The ‘natural’ law of nations: society and the exclusion of First Nations as subjects of international law

Author(s):  
Marcelle Burns
2015 ◽  
Vol 16 (2) ◽  
Author(s):  
Evan J. Criddle

AbstractThis Article explores three theories of humanitarian intervention that appear in, or are inspired by, the writings of Hugo Grotius. One theory asserts that natural law authorizes all states to punish violations of the law of nations, irrespective of where or against whom the violations occur, to preserve the integrity of international law. A second theory, which also appears in Grotius’s writings, proposes that states may intervene as temporary legal guardians for peoples who have suffered intolerable cruelties at the hands of their own state. Each of these theories has fallen out of fashion today based on skepticism about their natural law underpinnings and concerns about how they have facilitated Western colonialism. As an alternative, this Article outlines a third theory that builds upon Grotius’s account of humanitarian intervention as a fiduciary relationship, while updating Grotius’s account for the twenty-first century. According to this new fiduciary theory, when states intervene to protect human rights abroad they exercise an oppressed people’s right of self-defense on their behalf and may use force solely for the people’s benefit. As fiduciaries, intervening states bear obligations to consult with and honor the preferences of the people they seek to protect, and they must respect international human rights governing the use of force within the affected state. By clarifying the respective responsibilities of the Security Council and individual states for humanitarian intervention, the fiduciary theory also lends greater coherency to the international community’s “responsibility to protect” human rights.


Author(s):  
Stephen C Neff

This chapter presents a brief history of international law. It proceeds chronologically, beginning with an overview of the ancient world, followed by a more detailed discussion of the great era of natural law in the European Middle Ages. The classical period (1600–1815) witnessed the emergence of a dualistic view of international law, with the law of nature and the law of nations co-existing (more or less amicably). In the nineteenth century—the least-known part of international law—doctrinaire positivism was the prevailing viewpoint, though not the exclusive one. For the inter-war years, developments both inside and outside the League of Nations are considered. The chapter concludes with some historically oriented comments on international law during the post-1945 period.


Author(s):  
Peter Haggenmacher

This chapter enquires into the sources of international law in the scholastics. In fact the concept of sources of law obtained general currency in legal discourse, and how international law took shape as a legal discipline only after the heyday of scholasticism. But the two main pillars of what was to become classical international law in the eighteenth century—natural law and the law of nations—were both part of the theologians’ teachings of moral philosophy, especially with the Dominicans and later the Jesuits. Examining the two concepts handed down from Antiquity, Thomas Aquinas had assigned them distinct places in his system of legal norms, while fathoming their respective grounds of validity. His endeavours were continued by his sixteenth-century Spanish followers, who set out to explore the ‘internationalist’ dimensions of the Protean concept of ius gentium as well as the ‘fundamentalist’ properties of ius naturae.


2020 ◽  
Vol 68 (1) ◽  
pp. 43-59
Author(s):  
Talya Uçaryılmaz

Honesty, loyalty and reasonableness together refer to the principle of good faith in contemporary private law. The principle of good faith historically emerged as a natural law principle deriving from Roman law of nations, the universal set of rules applicable for all mankind. However, it also has immense historical effects on the early modern theories of international law. Being based on natural law and morality, good faith is well-equipped to be a fundamental standard of behavior in contemporary international law concerns. Good faith manifests itself as pacta sunt servanda as the basis of international treaty law. As a principle referring to honesty, loyalty and reasonableness, it guarantees the prohibition of the abuse of power and provides equitable solutions in legal relationships between sovereigns and private actors. Accordingly this article examines the application of the classical Roman principle of good faith in international law from a transhistorical perspective to clarify its contemporary applications, taking refugee law as an example. It concerns itself with the fundamental elements of good faith, the historical emergence of the principle, its relationship with early modern international legal theories and its contemporary significance in refugee law.Received: 23.10.2019Accepted: 29.12.2019Published online: 03.07.2020


2020 ◽  
Vol 44 (3) ◽  
pp. 51-74
Author(s):  
Ala Alryyes

Although it may appear that geography is distinguished by an objective, neutral subject, a genealogy of geographical knowledge reveals that seventeenth- and eighteenth-century European polemics over the demarcations and legal representations of space were imbued with polemos itself, war and conflict. In this article, I examine the polemical nature of Robinson Crusoe’s spatial experience and constructions, maritime and insular. Most readers know Defoe’s Robinson Crusoe for the shipwreck and the island. This sells short the novel’s formal spatial design, which contrasts its hero’s early mobility with his subsequent settlement(s), while concurrently encoding ideas about law, enmity, and sovereignty into geographic constructions. In Defoe’s space, theory and practice of empire are intermeshed. As I shall argue, Defoe’s representations of his hero’s achievements—both Crusoe’s astute seafaring and his later claims to sovereignty and possession of “his” island—build on extraliterary systems of knowledge in which war offers blueprints for grasping colonial encounters and global space. Defoe exploits two related imperial geographical discourses, natural law (and its derivative the Law of Nations, forerunner of today’s International Law and Law of War), and cartography, drawing on them for both verisimilar and fantastical representations in his novel.


2014 ◽  
Vol 27 (2) ◽  
pp. 521-534 ◽  
Author(s):  
Kelly De Luca

This article posits an interpretation of Thomas More’sUtopiathat focuses on the ways in which the nature of justice within a putatively ideal state is illuminated by references to international relations and the law of nations. Like Plato’sRepublic,Utopiauses differences of scale to provide a lens through which to examine the operation in one context of a unitary concept that is more visible elsewhere. Justice is constructed as a single concept; thus, in the same way that Plato uses the justice of thekallipolisto provide insight into the justice of an individual, More uses the justice of the international community to provide a macroscopic perspective on justice as it exists within a sovereign state. Through discussions of trade, diplomacy, war and empire, Utopian understandings of international law and justice are revealed. The ideal organisation of the state is then characterised as one in which the resulting notions of justice, defined as the correct operation of laws that accord with natural law, are institutionalised.


1998 ◽  
Vol 92 (3) ◽  
pp. 639-648 ◽  
Author(s):  
Steven Forde

Interest in the thought of Hugo Grotius on international law and ethics is justified inasmuch as he attempted to define a theoretical position between an idealism he thought counterproductive and an amoral realism he found unacceptable. Grotius constructed a system in which the moral authority of natural law was combined with the flexibility of human law. This required him to develop a special understanding of the nature and relation of these two types of law. In giving the law of nations, as a product of human will, the authority to suspend provisions of natural law, he provided for a code of international conduct that could permit injustice where necessary, without abandoning moral ideals altogether.


1959 ◽  
Vol 21 (3) ◽  
pp. 483-494 ◽  
Author(s):  
James F. Davidson

Among the many discussions stirred by recent searchings after the source and substance of a conservative tradition has been that of the place of natural law in the thought of Edmund Burke. One view which has received renewed emphasis is that Burke's natural law is essentially Thomistic. Those who support this view frequently cite Burke's many references to “the law of nations and of nature.” The purpose of this paper is to show, by particular reference to the subject of international law, that it is misleading to place Burke in the older natural law tradition. In ideas as well as in time, he stands more nearly at a mid-point between that tradition and the positivist approach to law. Revelation and the interpretive aid of a Universal Church, which were crucial to the traditional concept of natural law, do not play a similar role in Burke's thought. The same meaning, therefore, cannot be attributed to his references to the natural law.


Author(s):  
David Boucher

The classic foundational status that Hobbes has been afforded by contemporary international relations theorists is largely the work of Hans Morgenthau, Martin Wight, and Hedley Bull. They were not unaware that they were to some extent creating a convenient fiction, an emblematic realist, a shorthand for all of the features encapsulated in the term. The detachment of international law from the law of nature by nineteenth-century positivists opened Hobbes up, even among international jurists, to be portrayed as almost exclusively a mechanistic theorist of absolute state sovereignty. If we are to endow him with a foundational place at all it is not because he was an uncompromising realist equating might with right, on the analogy of the state of nature, but instead to his complete identification of natural law with the law of nations. It was simply a matter of subject that distinguished them, the individual and the state.


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