Pub Date : 2020-12-04DOI: 10.1163/15718050-12340173
Misha Ariana Plagis, Lena Riemer
The context that leads to human rights treaties being drafted or adopted has garnered much attention, especially concerning the developments in the 1970s. However, the link to the content of those human rights treaties is often missing in the analysis. In addition, less attention has been paid to one of the major developments at the time: The adoption of the African Charter on Human and Peoples’ Rights. The paper engages with these gaps from the perspective of the drafting process of the African Charter, using the unique wording of article 7 to illustrate four significant political and historical factors that helped determine its content.
{"title":"From Context to Content of Human Rights: The Drafting History of the African Charter on Human and Peoples’ Rights and the Enigma of Article 7","authors":"Misha Ariana Plagis, Lena Riemer","doi":"10.1163/15718050-12340173","DOIUrl":"https://doi.org/10.1163/15718050-12340173","url":null,"abstract":"\u0000The context that leads to human rights treaties being drafted or adopted has garnered much attention, especially concerning the developments in the 1970s. However, the link to the content of those human rights treaties is often missing in the analysis. In addition, less attention has been paid to one of the major developments at the time: The adoption of the African Charter on Human and Peoples’ Rights. The paper engages with these gaps from the perspective of the drafting process of the African Charter, using the unique wording of article 7 to illustrate four significant political and historical factors that helped determine its content.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"33 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72652857","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-12-04DOI: 10.1163/15718050-12340171
G. Ben-Nun
This study attempts to explain why so many East-Central European Jewish international jurists played such cardinal roles in the elaboration of some of the most important treaties of modern international law post World War II. Borrowing from the biographies of Jacob Robinson, Isaac Lewin, Hersch Lauterpacht, Georg Cohn and others who served as key drafters of treaties such as the 4th Geneva Convention for Civilians and the 1951 Refugee Convention, the paper points to structural similarities between Talmudic law and international law, which help further explain the evident ‘Jewish disproportion’ in the making of many of the international system’s bedrock treaties post World War II. It argues that the biographical combination of Talmudic and rabbinical jurisprudence, coupled with a secular education in public international law, which was biographically mutual to most of these jurists helped them to fulfil the important drafting roles they undertook in the making of these treaties.
{"title":"How Jewish is International Law?","authors":"G. Ben-Nun","doi":"10.1163/15718050-12340171","DOIUrl":"https://doi.org/10.1163/15718050-12340171","url":null,"abstract":"\u0000This study attempts to explain why so many East-Central European Jewish international jurists played such cardinal roles in the elaboration of some of the most important treaties of modern international law post World War II. Borrowing from the biographies of Jacob Robinson, Isaac Lewin, Hersch Lauterpacht, Georg Cohn and others who served as key drafters of treaties such as the 4th Geneva Convention for Civilians and the 1951 Refugee Convention, the paper points to structural similarities between Talmudic law and international law, which help further explain the evident ‘Jewish disproportion’ in the making of many of the international system’s bedrock treaties post World War II. It argues that the biographical combination of Talmudic and rabbinical jurisprudence, coupled with a secular education in public international law, which was biographically mutual to most of these jurists helped them to fulfil the important drafting roles they undertook in the making of these treaties.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"1 1","pages":"1-33"},"PeriodicalIF":0.7,"publicationDate":"2020-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88855722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-06DOI: 10.1163/15718050-12340146
Wouter De Rycke
This article deals with the contribution of one exponent of the first generation of institutional pacifist internationalism to the rise of ius contra bellum. Traditionally associated with events from the late nineteenth century onwards, this significant paradigm shift knew an extensive prehistory. Legal scholarship has long dismissed the ‘peace friends’ of the mid-century as either not legalistic or solely focussed on arbitration. The article will argue that this longstanding bias has precluded a profound engagement with legal discourse within the early international peace movement. It will do so through a contextual legal analysis of the works of Louis Bara, a young Belgian lawyer who won first prize for his lengthy and controversial peace essay at the famous Paris peace conference of 1849. This neglected jurist articulated an enduring popular desire to develop a liberal international legal project, which both the peace movement and international law as a discipline increasingly internalized.
{"title":"Legislating Utopia","authors":"Wouter De Rycke","doi":"10.1163/15718050-12340146","DOIUrl":"https://doi.org/10.1163/15718050-12340146","url":null,"abstract":"\u0000This article deals with the contribution of one exponent of the first generation of institutional pacifist internationalism to the rise of ius contra bellum. Traditionally associated with events from the late nineteenth century onwards, this significant paradigm shift knew an extensive prehistory. Legal scholarship has long dismissed the ‘peace friends’ of the mid-century as either not legalistic or solely focussed on arbitration. The article will argue that this longstanding bias has precluded a profound engagement with legal discourse within the early international peace movement. It will do so through a contextual legal analysis of the works of Louis Bara, a young Belgian lawyer who won first prize for his lengthy and controversial peace essay at the famous Paris peace conference of 1849. This neglected jurist articulated an enduring popular desire to develop a liberal international legal project, which both the peace movement and international law as a discipline increasingly internalized.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"42 1","pages":"1-41"},"PeriodicalIF":0.7,"publicationDate":"2020-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89040409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-11-04DOI: 10.1163/15718050-12340147
Paulo Macêdo, Brenda Maria Ramos Araújo
This article aims to demonstrate that Rui Barbosa’s role at the Hague Peace Conference of 1907 and his speech at the Buenos Aires Law School, in 1916, are a continuum. On both occasions, he not only defended the same principles, the rule of law over force and the juridical equality of nations, and mainly, fought the same enemy: a doctrine, the ‘Borussian militarist doctrine’. From the standpoint of a contextualist historiography, this text recreates that struggle. This work employs the inductive method of approach as well as primary and secondary bibliographical sources.
{"title":"A Man against a War: Rui Barbosa and the Struggle against a Thought","authors":"Paulo Macêdo, Brenda Maria Ramos Araújo","doi":"10.1163/15718050-12340147","DOIUrl":"https://doi.org/10.1163/15718050-12340147","url":null,"abstract":"\u0000This article aims to demonstrate that Rui Barbosa’s role at the Hague Peace Conference of 1907 and his speech at the Buenos Aires Law School, in 1916, are a continuum. On both occasions, he not only defended the same principles, the rule of law over force and the juridical equality of nations, and mainly, fought the same enemy: a doctrine, the ‘Borussian militarist doctrine’. From the standpoint of a contextualist historiography, this text recreates that struggle. This work employs the inductive method of approach as well as primary and secondary bibliographical sources.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"200 1","pages":"1-28"},"PeriodicalIF":0.7,"publicationDate":"2020-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80102105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-27DOI: 10.1163/15718050-12340170
H. Blom, M. Somos
Grotius is the father of modern international law. The indivisibility of sovereignty was the sine qua non of early-modern conceptual innovation in law. Both statements are axiomatic in the mainstream literature of the last two centuries. Both are profoundly and interestingly wrong. This article shows that Grotius’ systematisation of public and international law involved defining corporations as potentially (and the VOC actually) integral to reason of state, and able to bear and exercise marks of sovereignty under certain conditions. For Grotius, some corporations were not subsumed under the state’s legal authority, nor were they hybrid ‘company-states’. Instead, states and such corporations, able and forced to cooperate, fell under dovetailing natural, international, and municipal systems of law. The article reexamines Grotius’ notion of international trade, public debt, private corporation, and public and private war through the reassembled prism of these dovetailing laws and the category of societas that underpins Grotian associations. It is argued that although formulated around the new East India trade, the actual reality of legal pluralism was available to Grotius in the Dutch trade experience of the sixteenth century.
{"title":"Public-Private Concord through Divided Sovereignty: Reframing societas for International Law","authors":"H. Blom, M. Somos","doi":"10.1163/15718050-12340170","DOIUrl":"https://doi.org/10.1163/15718050-12340170","url":null,"abstract":"\u0000Grotius is the father of modern international law. The indivisibility of sovereignty was the sine qua non of early-modern conceptual innovation in law. Both statements are axiomatic in the mainstream literature of the last two centuries. Both are profoundly and interestingly wrong. This article shows that Grotius’ systematisation of public and international law involved defining corporations as potentially (and the VOC actually) integral to reason of state, and able to bear and exercise marks of sovereignty under certain conditions. For Grotius, some corporations were not subsumed under the state’s legal authority, nor were they hybrid ‘company-states’. Instead, states and such corporations, able and forced to cooperate, fell under dovetailing natural, international, and municipal systems of law. The article reexamines Grotius’ notion of international trade, public debt, private corporation, and public and private war through the reassembled prism of these dovetailing laws and the category of societas that underpins Grotian associations. It is argued that although formulated around the new East India trade, the actual reality of legal pluralism was available to Grotius in the Dutch trade experience of the sixteenth century.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"114 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80511848","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-21DOI: 10.1163/15718050-12340159
I. D. L. R. D. Moral
{"title":"Rewriting the History of the Law of Nations. How James Brown Scott Made Francisco de Vitoria the Founder of International Law, written by Paolo Amorosa","authors":"I. D. L. R. D. Moral","doi":"10.1163/15718050-12340159","DOIUrl":"https://doi.org/10.1163/15718050-12340159","url":null,"abstract":"","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"50 9","pages":"497-502"},"PeriodicalIF":0.7,"publicationDate":"2020-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72574036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-21DOI: 10.1163/15718050-12340160
Dominique Gaurier
{"title":"Islamic International Law. Historical Foundations and Al-Shaybani’s Siyar, written by Khaled Ramadan Bashir","authors":"Dominique Gaurier","doi":"10.1163/15718050-12340160","DOIUrl":"https://doi.org/10.1163/15718050-12340160","url":null,"abstract":"","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"461 1","pages":"503-505"},"PeriodicalIF":0.7,"publicationDate":"2020-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80263914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-10-21DOI: 10.1163/15718050-12340150
Hendrik Simon
The History of International Law lacks systematic studies on the link between legal scholars and practices of justifying war. This missing analytical link has for a long time given the impression that legal scholars describe ‘state practice’ in an ‘objective’, unpolitical way. Contradicting this impression, the article turns to the politics of legal scholars in the genesis of the modern war discourse. It reflects on the fateful entanglement of violence, law and politics, but nevertheless distinguishes between ‘objective’ and ‘political’ scholarship on the basis of Hans Kelsen’s work. Furthermore, the article illustrates the politicisability of legal scholars in selected historical cases of the ‘long 19th century’ (1789–1918). In all cases, two hearts pounded in lawyers’ chests: one scientific, the other political. As will be shown, the modern war discourse is shaped by a phenomenon that enables scholars to expand the intrinsic limits to the political instrumentalisation of law: ‘multi-normativity’.
{"title":"Theorising Order in the Shadow of War. The Politics of International Legal Knowledge and the Justification of Force in Modernity","authors":"Hendrik Simon","doi":"10.1163/15718050-12340150","DOIUrl":"https://doi.org/10.1163/15718050-12340150","url":null,"abstract":"\u0000The History of International Law lacks systematic studies on the link between legal scholars and practices of justifying war. This missing analytical link has for a long time given the impression that legal scholars describe ‘state practice’ in an ‘objective’, unpolitical way. Contradicting this impression, the article turns to the politics of legal scholars in the genesis of the modern war discourse. It reflects on the fateful entanglement of violence, law and politics, but nevertheless distinguishes between ‘objective’ and ‘political’ scholarship on the basis of Hans Kelsen’s work. Furthermore, the article illustrates the politicisability of legal scholars in selected historical cases of the ‘long 19th century’ (1789–1918). In all cases, two hearts pounded in lawyers’ chests: one scientific, the other political. As will be shown, the modern war discourse is shaped by a phenomenon that enables scholars to expand the intrinsic limits to the political instrumentalisation of law: ‘multi-normativity’.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"49 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-10-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88444228","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-10DOI: 10.1163/15718050-12340136
N. Mulder
This article explores how the Versailles Treaty was shaped by the effects of economic warfare 1914–1919. The First World War was in part an Allied economic war waged against the Central Powers in conditions of advanced economic and financial globalization. This was reflected in the treaty’s expropriation mechanisms, which were used to take control of German property, rights, and interests around the world. Whereas Articles 297 and 298 of the treaty legalized wartime seizures, the Reparations Section of the treaty also contained a provision, paragraph 18, that gave the Allies far-reaching confiscatory powers in the future. The article places these mechanisms in a wider political, legal and economic context, and traces how they became a bone of contention among the former belligerents in the interwar period.
{"title":"‘A Retrograde Tendency’: The Expropriation of German Property in the Versailles Treaty","authors":"N. Mulder","doi":"10.1163/15718050-12340136","DOIUrl":"https://doi.org/10.1163/15718050-12340136","url":null,"abstract":"\u0000This article explores how the Versailles Treaty was shaped by the effects of economic warfare 1914–1919. The First World War was in part an Allied economic war waged against the Central Powers in conditions of advanced economic and financial globalization. This was reflected in the treaty’s expropriation mechanisms, which were used to take control of German property, rights, and interests around the world. Whereas Articles 297 and 298 of the treaty legalized wartime seizures, the Reparations Section of the treaty also contained a provision, paragraph 18, that gave the Allies far-reaching confiscatory powers in the future. The article places these mechanisms in a wider political, legal and economic context, and traces how they became a bone of contention among the former belligerents in the interwar period.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"84 1","pages":"1-29"},"PeriodicalIF":0.7,"publicationDate":"2020-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72642790","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-08DOI: 10.1163/15718050-12340138
Zülâl Muslu
The paper attempts to take a different look into the Law of Nations through the role of dragomans (official translators) in the making of modern International law. Addressing the power of language above its mere linguistic meaning, also considering the way it is taught, socially shaped, productive and lasting, this paper intends to illustrate the general epistemic framework governing dragomans as an original social and professional body in order to better understand their unforeseen impact on the Ottoman understanding of and integration into modern international law. The paper argues that legal transformations are also the result of legal translations, which intrinsically imply the cultural and social backgrounds of the translators. It discusses how the progressive formation of the cosmopolitan professional body of dragomans led to both develop a bolted technicality and contribute to the uniformization of legal thought and language by the nineteenth century.
{"title":"Language and Power: The Dragoman as a Link in the Chain Between the Law of Nations and the Ottoman Empire","authors":"Zülâl Muslu","doi":"10.1163/15718050-12340138","DOIUrl":"https://doi.org/10.1163/15718050-12340138","url":null,"abstract":"\u0000The paper attempts to take a different look into the Law of Nations through the role of dragomans (official translators) in the making of modern International law. Addressing the power of language above its mere linguistic meaning, also considering the way it is taught, socially shaped, productive and lasting, this paper intends to illustrate the general epistemic framework governing dragomans as an original social and professional body in order to better understand their unforeseen impact on the Ottoman understanding of and integration into modern international law. The paper argues that legal transformations are also the result of legal translations, which intrinsically imply the cultural and social backgrounds of the translators. It discusses how the progressive formation of the cosmopolitan professional body of dragomans led to both develop a bolted technicality and contribute to the uniformization of legal thought and language by the nineteenth century.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"46 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2020-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74227083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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