Pub Date : 2023-12-07DOI: 10.1163/15718050-bja10092
Anna Hood
This article explores how the Great Powers have employed different forms of disarmament law as tools of governance for constructing and reinforcing global hierarchies since the end of the nineteenth century. I argue that some of the laws have affected entities’ statehood, some have impacted states’ sovereignty, some have worked to symbolically lower the status of states in the eyes of the international community, and some have been infused with civilisational rhetoric that has portrayed the Great Powers as civilised entities while casting others as uncivilised. The article then turns to consider what impact the handful of disarmament law initiatives that have not been spearheaded by the Great Powers have had on global hierarchies. I contend that these treaties have done little to challenge the hierarchies entrenched by the Great Powers’ disarmament practices but that a few of them can, in limited ways, be understood as attempting to create alternative hierarchies in the international system.
{"title":"The Construction of Global Hierarchies through Disarmament Law","authors":"Anna Hood","doi":"10.1163/15718050-bja10092","DOIUrl":"https://doi.org/10.1163/15718050-bja10092","url":null,"abstract":"<p>This article explores how the Great Powers have employed different forms of disarmament law as tools of governance for constructing and reinforcing global hierarchies since the end of the nineteenth century. I argue that some of the laws have affected entities’ statehood, some have impacted states’ sovereignty, some have worked to symbolically lower the status of states in the eyes of the international community, and some have been infused with civilisational rhetoric that has portrayed the Great Powers as civilised entities while casting others as uncivilised. The article then turns to consider what impact the handful of disarmament law initiatives that have not been spearheaded by the Great Powers have had on global hierarchies. I contend that these treaties have done little to challenge the hierarchies entrenched by the Great Powers’ disarmament practices but that a few of them can, in limited ways, be understood as attempting to create alternative hierarchies in the international system.</p>","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"62 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138572440","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 : 2023-10-27DOI: 10.1163/15718050-12340223
Vincent Genin
{"title":"L’ordre des circulations. L’Institut de Droit international et la régulation des migrations (1870–1920), written by Philippe Rygiel","authors":"Vincent Genin","doi":"10.1163/15718050-12340223","DOIUrl":"https://doi.org/10.1163/15718050-12340223","url":null,"abstract":"","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"51 7","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136318259","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 : 2023-10-27DOI: 10.1163/15718050-12340222
Raphael Schäfer, Maren Körsmeier
{"title":"Spotlight Interview 2022: Annabel Brett, Use, War, and Commercial Society. Changing Paradigms of Human Relations with Animals in the Early Modern Law of Nature and of Nations (JHIL 1/2022)","authors":"Raphael Schäfer, Maren Körsmeier","doi":"10.1163/15718050-12340222","DOIUrl":"https://doi.org/10.1163/15718050-12340222","url":null,"abstract":"","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136318260","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 : 2023-08-01DOI: 10.1163/15718050-bja10090
R. Schütze
What are the legal principles of British utilitarianism in the long nineteenth century; and what conception(s) of international law do they offer? The celebrated founder of the utilitarian school is Jeremy Bentham, who categorically rejects all metaphysical natural law thinking by insisting that all positive law ought to be adopted by a legislature. But in the absence of a world legislature, what did this mean for the positivity and normativity of international law? Surprisingly, Bentham and a second generation of utilitarian thinkers can affirm the legally binding nature of international law; yet with John Austin, a radical ‘sovereigntist’ critique subsequently casts doubt over the nature of international law as law ‘properly so called’. This infamous scepticism would have a profound impact on British international thought in the twentieth century; yet in the nineteenth century, the ideas of a third-generation utilitarian became more prominent: the liberal philosophy of John Stuart Mill. Mill’s ‘relativist’ and ‘civilisational’ conception of international law thereby gave the utilitarian project a specifically imperialist dimension that will be analysed, both in its utilitarian-philosophical and practical-legal dimensions. The article however also explores two other legacies of British utilitarianism, namely: the rise of international codification and the emergence of a specifically British conception of private international law during the nineteenth century.
{"title":"British Utilitarianism after Bentham: Nineteenth-Century Foundations of International Law II","authors":"R. Schütze","doi":"10.1163/15718050-bja10090","DOIUrl":"https://doi.org/10.1163/15718050-bja10090","url":null,"abstract":"\u0000What are the legal principles of British utilitarianism in the long nineteenth century; and what conception(s) of international law do they offer? The celebrated founder of the utilitarian school is Jeremy Bentham, who categorically rejects all metaphysical natural law thinking by insisting that all positive law ought to be adopted by a legislature. But in the absence of a world legislature, what did this mean for the positivity and normativity of international law? Surprisingly, Bentham and a second generation of utilitarian thinkers can affirm the legally binding nature of international law; yet with John Austin, a radical ‘sovereigntist’ critique subsequently casts doubt over the nature of international law as law ‘properly so called’. This infamous scepticism would have a profound impact on British international thought in the twentieth century; yet in the nineteenth century, the ideas of a third-generation utilitarian became more prominent: the liberal philosophy of John Stuart Mill. Mill’s ‘relativist’ and ‘civilisational’ conception of international law thereby gave the utilitarian project a specifically imperialist dimension that will be analysed, both in its utilitarian-philosophical and practical-legal dimensions. The article however also explores two other legacies of British utilitarianism, namely: the rise of international codification and the emergence of a specifically British conception of private international law during the nineteenth century.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42713057","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 : 2023-06-16DOI: 10.1163/15718050-bja10089
N. Boister
This article sets out the history of double criminality in the law of extradition. It shows how that it only emerged as a legal requirement in the ‘Jay Treaty’, the 1794 treaty between theUSand UK. The article explores how the ‘Jay proviso’, a procedural requirement that the requesting state produce sufficient evidence to satisfy the requested state of the criminality of the requested person, morphed through interaction between common law and civil law states into a substantive requirement that the acts for which extradition is requested be criminal under the laws of both states. The article diccusses the evolution of the idea, and of its rationale, and then concludes that acceptance of this idea by the early part of the 20th Century confirmed its status as a general principle of law, or perhaps even a rule of customary international law.
{"title":"A History of Double Criminality in Extradition","authors":"N. Boister","doi":"10.1163/15718050-bja10089","DOIUrl":"https://doi.org/10.1163/15718050-bja10089","url":null,"abstract":"\u0000This article sets out the history of double criminality in the law of extradition. It shows how that it only emerged as a legal requirement in the ‘Jay Treaty’, the 1794 treaty between theUSand UK. The article explores how the ‘Jay proviso’, a procedural requirement that the requesting state produce sufficient evidence to satisfy the requested state of the criminality of the requested person, morphed through interaction between common law and civil law states into a substantive requirement that the acts for which extradition is requested be criminal under the laws of both states. The article diccusses the evolution of the idea, and of its rationale, and then concludes that acceptance of this idea by the early part of the 20th Century confirmed its status as a general principle of law, or perhaps even a rule of customary international law.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47884445","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 : 2023-06-16DOI: 10.1163/15718050-12340221
A. Wijffels
{"title":"The Invention of Custom. Natural Law and the Law of Nations, ca. 1550–1750, written by Francesca Iurlaro","authors":"A. Wijffels","doi":"10.1163/15718050-12340221","DOIUrl":"https://doi.org/10.1163/15718050-12340221","url":null,"abstract":"","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47218681","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 : 2023-06-15DOI: 10.1163/15718050-bja10088
Jochen von Bernstorff, Max Mayer
This article traces the influence of the German Historical School of Law around Friedrich Carl von Savigny has had on various fundamental concepts of international law during the 19th and into the beginning of the 20th century in a detailed manner. During this time, the Historical School’s radical reformulation of the notion of law as a peoples’ spiritual essence unfolding through its habitual social action allowed 19th century scholars to redefine international law as customary law and, together with notably Hegelian teleological thought, laid conceptual groundwork for the integration of themes of European cultural superiority into the doctrines and philosophy of international law. Its conceptual legacy can further be traced in the later German positivism à la Jellinek or Oppenheim with its theories on ‘common civilised consent’ as foundation of international law.
{"title":"The Historical School and German International Legal Thought in the 19th Century","authors":"Jochen von Bernstorff, Max Mayer","doi":"10.1163/15718050-bja10088","DOIUrl":"https://doi.org/10.1163/15718050-bja10088","url":null,"abstract":"\u0000This article traces the influence of the German Historical School of Law around Friedrich Carl von Savigny has had on various fundamental concepts of international law during the 19th and into the beginning of the 20th century in a detailed manner. During this time, the Historical School’s radical reformulation of the notion of law as a peoples’ spiritual essence unfolding through its habitual social action allowed 19th century scholars to redefine international law as customary law and, together with notably Hegelian teleological thought, laid conceptual groundwork for the integration of themes of European cultural superiority into the doctrines and philosophy of international law. Its conceptual legacy can further be traced in the later German positivism à la Jellinek or Oppenheim with its theories on ‘common civilised consent’ as foundation of international law.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49358777","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 : 2023-04-11DOI: 10.1163/15718050-bja10082
Pablo del Hierro, Lucas Lixinski
The article examines the history of extradition in the twentieth century, to call for a broader engagement with extradition law not only as an under-explored chapter in international law in its own right, but also as a pathway to think more deeply about world-ruling projects. Extradition law, normally thought of as primarily bilateral, in fact has a long and rich history of multilateral engagement. This tension between multilateralism and bilateralism, we argue, showcases the role of technique to hide political projects in international law-making, as well as showcasing the need to include more non-Eurocentric voices in our narratives about the design of international law instruments and institutions. European nations in the period we survey were more invested in bilateral efforts, claiming the impossibility of multilateral treaty-making in extradition law; yet, Latin American states successfully undertook multiple initiatives in this realm, which are often excluded from mainstream narratives, at the cost of buying into a biased narrative of bilateral treaties that neglects how extradition law has been used to shape and hide key political tensions. In light of these findings, the article puts forth a research agenda that takes extradition more seriously into our accounts of the evolution of international law.
{"title":"Writing a Transnational (Global?) History of Extradition Law in the Short Twentieth Century: Beyond Western-Centric Approaches","authors":"Pablo del Hierro, Lucas Lixinski","doi":"10.1163/15718050-bja10082","DOIUrl":"https://doi.org/10.1163/15718050-bja10082","url":null,"abstract":"\u0000The article examines the history of extradition in the twentieth century, to call for a broader engagement with extradition law not only as an under-explored chapter in international law in its own right, but also as a pathway to think more deeply about world-ruling projects. Extradition law, normally thought of as primarily bilateral, in fact has a long and rich history of multilateral engagement. This tension between multilateralism and bilateralism, we argue, showcases the role of technique to hide political projects in international law-making, as well as showcasing the need to include more non-Eurocentric voices in our narratives about the design of international law instruments and institutions. European nations in the period we survey were more invested in bilateral efforts, claiming the impossibility of multilateral treaty-making in extradition law; yet, Latin American states successfully undertook multiple initiatives in this realm, which are often excluded from mainstream narratives, at the cost of buying into a biased narrative of bilateral treaties that neglects how extradition law has been used to shape and hide key political tensions. In light of these findings, the article puts forth a research agenda that takes extradition more seriously into our accounts of the evolution of international law.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":"1 1","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41703588","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 : 2023-04-11DOI: 10.1163/15718050-12340217
James Hickling
The history of the Alaskan fur-seal crisis shows that the development of international environmental law and the peaceful settlement of biodiversity-related disputes can occur over the very long term, through a dynamic, iterative, and cyclical process that involves four key steps: the sorting of competing interests; the sifting of evidence and expert opinion; convergence on shared values; and the articulation of new regulatory regimes that reflect those values. The fur-seal dispute followed this pattern; it occurred over a period of more than 25 years during which the parties initiated several resets of the cycle until finally reaching a durable multilateral agreement grounded in a commitment to the rule of law and the rational use of natural resources. The main obstacles that prevented a more timely and efficient resolution were scientific uncertainty and risk to investment capital. The parties found they could not reach agreement on the causes of the decline of fur-seal populations, but they could agree on a regulatory model that incented the reallocation of private capital away from unsustainable activities, and that provided for an equitable sharing of public revenues in the long term, including through compensatory payments in exchange for restraint in the exercise of legal rights. This paper traces the origins of the dispute and the steps taken to reach a solution, including the several joint scientific inquiries commissioned by the parties, and invites discussion about how the lessons of the fur-seal crisis could be applied to avoid and resolve future biodiversity-related disputes.
{"title":"The Alaskan Fur-Seal Crisis: Science, Capital, and Multilateralism in the Settlement of International Biodiversity Disputes","authors":"James Hickling","doi":"10.1163/15718050-12340217","DOIUrl":"https://doi.org/10.1163/15718050-12340217","url":null,"abstract":"\u0000The history of the Alaskan fur-seal crisis shows that the development of international environmental law and the peaceful settlement of biodiversity-related disputes can occur over the very long term, through a dynamic, iterative, and cyclical process that involves four key steps: the sorting of competing interests; the sifting of evidence and expert opinion; convergence on shared values; and the articulation of new regulatory regimes that reflect those values. The fur-seal dispute followed this pattern; it occurred over a period of more than 25 years during which the parties initiated several resets of the cycle until finally reaching a durable multilateral agreement grounded in a commitment to the rule of law and the rational use of natural resources. The main obstacles that prevented a more timely and efficient resolution were scientific uncertainty and risk to investment capital. The parties found they could not reach agreement on the causes of the decline of fur-seal populations, but they could agree on a regulatory model that incented the reallocation of private capital away from unsustainable activities, and that provided for an equitable sharing of public revenues in the long term, including through compensatory payments in exchange for restraint in the exercise of legal rights. This paper traces the origins of the dispute and the steps taken to reach a solution, including the several joint scientific inquiries commissioned by the parties, and invites discussion about how the lessons of the fur-seal crisis could be applied to avoid and resolve future biodiversity-related disputes.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43803326","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 : 2023-04-11DOI: 10.1163/15718050-bja10087
During the twentieth century, international arbitration became an integral part of interstate dispute resolution. Greece, a small state with no particular influence, also rushed to utilize arbitration to pursue its interests, resolve intense disputes and ultimately stabilize its position in the international system. This article will discuss if and how lower-level settlement procedures can impact smaller countries’ higher political strategy, exploring Greece’s recourse before the Mixed Arbitral Tribunals, the League of Nations and the Permanent Court of International Justice. Athens’ efforts to pursue its citizens’ war claims against West Germany after World War II will be examined, along with the role international arbitration could potentially play today in resolving Greece’s war claims against the Federal Republic of Germany, which Athens raised immediately after the 1990 reunification and continue to encumber bilateral relations. Ultimately, Greece’s experience will exemplify the direct impact arbitration procedures can have on international relations.
{"title":"Past and Present? Greece in International Arbitration in the Twentieth Century","authors":"","doi":"10.1163/15718050-bja10087","DOIUrl":"https://doi.org/10.1163/15718050-bja10087","url":null,"abstract":"\u0000During the twentieth century, international arbitration became an integral part of interstate dispute resolution. Greece, a small state with no particular influence, also rushed to utilize arbitration to pursue its interests, resolve intense disputes and ultimately stabilize its position in the international system. This article will discuss if and how lower-level settlement procedures can impact smaller countries’ higher political strategy, exploring Greece’s recourse before the Mixed Arbitral Tribunals, the League of Nations and the Permanent Court of International Justice. Athens’ efforts to pursue its citizens’ war claims against West Germany after World War II will be examined, along with the role international arbitration could potentially play today in resolving Greece’s war claims against the Federal Republic of Germany, which Athens raised immediately after the 1990 reunification and continue to encumber bilateral relations. Ultimately, Greece’s experience will exemplify the direct impact arbitration procedures can have on international relations.","PeriodicalId":43459,"journal":{"name":"JOURNAL OF THE HISTORY OF INTERNATIONAL LAW","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49023640","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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