Francisco de Vitoria’s Unexpected Transformations and Reinterpretations for International Law

2013 ◽  
Vol 15 (3) ◽  
pp. 287-318 ◽  
Author(s):  
Ignacio de la Rasilla del Moral
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Third World ◽  
Building Blocks ◽  
Legal Order ◽  
Legal Scholarship ◽  
American Tradition ◽  
International Legal Order ◽  
American Society ◽  
The University

Abstract A review of some of the legacies of Vitoria for international legal scholarship accompanies, in the first part, a retrospective gaze at the first third of the Twentieth century, in order to examine how the founder of the American Society of International Law, James Brown Scott, contributed to (re)establish Vitoria as the father of international law in the inter-war years. The second part provides a genealogy of the critical front of the Vitorian revival in international law today. Special attention is, then, paid to some of the intellectual building-blocks and programmatic tenets which have inspired a Third World Approaches to International Law (TWAIL) anti-imperial narrative of the international legal order along with a TWAIL’s re-interpretation and re-contextualisation of the works of the sixteenth century’s Prima professor of Sacred Theology at the University of Salamanca. The conclusion reflects on the lasting legacy of the Spanish Classics in the American tradition of international law.

Protecting concessionary rights: General principles and the making of international investment law

2021 ◽  
pp. 1-15
Author(s):  
Andrea Leiter
Keyword(s):  
Twentieth Century ◽  
Private Property ◽  
Building Blocks ◽  
International Investment ◽  
Legal Order ◽  
International Investment Law ◽  
International Legal Order ◽  
History Of ◽  
Independent States ◽  
Investment Law

Abstract This article engages with the history of international investment law in the first half of the twentieth century. It traces how international lawyers inscribed their vision of an international legal order protecting private property of Western companies against attempts at nationalization in the wake of socialist revolutions and the decolonization of large parts of the world. The article focuses on the role of ‘general principles of law as recognized by civilized nations’ as building blocks for an international legal order today called international investment law. Rather than describing a direct line between contemporary standards of protection and the invocation of general principles, the article develops conditions of possibility for the emergent field of international investment law. These conditions are located both in arbitral practice, as well as in international legal scholarship of the early twentieth century. Based on the analysis of such arbitrations over disputes resulting from concession agreements and scholarly writings in the interwar period, the contribution draws out the modes of authorization upon which the legal claims advanced by international lawyers rested. At the heart of the vision were ideas of ‘modernity’, ‘civilization’, ‘equity’, and ‘justice’ that enabled a hierarchization of difference, locating Western claims to legality above rivalling claims of socialist and ‘newly independent’ states. These ideas ultimately constituted the paradox of a ‘modern law of nature’ that claimed timeless universality while authorizing the ordering of foreign property in line with Western conceptions of modernity.

11. Normative Interactions: Implementation and Hierarchy of Norms

2020 ◽  
pp. 218-242
Author(s):  
Paola Gaeta ◽  
Jorge E. Viñuales ◽  
Salvatore Zappalà
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
Legal Order ◽  
Legal Rules ◽  
International Legal Order ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship ◽  
National Systems ◽  
Domestic Level

This chapter deals with some fundamental realities of international law as a body of legal rules which traditionally requires implementation at domestic level through transposal. In so doing it discusses the traditional theoretical distinction between monism and dualism, as abstract approaches to the relationship between domestic and international legal order. It then tackles the issue of the effects (including direct effects) that international law may have in concrete situations within national systems, as a consequence of, or, in some instances even irrespective of, transposal through national legislation. Thirdly, the chapter discusses the ‘verticalization’ of the international legal order with the affirmation in the second half of the twentieth century of the notion of jus cogens (or peremptory norms) and the effects this has (or might have) within international law and in its relationships with municipal laws.

scholarly journals Fin de NAIL: New Approaches to International Law and its Impact on Contemporary International Legal Scholarship

1997 ◽  
Vol 10 (3) ◽  
pp. 415-420 ◽  
Author(s):  
Thomas Skouteris
Keyword(s):  
International Law ◽  
Legal Order ◽  
Overwhelming Majority ◽  
New Wave ◽  
Legal Scholarship ◽  
New Approaches ◽  
Professional Responsibilities ◽  
International Legal Order ◽  
History Of ◽  
The Common

Intellectual clashes over the nature of international law have been raging throughout the traceable history of the discipline. Naturalists, positivists, idealists, pragmatists, formalists, realists, and so forth, have striven to put forward and defend credible paradigms of international legal order. The common characteristic of each new wave of criticism has been its unsettling disposition. It arrived stridently with questions and doubts, often seeking reform and often reconceptualization and transcendence. A second common characteristic, notably in the post-enlightenment period, has been the marginalized position of the debate on the merit of each new wave, within and outside legal academia. Indeed, debate over unsettling questions seems to have been exempted from the habitual professional responsibilities of the overwhelming majority of international lawyers. Existential anxieties of this sort have been relinquished to that class of academics usually referred to as jurisprudes or legal theorists. ‘Practicing’ international lawyers, so it is often argued, need not concern themselves with ‘theory’. Their mission is to provide tangible answers to practical problems and, for this task, ‘theoretical’ debate is irrelevant: its outcome is indeterminate, abstract, and, thus, of limited usability. In some cases ‘theoretical’ even becomes a pejorative term, synonymous with counter productive or parasitic.

China and International Adjudication

2021 ◽  
Author(s):  
Thomas S. Eder
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Case Law ◽  
Comprehensive Analysis ◽  
Legal Order ◽  
Great Power ◽  
Law Of The Sea ◽  
International Legal Order ◽  
International Adjudication

China aims to become a “leader country” in international law that “guides” the international legal order. Delivering the first comprehensive analysis of case law and Chinese academic debates from 2002 to 2018, this book shows that gradually increased engagement with international adjudication is part of a broad effort to consolidate China’s economic and political gains, and regain great power status. It covers trade, investment, territorial and law of the sea matters – including the South China Sea disputes – and delineates a decades-long process between caution and ambition. Both in debate patterns and in actual engagement, this book finds remarkable similarities in all covered fields of law, merely the timetables differ.

scholarly journals Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 81-87 ◽  
Author(s):  
Andrea Bianchi
Keyword(s):  
International Law ◽  
Nuclear Weapons ◽  
Third Parties ◽  
Legal Order ◽  
Marshall Islands ◽  
Young Researcher ◽  
International Treaty ◽  
Rubber Stamp ◽  
International Legal Order ◽  
State Of Affairs

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning bells about the system as such. After all, international law was geared, at least in my eyes, towards enhancing the wellbeing of humanity. It must have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.

Precedent, Compliance, and Change in Customary International Law: An Explanatory Theory

2014 ◽  
Vol 108 (3) ◽  
pp. 389-434 ◽  
Author(s):  
Pierre-Hugues Verdier ◽  
Erik Voeten
Keyword(s):  
International Law ◽  
Legal Order ◽  
Explanatory Theory ◽  
State Behavior ◽  
Customary International Law ◽  
The Social ◽  
International Legal Order ◽  
Social Scientific ◽  
Vital Element ◽  
Affect State

Customary international law (CIL) is widely recognized as a fundamental source of international law. While its continued significance in the age of treaties was once contested, it is now generally accepted that CIL remains a vital element of the international legal order. Yet CIL is also plagued with conceptual and practical difficulties, which have led critics to challenge its coherence and legitimacy. In particular, critics of CIL have argued that it does not meaningfully affect state behavior. Traditional CIL scholarship is ill equipped to answer such criticism because its objectives are doctrinal or normative—namely, to identify, interpret, and apply CIL rules, or to argue for desirable changes in CIL. For the most part, that scholarship does not propose an explanatory theory in the social scientific sense, which would articulate how CIL works, why states comply, and why and how rules change.

scholarly journals Die Zukunft des Völkerrechts

2017 ◽  
Vol 26 ◽  
pp. 3 ◽  
Author(s):  
Christian Tomuschat
Keyword(s):  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
World Order ◽  
Legal Order ◽  
Positive Side ◽  
Normative Growth ◽  
International Legal Order ◽  
The Rich ◽  
Fragmentation Of International Law

The international legal order today constitutes a truly universal legal system. It has received guiding principles through the United Nations Charter: ever since this ‘Constitution for the world’ began operating, sovereign equality of states, self‑determination of peoples, and human rights have been key components of this architecture, which has reached a state of ‘conceptual unity’ belying the talk of ‘fragmentation’ of international law that so fascinated scholars in their debates only a short while ago. The great peace treaties of 1648, 1815, and 1919, as Euro‑centric instruments influenced by the interests of the dominant powers, could not bring about a peaceful world order. After World War II, it was, in particular, the inclusion of the newly independent states in the legislative processes that has conferred an unchallenged degree of legitimacy on international law. Regrettably, its effectiveness has not kept pace with its normative growth. Some islands of stability can be identified. On the positive side, one can note a growing trend to entrust the settlement of disputes to formal procedures. Yet the integration of human rights in international law – a step of moral advancement that proceeds from the simple recognition that, precisely in the interest of world peace, domains of domestic and international matters cannot be separated one from the other as neatly as postulated by the classic doctrine of international law – has placed enormous obstacles before international law. It must be expected that the demand for more justice on the part of developing nations will subject the international legal order to even greater strain in the near future. Currently, chances are low that the issue of migration from the poorer South to the ‘rich’ North can be resolved.

scholarly journals The new international legal order and new states in the Balkans

2006 ◽  
Vol 58 (3) ◽  
pp. 272-293 ◽  
Author(s):  
Dusko Dimitrijevic
Keyword(s):  
International Law ◽  
Essential Role ◽  
Legal Order ◽  
State Behavior ◽  
The Balkans ◽  
Starting Point ◽  
New States ◽  
International Legal Order ◽  
The One ◽  
Further Development

In this study the author attaches a great importance to the theoretical examination of the concept of the New International Legal Order that was embodied in the last decades of the 20th century. The starting point for that reflection is the dissolution of the SFR Yugoslavia that illustrates one of the fundamental legal precedents. Reminding that the basic principle for the post-modern State behavior must be the one that includes minimal disturbance of the existing international legal relations, the author stresses that "the Yugoslav case" was customized in the way to respond to the new reality where the principle of effectiveness played an essential role in valuation of the statehood. It could also be one of the greatest catalysts for all further 'development rules' of international law.

Sign in / Sign up

Export Citation Format

Share Document