Studies in the History of International Law – serie

This collection of essays gathers contributions from leading international lawyers from different countries, generations and angles with the aim of highlighting the multifaceted history of international law. This volume questions and analyses the origins and foundations of the international legal system. A particular attention is devoted to Hugo Grotius as one of the founding fathers of the law of nations. Several contributions further question the positivist tradition initiated by Vattel and endorsed by scholars of the 19th Century. This immersion in the intellectual origins of international law is enriched by an inquiry into the practice of the law of nations, including its main patterns and changing evolution as well as the role of non-western traditions and the impact of colonization. Le présent ouvrage réunit les contributions de juristes internationaux reconnus en vue d’éclairer les multiples facettes de l’histoire du droit international public. L’ouvrage analyse et questionne les origines et les fondements de l’ordre juridique international. Une attention toute particulière est dédiée à Hugo Grotius l’un des pères fondateurs du droit international. D’autres contributions questionnent également la tradition positiviste initiée par Vattel et confortée par la doctrine du 19ème siècle. Cette immersion dans les origines doctrinales du système juridique international est enrichie par l’étude de la pratique du droit international public, son évolution ainsi que le rôle des traditions non-occidentales et l’impact de la colonisation.

The Twelve Years Truce of 9 April 1609 made a temporary end to the hostilities between Spain and the Northern Netherlands that had lasted for over four decades. The Truce signified a crucial step in the recognition of the Republic of the Northern Netherlands as a sovereign power. As the direct source of inspiration for the 1648 Peace of Munster the Truce is a crucial text in the formation of the early modern law of nations. As few other texts, it reflects the radical changes to the laws of war and peace from around 1600.The Twelve Years Truce offers a collection of essays by leading specialists on the diplomatic and legal history of the Antwerp Truce of 1609. The first part covers the negotiation process leading up to the Truce. The second part collects essays on the consequences of the Truce on the state of war. In the third part, the consequences of the Truce for the sovereignty of the Northern and Southern Netherlands as well as it wider significance for the changing laws of war and peace of the age are scrutinised.

Balance of Power and Norm Hierarchy: Franco-British Diplomacy after the Peace of Utrecht offers a detailed study of French and British diplomacy in the age of ‘Walpole and Fleury’. After Louis XIV’s decease, European international relations were dominated by the collaboration between James Stanhope and Guillaume Dubois. Their alliance focused on the amendment and enlargement of the peace treaties of Utrecht, Rastatt and Baden. In-depth analysis of vast archival material uncovers the practical legal arguments used between Hampton Court and Versailles. ‘Balance of Power’ or ‘Tranquillity of Europe’ were in fact metaphors for the predominance of treaty law even over the most fundamental municipal norms. An implacable logic of norm hierarchy allowed to consolidate peace in Europe.

In the Shadow of Vitoria: A History of International Law in Spain (1770-1953) offers the first comprehensive treatment of the intellectual evolution of international law in Spain from the late 18th century to the aftermath of the Spanish Civil War. Ignacio de la Rasilla del Moral recounts the history of the two ‘renaissances’ of Francisco de Vitoria and the Spanish Classics of International Law and contextualizes the ideological glorification of the Salamanca School by Franco’s international lawyers. Historical excursuses on the intellectual evolution of international law in the US and the UK complement the neglected history of international law in Spain from the first empire in history on which the sun never set to a diminished and fascistized national-Catholicist state.

This treatise investigates the emergence of the early modern law of nations, focusing on Alberico Gentili’s contribution to the same. A religious refugee and Regius Professor at the University of Oxford, Alberico Gentili (1552–1608) lived in difficult times of religious wars and political persecution. He discussed issues that were topical in his lifetime and remain so today, including the clash of civilizations, the conduct of war, and the maintenance of peace. His idealism and political pragmatism constitute the principal reasons for the continued interest in his work. Gentili’s work is important for historical record, but also for better analysing and critically assessing the origins of international law and its current developments, as well as for elaborating its future trajectories.

In Taming Ares Emiliano J. Buis examines the sources of classical Greece to challenge both the state-centeredness of mainstream international legal history and the omnipresence of war and excessive violence in ancient times. Making ample use of epigraphic as well as literary, rhetorical, and historiographical sources, the book offers the first widespread account of the narrative foundations of the (il)legality of warfare in the classical Hellenic world. In a clear yet sophisticated manner, Buis convincingly proves that the traditionally neglected study of the performance of ancient Greek poleis can contribute to a better historical understanding of those principles of international law underlying the practices and applicable rules on the use of force and the conduct of hostilities.

Pre-modern long-distance trade was fraught with risks which often created conflicts of interest. The ensuing disputes and the ways the actors involved dealt with them belong to the field of conflict management. How did victims of maritime conflicts claim compensation? How did individual actors and public institutions negotiate disputes which transcended jurisdictional boundaries? What strategies, arrangements and agreements could contribute to achieve the resolution of such conflicts, and to what effect? These and other questions have mainly been studied separately for the Mediterranean and Atlantic regions. Here, the two seascapes are connected, allowing for a comparative long-term perspective. The different contributions enhance our understanding in the complexity of various approaches to conflict management.Thierry Allain, Cátia Antunes, Eduardo Aznar Vallejo, Catarina Cotic Belloube, Kate Ekama, Tiago Viúla de Faria, Ana Belem Fernández Castro, Jessica Goldberg, Roberto J. González Zalacain, Ian Peter Grohse, Thomas K. Heebøll-Holm, Laurence Jean-Marie, Daphne Penna, Pierrick Pourchasse, Pierre Prétou, Ana María Rivera Medina, Carlo Taviani, and Dominique Valérian.

International law’s turn to history in the Americas receives invigorated refreshment with Christopher Rossi’s adaptation of the insightful and inter-disciplinary teachings of the English School and Cambridge contextualists to problems of hemispheric methodology and historiography. Rossi sheds new light on abridgments of history and the propensity to construct and legitimize whiggish understandings of international law based on simplified tropes of liberal and postcolonial treatments of the Monroe Doctrine. Central to his story is the retelling of the Monroe Doctrine by its supreme early twentieth century interlocutor, Elihu Root and other like-minded internationalists. Rossi’s revival of whiggish international law cautions against the contemporary tendency to re-read history with both eyes cast on the ideological present as a justification for misperceived historical sequencing.

International Law in the Long Nineteenth Century gathers ten studies that reflect the ever-growing variety of themes and approaches that scholars from different disciplines bring to the historiography of international law in the period. Three themes are explored: ‘international law and revolutions’ which reappraises the revolutionary period as crucial to understanding the dynamics of international order and law in the nineteenth century. In ‘law and empire’, the traditional subject of nineteenth-century imperialism is tackled from the perspective of both theory and practice. Finally, ‘the rise of modern international law’, covers less familiar aspects of the formation of modern international law as a self-standing discipline.Contributors are: Camilla Boisen, Raphaël Cahen, James Crawford, Ana Delic, Frederik Dhondt, Andrew Fitzmaurice, Vincent Genin, Viktorija Jakjimovska, Stefan Kroll, Randall Lesaffer, and Inge Van Hulle.

Emphatic of the importance of legal thought to the rise and fall of empires, this book highlights the centrality of empires to the development of legal thought.Comprehension of the development of legal thought over time is necessary for any historical, philosophical, practical, or theoretical enquiry into the subject today, it is argued here. When seen against the background of broad geopolitical, diplomatic, administrative, intellectual, religious, and commercial changes, law begins to appear very resilient. It withstands the rise and fall of empires. It provides the framework for the establishment of new orders in the place of the old.Today what analogies, principles, and authorities of law have survived these changes continue to inform much of the international legal tradition.Contributors are: Clifford Ando, Lia Brazil, Joseph Canning, Edward Cavanagh, Zachary Chitwood, Emanuele Conte, Matthew Crow, Alberto Esu, Tiziana Faitini, Dante Fedele, Naveen Kanalu, Alexandre A. Loktionov, P. G. McHugh, Jordan Rudinsky, Mark Somos, Joshua Smeltzer, Lorenzo Veracini, Halcyon Weber, and Sarah Winter.

What was the state of the law and how states managed to fulfil their international legal obligations under the law of nations with respect to intellectual property protection? 13 contributors show how the transition of intellectual property from private rights holders and their non-state patrons evolves into state lawmaking. The book presents these transitions through international legal perspectives and the history of intellectual property rights in late modern societies in Europe, the United States, Asia and Colonial States in Africa. Contributors are: Daniel Acquah, Ainee Adam, Louise Duncan, Johanna Gibson, Philip Johnson, Jyh-An Lee, Yangzi Li, P. Sean, Morris, Peter Munkacsi, Zvi Rosen, Devanshi Saxena, Johannes Thumfart, and Esther van Zimmeren.

Dante Fedele’s new work of reference reveals the medieval foundations of international law through a comprehensive study of a key figure of late medieval legal scholarship: Baldus de Ubaldis (1327-1400). A student of Bartolus de Sassoferrato, Baldus wrote both extensive commentaries on Roman, canon and feudal law and thousands of consilia originating from particular cases. His writings dealt with numerous issues related to sovereignty, territorial jurisdiction, diplomacy and war, combining a rich conspectus of earlier scholarship with highly creative ideas that exercised a profound influence on later juristic thought. The detailed picture of the international law doctrines elaborated by a prominent medieval jurist offered in this study contributes to our understanding of the intellectual archaeology of international law."Dr. Fedele’s monograph will no doubt become a necessary work of reference for any scholar interested in the history of international law. [...] Beyond the specific doctrines on particular areas of international law, Dr. Fedele’s study of Baldus shows how in the area of international governance, jurists sought to marshal different expressions of normativity." - Alain Wijffels, Foreword

The thought and work of the Jesuit Francisco Suárez (1548-1617) is widely acknowledged as the culmination point of the contribution of the theologians and jurists of the so-called School of Salamanca to the development of modern Western law. This collection of studies on the legal work of Suárez explores some of his major forays into the law. Both his theoretical system-building as well as his interventions in practical questions are covered. Next to discussions on the nature of law and its different categorisations, they extend to various subbranches of the law including family law, property law, the law of obligations, criminal law and international law. Contributors are: Dominique Bauer, Daniel Schwartz, João Manuel Azevedo Alexandrino Fernandes, Lisa Brunori, Wim Decock, Bart Wauters, Gaëlle Demelemestre, Jean-Paul Coujou, and Cintia Faraco.

This volume offers new insight into key developments in the history of protection for patent rights during the period 1791-1883. The author presents a detailed examination of the underlying theoretical bases advanced for the protection of patents in various key European countries, and including new material focusing on the political rhetoric of protagonists and opponents of the patent system during the course of the patent abolitionist debates of the 1860s and 1870s. Finally, the book examines in detail the factors which prompted the movement towards international protection of patents, culminating in the Paris Convention for the Protection of Industrial Property of 1883.

In the late twentieth century, as the United Nations struggled to come up with a new legal system for the oceans, one woman saw the opportunity to promote radical new ideas of justice and internationalism. Ocean governance expert Elisabeth Mann Borgese (1918–2002) spent decades working with the United Nations Law of the Sea Convention. Throughout this sprawling series of global conferences, she navigated allegiances and enmities, intrigues and setbacks, fighting determinedly to develop a just ocean order.Featuring extensive research and new interviews with Mann Borgese’s colleagues and family, this book explores timeless questions of justice and international collaboration and asks whether the extraordinary drive and vision of a single person can influence the course of international law.

Privateering was legal whereas piracy was illegal. That much everyone knows. But what exactly was privateering? Answering this question turns out to depend not so much on the relationship between privateering and piracy as on the relationship between privateering and other forms of maritime raiding that had been considered legal long before the word ‘privateering’, or the practice it denoted, came into existence. This book clarifies all these relationships and explains how privateering emerged as a new legal category in the late sixteenth and early seventeenth centuries. The subject is approached from a British perspective, in the light of developments elsewhere, including the movement towards a new understanding of the law regulating relations between nations.

This title is published in Open Access with the support of the Japan Institute of International Affairs.This volume sheds light on Japan's territorial situation from a unique perspective by analyzing the historical evolution of the concept of “territory” and the various legal theories on resolving territorial disputes. Each of the chapters in this book presents multiple points of view that provide significant insight into the resolution of Japan’s territorial issues, such as those concerning the Northern Territories, Takeshima, and the Senkaku Islands. This book will be a valuable and useful resource to practitioners, researchers, and even members of the general public with an interest in territorial disputes.Contributors are: Masaharu Yanagihara, Tadashi Mori, Tetsuya Yamada, Yuichi Sasaki, Atsuko Kanehara, Tomofumi Kitamura, Hironobu Sakai, Tomoko Fukamachi, and Dai Tamada.

This collection of essays explores the role intellectual property played in the interwar period and the expansion and protection of intellectual property rights. The geographical scope of the book is global so as to give perspectives from different regions on how intellectual property law developed. The topics covered range from a synopsis of intellectual property in Jewish works confiscated by the Nazis to how intellectual property can be understood as part of the evolution of inventors’ moral rights. This volume’s aim is to develop new narratives on the ideas and structures of intellectual property during the interwar period and on how those ideas and structures were held together by the competing forces of markets, ownership and political ideals of the international legal order at that time.Contributors are: Michael Blakeney, Enrico Bonadio, Patricia Covarrubia, Christine Haight Farley, Laura Ford, Giacomo Gabbuti, Johanna Gibson, Phillip Johnson, Ekaterina Kirsanova, Anat Lior, P. Sean Morris, Alessandro Nuvolari, Emmanuel Oke, Véronique Pouillard, Akshita Rohatgi, Anele Simon, Caterina Sganga, Noppanun Supasiripongchai, Masabumi Suzuki, and Lior Zemer.

When and why did international law begin to oppose war? For centuries, sovereignty implied the right to wage war. Yet over the past hundred years, a remarkable succession of treaties, courts, and organisations sprang to life that sought to prohibit war. From a fringe ambition, the ideal of ‘peace through law’ became the foundation of international law. This book traces part of this evolution back to the small peace movement of the early nineteenth century, recounting how the earliest organised pacifists built their legal case against war. The stories of this diverse social movement are told from numerous perspectives, and each sheds further light on how ordinary men and women helped lay the groundwork for one of the greatest shifts in legal thinking about peace and war.

Who owns the sea? This book explores this timeless question by tracing the development of claims over the sea from the late Middle Ages to the early modern era, shedding light on the complex interplay between legal arguments, political interests, and geostrategic realities. By the time Hugo Grotius’s Mare liberum (1609) famously championed the freedom of the seas, competing traditions of ‘claimed seas’ had already shaped European legal debates for centuries. Examining three macro-regions – the Mediterranean, the seas of Northern Europe, and the world oceans – this study challenges the dominant Grotius-centric narrative, offering a broader perspective on how political actors and jurists justified exclusive maritime rights long before John Selden’s Mare clausum (1635). While assessing the Eurocentric foundations of the modern law of the sea, it reveals how historical legal arguments and notions continue to shape contemporary ocean governance.

For today’s practitioners, the history of the judicial functions of consulates is far more colourful and obscure than modern consular law might suggest. Take, for instance, Consul Annibale de Rossetti in Egypt, who had to arbitrate a lawsuit between two German merchants and was completely overwhelmed. De Rossetti neither knew German nor was he familiar with the law he was expected to apply. Modern consuls often react with disbelief at the fact that their predecessors acted not only as judges, but also as regulatory authorities and bailiffs. This volume brings together contributions on the history of the legal roles and functions of consulates, spanning from America to China and from their origins in the Middle Ages to the modern consulate.Contributors are: Marcella Aglietti, Eleonora Angella, Arnaud Bartolomei, Thibault Bechini, Giorgio Ennas, Ana Belem Fernández Castro, Juliette Françoise, Laura Galoppini, Sacha Gauthier Olssy, Thomas Gidney, Berna Kamay-Ulusay, Jessica Marglin, Cédric Quertier, Lars Regula, Victor Simon, Jörg Ulbert, and Dominique Valérian.L’histoire des fonctions judiciaires des consulats est bien plus riche et obscure pour les praticiens d’aujourd’hui que ne le laisse penser le droit consulaire moderne. Par exemple, lorsque le consul Annibale de Rossetti, en Égypte, dut trancher un litige entre deux commerçants allemands, il fut dépassé par la situation. De Rossetti ne connaissait ni l’allemand, ni le droit qu’il était censé appliquer. Les consuls modernes réagissent souvent avec incrédulité en apprenant que leurs prédécesseurs exerçaient à la fois les fonctions de juges, d’autorités réglementaires et d’huissiers de justice. De volume réunit des contributions portant sur l’histoire des rôles et fonctions juridiques des consulats, de l’Amérique à la Chine, depuis leurs origins au Moyen Âge jusqu’au consulat moderne.