CHAPTER: Ignacio DE LA RASILLA Y DEL MORAL, "Quintiliano Saldaña Garcia-Rubio (1878-1938)" in The Dawn of a Discipline – International Criminal Justice and Its Early Exponents, Frédéric MEGRET & Immi TALLGREN (eds.), forthcoming (SSRN)

(image source: KUL)

Abstract:

Quintiliano Saldaña Garcia-Rubio (1878-1938) was one of the leading proponents of ‘legal pragmatism’ in European criminal law circles in the interwar period and the author of the first course on international criminal justice delivered at The Hague Academy of International Law in 1925. This chapter examines the three main stages in Saldaña’s polyhedral intellectual life. The first part surveys Saldaña’s formative years and his early academic professional development, examining the influence of Franz von Liszt’s Marburg School of Criminal Law on his academic interests and professional career until the end of the First World War. The second part examines Saldaña’s seminal theory of ‘universal social defence’ and his 1925 Hague Academy course, La justice pénale internationale, which included one of the first projects for an international criminal code. It also reviews Saldaña's legislative contribution to the polemical 1928 Spanish Criminal Code project, which is widely considered an example of a proto-fascist criminal code. The third part follows Saldaña’s career during the Second Spanish Republic, surveying his criminal law and criminology work in the development of his theory of ‘legal pragmatism.’ It also revisits his engagement with the mid-1930s international legal debates on terrorism in the framework his contribution to the works of the International Bureau for the Unification of Criminal Law. The conclusion revisits the mysterious circumstances of Saldaña’s death during the Spanish Civil War and the dark legacy of his legal thought on the criminal law system of General Franco’s regime in Spain.

Read the full paper on SSRN.

(source: International Law Reporter)

SSRN PAPER: Oona HATHAWAY & Scott SHAPIRO, "International Law and Its Transformation Through the Outlawry of War", forthcoming in International Affairs

(image source: Wikimedia Commons)

Abstract:

The First World War was the last great war of what we have called the “old world order” — the legal regime that European states adopted in the seventeenth century and spent the next three centuries imposing on the rest of the globe. This order formed the basis of what scholars call “classical international law.” But this body of rules differed starkly from the ones that governs today: The old world order did not just sanction war, it relied on and rewarded it. States were permitted to wage war to right any legal wrong, and the right of the victors to extract territory and treasure from the losers was legally guaranteed. That all began to change when the nations of the world decided to outlaw war in the 1928 Kellogg-Briand treaty. As a result, the rules governing international behaviour have transformed radically — indeed, they are the polar opposite of what they once were. This article describes the decision to outlaw war and the transformation it unleashed in the world order generally, and in international law specifically. We argue that a simple but perplexing fact—that modern international law prohibits states from using force to enforce international law — is key to understanding international law and state behavior in the modern era.

Download the fulltext here.

(source: Legal History Blog)

SSRN PAPER: Matthias GOLDMANN, The Entanglement of Sovereignty and Property in International Law: From German Southwest Africa to the Great Land Grab?

(image source: SSRN)

Abstract:

This article argues that an intricate entanglement existed between sovereignty and property in German Southwest Africa. Germany’s control over Southwest Africa depended considerably on European settlements, which received logistical, financial, and military support by Germany. The result was a symbiotic relationship between the government and private economic actors, a form of state capitalism under which private settlements contributed to the establishment of territorial control, a prerequisite of sovereign power. Contractual relationships suggesting formally equal relationships, and during and after the genocide, a mix of arguments drawing on tort law and an idea of formal legality, provided crucial justification for the assumption of territorial control. This description contradicts standard accounts of sovereignty, which tend to turn a blind eye on private property. The article discusses the implications of these findings for today’s international law, including for state responsibility for transnational corporations and the so-called Great Land Grab, the acquisition of vast lands in Africa by foreign public and private agents.

Read the paper here.

Source: International Law Reporter.

SSRN PAPER: John C. HARRISSON, 'The Constitution and the Law of Nations', Georgetown Law Journal XVI (2018), 1659-1705

(image source: Wikimedia Commons)

Abstract:

Under the original understanding of the Constitution, customary international law features in the U.S. legal system as general law. It is not law of the United States within the meaning of Articles III or VI of the Constitution, and so does not serve as a basis for federal question jurisdiction or override contrary state law. Under the original understanding, the Constitution does not confer the protections of the international law of state-state relations on either foreign states or governments that have been recognized as such by federal political actors. Congress may confer those protections by statute, but in the absence of statute or treaty, they rest on general law. The Constitution’s text indicates that the laws of the United States referred to in Articles III and VI consist entirely of federal statutes. The Federal Convention’s drafting process indicates that members of the convention had that understanding of the text they produced. That process also indicates that the drafters probably understood the laws referred to by the Take Care Clause of Article II to consist of federal statutes. Prominent figures in the ratification debates treated Articles III and VI as using the term “laws of the United States” to refer to statutes. The First Congress drafted the Judiciary Act of 1789 on the assumption that the laws of the United States referred to in Articles III and VI were federal statutes. During the 1793 prosecution of Gideon Henfield for non-statutory criminal violations of the United States’ neutrality, a number of leading figures took the position that the federal courts could entertain prosecutions under unwritten law. It is unlikely, however, that any of them meant to assert that the law of nations was law of the United States within the meaning of Articles III or VI.

Fulltext on SSRN.

(source: Legal History Blog)

SSRN PAPER: Matthias GOLDMANN, European Integration in the History of International Law [Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018-26]

(image source: scholarlykitchen)

Abstract:

This paper argues that the Treaties of Rome and the process of European integration they heralded had a lasting impact on the development of international law. However, their significance is usually misattributed. While European law has had little impact on international legal doctrine, and while European integration has remained unique as a political project, European law and the process of European integration have served international law as an important progress narrative. In this respect, they have had an influence on important background understandings characterizing international law since the postwar era, including on the perception of international law as universal, autonomous, pluralistic, and economically liberal. The progress narrative culminates in the view that international law is in a normatively ambitious process of constitutionalization, an idea imported from European law. This progress narrative is now under threat as European integration faces existential difficulties.The crisis of European integration might therefore anticipate a crisis of international law.

Read the full paper on SSRN.
(Source: Law & Humanities Blog)

SSRN PAPER: Jutta BRUNNÉE & Stephen J. TOOPE, International Law and the Practice of Legality: Stability and Change

(image source: SSRNBlog)

Abstract:

Drawing on the practice-turn in constructivism and in international relations (IR) theory more generally, our interactional law framework provides a counterpoint to the largely static accounts of international law that still prevail in the interdisciplinary literature. We argue that a particular approach to managing stability and change is inherent in, and indeed characteristic of, legality and the rule of law in international as in domestic law. Therefore, to get at law’s distinctiveness, and to understand the specifically legal interplay between stability and change, one must examine law’s internal structure. Furthermore, legality must actually be practiced. For example, the conclusion of a treaty is often just the beginning of a long law-building process – the document alone ensures neither stability nor change in law. Finally, a focus on internal traits and practices of legality allows full consideration of the formal sources of international law as well as the so-called soft norms that are shaping international interaction involving an ever-wider range of actors. Our “interactional law” framework places particular emphasis on what we call the “practice of legality.” We argue that this concept is central to understanding how law can both enable and constrain state actions, and why international law is a distinctive language of justification and contestation. In turn, the focus on stability and change is helpful because it directly confronts some of the persistent doubts and assumptions about international law, in particular in relation to international politics. Our work is animated by the intuition that the dominant views in IR and international law scholarship underestimate international law’s capacity to mediate stability and change, in part because they focus on the surface of law (treaties, statutes etc.) and external factors (interests, enforcement). They neglect the deeper structure of what makes norms law, and the distinctive practices that account for its relative stability and its capacity for change.

Read the full paper here.

PAPER on SSRN : Anthony J. GAUGHAN, D-Day, Collateral Damage, and the 1923 Hague Draft Rules of Aerial Warfare

(Source: SSRN)

Anthony J. Gaughan has published a paper on SSRN dealing with the 1923 Hague Draft Rules of Aerial Warfare and D-Day

ABSTRACT

This paper examines the question of whether the adoption of the 1923 Hague Draft Rules of Aerial Warfare as binding international law might have changed the outcome of the D-Day invasion during World War II. The delegates to The Hague conference proposed a severe restriction on the use of air power in urban areas, but the rules were never adopted as international law.

Two decades later, the international community’s failure to adopt the 1923 Hague Draft Rules had a significant impact on the D-Day invasion. On June 6, 1944, the Allies mounted the largest amphibious operation in history as 150,000 troops stormed the Normandy beaches of Nazi-occupied France. The landings succeeded in no small part because of the Allied air forces, which mounted a massive interdiction campaign to prevent the German army from rushing to the French coastline and destroying the Normandy beachhead. Operation Overlord, the code name for the D-Day invasion, marked a major turning point in the war, accelerating the collapse of Nazi Germany, which surrendered 11 months later. As the historian Ian Kershaw has observed, Operation Overlord marked “the beginning of the end for the Third Reich.”

The D-Day air campaign, however, came at a severe cost for French and Belgian civilians. At least 12,000—and possibly more than 25,000—French and Belgian civilians died as unintended casualties of the Allied bombing campaign. Although the Allied air strikes clearly played a critical role in interdicting the German army, it was by no means clear that the vast scale of the bombing was necessary. Whether the interdiction objectives could have been achieved by a more modest—and less destructive—air campaign was an open question at the time and remains so for many historians today. 

One of the principal reasons why the Allies implemented a massive area bombing campaign against French and Belgian rail centers was because international law did not provide clear guidance regarding air warfare. But it might have had the 1923 Hague Draft Rules of Aerial Warfare been adopted as binding international law. The Draft Rules prohibited area bombing in urban areas, which is precisely what the Allies engaged in during the D-Day air campaign. Had the Rules been in effect in 1944, the Allied air campaign in support of the D-Day operation may well have been much more modest in nature. But would the reduction in collateral damage have come at the cost of jeopardizing the invasion’s success? The story of The Hague Draft Rules and the controversy over the D-Day air campaign demonstrates the unique challenges and inherent complexity of the effort to use international law to protect civilian populations during wartime.

The paper can be found here.

(source: ESCLH blog)

CHAPTER: Anne ORFORD, 'International Law and the Limits of History', in: Wouter WERNER, Alexis GALÁN & Marieke DE HOON (eds.), The Law of International Lawyers: Reading Martti Koskenniemi. Cambridge: CUP, Aug 2015

(image source: SSRN)

Prof. Anne Orford (Melbourne) posted 'International Law and the Limits of History', a forthcoming chapter in The Law of International Lawyers: Reading Martti Koskenniemi (eds. Wouter Werner, Alexis Galán and Marieke De Hoon, CUP).

Abstract:

This chapter explores the effect that the turn to history has had on the field of international law. The publication of Martti Koskenniemi’s history of the international legal profession, The Gentle Civilizer of Nations, is often presented as representing a moment at which the field of international law took a ‘turn to history’, or more precisely, a turn in its mode of writing history. Of course, international law has always had a deep engagement with the past. Past texts and concepts are constantly retrieved and taken up as a resource in international legal argumentation and scholarship. Thus the ‘turn to history’ trope marks a turn to history as a critical method, rather than a turn to history as a substantive engagement with the past. Koskenniemi himself introduced The Gentle Civilizer as a ‘move from structure to history in the analysis of international law’ and ‘a kind of experimentation in the writing about the disciplinary past’. In later work, however, he became much conventional in his exposition of history as method, arguing against the ‘sin of anachronism’ and urging critical scholars to focus on the meaning of texts for their authors’ ‘contemporaries’. A similar turn to history as method more broadly begin to shape new writing about international law over the decade following The Gentle Civilizer’s publication. This chapter suggests that the turn to history as method that followed in the wake of The Gentle Civilizer was an abandonment of the critical potential of that initial work. What marked out The Gentle Civilizer as a singular achievement was Koskenniemi’s attempt to hold together the history of international law, the sociology of international law, and the practice of international law. If the attempt to hold together those genres is abandoned, the critical potential of historical work in international law is lost. The chapter concludes by exploring what the historicizing of international law as a critical gesture might mean for the field going forward.

More information on SSRN.
(source: Legal History Blog)

PAPER ON SSRN: Samuel MOYN (Harvard), "From Aggression to Atrocity: Rethinking the History of International Criminal Law"

(image source: SSRN)

Prof. Samuel Moyn (Harvard) posted "From Aggression to Atrocity: Rethinking the History of International Criminal Law" on SSRN.

Abstract:

Explaining the shift from the priority of the charge of "aggression" in the beginning of the field of international criminal law to its exclusion in the age of the its reinvention around a suite of atrocity charges is the central task for historians in understanding this domain — and it also should matter for observers of the world today. Yet routinely, international criminal law is presented as running through a smooth trajectory, rather than a stark reversal or at least massive shift. For this reason, this essay gathers together elements for a case for the transformation in the first place, and floats some hypotheses about its timing and causes.

 (Source: International Law Reporter)