ESIL Interest Group History of International Law

ESIL Interest Group History of International Law

donderdag 18 december 2014

CALL FOR PAPERS: International Law and Time (Graduate Institute, Geneva, 12-13 June 2015)

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The Department of International Law at the Graduate Institute for International and Development Studies (Geneva) organizes a conference on "International Law and Time".

Time is an inherent component of many of the most important international law concepts. However, it also fundamentally determines international law as a field. International law has been in constant dynamic change since its inception. Capturing and understanding this change in time is one of the discipline’s fundamental challenges, as is the difficulty of working with the constantly changing materiae of international law in practice.
The Graduate Institute's International Law Department is opening a call for papers to create an opportunity to reflect and debate about the fundamentals of international law in depth. The conference is open to both junior and senior international law scholars and practitioners. The deadline for abstract submissions is February 15, 2015. The Conference will be held at the Graduate Institute's Barton site.

The conference will be structured in six panels:

1.    Attributing Meaning to Time: Visions of History and Future
2.    International Law on a Given Day
3.    Role of Time in Creation and Operation of Norms
4.    International Law between Change and Stability
5.    Continuity, Discontinuity, Recurrence
6.    Regulating the Past: The Problem of Retroactivity
 Panel descriptions:

Panel 1 – Attributing Meaning to Time: Visions of History and Future

How do lawyers' conceptions of history (both in their visions of the future and representations of the past) influence the structure of international law and the idea we have of it? As shown by authors like Jacob Taubes, different forms of eschatological beliefs (regarding, that is, the final events of history and the destiny of humanity) have strongly influenced several fields of western culture, from philosophy to politics. Is international law immune from these dynamics or is it itself the consequence of particular "prophecies"? For instance, what impact did the Kantian idea of a "History with a Cosmopolitan Purpose" have on the development of contemporary international law and some of its distinctive features (e.g. the idea of an "international community" or the establishment of international organizations)? Will globalization lead to legal fragmentation or legal integration, and what impact may these different visions of the future have on the development of international law? Similar questions may be raised regarding the different ways international law's history is narrated today. How does the way we think of past heritage influence our present conception of international law?

Panel 2 – International Law on a Given Day

What conduct does international law permit or prohibit as of today? What as of 1st January of last year? How does one determine whether there is any law whatsoever? The foundation for any legal undertaking is the ability to ascertain the content of international law at a given moment. However, in reality this is often quite a challenging exercise. International law displays a high measure of fluidity thanks to being in large part customary, and because it assigns a normative character to relevant practice that modifies the content of existing international treaties. How should one work with this dynamic character of international law, with norms being created through a decentralized and heterogeneous process? Can one identify the precise moment in time a customary rule has come into existence? It has been argued that the content of international law is an inherently ex post facto construct. If so, what are the implications on the regulatory power of international law?

Panel 3 – Role of Time in the Creation and Operation of Norms

What are the various forms of conceiving and measuring time in international law and what bearing do these choices have on the creation and operation of norms? Temporal notions are especially prominent in the identification of legally relevant facts that contribute to law-making processes such as the traditional requirement of usus longaevus in the formation of customary international law. Moreover, the use of certain techniques dispels contingency from the judicial process, as exemplified by the seemingly rigorous notion of critical date and its ramifications for applicable law, or the temporal notion of continuity that buttresses effective territorial occupation. In treaty law, there is a strong dialectic tension between past and future, especially regarding treaty interpretation and the accompanying notions of original meaning, object and purpose, and effectiveness.

Panel 4 - International Law between Change and Stability

International law is in constant tension between the need to adapt to changing circumstances and its vocation towards maintaining systemic stability. How is this tension reconciled? What prompts changes to occur and what are the mechanisms of change in international law? Additionally, while analyzing the dynamic development of international law, any change in international law often needs to be detected and evaluated. How can such ongoing change be identified and worked with in the practice of international law?

Panel 5 – Continuity, Discontinuity, Recurrence

Ideas and concepts in international law disappear and come back again transformed. The idea of self-determination, which was transfigured from a call for democratic self-government into a cry for independence, is a prime example. The notion of international responsibility and its relationship to its protean avatars within the law of prize and diplomatic protection presents another illustration of conceptual notions traveling overtime. This panel discusses the presence of past concepts in different contexts and moments, as well as their flexibility, autonomy and capacity to reinvigorate the future.

Panel 6 – Regulating the Past: The Problem of Retroactivity

The debate surroinding retroactivity in international law has so far mainly concerned the fields of dispute settlement, criminal law and human rights, with regard to the ex-post facto prohibition of crimes and punishments. Yet, the notion of retroactivity is rich in its implications for the relationship between time and law generally, and is relevant for all branches of international law. To what extent can States "regulate the past", and what are the implications of contemporary facts and actions on the way lawyers assess the past? What is the difference between an ex-post facto rule and an innovative interpretation of a norm? Against what law shall past acts be assessed in case of secession or accession of States? And how can international law help societies come to terms with their past?
The call for papers can be found here.

dinsdag 16 december 2014

ARTICLE: Perez on Lincoln's legacy for American International Law (Emory International Law Review 2014, 167-236)

 (image source: wikimedia commons)

Prof. A. Perez (Catholic University of America Columbus School of Law) posted "Lincoln's legacy for American International Law" on SSRN.

This Article argues that Lincoln reframed U.S. rhetoric and practice of international law in ways that subordinated customary international law and elevated general principles of law and treaty commitments. It explains that this reconceptualization was based on Lincoln’s constitutional theory, through which the U.S. was transformed from a plural a sui generis institutional arrangement in the community of states, a Madisonian hybrid, into a singular nation-state performing a sui generis role in the community of states. After explaining the shift in constitutional theory and practice and international law theory and practice, the Article argues that these two shifts were in turn grounded on Lincoln’s ethical commitment to reasoning from first principles, rather than social practice, leavened with modest self-doubt and humility in the exercise of reason. Under Lincoln’s view, the United States would serve as an exemplar of a particular kind of society and the kind of person Lincoln thought normatively superior, a vehicle for the formation of a kind of person he believed made such a society possible, and perhaps even a force in the world for the progressive and universal realization of those ideals. Much as Lincoln’s achievement was to refashion the American state, Lincoln’s vision of American sovereignty made possible and necessary an entirely new approach to international law in which the American state re-defined its relation to the world and its ethical mission coupling reason with restraint in ways from which we can still learn today.

(source: Legal History Blog)

zaterdag 6 december 2014

BOOK: Andrew Fitzmaurice, Sovereignty, Property and Empire (1500-2000)

Andrew Fitzmaurice (Sydney) published Sovereignty, Property and Empire (1500-2000) at Cambridge University Press.

This book analyses the laws that shaped modern European empires from medieval times to the twentieth century. Its geographical scope is global, including the Americas, Europe, Africa, Asia, Australia and the Poles. Andrew Fitzmaurice focuses upon the use of the law of occupation to justify and critique the appropriation of territory. He examines both discussions of occupation by theologians, philosophers and jurists, as well as its application by colonial publicists and settlers themselves. Beginning with the medieval revival of Roman law, this study reveals the evolution of arguments concerning the right to occupy through the School of Salamanca, the foundation of American colonies, seventeenth-century natural law theories, Enlightenment philosophers, eighteenth-century American colonies and the new American republic, writings of nineteenth-century jurists, debates over the carve up of Africa, twentieth-century discussions of the status of Polar territories, and the period of decolonisation.
(source: ESCLH blog)

WORKSHOP: International Investment Law and History (Frankfurt, 13-14 March 2015)

The MPI for Comparative Public Law and International Law, the Johann-Wolfgang Goethe-University Frankfurt and the University of Glasgow's School of Law co-organize a workshop on International Investment Law and History on 13 and 14 March 2015.

As in previous years, the workshop will bring together academics and practitioners and provide them with a forum for open and frank exchanges. If you are interested in participating, please contact Sabine Schimpf, Merton Centre for European Integration and International Economic Order, University of Frankfurt, RuW, Grüneburgplatz 1, 60323 Frankfurt am Main, Germany.

The program can be found here. Speakers include Stephan SchillJochen von Bernstorff, our members Christian TamsJörg Kammerhofer, and others. Two panels address historical cases of investment law, going back to the 19th century.

maandag 1 december 2014

BOOK: Robert Kolb (ed.), Commentaire sur le Pacte de la Société des Nations (Bruylant, 2014)


Bruylant just published Prof. Robert Kolb (Geneva)'s collective commentary on the League of Nations' Covenant. 1400 pages cover a fundamental text for the history of international law, as well as our understanding of the UN Charter

Contributions by Pierre d’Argent, Louis Balmond, Giulio Bartolini, Christian Birebent, Laurence Boisson de Chazournes, François Bugnion, Emmanuel Bourdoncle, Vincent Chetail, Giorgio Conetti, Olivier Corten, Florian Couveinhes-Matsumoto, Luigi Crema, Yann Decorzant, Martin Denis, Giovanni Distefano, Gleider I Hernández, Ivan Ingravallo, Pierre Klein, Robert Kolb, Anne Lagerwall, Makane Vittorio Mainetti, Moïse Mbengue, Karin Oellers-Frahm, Bernardine Pejovic, Vassilis Pergantis, Géraldine Ruiz, Markus Schmidt, Matthias Schulz, Massimo Starita, Antonios Tzanakopoulos, Agatha Verdebout, Sylvain Vité, Nigel D. White and Emmanuelle Wyatt. 

The book can be ordered here and is available online on strada.