Some Contributions from and Influence of the Italian Doctrine of International Law

This chapter deals with the contribution of Italian scholarship to public international law. Its approach is two-fold. First, adopting an “external” perspective, the contribution of Italian scholars to the highly esteemed series of Hague Courses of the famous eponymous Academy may shed some light on what the Italian conception brought to international legal scholarship but also on how Italian scholars were perceived by their foreign brethren, and in what context they were quoted. Second, selecting a specific issue, the chapter focuses on the influence of Italian legal thinking on the shaping of doctrines of State responsibility. Among all the many areas of international law, this is one where the Italian school is constantly viewed as pioneering (together with the German school). For example, the writings of Anzilotti or Cavaglieri are often quoted as astonishingly modern exposés of that branch of the law, providing thus a test-case to verify the contribution and influence of the Italian doctrine of international law.

The Integrated Approach to Private and Public International Law—A Distinctive Feature of Italian Legal Thinking

International law scholarship has traditionally been understood in Italy as encompassing the study of both public and private international law. The two subjects are still considered jointly for recruitment purposes and are mostly taught by the same professors. Pasquale Stanislao Mancini, who regarded nationality as a foundation of both disciplines, had a major influence on the popularization of this approach in the mid-nineteenth century. The advent of positivism, a few decades later, entailed a general rejection of Mancini’s views but did not challenge the integrated approach to the different branches of international law. Rather, the positivist turns triggered a renewed reflection on the ties between the two subjects. The study of international law, some argued, should cover, alongside international rules, such municipal rules as deal with international matters. The chapter outlines the origin and evolution of the Italian integrated approach to international law and its perception by today’s scholars, in Italy and abroad.

Burn Out and Fade AwayMarxism in Italian International Legal Scholarship

Against the prevailing opinion, the present chapter argues that the impact of Marxism on Italian international legal scholarship, although quantitatively marginal, has been important and fruitful, so much so that its rediscovery should not be seen as merely a matter of antiquarian interest. This minor tradition of legal studies failed to take root in the first quarter of a century after World War II, despite the endorsement of a powerful communist party. Cultural changes that took place in the 1960s reverberated throughout international legal scholarship only during the 1970s. Although Marxist international legal studies subsided within the space of a few years they produced a significant body of work whose pioneering character and unsurpassed subtlety should be acknowledged in the context of current revivals of Marxist legal studies.

Italian Legal Scholarship of International Law in the Early Decades of the Twentieth Century

In 1931 Lauterpacht described the Italian scholarship as characterized by a ‘rigid and frequently uncompromising positivist school in international law’. While his statement has some merits, this chapter seeks both to illustrate how this trend emerged from previous approaches and, conversely, to emphasize the multifaceted perspectives that were effectively present in those decades, thus partly circumscribing Lauterpacht’s assertion. Following a survey of the fluid approaches present at the beginning of the twentieth century, this chapter will introduce the pivotal role of Dionisio Anzilotti in favoring legal positivism, even if dissident voices were still present or subsequently emerged. After Anzilotti, other poles of attraction emerged, in particular through Santi Romano and other scholars, who, while still claiming to adhere to the lines of positive law, deprived this conception of several of its original theoretical attributes. Conversely, few attempts were made to elaborate doctrines aimed at reflecting the political ambitions of Fascism, which was unsuccessful in influencing the broad theoretical debate.

The Risorgimento and the “Birth” of International Law in Italy

The Italian doctrine of international law developed in the mid-nineteenth century, mainly under the influence of the historical events that characterized the so-called Risorgimento, the political process leading to the political unification and formation of the Kingdom of Italy in 1861. Several scholars largely based their writings on the theory developed by Pasquale Stanislao Mancini, according to which the principle of nationality was the basis for legitimacy and international subjectivity, a theory clearly linked with the political afflatus of the period. This chapter addresses the Italian scholarship of international law during the Risorgimento period, through a series of authors originally so strictly-linked with Mancini’s theories to be qualified, even at the time, as the ‘Italian school of international law’. Such theories were therefore firmly anchored in the Risorgimento, its political ideals and its historical evolution exercising a very significant impact on the international law studies in Italy during those decades.

The (Immediate) Post-World War II Period

This chapter addresses the development, after World War II, of two different currents of thought inherited by the Italian international law doctrine from the interwar period: dogmatism and structuralism. The analysis of some fundamental writings concerning topics such as the foundation and the social structure of the international legal order tries to offer a reading lens on some of the most important scientific trends (especially ‘realism’ and ‘neo-normativism’) of the post-World War II period and on the scholars that animated such approaches. Thanks to the identification of some structuring ideas, it will then be possible to briefly examine other issues concerning, for instance, the relationship between international and domestic law after the 1948 Republican Constitution, sovereignty, etc. The evolution of the methodology of international law will have a relevant part in the analysis of theoretical approaches developed by Italian scholars in this period.

The Main International Law Issues Arising in the Aftermath of World War II

The present chapter provides an extensive analysis of the main foreign policy issues arising for Italy out of the 1947 Peace Treaty—namely the question of South Tyrol, the Free Territory of Trieste and Italy’s Trusteeship over Somalia—and how these issues were dealt with by the Italian international law doctrine. The chapter also deals with the doctrinal debates ensuing from the proliferation of international organizations, including regional ones in the European continent. The analysis shows that Italian authors produced an impressive bulk of literature engaging directly with the major international law issues resulting from the end of World War II; the conclusion reached is that international lawyers were active participants in the national political effort to become a fully fledged, responsible member of the international community and contributed to the understanding of the novel process of European integration as an antidote against conflict and hostilities in the European continent.

International Law as a Political Language, 1600–1859

By illustrating the history of Italian international law from the early seventeenth to the mid-nineteenth century, this chapter explores the question of whether and to what extent this period may have been characterized by a genuinely Italian ‘tradition’ or approach to international legal issues. The chapter questions the notion of a monolithic Italian tradition in international law and shows that the commonality of topics and interests among Italian lawyers can best be read as part of broader trends in the European ‘law of nations’. Although they were concerned with nationally important matters such as maritime trade, the sovereignty of smaller polities and the relationship between State and church, Italian lawyers constantly defended their claims by resorting to the common European vocabulary of the ius naturae and ius gentium.

Early “Italian” Scholars of Ius Gentium

Between the twelfth and fifteenth centuries several issues led jurists to rethink the international legal order established in the Roman Empire and the Early Middle Ages. The first was the need to update the list of the law of nations legitimate subjects after the birth of the commune that had not been accounted for in Roman-law sources. The second was to recreate a superior and universally shared set of ‘public’ law rules for international relations to counteract the tendency of communal and monarchical governments to consider the law inter gentes as a form of internal law. In order to address this issue Bartolus of Sassoferrato adapted the Roman category of ius gentium to the features of the medieval geopolitical context. Other topics focused on defining the enemy, freedom of peoples, and treaties among unequal subjects, while the theory of ius gentium of Alberico Gentili was fully rooted in the medieval and early modern legal tradition.

The Unification of Italy and International Law

This chapter analyses the legal implications of the Italian political unification occurred in 1861 as it emerges from the relevant—and not yet fully analysed—practice. The main objective is to ascertain whether the process of the Italian unification was realized within the empire of international law and, in the affirmative, to what extent the juridical categories of international law were used to achieve the objective of independence and to consolidate the new unitarian State in the international community. Thus, three issues are clearly relevant in this respect: the first concerns the conduct of the Kingdom of Sardinia in its relations with the pre-unitary States in the light of the norms of international law in force at the time of the facts; the second is the emergence of the principle of nationality and its consequences on the legal conceptions of the statehood; and, finally, the legal consequences of the alleged continuity between the Kingdom of Sardinia and the new Italian State.