ESIL Interest Group History of International Law

ESIL Interest Group History of International Law

vrijdag 1 maart 2019

JOURNAL: Journal of the History of International Law/Revue d'histoire du droit international XX (2018), Issue 4

(image source: Brill)

The Role of International Tribunals in the Development of Historical Narratives (Moshe Hirsh)
Abstract:
Collective memories are significant for both individuals and societies, as they play an important role in the construction of collective identities. This article focuses on the role of non-criminal international tribunals in the development of collective memories, asking whether it is desirable for such international tribunals to be involved in the construction of historical narratives. International tribunals have not adopted a consistent approach concerning the presentation of a case’s historical background in their judgments. The question of whether it is desirable for non-criminal tribunals to assume an active role in this sphere is analysed using three major sociological perspectives: the structural-functional approach, the symbolic-interactionist perspective, and the social conflict approach. The discussion regarding each theoretical approach is accompanied by illustrative examples from the case law of international tribunals. The conclusions drawn from this analysis integrate certain elements from each theoretical approach; but primarily draw on recommendations associated with the symbolic-interactionist perspective, and to a lesser extent on some recommendations associated with the social-conflict approach.

The Pirate and the Admiral: Europeanisation and Globalisation of Maritime Conflict Management (Louis Sicking)
Abstract:
Piracy holds a special place within the field of international law because of the universal jurisdiction that applies: any state may seize a pirate ship on the high seas and decide upon the penalties to be imposed, as is currently the case with Somali and West African pirates. Unlike today, piracy was the norm in pre-modern times. Maritime trade and piracy went hand in hand. At the same time, kings and emperors recruited their admirals from among pirates. This raises the question of how princes, states and cities distinguished between legal and illegal violence at sea. How did they deal with maritime conflict among themselves and among their respective subjects and citizens? This article puts maritime conflict management in a European, global and long term perspective while avoiding anachronistic and teleological approaches. Finally, it argues that pre-modern conflict management is relevant to understand maritime security in the twenty-first century.


Seeking Refuge: Grotius on Exile, Expulsion and Asylum (Marc De Wilde)
Abstract:
Hugo Grotius is often identified as the founder of the modern concept of asylum. This article argues that Grotius’s most innovative contribution was not his theory of asylum, but his concept of expulsion, and more particularly, his notion that a permanent refuge should be offered to foreigners who had been collectively expelled on religious grounds. The article shows that Grotius’s notion was informed by his own experiences as a lawyer advocating the admission of Sephardi Jews, who had been expelled from Spain and Portugal, to the Dutch provinces. More particularly, it was based on a reinterpretation of Francisco de Vitoria’s concept of the ‘law of hospitality’ and the duty to admit foreigners irrespective of their religious beliefs. Reinterpreting Vitoria’s concept, Grotius was the first to formulate a theory regarding the state’s responsibility to offer a permanent refuge to victims of (religious) persecution


The 150th Anniversary of the St Petersburg Declaration: Introductory Reflections on a Janus-Faced Document (Raphaël Schäfer)
Excerpt:
The Journal of the History of International Law celebrates the 150-year anniversary of the St Petersburg Declaration with a focus section in this issue. Of course, the mere fact of an anniversary of a document of international law is not – and can hardly be – its sole or even main purpose. While the focus section acknowledges the Declaration’s fundamental importance not only for the legal body which is today called international humanitarian law, its intent is to go beyond the standard textbook narrative of the Declaration and to explore its function and impact in a deeper context.

The 1868 St Petersburg Declaration on Explosive Projectiles: A Reappraisal (Robert Kolb & Momchil Milanov)
Excerpt:
There is hardly any study on the origins of international humanitarian law (IHL) which does not mention the 1868 St Petersburg Declaration. Yet, apart from a simple reference or a footnote, the actual impact of the Declaration on the formation of the IHL rules remains subject to debate. Some authors consider it ‘among the more important treaties relating to the law of war’1 while others emphasize the ‘rhetorics’ and the ‘exalted phraseology’ of the drafters to ‘embellish the prosaic, technical text they were adopting with an ornamental introductory piece’.2 This short

The Enduring Legacy of the St Petersburg Declaration: Distinction, Military Necessity, and the Prohibition of Causing Unnecessary Suffering and Superfluous Injury in IHL (Emily Crawford)
Excerpt:

The St Petersburg Declaration is a remarkably short instrument. Only eleven paragraphs long, six of which comprise the Preamble and introduction, the Declaration prohibits only one very specific type of projectile – bullets that weigh less than 400 grams, which are either explosive, or otherwise charged with fulminating or inflammable substances. The Declaration contains no provision regarding its implementation or enforcement, and no sanction for violation of its terms. Its scope is further limited in that, not only does it not apply to States not party to the agreement, but it will ‘cease to be obligatory...
Book reviews:
Völkerrechtsgeschichte(n). Historische Narrative und Konzepte im Wandel, edited by Andreas von Arnauld (Felix Lange)

The Hidden History of International Law in the Americas, written by Juan Pablo Scarfi (André Nunes Chaib)

(read more with Brill)