scholarly journals Of International Law, Semi-colonial Thailand, and Imperial Ghosts

2018 ◽  
Vol 9 (1) ◽  
pp. 46-74 ◽  
Author(s):  
Prabhakar SINGH
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal History ◽  
Public International Law ◽  
Colonial State ◽  
Customary International Law ◽  
Post Colonial ◽  
Political Independence ◽  
Preah Vihear ◽  
Political Ferment

AbstractI argue that contextually reading two disputes involving Siam—Cheek v. Siam (1898) and the Temple of Preah Vihear (1962)—proves that both private law and public international law are structurally rigged against ex-semi-colonial nations. Nineteenth-century Siam was a political ferment known variously as a semi-colonial, semi-peripheral, non-colonial, or uncolonized polity. Siam bargained under imperial shadows her political independence by the tactical grants of concession contracts, as well as by negotiating treaties with competing European powers. In the post-colonial Temple of Preah Vihear case, colonial stationery—maps, photographs, and communiqués—as well as imperial customs offered evidentiary support to Cambodia, an ex-colonial state, against Thailand. In the early twentieth century, while authors picked Cheek v. Siam as a precedent for the law of international claims, textbooks offer the Temple of Preah Vihear case as a precedent on the form of treaties and estoppel. Conclusively, these two cases allow us to locate, if not exorcise, the ghosts of empires in Asian legal history, exposing, at the same time, Judge Koo’s Orientalization of customary international law.

The Developmental State

2019 ◽  
pp. 71-100
Author(s):  
Luis Eslava
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Developmental State ◽  
The State ◽  
The South ◽  
Post Colonial ◽  
Institutional Formation ◽  
Complex Process ◽  
Starting Point ◽  
The Impact

The battle for international law during the era of decolonization in the mid-twentieth century was to a large extent a battle fought over the nature, function and objectives of the state—above all, over their relationship to the idea of ‘development’. A particular normative and institutional formation resulted from this battle: the ‘developmental state’, the impact of which on (in)dependence in the South was and continues to be profound. However, the ‘developmental state’ did not spring ready-made out of nowhere. On the contrary, using Latin America’s much earlier experience of colonialism, decolonization and independent statehood as a starting-point, this chapter draws attention to the long and complex process through which the developmental state’s most important elements emerged, defining what was thinkable and doable there and elsewhere in the post-colonial world.

Legal History as a Source of International Law

2018 ◽  
Author(s):  
Samuel Moyn
Keyword(s):  
International Law ◽  
Legal History ◽  
Historical Knowledge ◽  
Customary International Law ◽  
Atrocity Crimes ◽  
Corporate Liability ◽  
Alien Tort Statute

This chapter maintains that no serious theory of the sources of international law can avoid what professional historians now take for granted: namely, that historical knowledge is necessarily political. It begins by laying out this argument, before assessing its implications for mainstream accounts of the sources of international law. The chapter goes on to explore a recent legal conflict in which history figured in order to test and improve the claim that history is political. It looks at the recent contention in US courts interpreting the Alien Tort Statute (1789) about whether a norm of corporate liability for atrocity crimes is part of customary international law. Finally, the chapter concludes that this fascinating instance of the uses of history in the ascertainment of the requirements of international law fits well the theory that historical knowledge is ineradicably political, though contained by professionalism.

Concepción Arenal and the place of women in modern international law

2020 ◽  
Vol 88 (1-2) ◽  
pp. 211-253
Author(s):  
Ignacio de la Rasilla
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal History ◽  
Historical Context ◽  
International Congress ◽  
Early Twentieth Century ◽  
History Of ◽  
Individual Contributions ◽  
History Of International Law ◽  
Academic Study

Summary 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.

Afghanistan

2019 ◽  
pp. 674-700
Author(s):  
Veronica L. Taylor
Keyword(s):  
Twentieth Century ◽  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
Legal History ◽  
Legal Institutions ◽  
Legal Norms ◽  
Post Conflict ◽  
International Rule ◽  
Conflict Period

This chapter addresses international law in Afghanistan. States where the ‘post-conflict’ period is, in fact, a series of continuing sub-national conflicts, are often coded as ‘failed’ or ‘fragile’ and are also criticized as failing in their embrace of international law. In the case of Afghanistan, such ‘discourses of deficiency’ also erase some important legal history. For most of its history, Afghanistan has been contingent as a Westphalian state. This means that it has also had a fluid relationship with the institutions and norms of international law, including the normative discourse and practice of the international rule of law. Although Afghanistan has been a member of the United Nations since 1946, and thus a contributor to international law in the twentieth century, it is seen more as a subject of international law. After considering these issues, the chapter then highlights the complexity of Afghan’s location within, as well as its relationship with, international law, international legal institutions, and international legal norms.

Statehood and Recognition in International Law: A Post-Colonial Invention

2019 ◽  
pp. 139-152
Author(s):  
Jean D’Aspremont
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Post Colonial ◽  
Legal Thought ◽  
Legal Discourses ◽  
Main Components

This article seeks to lay bare some of the main conceptual, theoretical, and normative constructions that have informed the rise of the doctrine of statehood into one of the fundamental doctrines of international law and allowed it to continue to prove most influential in contemporary international legal discourses. In doing so, this article will make the point that the doctrine of statehood has been shaped by both modern and post-colonial heritages. It will be shown that the main components of the doctrine of statehood are very modern in that they are directly inherited from liberal legal thought. It will simultaneously be demonstrated that it is only in the second half of the twentieth century, and more precisely in the wake of the start of the decolonisation process, that all these modern components were assembled and organised in order to compose what is known today as the doctrine of statehood.

Attribution in International Investment Law

2020 ◽  
pp. 96-178
Author(s):  
Carlo de Stefano
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Investment ◽  
Critical Discussion ◽  
Single Test ◽  
Public International Law ◽  
Customary International Law ◽  
International Investment Law ◽  
Investment Law

Chapter III elucidates the application of attribution rules by international investment tribunals. This chapter is similar in structure to Chapter II, which is a consequence of the proximity of international investment law to public international law with regard to the topic of attribution of conduct to a party. In addition, this chapter contains critical discussion on investor–State dispute settlement (ISDS), chiefly on the dialectics between lex generalis (customary international law) and lex specialis (international investment law) as to the resolution of attribution issues, and on the distinction between treaty claims and contract claims for the purposes of the operation of so-called ‘umbrella clauses’. More generally, the chapter critiques the reasoning of arbitrators who have applied the test for attribution of conduct under ARSIWA Articles 4, 5, and 8 in a holistic way, rather than implementing each single test autonomously.

International Law, Informal Law-Making, and Global Governance in Times of Anti-Globalism and Populism

2019 ◽  
pp. 242-264
Author(s):  
Jan Wouters
Keyword(s):  
International Law ◽  
Global Governance ◽  
First Century ◽  
Public International Law ◽  
Customary International Law ◽  
Twenty First Century ◽  
The Impact ◽  
Law Making

The chapter focuses on the impact of globalization on public international law in times of anti-globalism and populism, where globalization itself has increasingly become contested. It submits that traditional public international law has been dangerously unreceptive in capturing new transnational regulatory actors and normative dynamics, which makes it more vulnerable to anti-globalist and populist attacks. It looks into the corresponding rise and certain features of ‘informal international law-making’ and ‘global governance’, as they may offer some responses to, or at least some defences against, anti-globalist and populist politics. It also addresses the current challenges which traditional forms of international law-making, like treaties and customary international law, are currently going through. It concludes that public international law will have to adapt to both the challenges of globalization and anti-globalism, if it is to remain relevant in regulating international life in the twenty-first century.

La place de la coutume internationale en droit public français

2013 ◽  
Vol 12 (2) ◽  
pp. 267-271 ◽  
Author(s):  
Bernard Stirn
Keyword(s):  
International Law ◽  
Case Law ◽  
Public Law ◽  
Legal Order ◽  
Constitutional Court ◽  
International Treaty ◽  
Public International Law ◽  
Customary International Law ◽  
The Status

Abstract Bernard Stirn’s presentation examines the status of international custom in French public law. He notes that international custom may be considered as covered by the reference in the preamble of the Constitution to the rules of public international law. He underlines the increased effects of international custom in the French domestic legal order as enshrined in the latest developments of the case-law of the Conseil d’Etat. He stresses that whilst French administrative judges may set aside a law in the event of a conflict with the provisions of an international treaty, they do not possess a similar power in the case of a conflict with a rule of customary international law. He concludes by citing cases in which the French constitutional court has made reference to international custom.

What Is Public International Law? The Need for Clarity about Sources

2011 ◽  
Vol 1 (2) ◽  
pp. 205-216 ◽  
Author(s):  
Michael WOOD
Keyword(s):  
International Law ◽  
Public International Law ◽  
Customary International Law

This article addresses the need for clarity as regards the sources of public international law, or at least as much clarity as possible. Questions relating to sources lie at the heart of international law. Of particular concern is the lack of rigour shown by some domestic judges when it comes to determining the rules of customary international law.

La représentation du droit dans la communauté des diplomates européens des « Trente Heureuses » (1713–1740)

2013 ◽  
Vol 81 (3-4) ◽  
pp. 595-620
Author(s):  
Frederik Dhondt
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal History ◽  
18Th Century ◽  
Legal Reasoning ◽  
Public International Law ◽  
Archival Material ◽  
Treaty Interpretation ◽  
State Consent ◽  
European Diplomacy

Diplomatic representation in the community of the European diplomacy of the ‘Trente heureuses’ (1713–1740). – The study of Ancien Régime public international law compels researchers to broaden the traditional scope of legal history (treaties and doctrine). A broader understanding of normativity in international relations, inspired by sociology, cultural or international relations history leads to an analysis of diplomatic behaviour. Practice is of paramount importance to grasp the working of implicit principles, expressed in correspondence and legal memoranda. The three decades following the Peace of Utrecht (1713) illustrate how state consent-based international organisation operated in the 18th century, separate from doctrinal concepts. French and British archival material and existing prosopographic literature sketch a map of the European arena. Treaty interpretation and legal reasoning were the backbone of international relations. Consequently, jurists were more than apologists, and fulfilled an indispensable role in an interactional system.

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