The Myth of Primordialism in Cicero's Theory of Jus Gentium

2010 ◽  
Vol 23 (3) ◽  
pp. 479-506
Author(s):  
WILLIAM E. CONKLIN
Keyword(s):  
Legal Theory ◽  
Laws Of Nature ◽  
International Community ◽  
Human Beings ◽  
International Court Of Justice ◽  
State Laws ◽  
International Court ◽  
Natural Law Theory ◽  
Justice Judgments ◽  
Civilized World

AbstractAfter setting out the importance of the notion of an international community in contemporary treaties, International Court of Justice judgments and opinio juris, this paper claims that we need to turn to Cicero's works in order to appreciate a sense of what an international community is. Cicero was the first jurist known to recognize and elaborate a theory of the international community and this through his concept of jus gentium. Cicero's theory of jus gentium, I argue, was neither a positivist theory nor a natural law theory. Instead, jus gentium dwelt in an intermediate position between posited state laws and the laws of nature. I find a problem, however, in that Cicero exempts certain types of society from the guidance and protection of the jus gentium. I document examples of the sort of society so exempted. In order to understand why Cicero exempts such societies from the protection of the jus gentium, I argue, Cicero's theory depends on a primordial condition where human beings, living an animal-like existence, lack a language and reason. Cicero posits that human beings must leap from such a primordial condition into a civilized world where language is shared. Cicero associates a civilized world with communication, deliberation, reason, and law, particularly the jus gentium. His theory of jus gentium thereby hierarchizes societies and begs that we ask whether such a hierarchy remains presupposed in contemporary international law and international legal theory.

Innate Cosmopolitan Dialectics at the ICJ: Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez

2014 ◽  
Vol 27 (2) ◽  
pp. 309-330
Author(s):  
GEOFFREY GORDON
Keyword(s):  
International Law ◽  
International Community ◽  
Public Order ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
Dialectical Process ◽  
The Right

AbstractTraditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

Barcelona Traction Share

2018 ◽  
pp. 141-150 ◽  
Author(s):  
Filippo Fontanelli ◽  
Giuseppe Bianco
Keyword(s):  
International Law ◽  
General Public ◽  
Transnational Corporations ◽  
International Community ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
State Obligations ◽  
Canadian Company ◽  
A Share

This chapter discusses a share certificate issued by the defunct Barcelona Traction company, and explores the layers of its meaning and significance. First, to the general public it tells the story of a Canadian company, with Spanish subsidiaries, whose shares were mainly owned by Belgian citizens. Second, it reminds lawyers of the dispute between Belgium and Spain before the International Court of Justice, in the matter of the corporate hijacking of the company at the hands of Francisco Franco’s cronies. Third, it evokes to international jurists controversial technicalities like the nationality of transnational corporations and the nature of state obligations owed erga omnes, that is, to the international community. The chapter illustrates how a piece of paper has—within a certain epistemic circle—quasi-mystical connotations, speaking to the promises and the unfulfilled potential of international law.

Reading RP Anand in the Post-Colony

2019 ◽  
pp. 297-317
Author(s):  
Prabhakar Singh
Keyword(s):  
International Law ◽  
Cultural Differences ◽  
Legal Theory ◽  
International Court Of Justice ◽  
Power Politics ◽  
Post Colonial ◽  
Court Of Justice ◽  
International Court ◽  
New States ◽  
Functional Inclusion

Professor RP Anand analysed the birth of new states and their theoretical and functional inclusion in the post-UN world. The 1947 Indian independence afforded Indian lawyers a choice between Nehruvian internationalism and Judge Pal’s Tokyo dissent. Essentially, Anand preferred state interest over cultural differences as the currency of international law while celebrating the UN Charter, the International Court of Justice, and the UN Convention of the Law of Sea as the achievements of the mankind. Anand saw the rejection of international law as synonymous with power politics. While optimistic, his universalism engendered a Western anti-thesis that an Asian approach to international law, if any, was otiose. Subsequently, post-colonial scholars responded with a synthesis that brought colonialism from periphery to the centre of international legal theory.

Controlling Interlocutory Aspects of Proceedings in the International Court of Justice

2000 ◽  
Vol 94 (2) ◽  
pp. 307-317
Author(s):  
Shabta Rosenne
Keyword(s):  
United Nations ◽  
International Community ◽  
General Assembly ◽  
Fundamental Change ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The United Nations ◽  
Point Of Departure

Profound changes in the structure and composition of today’s international community of states and equally profound changes in the kinds of disputes coming before the International Court of Justice are making essential a thorough review of the Court’s methods of handling contentious cases, and possibly advisory cases as well. Attention has been focused on hearings, where some useful modifications have been introduced. It seems, however, that more is needed than adjustments in the oral proceedings, which nevertheless can serve as the point of departure for further developments. Article 48 of the Statute gives the Court almost unfettered power to “make orders for the conduct o f the case... and to make all arrangements connected with the taking o f evidence” (emphasis added). As will be seen, in 1999 the General Assembly of the United Nations encouraged the Court to adopt additional measures aimed at expediting its proceedings. This Note has the limited purpose of drawing attention to some recent measures taken by the Court with that end in view, and suggests directions for a more fundamental change in the Court’s procedures.

Not such a ‘sui generis’ case after all: assessing the ICJ opinion on Kosovo

2011 ◽  
Vol 39 (1) ◽  
pp. 1-11 ◽  
Author(s):  
James Ker-Lindsay
Keyword(s):  
International Law ◽  
International Community ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
Parent State ◽  
International Court ◽  
Narrow View ◽  
The Icj ◽  
The Right ◽  
Key Questions

For 60 years, the international community has limited the right of territories to gain independence without the permission of the “parent state.” Such limits were, however, challenged when Kosovo unilaterally declared independence from Serbia, in February 2008. As a result, Belgrade referred the matter to the International Court of Justice (ICJ). On 22 July 2010, it came back with its long-awaited decision. Taking a narrow view of the question, the majority argued that, in general, declarations of independence, as mere statements, do not violate international law unless stated otherwise by the Security Council. Thus, Kosovo's declaration of independence cannot be considered as being wholly “unique” – as those states that supported its statehood have claimed. On the key questions of whether Kosovo's secession is legal, or if it is even a state, they chose to avoid controversy. On these points, the international community is no clearer now than it was before the case.

scholarly journals On the International Court of Justice and the Determination of Rules of Law

2013 ◽  
Vol 26 (2) ◽  
pp. 243-251 ◽  
Author(s):  
SANTIAGO VILLALPANDO
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Mission Statement ◽  
Legal Theory ◽  
General Nature ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Dispute

In the process of selection of articles for the International Court of Justice section at the Editorial Board of the Leiden Journal of International Law (LJIL), we tend to be seduced by those manuscripts which are effective in making use of the jurisprudence of the Court as an instrument to engage in an in-depth examination of substantive legal issues of a general nature. This reflects our conviction – hardly an original one, since it appears to be shared by our entire legal community – that the Court has a fundamental role to play in the advancement of international law as a legal system. It also echoes an idea that is present in the mission statement of our journal, which is conceived as ‘a forum for two vital areas, namely international legal theory and international dispute settlement’, thus establishing an intrinsic link between them. But how is the Court's contribution to the development of international law to be assessed? And what do we expect from a scholarly piece examining its case law in this respect?

The International Court of Justice and the Macedonian –Greek Case

2018 ◽  
Vol 3 (4) ◽  
pp. 8
Author(s):  
Bujar Ahmedi ◽  
Besian Ahmeti
Keyword(s):  
International Law ◽  
Historical Development ◽  
International Community ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court

In the international law there is often a mention of the peaceful arrangements of international disputes. The resolution of international disputes is also part of the most important principles of international law. Given the historical development of international law, we observe that states that have been subjected to the fictitious subjects of international law have often had disputes between them on interrelated issues. For these differences between states to be provided international law different mechanisms are being considered in order to resolve disputes and diplomatic aids and in some cases also judicial means that serve to resolve these disputes. This paper presents the dispute between Macedonia and Greece regarding the issue of the name where the role of the international community has been extremely important by putting its diplomacy at its disposal with the sole aim of reaching a resolution of the parties'.

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