz, above n 23, at 624–625). Finally, this pragmatic perspective shifted the focus of IEL expertise from legal certainty and stability to problem-solving, normative change, and institutional progress. 62 For instance, the IMF, the World Bank, the GATT/WTO, and IIAs. 63 For instance, vide generally Lowenfeld, above n 23; Herdegen, above n 23; Andrew Guzmán and Alan Sykes, eds, Research Handbook in International Economic Law (Cheltenham: Edward Elgar, 2007); Colin Picker, Isabella Bunn, and Douglas Arner, International Economic Law: The State and Future of the Discipline-Hart Publishing (Oxford: Hart Publishing, 2008); Todd Weiler and Freya Baetens, eds, New Directions in International Economic law: in Memoriam Thomas Wälde (Leiden: Martinus Nijhoff, 2011); Chios Carmody, Frank J. Garcia, and John Linarelli, eds, Global Justice and International Economic Law: Opportunities and Prospects (Cambridge: Cambridge University Press, 2011); John Linarelli, Research Handbook on Global Justice and International Economic Law (Cheltenham: Edward Elgar, 2013); Freya Baetens and Jose Caiado, Frontiers of International Economic Law: Legal Tools to Confront Interdisciplinary Challenges (Leiden: Martinus Nijhoff, 2014); Chin Lim and Bryan Mercurio, eds, International Economic Law After the Global Crisis: A Tale of Fragmented Disciplines (Cambridge: Cambridge University Press, 2015); Julien Chaisse and Tsai-Yu Lin, eds, International Economic Law and Governance: Essays in Honour of Mitsuo Matsushita (Oxford: Oxford University Press, 2016). There are, nonetheless, some recent exceptions, such as Yves Dezalay and Bryant Garth, The Internationalization of Palace Wars–Lawyers, Economists, and the Contest to Transform Latin American States (Chicago: University of Chicago Press, 2002); Julio Faundez and Celine Tan, eds, International Economic Law, Globalization and Developing Countries (Cheltenham: Edward Elgar, 2010); and Henner Gött ed., Labour Standards in International Economic Law (Cham: Springer, 2018). 64 Lang, above n 2, at 252–254; Ernst-Ulrich Petersmann, ‘Methodology Problems in International Economic Law and Adjudication’, 7 Jindal Global Law Review 279–332 (2016). 65 Jackson, above n 49, at 145–151; Jackson, above n 28 (2005), at 6. 66 Petermann, above n 23. Vide also Ernst-Ulrich Petersmann, ‘The WTO Constitution and Human Rights’, 3 Journal of International Economic Law 19–25 (2000); ‘Time for a United Nations Global Compact for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration’, 13 European Journal of International Law 621–650 (2002); Constitutional Functions and Constitutional Problems of International Economic Law (Fribourg, Switzerland: University Press, 1991). 67 Vide generally Kennedy, above n 12; Howse, above n 49; Jeffrey Dunoff, ‘Constitutional Conceits: The WTOs Constitution and the Discipline of International Law’, 17 European Journal of International Law 647–675 (2006). 68 For an overview of approaches to international law history, vide generally Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi, eds, Time, History and International Law. Developments in International Law (Leiden: Brill, 2007); Bardo Fassbender and Anne Peters, eds, The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012); James Crawford and Martti Koskenniemi, eds, The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012); Anne Orford and Florian Hoffmann, eds, The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016). 69 Martti Koskenniemi, ‘A History of International Law Histories’, in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012). 70 Koskenniemi points out that ‘[t]he dominant voice [in writing about international law histories] has sounded a sociological register: “Ubi societas, ibi ius”—although just what it means to say that the law “reflects” anterior social developments has seldom been broached in any depth. Much of this history is geared in a policy-oriented direction as prologue to this or that agenda of reforms’ (Ibid, at 961). 71 For a summary of the institutional story of IEL narrated in traditional style, vide generally above n 27–38, and accompanying text. 72 For an overview of a legal history approach to international law as institutional practice, vide generally Gerry Simpson, ‘Chapter 1—International Law in Diplomatic History’, in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012). 73 For an overview of a legal history approach to international law as legal ideas and practices, vide generally Martti Koskenniemi, ‘Chapter 2–International Law in the World of Ideas’, in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012). 74 For a summary of the jurisprudential story of IEL in traditional style, vide generally above n 39–51, and accompanying text. 75 Martti Koskenniemi, ‘Histories of International Law: Significance and Problems for a Critical View’, 27 Temple International and Comparative Law Journal 220–221 (2013). 76 Orford makes a similar argument on how the dominant scholarship uses history to justify and legitimize free trade as the central project of contemporary international trade law and governance (Anne Orford, ‘Theorizing Free Trade’, in Anne Orford, Florian Hoffmann, and Martin Clark (eds), The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016) 701–702). 77 For instance, it often tries to construct the history of international trade law by tying it up with the institutional story about the steps leading up to the formation and development of the GATT and the jurisprudential story about GATT’s ‘birth defect’ that made legalist, positivist, and formalist approaches unsuitable and so demanded pragmatic, functionalist, and realist methods. It ultimately instrumentalizes these two ‘history lessons’ to develop theories, methods, and arguments to solve contemporary issues on international trade law. 78 For this new strand in international law scholarship, vide generally Martti Koskenniemi, above n 69 and 73, and his ‘Law, Teleology and International Relations: An Essay in Counterdisciplinarity’, 26 International Relations 3–34 (2012); Simpson, above n 72; Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005); Frédéric Mégret, ‘Chapter 3–International Law as Law’, in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012); Emmanuelle Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law (Cambridge: Cambridge University Press, 2012). For IEL, vide specifically Lang, above n 2; Fabri, above n 36; Anne Orford, above n 76, and her ‘Food Security, Free Trade and the Battle for the State Work’, 11 Journal of International Law and International Relations 1–67 (2015); James Thuo Gathii, African Regional Trade Agreements as Legal Regimes (Cambridge: Cambridge University Press, 2011); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (Cambridge: Cambridge University Press, 2011); Donatella Alessandrini, ‘The World Trade Organization and development Victory of ‘rational choice’?’, in Fleur Johns, Richard John Joyce, and Sundhya Pahuja (eds), Events: The Force of International Law (Oxford: Routledge, 2011); Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (Cambridge: Cambridge University Press, 2013); Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development (Cambridge: Cambridge University Press, 2015). 79 Howse and Charnovitz seem to experience the demarcation effects produced by the traditional approach, vide above n 4–5, 12–18 (Howse) and n 52–61 (Charnovitz), and accompanying text. 80 Vide above n 5, 11–12 (Howse) and n 24–26, 61 (Charnovitz), and accompanying text. 81 David Kennedy, ‘The Disciplines of International Law and Policy’, 12 Leiden Journal of International Law 12 (1999). 82 Likewise, Koskenniemi (above n 69 and 75) and Anghie (above n 78) show how Eurocentrism shapes international law, while Orford (above n 76), Miles (above n 78), and Pahuja (above n 78) demonstrate the effects of Eurocentrism/Anglocentrism over IEL. 83 For the governance process by which lawyers establish their disciplinary boundaries, see Liu, above n 7, at 676–677. 84 My argument is not that mainstream; literature has completely disregarded the existence of other international organizations or regimes specializing in economic affairs. Rather, I argue that it tends not to account for the other regimes as contenders for governing the world economy. For instance, there were institutional alternatives to the GATT offered by competing expert projects and normative programmes that have been forgotten or ignored by the IEL field (vide below n 98–101). From the 1950s until the early 1990s, international trade governance was organized around three multilateral trade regimes: the GATT, UNCTAD, and COMECON. For a general overview of the COMECON, vide Endre Ustor, ‘Decision-making in the Council for Mutual Economic Assistance’, 134 Recueil des Cours 163–295 (1971); Giuseppe Schiavone, The Institutions of Comecon (New York: Holmes & Meier, 1981); Jozef M. Van Brabant, The Planned Economies and International Economic Organizations (Cambridge: Cambridge University Press, 1990). For a general overview of the UNCTAD, vide Said El-Naggar, ‘The United Nations Conference on Trade and Development: Background, Aims and Policies’, 128 Recueil des Cours 241–345 (1969); Mohamed Bennouna, Droit International du Développement: Tiers Monde et Interpellation du Droit International (Paris: Berger-Levrault, 1983); John Toye, UNCTAD at 50: A Short History (Geneva: United Nations, 2014). 85 For a general overview of IEL in these legal traditions, vide Mohamed Bedjaoui, Towards a New International Economic Order (Paris: UNESCO; New York: Holmes & Meier, 1979) and Madjid Benchikh, Droit International du Sous-Développement: Nouvel Ordre dans la Dépendance (Paris: Berger-Levrault, 1983) [Algeria]; El-Naggar, above n 84, and Georges Abi-Saab, Progressive development of the principles and norms of international law relating to the new international economic order (United Nations General Assembly, Report of the Secretary-Genera A/39/504/Add.1, 23 October 1984) [Egypt]; Nguyen Quoc Dinh, Patrick Daillier, and Alain Pellet, Droit International Public (Paris: Editions Montchrestien, 1975) and Dominique Carreau, Thiébaut Flory, and Patrick Juillard, Droit International Économique (Paris: Librairie générale de droit et de jurisprudence, 1978) [France]; U. Oji Umozurike, International Law and Colonialism in Africa (Enugu: Nwamife Publishers, 1979) and Taslim Elias, New Horizons in International Law (Boston: Martinus Nijhoff, 1992) [Nigeria]. 86 Howse makes a similar claim when pointing out that contemporary international lawyers have failed in rethinking IEL jurisprudence because they have been either unable or disinterested in taking seriously the new progressive scholarship in international economics (above n 3, at 188). 87 My claim is not that mainstream; literature has completely rejected the importance of development, environment, labour, and human rights issues and policies. Rather, I argue that the traditional approach tends to deal with social justice and economic distribution through a boundary drawing technique known as ‘interface’ or ‘linkage’. This is also referred to the ‘IEL and’ debates, which juxtapose ‘IEL’ with other ‘non-economic’ disciplines (e.g. development and human rights). For instance, as a reaction to societal and expert criticism in the early 2000s, the linkage debates in trade law have focused on ‘whether and how to integrate “non-trade” (environmental, human rights) matters concerns into the work of the WTO […] The governing metaphor for the debate is that of redesigning the “interfaces” between the trading system and what is currently external to it. The issues raised by the debate are described as “border conflicts”, and it is seen to call into question the “boundaries” of the trade regime. The task, it is said, is to find the appropriate “limits” to the pursuit of international trade, or to find appropriate mechanisms for “linkage” between trade and non-trade issues’ (Andrew Lang, ‘Reflecting on ‘Linkage’: Cognitive and Institutional Change in The International Trading System’, 70 Modern Law Review 535, 2007). 88 For conceptualizing historical narratives and lessons as arguments crafted by contextualized lawyers, see Anne Orford, ‘On International Legal Method’, 1 London Review of International Law 170–177 (2013). This understanding is also informed by Quentin Skinner, ‘Meaning and Understanding in the History of Ideas’, 8 History and Theory 3–53 (1969); ‘Interpretation and the Understanding of Speech Acts’, in Visions of Politics: Volume 1 Regarding Method (Cambridge: Cambridge University Press, 2002) 103–127. 89 For the governance process by which lawyers produce their expertise, see Liu, above n 7, at 674–676. 90 This approach is also informed by the work of David Kennedy, ‘Challenging Expert Rule: The Politics of Global Governance’, 27 Sydney Journal of International Law 3–12 (2005); David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton: Princeton University Press, 2016); Andrew Lang and Joanne Scott, ‘The Hidden World of WTO Governance’, 20 European Journal of International Law 575–614 (2009); Martti Koskenniemi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’, in The Politics of International Law (Oxford: Hart Publishing, 2011); Anthea Roberts, Is International Law International? (Oxford: Oxford University Press, 2017). 91 The IEL field is shaped by internal and external disputes over authority and resources. Within the discipline, there is the often neglected interplay between domestic, national, and transnational interactions among legal practitioners and academics. Lawyers pledge their allegiance to intellectual traditions, political groupings, and normative programmes that are created and developed in contextualized settings. This implies that IEL ideas and practices are, in general, not universal or transnational per se, but rather nurtured in a particular place and then transferred to others. The importing–exporting dynamics can be seen as a form of ‘transnationalised localism’, which consists of a process by which a particular normative programme, jurisprudential project, or institutional vision succeeds in extending its reach over the IEL field and, by doing so, develops the capacity to designate a rival alternative as local. Not surprisingly, the acceptance and rejection of IEL projects, knowledge, and techniques are deeply dependent on the relative geopolitical power of their production sites. As I discuss in this paper, theories and methods developed in the USA have exerted far greater influence over the IEL expertise than the ones produced in France or African countries (Roberts, above n 90, at 8–9. Vide also Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (London: LexisNexis Butterworths Tolley, 2002) 178–179). 92 This strategy was inspired by the approaches to the history of international law developed by Koskenniemi (above n 69 and 75), Orford (above n 76 and 88), and Matthew Craven, ‘Theorizing the Turn to History in International Law’, in Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi (eds), Time, History and International Law, Developments in International Law (Leiden: Brill, 2007). 93 Orford, above n 88, at 170–171; Craven, above n 92, at 34–36. 94 This strategy draws from the work of Koskenniemi (above n 69 and 75), Orford (above n 76) and Craven (above n 92), who historicize the ways in which Eurocentrism and Anglocentrism have shaped international law. 95 To understand IEL as a transnational field, it is imperative to be aware of the two basic sorts of internal dynamics: the intellectual dynamic of commitment and aversion and the professional dynamic of affiliation and disaffiliation. The interplay of intellectual and political disputes tends to determine relations of differentiation, dominance, and disruption both inside and outside the IEL field. More precisely, IEL boundary expands and diminishes by the continuous process of decision-making and consensus-building that underlies those group dynamics (Kennedy, above n 14, at 408–414; Roberts, above n 90, at 1–6). 96 For the migrant process affecting IEL boundaries, see Liu, above n 7, at 677–679. 97 Craven, above n 92; Martti Koskenniemi, ‘Why History of International Law Today?’ 4 Rechtsgeschichte 61–66 (2004); Thomas Skouteris, ‘Engaging History in International Law’, in José María Beneyto and David Kennedy (eds), New Approaches to International Law (The Hague: T.M.C. Asser Press, 2012) 99–122; George Galindo, ‘Martti Koskenniemi and the Historiographical Turn in International Law’, 16 European Journal of International Law 539–559 (2005). 98 The so-called liberal welfarism is understood here to be the Anglo-American programme for a post-war international regime for economic cooperation aimed at striking a compromise between the aspiration for a multilateral system for trade, finance, and monetary cooperation, on the one hand, and the call for national intervention on economic and social spaces, on the other (John G. Ruggie, ‘International Regimes, Transactions, and Change: Embedded Liberalism and the Post- war Economic Order’, 36 International Organization 393–398, 1982; Jouannet, above n 78, at 249–253). 99 The so-called socialism is defined here as a normative programme created and developed by socialist countries in the context of the COMECON. It reflected a balanced compromise between the comradely aspiration for a multilateral regime devised to achieve formal and substantive equality among states through the implementation of ‘the international socialist division of labour in the interest of building socialism and communism in their countries,’ on the one hand; and, the voluntary desire to protect national sovereignty as the means for avoiding foreign interference in the state control of centrally planned domestic economies, on the other hand (Ustor, above n 84, at 183–1845, 275; Schiavone, above n 84, at 3–8). 100 The so-called developmentalism is conceived here as the Third-World programme led by the UNCTAD for an international regime for economic cooperation between developed and developing countries. The aim was at striking a compromise between two goals: on the one hand, the request for establishing a multilateral system for fairer, though dependent, economic cooperation; and, on the other hand, the desire for emancipatory intervention to foster economic development. This compromise between economic preference at international level and development interventionism at domestic level is at the core of the developmentalist programme (Bedjaoui, above n 85, at 188–189, 250–253; Abi-Saab, above n 85, at 102–104; Elias, above n 85, at 39–40, 208–209). 101 The so-called neoliberalism is understood here as a normative programme developed as a reaction to the economic turmoil of the 1970s, which contributed to erode the political and intellectual support for the liberal welfarism. It differs from the previous programme for several reasons, but two are central. First, it shifts the liberal welfarist compromise towards economic liberalism on both international and domestic levels. Second, it reimagines the world economy as a global market whose production and welfare potential are to be realized through ‘deep’ liberalization (Lang, above n 78, at Part II; Orford, above n 76, at 709–710; Howse, above n 18). 102 Howse makes a similar argument when pointing out that the contemporary international lawyers have failed in rethinking IEL jurisprudence because they have been either unable or disinterested in taking seriously the new progressive scholarship in international economics led by Thomas Piketty, Dani Rodrik, Joseph Stiglitz, and Jeffrey Sachs (above n 3, at 188). However, Howse might not have gone far or deep enough, to the extent that his ‘allies’ are all economists situated at leading universities in the Anglo-American world. There are also other non-legal experts whose cutting-edge work has been continuously overlooked or marginalized by the IEL field, such as Ha-Joon Chang, Mushtaq Khan, and John Ravenhill. © The Author(s) 2019. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Beyond History and Boundaries: Rethinking the Past in the Present of International Economic Law
JF - Journal of International Economic Law
DO - 10.1093/jiel/jgz001
DA - 2019-03-22
UR - https://www.deepdyve.com/lp/oxford-university-press/beyond-history-and-boundaries-rethinking-the-past-in-the-present-of-W09TC000sZ
SP - 57
VL - 22
IS - 1
DP - DeepDyve
ER -