ARTICLE: Andreas VON ARNAULD, "How to Illegalize Past Injustice: Reinterpreting the Rules of Intertemporality", EJIL XXXII (2021), Nr. 2, 401-432

 

(image source: OUP)

Abstract:

Attempts to legally tackle cases of historical injustice are often confronted with the problem that the events in question were not considered illegal at their time and that, in general, legal rules should not be applied retroactively. The present article suggests a conceptual framework to carefully stretch the dogmas of intertemporal law by introducing, via ethical principles as part of positive law of the time, contemporary contestation of inhumane actions and practices. Even though such contestation might not yet be enough to overturn a widely shared apologetic view among lawyers and states, it is argued that the violation of ethical-legal principles as such should give rise to a duty to give satisfaction under the law of state responsibility. In most cases of historical injustice brought to court, members of victimized groups aim at acknowledgment of their plight and at a reappraisal of the past that includes their experiences. In line with this objective, the present article makes a special case for a state obligation to negotiate with the victims of historical injustice or their descendants.

(read more here: DOI 10.1093/ejil/chab037) 

ARTICLE: Joseph F. PRESTIA, "‘Civilized States’ and Situational Sovereignty: The Dilemmas of Romanian Neutrality, 1914–1916" (European History Quarterly, ADVANCE ARTICLE)

 

(image source: Sage)

Abstract:

At the 1914 Crown Council, which decided to keep Romania neutral in 1914, former Conservative prime minister Petre Carp offered his succinct and direct opinion about the direction of Romanian foreign policy in the opening days of the Great War. He admonished the Council that, if Romania wanted to remain among the ‘civilized states’ (statele civilizate) it had to follow Germany and Austria-Hungary into war immediately. The idea of ‘civilized states’ that dominated the remainder of the Crown Council was not merely an intersubjective social construction. It was a legal term of art in fin de siècle international law that could be applied in the real world. It was only the legally-civilized states that enjoyed the full panoply of rights, privileges, and protections under international law. This is a study of how Romania’s policy-making elite, and Ion I. C. Brătianu’s government, in particular, confronted the challenges of ‘situational sovereignty’. It asserts that, during Romania’s two-year Period of Neutrality (3 August 1914–17 August 1916), Brătianu initially used bilateral conventions as both a method to establish recognition of Romania’s status (or at least a guarantee of territorial integrity) and as a litmus test to determine which (if any) foreign powers recognized Romania as a legal equal. Although he was able to achieve a short-term victory of having an equality clause inserted into the August 1916 political convention with the Entente, it is unclear if that clause could have been durable. Ultimately, Brătianu was trapped between a desire to secure Romania’s recognition through international agreement, but confronted with the reality that Romania’s lack of recognition as a legally-civilized equal meant those very conventions could be unenforceable.

Read the article here. 

ARTICLE: Ntina TZOUVALA, "The Specter of Eurocentrism in International Legal History" (Yale Journal of Law & The Humanities XXXI (2021), No. 2, 413-434 (OPEN ACCES)

(image source: Yale)

First lines:

The honeymoon period of the “turn to history” in international law did not last long. On the surface everyone agreed that the past of the discipline remained under-examined and under-theorized. Additionally, few (if any) international legal scholars still believed in the most extreme versions of linear, progressivist narratives that imagined (international) law to be part and parcel of “the long march of mankind from the cave to the computer.”2 Nevertheless, important methodological differences persisted.

Read the full article here. 

ARTICLE: Jochen VON BERNSTORFF, "Autorité oblige: The Rise and Fall of Hans Kelsen’s Legal Concept of International Institutions" (EJIL XXXI (2020), No. 2 (Sep) 497-523

 

(image source: OUP)

Abstract:

Hans Kelsen and his Vienna School in International Law developed a highly original legal concept of international institutions. It originated in the Interbellum and aimed at bolstering the new institutional structures created in the League era by promoting egalitarian legal structures and strong judicial controls of both member states and the organs of the institution. Against the background of this new approach to international organization, Kelsen, after World War II, developed a first and particularly harsh critique of the UN Charter.

Read further with OUP: DOI  10.1093/ejil/chaa045

ARTICLES: Henri DE WAELE & Janne NIJMAN on international legal history (EJIL XXXI (2020), Issue 3)

(image source: OUP)

A New League of Extraordinary Gentlemen? The Professionalization of International Law Scholarship in the Netherlands, 1919–1940 (Henri de Waele) (open access)

Abstract:

Despite the historical turn in the study of public international law and the advance of comparative approaches, still too little attention is paid nowadays to specific national traditions. This holds, inter alia, for the scholarly views and practices in the Netherlands during the first half of the 20th century. This article seeks to shed light on the experiences here at the advent of the League of Nations and its tentative ‘new world order’. Offering a meso-level analysis, it portrays the leading protagonists during the 1920s and 1930s, aiming to provide a snapshot of how their discipline and activities underwent an unexpectedly swift professionalization. This process is perceived to have run along three distinct vectors – academic, societal and diplomatic/bureaucratic – which are each examined in turn. Novel opportunities stemming from the rise of the international judiciary, especially the two Permanent Courts established on Dutch soil, are looked at separately. The research delivers a greater insight into the inter-war era and the challenges faced by (academics from) smaller nations, enabling us to situate underexplored local experiences within a global frame, and offering useful lessons for (the writing of) international law history more generally.

Marked Absences: Locating Gender and Race in International Legal History (Janne Nijman) (open access)

Abstract: 

This article was sparked by a critical reading of Henri de Waele’s article ‘A New League of Extraordinary Gentlemen? The Professionalization of International Law Scholarship in the Netherlands, 1919–1940’, and aims to offer an alternative perspective on this period in the history of Dutch international legal scholarship. While it appreciates the author’s examination of Dutch international law scholarship during the interwar period and concurs with the idea that this scholarship needs to be examined more closely, it argues that doing history today requires us first to raise ‘the woman question’, especially in the context of the so-called ‘professionalization’ of international law in the 1920s and 1930s, and second to include Dutch colonialism as an important backdrop to the work of the interwar international law scholars. I will give some pointers and illustrations to support this argument. The specific Dutch material brought to bear aims to show more generally the importance of questioning rather than reproducing traditional historiography, within which ‘the woman question’ and ‘the colonial question’ were left unmentioned. As such this article also deals with the issue of expanding and remaking international legal history as an issue of present and future purport

ADVANCE ARTICLE: Nicholas MULDER, 'A Retrograde Tendency’: The Expropriation of German Property in the Versailles Treaty (Journal of the History of International Law/Revue d'histoire du droit international)

 

(image source: Brill)

Abstract:

This article explores how the Versailles Treaty was shaped by the effects of economic warfare 1914–1919. The First World War was in part an Allied economic war waged against the Central Powers in conditions of advanced economic and financial globalization. This was reflected in the treaty’s expropriation mechanisms, which were used to take control of German property, rights, and interests around the world. Whereas Articles 297 and 298 of the treaty legalized wartime seizures, the Reparations Section of the treaty also contained a provision, paragraph 18, that gave the Allies far-reaching confiscatory powers in the future. The article places these mechanisms in a wider political, legal and economic context, and traces how they became a bone of contention among the former belligerents in the interwar period.

(Read more with Brill; DOI 10.1163/15718050-12340136)

ADVANCE ARTICLE: Hans BLOM & Mark SOMOS, 'Public-Private Concord through Divided Sovereignty: Reframing societas for International Law' (Journal of the History of International Law/Revue d'histoire du droit international) (OPEN ACCESS)

(image source: Brill)

 Abstract:

Grotius is the father of modern international law. The indivisibility of sovereignty was the sine qua non of early-modern conceptual innovation in law. Both statements are axiomatic in the mainstream literature of the last two centuries. Both are profoundly and interestingly wrong. This paper shows that Grotius’ systematisation of public and international law involved defining corporations as potentially (and the VOC actually) integral to reason of state, and able to bear and exercise marks of sovereignty under certain conditions. For Grotius, some corporations were not subsumed under the state’s legal authority, nor were they hybrid ‘company-states’. Instead, states and such corporations, able and forced to cooperate, fell under dovetailing natural, international, and municipal systems of law. The paper reexamines Grotius’ notion of international trade, public debt, private corporation, and public and private war through the reassembled prism of these dovetailing laws and the category of societas that underpins Grotian associations. It is argued that although formulated around the new East India trade, the actual reality of legal pluralism was available to Grotius in the Dutch trade experience of the sixteenth century.

(read more with Brill: DOI 10.1163/15718050-12340170)

ADVANCE ARTICLE: Paulo Emílio VAUTHIER BORGES DE MACEDO & Brenda Maria RAMOS ARÁUJO, 'A Man against a War: Rui Barbosa and the Struggle against a Thought' (Journal of the History of International Law/Revue d'histoire du droit international)

 

(image source: Brill)

Abstract:

This article aims to demonstrate that Rui Barbosa’s role at the Hague Peace Conference of 1907 and his speech at the Buenos Aires Law School, in 1916, are a continuum. On both occasions, he not only defended the same principles, the rule of law over force and the juridical equality of nations, and mainly, fought the same enemy: a doctrine, the ‘Borussian militarist doctrine’. From the standpoint of a contextualist historiography, this text recreates that struggle. This work employs the inductive method of approach as well as primary and secondary bibliographical sources.

(Read further with Brill; DOI  10.1163/15718050-12340147)

ARTICLE: Kostiantyn GOROBETS, 'The International Rule of Law and the Idea of Normative Authority' (Hague Journal on the Rule of Law XII (2020), nr. 12, 227-249)

 

(image source: Wikimedia Commons)

Abstract:

Domestic and international jurisprudence exist and develop as two ‘pocket universes’ in a sense that they belong to the same fabric of reality, but at the same time many concepts shift their meaning when moved from one pocket to another. This is of a paramount importance for the idea of the rule of law, which in domestic setting was forged in the flame of civil wars and struggles against the rulers. This history and such struggles are something international law has never known, and thus any direct transplantation of the domestic images of the rule of law to international realm are doomed to fail. This entails a need in deconstructing the rule of law. Its core meaning (‘laws must be obeyed’), brings a normative claim relevant to any legal order. The idea of the (international) rule of law appears to be linked to the idea of authority of (international) law. There are differences of the structures of authority in domestic and international law as authority can be mediated or unmediated. Mediation of authority, typical for domestic law, presupposes the existence of officials that are functionally and institutionally differentiated from the subjects of law. Authority of international law is by and large unmediated because of its horizontal nature. Such reconstruction allows to reframe the central concern of the international rule of law enquiries. Instead of trying to fit it to the procrustean bed of domestic theories, international legal scholarship must focus on defining conditions under which international law’s claim to authority is realisable.

(read the article: DOI https://dx.doi.org/10.1007/s40803-020-00141-3) 

ADVANCE ARTICLE: Felix WALDMANN, 'Natural Law and the Chair of Ethics in the University of Naples, 1703–1769' (Modern Intellectual History)

(image source: CUP)

Abstract:

This articles focuses on a significant change to the curriculum in “ethics” (moral philosophy) in the University of Naples, superintended by Celestino Galiani, the rector of the university (1732–53), and Antonio Genovesi, Galiani's protégé and the university's professor of ethics (1746–54). The article contends that Galiani's and Genovesi's sympathies lay with the form of “modern natural law” pioneered by Hugo Grotius and his followers in Northern Europe. The transformation of curricular ethics in Protestant contexts had stemmed from an anxiety about its relevance in the face of moral skepticism. The article shows how this anxiety affected a Catholic context, and it responds to John Robertson's contention that Giambattista Vico's use of “sacred history” in his Scienza nuova (1725, revised 1730, 1744) typified a search among Catholics for an alternative to “scholastic natural law,” when the latter was found insufficiently to explain the sources of human sociability. 

(read the article here: DOI 10.1017/S1479244320000360)

ADVANCE ARTICLE: Jenny Huangfu DAY, "Mediating Sovereignty: The Qing legation in London and its diplomatic representation of China, 1876–1901" (Modern Asian Studies)

(image source: Cambridge Core)

Abstract:

In 1896, Sir Halliday Macartney, counsellor of the Qing London legation, detained the revolutionary Sun Yat-sen on legation grounds in an attempt to deport him back to China. Since then, the image of the legation as an ossified extension of a despotic government has dominated public imagination. This article proposes a new way of understanding the legation's action: it exemplifies the legal activism of Qing diplomats in recovering judicial sovereignty that had been compromised by the presence of extraterritoriality and colonialism. Legations represented a broad range of interests of China through diplomatic negotiations and legal mediations, and brought unresolved disputes between foreign ministers and the Zongli Yamen in Beijing to the attention of their home governments. This article analyses the mediation and collaboration performed by the London legation between the various levels of the Qing government and the British Foreign Office. It argues that Qing legations and their diplomatic representation abroad were essential to the construction and imagination of China as a sovereign state. 

(read more on Cambridge Core: DOI 10.1017/S0026749X2000030X)

ARTICLE: Liliana OBREGÓN, Peripheral Histories of International Law (Annual Review of Law and Social Science XV (2019), 437-451

(image source: wikimedia Commons)

 Abstract:

"Peripheral international legal histories are considered a new subfield of the discipline's historiography, though there is no defined canon, chronology, or accepted set of theoretical questions or conflicts. Despite the absence of an established literature, this review argues that peripheral histories of international law challenge the linear narrative that a European international legal system was unquestioned and easily incorporated by the new non-European states that surged in the nineteenth and twentieth centuries. This overview looks at several forms of approaching the literature that differ in methodology but share a (partial or complete) challenge to a coherent universal international law and a homogeneous forward-looking global project."

(source: Annual Review of Law and Social Science) 

ARTICLE: Daragh GRANT, "Francisco de Vitoria and Alberico Gentili on the Juridical Status of Native American Polities" (Renaissance Quarterly LXXII (2020), Nr. 3, 910-952)

 

(image source: CUP)

Abstract:

Over the course of the sixteenth century, Europeans writing about the ius gentium went from treating indigenous American rulers as the juridical equals of Europe's princes to depicting them as little more than savage brutes, incapable of bearing dominium and ineligible for the protections of the law of peoples. This essay examines the writings of Francisco de Vitoria and Alberico Gentili to show how this transformation in European perceptions of Native Americans resulted from fundamental changes in European society. The emergence of a novel conception of sovereignty amid the upheavals of the Protestant Reformation was central to this shift and provided a new foundation for Europe's continued imperial expansion into the Americas.

Read more with CUP, DOI 10.1017/rqx.2019.255.

ARTICLE: Gavin DALY, 'Anglo-French Sieges, the Laws of War, and the Limits of Enmity in the Peninsular War, 1808–1814' (English Historical Review)

 

(image source: OUP)

Abstract:

The many sieges of the Napoleonic Wars remain a relatively neglected area of historical study, especially in the context of the history of customary laws of war, where sieges played a central role. This article explores an important but largely forgotten episode in the infamous British storm and sack of the French-held Spanish towns of Ciudad Rodrigo, Badajoz and San Sebastián during the Peninsular War: mercy to the French garrisons, who, in obstinately defending against storming parties, had forfeited their protective rights under prevailing laws of war. Combining military, legal and cultural history, and drawing upon British soldiers’ letters, diaries and memoirs, the article focuses on three interrelated issues: siege capitulation and surrender rituals, attitudes to obstinate defences, and British mercy to the French garrisons. The article highlights sieges as a privileged site for examining laws of war, cultures of war, and moral sensibilities. In doing so, it sheds further light on historical debates about changes and continuities in practices and cultures of war over the long eighteenth century. There has been considerable recent interest in the history of atrocity, massacre and enmity during the French Revolutionary–Napoleonic Wars. Yet the Anglo-French case-studies examined here highlight the persistence of restraint, honour codes, civility and humanity between regular soldiers, even in the seemingly most barbarous of wartime theatres, and despite laws of war that sanctioned violence in these very circumstances.

Read more here (DOI 10.1093/ehr/ceaa190)

ADVANCE ARTICLE: Vanessa OGLE, ‘Funk Money’: The End of Empires, The Expansion of Tax Havens, and Decolonization as an Economic and Financial Event', Past & Present, 2020 (OPEN ACCESS)

 

(image: Geneva; source: Wikimedia Commons)

Abstract:

This article traces the emergence of an archipelago-like landscape of distinct legal and economic spaces throughout the long midcentury. Consisting of tax havens, offshore financial markets, flags of convenience, and economic free zones, this archipelago allowed free-market capitalism to flourish on the sidelines of a world increasingly dominated by more sizable and interventionist nation-states. It argues that certain characteristics of the rise of free-market capitalism since the 1970s and 1980s were previously practiced in the offshore archipelago, only to move back to Europe and North America with the rise of neoliberalism.

Read more with OUP (DOI 10.1093/pastj/gtaa001). 

ARTICLE: Ignacio DE LA RASILLA, 'Concepción Arenal and the place of women in modern international law' (Tijdschrift voor Rechtgeschiedenis/Revue d'Histoire du Droit/The Legal History Review LXXXVIII (2020), nr. 1-2, 211-253)

(image source: Brill)

Abstract:

This article examines the long-forgotten first book-length treatise on international law ever published by a woman in the history of international law. The first part places Concepción Arenal’s Ensayo sobre el Derecho de gentes (1879) in the historical context of the dawn of the international legal codification movement and the professionalisation of the academic study of international law. The second part surveys the scattered treatment that women as objects of international law and women’s individual contributions to international law received in international law histories up to the early twentieth century. It then draws many parallels between Arenal’s work and the influential resolutions of the first International Congress of Women in 1915 and surveys related developments during the interwar years. The conclusion highlights the need of readdressing the invisibility of women in international legal history.

Read the full article on Brill's website.

ADVANCE ARTICLE: Richard BOURKE, 'European Empire and International Law from the Eighteenth to the Twentieth Century" (The Historical Journal) (OPEN ACCESS)

(image source: CUP)

Abstract:

In the 1821 Preface to his Elements of the philosophy of right, Hegel famously claimed that ‘philosophy…is its own time comprehended in thoughts’. It is tempting to view history in equivalent terms. After all, historical research usually engages the past under the influence of contemporary concerns. Topics acquire pertinence on account of prevailing values and interests. And yet there is a clear difference between being roused to investigate a subject as a result of its ongoing resonance and interpreting its meaning in terms of current attitudes. This distinction, however, is often blurred, and with it appropriate relations between historical analysis and moral judgement. It may well be that, at the level of political philosophy, each of these activities can be reconciled; but first their respective provinces should be carefully delimited.

Read the article for free here.

ARTICLE: William MULLIGAN, " Decisions for Empire: Revisiting the 1882 Occupation of Egypt" (English Historical Review CXXXV (2020), nr. 572 (Feb), 94-126)

(image source: Oxford Journals)

Abstract:

The decision of Gladstone’s government to invade and occupy Egypt in 1882 remains one of the most contentious in late nineteenth-century British political and imperial history. This article examines the decision-making process in June and July 1882, revisiting Robinson and Gallagher’s influential study in the light of more recent historiographical research and previously unused sources. It looks at who made the critical decisions, what their preoccupations were, and how they were able to get Cabinet approval. Hartington and Northbrook were the two key figures, who co-operated to overturn Gladstone’s and Granville’s policy in June 1882. Yet their co-operation was momentary and they found themselves on different sides of the argument over the participation of Indian forces and international support. Although they shared a sense of Egypt’s importance to British imperial security, they each had a distinctive approach, so that the decision to occupy cannot be reduced to a conflict between Whig pragmatists and Radical idealists. The article also shows how the Alexandria riot on 11 June altered the context of decision-making by shifting the mood in the parliamentary Liberal party towards intervention. Parliament, not the press, was the crucial site of ‘public opinion’ in the Egyptian crisis in June and July 1882.

Read more with Oxford Journals.

ADVANCE ARTICLE: Alonso Gurmendi DUNKELBERG, "A legal history of consent and intervention in civil wars in Latin America" (Journal on the Use of Force and International Law)

(image source: Routledge)

Abstract:

Recently, international law has seen renewed interest in the topic of intervention by invitation. Despite this, Latin American views have remained absent from the conversation. This article rediscovers the history of intervention by invitation in Latin American civil wars, focusing specifically on the issue of consent and the role it played in two key events of the region’s early legal history: the War of the Confederation and the Gorostiza Pamphlet affair. It finds that, in those cases, the right of a state to consent to intervention in a civil war was not questioned, but rather, expressly affirmed. In this vein, and despite a lack of more recent practice, while Latin America’s experience with European interventionism indicates a strong tradition of non-interventionism, its experience with civil war seems to point towards a preference for government consent over strict-abstentionism as a guiding principle.

Read more with Taylor&Francis.

ARTICLE: Zak LEONARD, "Law of Nations Theory and the Native Sovereignty Debates in Colonial India" Law and History Review LXXXVIIII (2020), No. 2

(image source: CUP)

Abstract:

Beginning in the 1840s, high-ranking officials within the East India Company began a concerted effort to confiscate and annex princely states, citing misrule or a default of blood heirs. In response, metropolitan reformers and their Indian allies orchestrated a sustained legalistic defense of native sovereignty in the public sphere and emerged as vocal opponents of colonial expansionism. Adapting concepts put forth by both law of nations theorists and contemporary jurists, they sought to preserve longstanding treaties and defend the princes' exercise of internal sovereignty. The colonial government's failure to adequately define the basis of its modern “paramountcy” invited such creative maneuvering. Reformist opposition to the annexation of Awadh, the dispossession of the Nawab of the Carnatic, and the confiscation of Mysore demonstrates that international law did not simply function as a Eurocentric tool of subordination, but could also provide a bulwark against colonial depredations.

Read more with CUP.