James Thuo Gathii
This chapter traces the two major trends in thinking about Africa’s engagement with international law from a historical perspective: ‘contributionists’ who emphasize Africa’s contributions to international law, on the one hand; and critical theorists who examine Africa’s subordination in its international relations as a legacy that is traceable to international law, on the other. For authors such as Taslim Elias Olawale, ‘inter-civilizational participation in the process of crafting genuinely universal norms’ has historically involved Africa as a central player. This emphasis on Africa’s participation in the formation of international law amounts to contributionism. Critical theorists, such as Makau Wa Mutua, Siba Grovogui, Kamari Clark, Ibironke Odumosu, and Obiora Okafor, among others, by contrast focus on the manner in which modern international law continues the legacy of colonial disempowerment while providing spaces for resistance and reform.
Fatiha Sahli and Abdelmalek El Ouazzani
This chapter argues that the impact of Islam on the contribution of North Africa in the production of the norms of international law has been but relative. It must be associated with another reality, which is that of the relationships between powers and their competition for domination. All through the centuries of coexistence of the Muslim empires and the European nations, their reciprocal relations were guided by war strategies and by the power games that dominated the Mediterranean world. If there is a contribution of the Muslims to international law, it is in the field of the protection of the laws of the persons, particularly in the laws of the Dhimmi, and more precisely in the laws of the religious minorities and the humane treatment of the war prisoners that it could be found.
This chapter examines Alberico Gentili’s life and teaching; Gentili and the history of international law; and Gentili and the doctrine of war. In Oxford, Alberico Gentili wrote a large number of works, which can be divided in four main groups: treatises on topics of the civil law, law of nations, issues pertaining to political theology, and various questions of legal erudition. His major works include Three Books on the Law of War, Two Books on the Roman Armies, and Two Books of Spanish Attorneyship.
This chapter looks at debates about Asia in scholarship on the history and theory of international law. It also traces the evolution of concepts of sovereignty in the context of Asia’s colonial history, and more recent preoccupations with development. What counts as the ‘history and theory’ of international law is itself continuously changing and scholars must engage with new materials and issues. Possible new initiatives include deeper research on Asian traditions and concepts of rule and governance, justice, and order; approaching the history and theory of international law in Asia in global rather than regional terms; and turning to other disciplines—such as social/cultural anthropology—to develop new insights into the questions of governance and territory, and the powerful imaginaries of nationhood, sovereignty, and empire that animate the peoples of Asia, and that have not been entirely displaced by modern concepts of sovereignty and globalization. Examining these themes illuminates the important issues of how Asian states have attempted to innovate and use international law to further their own interests.
This chapter examines the evolution of sovereignty, universal jurisdiction, and state authority prior to the existence of the Westphalian international legal order, studying three cases from the Roman and medieval practice. The first case is a reply by Roman emperor Antoninus Pius on the limits of his jurisdiction with regards to the high seas. The second case revolves around the Constitutio Antoniniana, a disputed legal rule that gave citizenship to all inhabitants of the Roman Empire, for the first time invoking the territoriality principle. The third case relates to the principle of universal jurisdiction and the pope’s universal authority and its implications for the development of international jurisdiction. These cases highlight that the traditional image given in the literature of the history of the world being divided into a premodern world based on the personality principle and the ‘post-Westphalian’ world dominated by nation states and the territorial principle is misleading.
This chapter notes that the Austrian writer Bertha von Suttner was one of the leading figures of the late 19th-century peace movement. Her novel Die Waffen nieder! (Lay Down Your Arms!) was published in 1889 and was soon translated into the most important European languages. In 1891, Suttner founded the Austrian Society for Peace (Österreichische Gesellschaft der Friedensfreunde) and was the major influence on Alfred Nobel’s decision to include a peace prize among those prizes provided in his will. She was awarded Peace Laureate in 1905. Suttner’s attitude towards international law reflects the 19th-century optimism of liberal internationalism, characterized by its belief in rational thought and its advocacy for international cooperation within international institutions. Suttner was a talented propagandist whose aristocratic social background helped her to gain access to circles of power and influence.
David S. Berry
This chapter highlights some of the key issues and themes of Caribbean legal and historical development from the time of first contact between Europeans and the indigenous peoples of the region to the early 20th century. The second section traces the attempts that were made to divide the Old World from the New, and explores the new forms of mercantilism and militarism which resulted. The third section examines two key engines for Caribbean wealth—slavery and sugar production—and traces the gradual and piecemeal abolition of the slave trade and slavery. The fourth section highlights the effect of maritime actors in the Caribbean and their role in maintaining a distinction between the European and Caribbean spheres. The fifth section looks at the role of chartered trading companies. The sixth section examines the impact of two pivotal revolutions: the American and Haitian.
Carl Schmitt belonged to the most influential German legal scholars and political theorists of the 20th century. While the focus of his work was constitutional law, legal theory, and philosophy, he also had a strong influence on the jurisprudence of international law. Schmitt was a divisive and polarizing thinker who has been admired and praised by some, and sharply criticized and even condemned by others. A matter of particular controversy was his role in the ‘Third Reich’. If Schmitt was an opportunist in the first years of Hitler’s regime, he swam against the tide for most of his life before and after. Especially after 1945, he refused to make any concession to the Zeitgeist that dominated politics and legal science.
This chapter examines the recognition of space and foreign relations in Chinese dynasties; the translation and teaching of international law; and the building of a modern State and the Wanguo Gongfa. It discusses how international law was received in China from the Chinese point of view. It was only when William Martin translated Henry Wheaton’s Elements of International Law as Wanguo Gongfa, which was then published by the Zongli Yamen (the government body in charge of foreign affairs during the late Qing Dynasty) in 1865, that China first received international law as text. However, Wanguo Gongfa is not now used in China. Instead, the term Guoji (Gong)fa (international (public) law), which was brought back to China by intellectuals who studied in Japan in the early 20th century, has replaced it to the present day.
Since ancient times, China has been the cultural, economic, and military leader in East Asia. Because of its privileged position in this region, the surrounding peoples and cultures have been deeply influenced by China, and over the course of the last two thousand years, East Asia has developed its own unique world order. This chapter examines the relationship between China and Europe concerning international law. First, it explores the process of China’s encounter with international law. Second, it considers China’s use of international law to secure treaty revisions and the consequent impact that this process had on international law. Third, it discusses China’s involvement in international conventions and organizations, as well as the process of its improving status among the international community.
This chapter notes that Christian Wolff was one of the most influential philosophers in the German-speaking world and had considerable influence also in the wider Enlightenment world. Wolff was the great systematizer of all areas of knowledge, moving from ‘logic’, or general theory of knowledge, through theoretical philosophy to practical philosophy. His original formulation of the system in German was revised and extended in Latin for the wider European audience. The chapter considers the Ius naturae, methodo scientifica pertractatum (1740–48), Jus gentium, methodo scientific pertractatum (1750), and Grundsätze des Natur- und Völckerrechts (1754). The core of Wolff’s theory is the strongly intellectualist account of perfection, happiness, moral freedom, and obligation to the law of nature that at one and the same time describes and prescribes the way to one’s natural goal.
Liliana Obregón Tarazona
From the 16th century to the early 19th century, the concepts of civilized/uncivilized, which categorized and stratified peoples, nations, or States, were keys to the language of informal European imperialism. In the 16th and 17th centuries, the holistic Christian vision of law and morality was the entitlement for European expansion as Native Americans entered into the universe of European sovereignty. In the 18th century, Enlightenment thought brought forth the concept of the ‘human’ and its other, which allowed for an alternative conceptual pair to the previous Christian/non-Christian universal view. In the late 19th century, the language of civilization transitioned to formal imperialism sustained by international law. This chapter concludes that international law surged in the 19th century as a discipline constituted by the tension in defining its inner and outer limits between the civilized and the uncivilized.
This chapter outlines the relationship between international law and colonial practice across the 16th–19th centuries in a way which avoids the indulgence of believing that the law of nations was somehow abstracted from the material processes of colonial rule. It draws attention to two aspects of this history: one being the slow accretive process by which ideas of sovereignty were to form and mutate during the period between 1500 and 1900—from a notion of sovereign authority centred upon the coercive authority of the monarch, to the modern imagination of the ‘nation-state’. The other is the parallel transition from a post-feudal mercantile economy to one centered upon industrial production and finance capital. The chapter argues that this history may be understood in terms of a shift in the conceptualization of the juridical politics of space from one marked by the notion of dominium to that of imperium.
This chapter discusses the life and work of Cornelius van Bynkershoek and his contribution to international law. Besides his practice as a lawyer and a judge, van Bynkershoek wrote a number of voluminous treatises and smaller essays on law, especially Roman law and Dutch law. His principal works of the field are as follows: De dominio maris dissertatio (Dissertation on the Dominion of the Sea), De foro legatorum tam in causa Civili, quam criminali liber singularis (Single Book on the Jurisdiction over Ambassadors in Both Civil and Criminal Cases), and Quaestionum juris public libri duo (Two Books on Questions of Public Law). It has generally been maintained that he was a leading figure of the positivist school in international jurisprudence, based on the trilateral categorization of the methodological tendencies: naturalist, ‘Grotian’, and positivist.
This chapter focuses on the sundry projects that have been planned over nearly six centuries towards a perpetual peace between the European nations. These projects essentially concerned European countries from the Middle Ages up to the contemporary period up to mid-20th century, including the creation of the UN just after the Second World War. Since the birth of nations, the rivalry between them has been acute, every one searching to establish domination over the other, although some countries were late to develop as true a national feeling as, for example, Italy or Germany, up to the 19th century. The relationship between Utopia and Cosmopolis could seem obvious, because both words might include a Utopian meaning; but Utopia in its sharp sense appears as a dreamed ideal world, unknown in the real world. On the other hand, Cosmopolis could be defined as a future, expected, and dreamed world, but reflected through a philosophical approach.
This chapter connects the larger theme of the link between contemporary law and classical international thought to the ideas posited by two jurists—Cornelis Van Vollenhoven and Emer de Vattel. In 1919, Van Vollenhoven published a small work in which he issued a fierce critique of classical (legal) thought, which, according to him, was embodied by the eighteenth-century jurist, Emer de Vattel. The classical conception of international law was never expounded more clearly than in Vattel’s 1758 work, Le droit des gens, ou principes de la loi naturelle, appliqués à la conduit et aux affaires des Nations et des Souverains. Hence, by studying Vattel’s and Van Vollenhoven’s doctrines, of which the latter offers a distorted reflection of the former, it is possible to contribute to elucidating the concerns, weaknesses, and current incarnations of that classical model.
This chapter contends that the 1961 Vienna Convention highlights the intellectual harvest of millennia of troubled human intercourse, and that it suitably embodies the diplomatic legacy of the Westphalian Era and of half a millennium of State practice. In its restraint and tentative guidance, it is a beacon of wisdom. However, many other forms of diplomacy await codification. As incidents over the past fifty years suggest, diplomacy itself is losing some of its aura of immunity. The symbolism of embassies is evaporating, the taboo being broken. There is ample ground for concern about the future of the discipline.
This chapter notes that the history of the conventions employed to justify European expansion from the 16th to the 20th centuries is a triumph of the idea of occupation over its rivals of discovery and conquest. Occupation prevailed over the rival legal understandings of empire because the theory of occupation developed in tandem with the progressive theory of history. It triumphed as a convention in international law because it could be employed not only to justify European expansion, but also to condemn it. This discussion suggests the need to revise the image of international law as a mere agent of European expansion. It was an agent of empire, without question, but it was also a discourse in which profound debates were conducted over the justice of empire, and in which tools were created that could be employed to defend the rights of non-European peoples as much as to attack them.
This chapter discusses legal doctrine and the creation of state practice; the doctrinal creation of a state practice; alternative intellectual frames for an understanding of state practice from liberal desire to international administrative law; an intellectual framing of state practice that reintroduces the use of right reason; a Lebow-style classical Greek framing of state practice in the Age of Absolutism; and the legal doctrine as a critique of state practice by the standard of right reason in the Age of Absolutism. It considers the argument that the notion of state practice was an invention of international legal doctrine in the course of the 19th century, alongside the way international lawyers react to the inaccessible character of that practice.
In 1758, Emer de Vattel published The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns. The work enjoyed considerable success, much to the amazement of the author himself. From the eighteenth to the beginning of the 20th century, Vattel’s authority on the subject of international law remained unrivalled. To begin with, he applied a strictly interstate perspective in which the law of nations is specifically the law governing relations between States. Vattel recognized the existence of a duality of norms governing the conduct of sovereign States: the norms imposed by natural law and those imposed by the positive law of nations. He also theorized about a law of nations that is both ‘liberal and pluralist’, and which is very much in line with the state of European society at the time of the Enlightenment.