ESIL Interest Group History of International Law

ESIL Interest Group History of International Law

zondag 19 februari 2017

BOOK AND PROJECT WEBSITE: Global History of International Ideas - Histoire globale des idées internationales


Prof. dr. Emmanuelle Tourme-Jouannet (Sciences Po Law School), dr. Dominique Gaurier (Université de Nantes, emeritus) and Prof. dr. Alix Toublanc (Paris I Panthéon-Sorbonne) launched the website of the bilingual project Global History of Public International Ideas/Histoire globale des idées internationalistes.

Project description (in English):
We have long been convinced that it is both necessary and useful to assemble a new collection of texts relating to the field of public international law. Such a collection would go further than previous compilations, such as the one assembled in 1927 by Louis Le Fur and Georges Chklaver, or Pierre-Marie Dupuy and Yann Kerbrat’s more recent collection which essentially focusses on post-World War II positive international law.
Our text collection will be different. It will look at international law from a global perspective, leaving behind the Eurocentric perspective that Western internationalists have imposed upon the rest of the world, as part of what Jack Goody famouly coined as The Theft of History (CUP, 2006). Our goal will be to provide our readers with the tools to develop a global history of international law. Being more global and more open to influences from all over the world, this history of international law will draw non-European ideas, both ancient and new. Thus, it will allow for the kind of comparisons, connexions, and oppositions which have always played a central part in the global history of international ideas – a history which cannot be written any longer by resorting only to Western categories and concepts.
Together, the selected texts will form a global panorama of internationalist ideas. They will be part of an evolving project which will rely upon a global network of co-ordinators. These co-ordinators will gradually assemble the texts that will complement our first, then our second, collection.
Rather than aiming at being exhaustive – a thing of the impossible in our field – the panorama we have in mind will be a simple one. Inevitably, some of the basic choices we made at the outset might appear arbitrary, such as using a lineary time-frame typical of Western cultures – although we might eventually be able to integrate other approaches. We proceeded by collecting texts that seemed particularly relevant to us. Other texts, which we were not able to include, are just as relevant. However, all three of us being French, we necessarily only have limited access to non-European sources. This is why we intend to rely heavily on all members of our network to enrich our collection in the future.We prefer using the term ‘internationalist ideas’, rather than ‘great authors in the field of international law’, for two reasons. Firstly, because the history of internationalist thought goes back to internationalist ideas that were not produced by European ‘internationalists’ in the current sense of the word, but by politicians, philosophers, theologians, thinkers discussing war and peace, commerce and currency, and many other things common to different peoples.
We feel that acknowledging these early histories and presenting them to the reader is indispensable in order to understand which kind of concerns led to the birth of international law. Secondly, the very idea of ‘great authors’ is problematic and over-simplifying, as it would have led us to make arbitrary choices which, from a scientific perspective, would have been rather questionable. It leaves out the intricacies, nuances, and subtle distinctions made by other texts which, despite being less well-known, are just as relevant than those written by more prominent authors.
At this point, two volumes have already been conceived in this fashion. The first volume, which will be presented hereafter, will present texts ranging from Antiquity to the beginning of the modern period (in the European sense of the word), i.e. the end of the 18th century. This period saw a decisive change in the evolution of internationalist ideas. As a matter of fact, it was at the end of the 18th century that the European inter-state law of nations began spreading to the rest of the world. However, this European law of nations, once imitated, translated, and taught in regions colonized or dominated by European powers, also started opening up to the influences other cultures.
We hope that this first volume of our series will provide large readership with direct access to internationalist ideas. We organized the relevant sources thematically and presented them in their original forms, without any accompanying interpretation. Nothing will ever beat direct access to original texts, although presenting these texts in a translated form (i.e. in French and, eventually, at least also in English and Spanish) might already be considered a form of betrayal. 
Translated by Michel Erpelding
Max Planck Institute Luxembourg
The open access e-book Une histoire globale des idées internationalistes, associated with the project, can be downloaded here.

Full information and the text of the two first online contributions, as well as maps and documents drawn from recent scholarship can be found on the website.

donderdag 16 februari 2017

JOURNAL: Jus Gentium. Journal of International Legal History II (2017), No. 1

(image source: Lawbook Exchange)

Jus Gentium: Journal of International Legal History published its first issue for 2017.

Table of Contents:
ARTICLES 
The International-Legal Ideology Pre-Slavic Chiefdoms of the Ukrainian Ethnos (Part Two)VG.Butkevych  
The Limits of International Agreement: Belligerent Rights vs. Submarine Cable Security in the Nineteenth CenturyDouglas Howland  
The Means to the End and the End of the Means:  Self-Determination, Decolonization, and International LawMiriam McKenna  
NOTES AND COMMENTS 
Piracy in the United States Supreme Court: United States v. PalmerV. Vasquez  
United States v. Smith: The Influence of Commodore John Daniel DanelsJ. G. Gorman, III  
The Malek Adhel and Shipowner Liability for PiracyB. J. Forgue  
Worcester v. Georgia and Native American Tribal SovereigntyR. L. Armezzani  
On the Russian Society of International Law (1880)W. E. ButlerV. S. Ivanenko  
Samuel Crandall and Treaty-Making in the United StatesTaylor J. Wolf  
REVIEWS 
Arnulf Becker Lorca, Mestizo InternationalLaw: A Global Intellectual History (2014)A. P. Useche   
DOCUMENTS AND OTHER EVIDENCE OF STATE PRACTICE 
Federal Law on the Ambassador Extraordinary and Plenipotentiary of the Russian Federation in a Foreign State and Permanent Representative (or Permanent Observer) of the Russian Federation or Attached to an International Organization (or in a Foreign State)W. E. Butler  
United States v. Smith (1820):Transcript RecordJ. G. Gorman, III  
A Brief Calendar of International Practice for Spain and Portugal: 1297 to 1641P. Macalister-SmithJ. Schwietzke  
A Brief Calendar of State Practice for Russia During the First World War: 1914 to 1924 (Part One 1914—1918)P. Macalister-SmithJ. Schwietzke  
FROM THE LITERATURE

dinsdag 14 februari 2017

BOOK: Sonja SCHILLINGS, Enemies of All Humankind. Fictions of Legitimate Violence [Re-Mapping the Transnational]. Lebanon (NE): UPNE, 2016, 302 p. ISBN 978-1-5126-0016-2

(image source: UPNE)


Book abstract:
Hostis humani generis, meaning “enemy of humankind,” is the legal basis by which Western societies have defined such criminals as pirates, torturers, or terrorists as beyond the pale of civilization.Sonja Schillings argues that the legal fiction designating certain persons or classes of persons as enemies of all humankind does more than characterize them as inherently hostile: it supplies a narrative basis for legitimating violence in the name of the state. The book draws attention to a century-old narrative pattern that not only underlies the legal category of enemies of the people, but more generally informs interpretations of imperial expansion, protest against structural oppression, and the transformation of institutions as “legitimate” interventions on behalf of civilized society. Schillings traces the Anglo-American interpretive history of the concept, which she sees as crucial to understanding US history, in particular with regard to the frontier, race relations, and the war on terror.
Table of contents here.

maandag 13 februari 2017

BOOK: Claus KRESS, Stefan BARRIGA (eds.), The Crime of Aggression: A Commentary. Cambridge: CUP, 2016, 1488 p. ISBN 9781107015265, USD 350

(image source: blogger)

Cambridge University Press published The Crime Of Aggression: A Commentary, edited by Claus Kress (Köln) and Stefan Barriga (UN). Some contributions in this prestigious collection approach the matter from a historical point of view.

Table of contents (vol I):
Claus Kreß, Introduction: the crime of aggression and the international legal order
Part I. History 
2. Carrie McDougall, The crimes against peace precedent
3. Kirsten Sellars, The legacy of the Tokyo dissents on 'crimes against peace'
4. Thomas Bruha, The General Assembly's definition of the act of aggression
5. Nicolaos Strapatsas, The practice of the Security Council regarding the concept of aggression
6. Dapo Akande, Antonios Tzanakopoulos, The International Court of Justice and the concept of aggression
7. James Crawford, The International Law Commission's work on aggression
8. Roger S. Clark, Negotiations on the Rome Statute (1995–1998)
Part II. Theory 
10. Florian Jeßberger, The modern doctrinal debate on the crime of aggression
11. Astrid Reisinger Coracini, Pål Wrange, The specificity of the crime of aggression
12. William Schabas, Aggression and international human rights law
Part III. Crime of Aggression under Current International Law 
14. Claus Kreß, The state conduct element
15. Roger S. Clark, Individual conduct
16. Roger S. Clark, General principles of international criminal law
17. Stefan Barriga, Niels Blokker, Entry into force and conditions for the exercise of jurisdiction: cross-cutting issues
18. Niels Blokker, Stefan Barriga, Conditions for the exercise of jurisdiction based on Security Council referrals
19. Stefan Barriga, Niels Blokker, Conditions for the exercise of jurisdiction based on state referrals and proprio motu investigations
20. Helmut Kreicker, Immunities
21. Pål Wrange, The crime of aggression, domestic prosecutions and complementarity
22. Eleni Chaitidou, Franziska Eckelmans, Barbara Roche, The judicial function of the pre-trial division
23. Erin Pobjie, Victims of the crime of aggression
Part IV. Crime of Aggression and National Law 
25. Elisa Hoven, Germany
26. Andres Parmas, Estonia
27. Svetlana Glotova, Russia
28. Roger O'Keefe, United Kingdom
VOLUME II
30. Nina H. B. Jørgensen, Asia
31. Astrid Reisinger Coracini, (Extended) synopsis: the crime of aggression under domestic criminal law
32. Astrid Reisinger Coracini, Selected national laws and regional instruments on the crime of aggression
Part V. Crime of Aggression and the Future World Order
Section 1. Actors' Views 
34. Zhou Lulu, China
35. Edwige Belliard, France
36. Susanne Wasum-Rainer, Germany
37. Narinder Singh, India
38. Djamchid Momtaz, Esmaeil Baghaei Hamaneh, Iran
39. Roy Schöndorf, Daniel Geron, Israel
40. Ichiro Komatsu, Japan
41. Young Sok Kim, Republic of Korea (South Korea)
42. Rolf Einar Fife, Norway
43. Gennady Kuzmin, Igor Panin, Russia
44. Andre Stemmet, South Africa
45. Christopher Whomersley, United Kingdom
46. Harold Hongju Koh, Todd F. Buchwald, United States
47. Namira Negm, Egypt
48. Noah Weisbord, Civil society
Section 2. Scholarly Reflections 
50. Jeff McMahan, Unjust war and the crime of aggression
51. Frédéric Mégret, What is the specific evil of aggression?
52. Jens David Ohlin, The crime of bootstrapping
53. David Scheffer, Amending the crime of aggression under the Rome Statute
Benjamin B. Ferencz, Epilogue: the long journey to Kampala - a personal memoir 
1. Kirsten Sellars, World War I, Wilhelm II and article 227: the origin of the idea of 'aggression' in international criminal law 
9. Larry May, Just war theory and the crime of aggression 
13. Leena Grover, Interpreting the crime of aggression 
24. Ksenija Turković, Maja Munivrana Vajda, Croatia 
29. Mohamed M. El Zeidy, The Arab world 
33. Marcel Biato, Marcelo Böhlke, Brazil 
49. Martti Koskenniemi, 'A trap to the innocent…' 
(source: Multipol)

zaterdag 11 februari 2017

CALL FOR PAPERS: Evaluating the ‘Turn to History’ in International Law - ESIL CONFERENCE 2017 (Naples, 7-9 Sep 2017); DEADLINE 15 MAR 2017

(image source: Wikimedia Commons)

On the occasion of the ESIL 13th Annual Conference (Naples, 7-9 September 2017) the ESIL Interest Group on the History of International Law hereby invites submissions, in English or in French, for its annual Workshop.

Call for Papers

During the past two decades the history of international law has evolved from a relatively marginal enterprise into a core professional concern and, in certain fields, a controlling vocabulary. The phenomenon, which is often captioned as a “turn to history”, is marked both by an exponential growth in publications and activities (journals, conferences, interest groups, blogs) and a re-invention of historical work as mode of critical analysis. One could begin to list several characteristics of the turn to history: the move away from trans-historical evolutionary accounts towards global, micro-, and subaltern histories; critiques of Eurocentrism; the emergence of histories of sub-fields of international law; socio-historical accounts of the international law profession; a renewed interest in archival work; an unprecedented interest in methodological questions; the role of historical accounts in judicial decisions; and so on. The purpose of the Workshop of the ESIL Interest Group on the History of International Law is to trace these disciplinary developments and evaluate their impact on contemporary international law scholarship and practice.

In this context, the IGHIL invites submissions by scholars working within the fields of international law, history, and politics on the following inter-related themes:

·       The impact of the historical turn on the methods of international legal history
·       The impact of the historical turn in sub-fields of international law (e.g. human rights, international criminal law, diplomatic history etc)
·       The impact of the historical turn on evaluating the historical function of international courts and tribunals
·       The impact of the historical turn on Eurocentrism
·       The impact of global, micro, subaltern, and other histories on international law historiography

Each submission should include
a)     An abstract of no more than 400 words;
b)     The intended language of presentation;
c)     A short curriculum vitae containing the author’s name, institutional affiliation, contact information and e-mail address.

Abstracts must be submitted no later than 15 March 2017 to esilighil@gmail.com on behalf of the Steering Committee of the Interest Group, which shall collectively supervise the blind peer-review process of the abstracts. Applicants will be notified on the outcome of the selection process by 30 March 2017.

Selection will be based on scholarly merit and with regard to producing an engaging workshop, without prejudice to gender, seniority, language or geographical location. Please note that the ESIL Interest Group on the History of International Law is unable to provide funds to cover the conference registration fee or related transport and accommodation costs.


The IG currently investigates publication possibilities for selected abstracts.

See also ESIL website.

donderdag 9 februari 2017

JOURNAL: Journal of the History of International Law/Revue d'histoire du droit international: advance articles, Jan-Feb 2017

(image source: Brill)

The Journal of the History of International Law/Revue d'histoire du droit international published advance articles online:

- The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention (John T. Bennett)
- Imperial Colonialism in the Genesis of International Law – Anomaly or Time of Transition? (Paulina Starski & Jörn Axel Kämmerer)
- Piracy and Empire: The Campaign against Piracy, the Development of International Law and the British Imperial Mission (Michael Mulligan)
- Beyond the Myth of a Non-relationship: International Law and World War I (Oliver Diggelmann)

More information at Brill's Books and Journals Online.

maandag 6 februari 2017

CONFERENCE REPORT: International Law and the Long Nineteenth Century (University of Leuven, November 24-25, 2016) by Ana Delić, Tilburg University

(Image source: F. Dhondt)

Leading scholars as well as junior researchers met in the historic faculty of Leuven University to discuss international law in the long nineteenth century. The event began with a warm welcome by the university’s dean, Prof. Bernard Tilleman who revealed a most interesting anecdote for the international legal historians assembled: the Peace of Versailles had obliged Germany to restore the library of the university. This was followed by warm welcome addresses by Prof. Randall Lesaffer and Dr. Inge van Hulle, the organizers of this well-orchestrated event.


Day One

Panel One: The Eighteenth-Century Fall-Out of Nineteenth-Century International Law (Chair: Randall Lesaffer)
Member of the International Court of Justice, James Crawford considered the basis on which France participated in the Congress of Vienna, the status of Napoleon during the Hundred Days and the legal basis for French responsibility for war damages resulting from the Hundred Days. Crawford eloquently argued that the Bourbon dynasty was legitimized by the prevailing monarchic theory of sovereign power. On the other hand, the status of Napoleon during the Hundred Days was less clear. Certainly, he was not a head of state and as such the basis of reparation for damages incurred by France during this period was discussed on the basis of the theory of responsibility.

Camilla Boisen argued that Edmund Burke bridged the two concerns of international law: authority and enforcement. It was Burke who provided the conceptual scope needed to resolve the issues of enforcement by prescribing specific common law foundations, binding the legal and the moral in international law and presenting it as domestic law.

Inge van Hulle explored a case-study: the legal connections and regimes that developed between British imperial agents and indigenous African communities living in West Africa in the period prior to the Scramble. Anglo-African international relations initially developed on the basis of mutuality and relative equality between parties, but simultaneously, there were imperial legal techniques as well(e.g. extraterritorial jurisdiction, anti-slave trade treaties, the extension of protection to African communities).

(image source: F. Dhondt)

Panel Two: Neutrality (Chair: Inge Van Hulle)
Frederik Dhondt’s discussed how Belgium’s compulsory neutrality  of the 1810 to the 1830s was just one out of multiple tools to guarantee ‘le repos de tous’ and in reality was mostly superficial. Belgium’s compulsory neutrality arose out of a particular socio-historical context –the expansionist and revisionary stance of Napoleon III- and resulted in an interesting reception, including  the view of it as an economic advantage, a legitimation of colonialism, and foremost as a threatened status.

Shavana Musa examined the law of neutrality focusing on the conflicts during the Latin American Wars of Independence. The role of neutrality was discussed as the means of enhancing imperial and commercial power, as a peace-making tool and as a body of law that provided individual (justiciable) rights within the international sphere.

Viktorija Jakimovska’s discussed how throughout the Greek War of Independence, Great Britain generally avoided being dragged into a war but it eventually wished to influence the outcome of the conflict. From 1826-1827, Britain failed to adhere to the essentialia neutralitatis notwithstanding the fact that it never officially renounced the neutrality of its conduct.

Panel Three: Historiography of International Law (Chair: Frederik Dhondt)
 Miloš Vec’s pinpointed key historiographic trends of the nineteenth-century including sources of international law, the conception of the public law of Europe, the so-called shift to a so-called global international law, the regulation of warfare and new technologies around 1900, and state practice.

Jan Lemnitzer examined how the 1850s was a crucial decade in transforming the system of the European law of nations into a universal system of international law. The proliferation of multilateral law-making treaties with the Declaration of Paris in 1856, the growth of international trade, and the rise of independent Latin American states resulted in further contacts between European and non-European states. However, the rise of exclusion in international law was exemplified by the spread of detailed rules for ‘civilized war.’


Day Two

Panel One:  Professionalization and International Law (Chair: Gabriela Frei)

 Stephen Neff discussed how the Darwinian revolution gave rise to American anthropologist Lewis Henry Morgan’s three-fold categorisation of human societies as savage, barbarous and civilised. This found a reflection in the international-law writing of James Lorimer buttressed by imperialistic policies of the European states and, generally, a hierarchical outlook on the part of international lawyers. Evolutionary thought also influenced a revival of natural-law modes of thought as the only acceptable normative regulation of relations between civilised and savage states. In stark opposition to the evolutionary scheme was diffusionism exemplified by Herbert Spencer’s theory of a general progression from militaristic to industrial modes of life. Diffusionism did not gain much traction with nineteenth century international lawyers.

Vincent Genin analysed how the Institut de Droit International (founded in 1873) represents the first major step in the institutionalization of the discipline. The speaker  discussed how in the last quarter of the nineteenth century, the IDI juggled between its self-affirmed role as the ‘public conscience of the civilized world’ versus historic tides of nationalism, the multiplication of conflicts and colonial rivalries.

Ana Delić discussed the formative interactions between comparative law and private international law during the modern period. Comparative law was instrumental to modern private international law in the civil law and common law traditions in three ways: 1) scholars studied private international legal approaches comparatively; 2) the comparative approach was a key aspect of preliminary materials aiding in private international law-making; and 3) courts relied on a comparative study of conflicting rules in order to assess which is the applicable law or jurisdiction.

(image source: F. Dhondt)

Panel Two: Empire and the Periphery in the Nineteenth Century (Chair: Camilla Boisen)
Andrew Fitzmaurice explored the standing of non-European nations in the work of the nineteenth century jurist Sir Travers Twiss. Archival materials were presented which painted a colourful picture of Twiss’ personal life, including his marriage to a prostitute. This union eventually destroyed his career. In terms of Twiss’ legacy to international legal history, he had advocated the view that non-European states (including China, Japan, the Ottoman Empire, Egypt, and the ‘African Slave-states’) were equals with European powers in the law of nations. His view sprung not from humanitarian concerns but from a concern for the duties (and not rights) of these nations.

Stefan Kroll discussed the Shanghai International Settlement (1863-1943), a zone within the area of Shanghai which was detracted from the authority of Chinese rule, and which was controlled by the self-government of foreign merchants (the Municipal Council). While the mixed court was expected to apply Chinese norms, in reality, foreign norms and judicial practices were being introduced. The Su bao-case (1903) illustrates the mixing of legal systems within the merchant court. This case concerned political radicalism against the Chinese government.

Luigi Nuzzo presented an Italian history of international law, focusing on Pasquale Stanislao Mancini and his pragmatic approach to international law. Mancini’s imprint on international law is exemplified by his insistence on the principle of nationality but his legacy has not been given its proper due. Analysing forensic memories, legislative deeds, parliamentary speeches, editorial projects rather than doctrinal works provides further food for thought with regards to his contribution.

Panel Three: Individuals and International Law (Chair: Andrew Fitzmaurice)
Gabriela Frei examined the biography of Sir William Jones, a judge at his Majesty’s supreme court of judicature at Fort William, the citadel of Calcutta in Bengal, and a well-known orientalist of the eighteenth century. Jones also wrote the first English translation of Hindu and Muslim laws, and thus made those texts available to the Western world. He believed that only local laws would allow a basis for a fair and just legal system. The paper also discussed the multiple legal systems co-existing at this period in Bengal, which developed legal standards for the commercial enterprise of the East India Company.

(image source: F. Dhondt)

Raphael Cahen retraced the beginning of the Mahmoud Ben Ayed case (1855-1858) through an examination of documents from the archives of Joseph Marie Portalis, a famous judge and diplomat, who had been charged to administer the case. This case involved the extradition of Mahmoud Ben Ayad from France back to Tunisia. Ben Ayad, a famous Caïd and minister of commerce, was charged with embezzlement of state funds.

Raymond Kubben analyzed the conception of statehood within international legal textbooks of the long nineteenth century. The definition of the state in the early period were varied and typically reverted to abstract Roman law or philosophical concepts such as civitas or communitas perfecta. Over the course of the nineteenth century, textbooks would specify the legal concept, slowly forming definitions akin to the one in the 1933 Montevideo Convention.