scholarly journals The Territorial Temptation: A Siren Song at Sea

2006 ◽  
Vol 100 (4) ◽  
pp. 830-851 ◽  
Author(s):  
Bernard H. Oxman
Keyword(s):  
International Law ◽  
Law Of The Sea ◽  
Territorial State ◽  
International Legal Order ◽  
Unrestricted Access ◽  
History Of ◽  
The Law ◽  
History Of International Law ◽  
Significant Measure ◽  
Rational Conclusion

La mer a toujours ete battue par deux grands vents contraires: le vent du large, qui souffle vers la terre, est celui de la liberri; le vent de la terre vers le large est porteur des souverainetes. Le droit de la mer s'est toujours trouve au coeur de leurs affrontements.The history of international law since the Peace of Westphalia is in significant measure an account of the territorial temptation. The bonds of family, clan, tribe, nation, and faith; the need to explore, to trade, and to migrate; the hope for broader cooperation to confront common challenges—all in time came to be subordinated in the international legal order to the insistent quest for supremacy of the territorial state. At least in theory. At least on land.The sea yields a different story. It wasn't always so. And perhaps it isn't necessarily so. But in fact the law of the land and the law of the sea developed in very different ways. If the history of the international law of the land can be characterized by the progressive triumph of the territorial temptation, the history of the international law of the sea can be characterized by the obverse; namely, the progressive triumph of Grotius's thesis of mare liberum and its concomitant prohibition on claims of territorial sovereignty. That triumph reflected not only the transitory nature of human activity at sea, but a rational conclusion that the interests of states in unrestricted access to the rest of the world outweighed their interests in restricting the access of others at sea.

scholarly journals THE “ENGLISH SCHOOL” OF INTERNATIONAL LAW: SOUNDINGS VIA THE 1972 JUBILEE ESSAYS

2021 ◽  
Vol 80 (S1) ◽  
pp. S126-S153
Author(s):  
Surabhi Ranganathan
Keyword(s):  
International Law ◽  
Legal Order ◽  
Law Of The Sea ◽  
Close Reading ◽  
English School ◽  
The Future ◽  
International Legal Order ◽  
Anniversary Issue ◽  
History Of ◽  
History Of International Law

AbstractAs part of the Cambridge Law Journal's centenary celebrations, this article reads two essays from the journal's 50th anniversary issue. The essays, by Cambridge professors Robert Jennings and Derek Bowett offer resources for the history of international law and its historiography. They shine a light on key debates on the law of the sea at a crucial moment of its development. A close reading of these essays also reveals starting points for new scrutiny of an “English” tradition of international law, including the place of the academy within the tradition, its blueprints for the future of international law and international legal order, and its relation to empire and capitalism.

The Use of Vattel in the American Law of Nations

2012 ◽  
Vol 106 (3) ◽  
pp. 547-571 ◽  
Author(s):  
Brian Richardson
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
International Peace ◽  
Founding Fathers ◽  
Law Of Nations ◽  
American Law ◽  
History Of ◽  
The Law ◽  
History Of International Law

Although careful scholarly treatment of the history of international law is now thriving, within U.S. courts that history now begins with one eighteenth-century treatise published in Neuchâtel, Switzerland, in 1758 and published in translation for modern readers under the aegis of the Carnegie Endowment for International Peace in 1916. This treatise is Emer de Vattel’s Droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains. My aim in this article is to appraise the elevation of Vattel to vaunted originalist heights in U.S. law. The claim that Vattel’s theory of the law of nations completely represents how the Founding Fathers (Founders) understood the law of nations should be rejected as a matter of history.

Stages of the formation of treaty law in the history of international law

2021 ◽  
pp. 90-95
Author(s):  
Marina Okladnaya ◽  
Anastasia Pererodova
Keyword(s):  
International Relations ◽  
International Law ◽  
Main Body ◽  
International Treaties ◽  
International Treaty ◽  
Treaty Law ◽  
History Of ◽  
The Law ◽  
History Of International Law ◽  
Historical Periods

Problem setting. An international treaty is an agreement between two or more subjects of international relations concerning the establishment, modification or termination of mutual rights and obligations. In modern time an international treaty is the universal and primary source of international law and, at the same time, the law of treaties as a branch of international law occupies a central place in this system. The role of the treaty is constantly increasing, so it is important to study how treaty law was formed in order to understand how it has changed over history, and what factors have influenced the formation of the main branch of international law. Analysis of recent researches and publications. The law of international treaties causes increased attention of lawyers to the study, research and analysis of its main aspects. Among the domestic and foreign scholars who have made a significant contribution to the study of the law of treaties can be distinguished such as V. Butkevich, Y. Brownlie, A. Talalaev, O. Merezhko, O. Nazarenko, F. Martens, V. Shurshalov, I. Lukashuk, O. Zadorozhniy and others. Target of research. Study of international treaty at different stages of formation of international law, analysis and comparison of forms, content, functions and significance of the treaty in different historical periods. Article’s main body. The article is devoted to the development and formation of the basic branch of international law – treaty law. It studies the stages of formation of the institute of treaty law during different periods of history, identifies the features of the treaty at each stage of formation. Conclusions and prospects for the development. The agreement is an important and necessary instrument of interaction and communication between people, it establishes ties between peoples and states, helps to resolve conflicts, that is why the signing of treaties is a significant mechanism for the regulation of human relations since ancient times. In this article we have traced how different historical periods influenced the formation of international treaty law, which events were of key importance for the development of international law in general. Throughout the history of international law, the treaty has undergone a number of transformations of its forms, types and procedures of conclusion. The treaty form of consolidation of international relations is the basis of stability and efficiency of the legal order in international law. At the present time, the law of international treaties is a self-sufficient, developed branch and system of international law. It is the key branch of international law with its institutions, low basic principles, and continues to develop rapidly and irreversibly.

Contingencies in International Legal Histories

2021 ◽  
pp. 111-128
Author(s):  
Filipe dos Reis
Keyword(s):  
International Law ◽  
Legal Order ◽  
Multiple Perspectives ◽  
International Legal Order ◽  
History Of ◽  
History Of International Law ◽  
Different Origins

This chapter reconstructs how contingency is situated in international legal histories. In particular, it focuses on how contingency relates to narratives of international law’s origin and progress. It explores, first, how traditional and recent international legal histories locate the origin of international law. Different authors—advancing different projects—situate international law within a range of different origins. In the end, the origin of international law is contingent. Moreover, it is possible for some authors, particularly those problematising international law’s Eurocentric origin, to conceptualise the link of contingency and origin not only as the contingency of origin but also in the form of a contingency as origin of international law, as international law originates from the confrontations, translations, encounters, and struggles of various actors. The chapter analyses, second, arguments about progress in international legal histories and argues that these arguments are tied to different conceptualisations of the observer, i.e. the international legal historian. Here, more traditional international legal histories often rely on an understanding of a non-contingent observer, who seeks to create an international legal order that is able to tame the contingencies of the international sphere. However, such narratives of international law’s linear progress have come under scrutiny recently as several interventions started to direct our attention to the multiple perspectives and multilinear trajectories in the making of the current international legal order or invite us to conceptualise the history of international law as a sequence of contingent disruptive events. The chapter concludes with a brief discussion of what it could mean to open international legal histories for different conceptualisations of origin and to give up the idea of a non-contingent observer inscribed in progressive narratives.

1 Historical Development of the Law of the Sea

2015 ◽  
Author(s):  
Treves Tullio
Keyword(s):  
Twentieth Century ◽  
United Nations ◽  
International Law ◽  
Historical Development ◽  
Law Of The Sea ◽  
The Third ◽  
History Of ◽  
Historic Development ◽  
The Law ◽  
Early Phases

This chapter highlights, in the historic development of the law of the sea, the roots of the law as it currently stands and the questions still open today. It considers the early phases of the evolution of the law of the sea up to the end of the nineteenth century followed by, in more detail, developments that took place in the twentieth century up until the Third United Nations Conference on the Law of the Sea. This fundamental event in the history of the law of the sea in the twentieth century is the basis of the international law of the sea of today, and is dealt with in subsequent chapters of this Handbook.

The Authority of Vattel

1913 ◽  
Vol 7 (3) ◽  
pp. 395-410 ◽  
Author(s):  
Charles G. Fenwick
Keyword(s):  
International Relations ◽  
International Law ◽  
The Political ◽  
Law Of Nations ◽  
The World ◽  
History Of ◽  
The Law ◽  
History Of International Law ◽  
Political Philosopher

There is no more significant commentary on the growth of international law, both in precision and in comprehensiveness, than an estimate of the relative authority of the name of Vattel in the world of international relations a century ago and in that of today. A century ago not even the name of Grotius himself was more potent in its influence upon questions relating to international law than that of Vattel. Vattel's treatise on the law of nations was quoted by judicial tribunals, in speeches before legislative assemblies, and in the decrees and correspondence of executive officials. It was the manual of the student, the reference work of the statesman, and the text from which the political philosopher drew inspiration. Publicists considered it sufficient to cite the authority of Vattel to justify and give conclusiveness and force to statements as to the proper conduct of a state in its international relations.At the present day the name and treatise of Vattel have both passed into the remoter field of the history of international law. It is safe to say that in no modern controversy over the existence and force of an alleged rule of international law would publicists seek to strengthen the position taken by them by quoting the authority of Vattel. As an exposition of the law of nations at a given period of its growth, the work can, it is true, lose nothing of its value, but in saying that it has thus won its place irrevocably among the classics of international law, we are merely repeating that it has lost its value as a treatise on the law of the present day.

Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited

2012 ◽  
Vol 25 (4) ◽  
pp. 909-934 ◽  
Author(s):  
CHRISTINA BINDER
Keyword(s):  
International Law ◽  
International Investment ◽  
State Responsibility ◽  
International Human Rights Law ◽  
International Investment Law ◽  
Force Majeure ◽  
State Practice ◽  
History Of ◽  
The Law ◽  
History Of International Law

AbstractStability versus change is one of the fundamental debates of the law of treaties. The limits of pacta sunt servanda – under which conditions a state may derogate from treaty obligations when circumstances change – appears as a constant throughout the history of international law. This article examines the limits of pacta sunt servanda in times of fragmentation. It first discusses the mechanisms of general international law – supervening impossibility of performance and fundamental change of circumstances (Articles 61 and 62 VCLT) in the law of treaties and force majeure and the state of necessity (Articles 23 and 25 of the ILC Articles on State Responsibility) in the law of state responsibility. It is argued that they provide only insufficient means to accommodate change. Against that background, derogation is examined in specific treaty regimes, including international human rights law, the law of the sea, and international investment law. Treaty-based termination/withdrawal clauses and emergency exceptions are analysed accordingly. Especially the latter are formulated in a regime-specific way, adapting derogation from treaty obligations to the requirements of the respective treaty regimes. On the basis of an empirical analysis of relevant state practice it is argued that this regime-specificity – a sign of fragmentation – is especially important since there is an increased need for temporary derogation in contemporary international law.

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