The ESCLH aims to promote comparative legal history and seeks affiliation with individuals and organisations with complementary aims.
2018 marks the seventieth anniversary of two momentous events in twentieth-century history: the birth of the State of Israel and the creation of the UN Universal Declaration of Human Rights. Both remain tied together in the ongoing debates about the Israeli-Palestinian conflict, global antisemitism, and American foreign policy. Yet the surprising connections between Zionism and the origins of international human rights are completely unknown today. Drawing on his recent book, Professor Loeffler will discuss how the forgotten Jewish past of human rights holds timely lessons for thinking about the intertwined futures of global justice and Jewish politics.On the speaker:
James Loeffler is the Berkowitz Professor of Jewish History at the University of Virginia, where he teaches courses in Jewish, European, and international history and the history of human rights. He received his BA from Harvard and his MA and PhD from Columbia University. He also studied Jewish thought as a Dorot Postgraduate Fellow at the Hebrew University. He is the author of Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century (Yale, 2018), which was a finalist for the Jewish Book Council’s Natan Prize for Best Jewish Book of 2018. His first book, The Most Musical Nation: Jews and Culture in the Late Russian Empire (Yale, 2010), won eight major awards and honors. Other publications include the forthcoming anthology, The Law of Strangers: Jewish Lawyers and International Law in Historical Perspective (Cambridge, 2019), and the new special issue of the journal Law & Contemporary Problems on “The Future of Human Rights Scholarship.” He is the co-founder of the University of Virginia Human Rights Research Network, Former Dean’s Visiting Scholar at the Georgetown University Law Center, and former Fellow of the United States Holocaust Memorial Museum. His writing on contemporary Jewish politics, antisemitism, and human rights has appeared in the New York Times, the Wall Street Journal, Slate, and The New Republic. For ten years he curated a concert series of Jewish classical music at the Kennedy Center in Washington, DC. He is currently at work on two books: a study of how the Holocaust became Genocide, and a biography of the author of “Hava Nagila.”(more details: Lauterpacht Centre for International Law)
Regarded as the most celebrated Irish political pamphlet published before 1801, William Molyneux’s Case of Ireland, stated (1698) was written to demonstrate that English statutes did not become of force in Ireland until they had been re-enacted by the Irish parliament. For all its fame, The Case’s mass of legal precedents and seemingly contradictory arguments make it a work that requires elucidation for the modern reader. This new edition presents a critical text, based on the manuscripts of The Case in the Trinity College Dublin library, together with explanatory notes, and a re-examination of the historical background and the sources on which Molyneux drew. The arguments in The Case, set out in a form analogous to presenting a legal case in court, are shown to be a significant response to the contemporary pamphlet debate on Irish woollen exports and the legal competence of the Irish house of lords, rather than the stand-alone publication the book has often been treated as.
On the editor:
Patrick Hyde Kelly is a fellow emeritus of Trinity College Dublin. A specialist in the history of political and economic thought in late seventeenth- and early eighteenth-century Ireland and Britain, he has edited Locke on money (2 vols, Oxford, 1991) for The Clarendon Edition of the Works of John Locke.
Historians have long ignored the primary reason why rebel leaders wanted to replace New York's colonial government two years into the American Revolution. Devised during a conflict that raged across the state's southern and northern counties, New York's first constitution was not established to instill class privileges in a foundational legal code, as Carl Becker had argued in his 1909 Political Parties in the Province of New York from 1760–1776.1 With occupation magnifying long-standing geographic [End Page 38] divides, the men on the committee who drafted the document and their compatriots in the convention who voted it into existence structured a political system they believed would unify the state's disparate regions. New York's 1777 constitution was written and implemented to save the state from fracturing.Read further on Project Muse.
In England, or rather in the comfortable parts of England, to have been a communist is still considered extraordinary. Not in Italy or France, of course, or Brazil or Bengal. Not in South Yorkshire, either, and certainly not in Scotland (whose post-1945 institutions owe so much to discreet communist initiatives). This polite amazement still unbalances assessments of Eric Hobsbawm. In his lifetime, reviewers and interviewers asked: “How can you still?” Then it became “How could he have?” This huge life study by Richard Evans, a historian colleague of social-democratic rather than Marxist views, tries to avoid that routine. “This biography… while not neglecting Eric’s intellectual and political development, focuses above all on his personal experiences and, indeed, on his inner life.”Read further here.
The sixteenth-century theologians of the School of Salamanca are well known for their sophisticated reflections on the Spanish conquest of the New World. But the nature of their responses seems far from clear and is subject to historiographical debate. Recent studies from the discipline of intellectual history suggest that the Salmantine theologians challenged the legitimacy of Spanish claims to the Americas. Scholars associated with the field of post-colonial studies, on the other hand, forcefully stress their entanglement in Spain's imperial venture overseas. This article, however, argues that these seemingly irreconcilable approaches are not in fact mutually exclusive. It shifts our attention to the sorely neglected ius praedicandi, the right to preach the gospel, which served to translate the Spanish theologians’ deeply rooted belief in the hegemonic truth of the Christian faith into a discourse of otherwise ‘secular’ natural rights. In adopting this novel lens, the article makes a case for assessing the language of the university theologians in its own terms while simultaneously exposing the support of Salamanca for Spain's imperial venture.
Die Wahlkapitulationen des Alten Reiches waren Dokumente, welche die Kurfürsten formulierten und zu deren Einhaltung die gewählten Kaiser sich vor ihrer Krönung verpflichten mussten. Den Staatsrechtlern der Frühen Neuzeit galten sie als »Quint-Essenz aller Reichsgesetze« und deutsche »Magna Charta«. Wolfgang Burgdorf zeigt, dass durch die Wahlkapitulationen seit 1519 viele Elemente in die Verfassung des Alten Reiches eingebracht wurden, die sich später auch in konstitutionellen Verfassungen finden, wie z. B. ein Grundrechtskatalog. Es ist daher gerechtfertigt, mit Bezug auf das Alte Reich von Protokonstitutionalismus zu sprechen.On the author:
Dr. Wolfgang Burgdorf ist außerplanmäßiger Professor für Neuere und Neueste Geschichte und lehrt an der Ludwig-Maximilians-Universität München sowie der Friedrich-Schiller-Universität Jena.
Ce colloque s’intéresse aux accords de droit international signés entre le Saint-Siège et les États, qui, le plus souvent mais pas exclusivement, ont pris la forme de concordats et de conventions similaires. Il s’agira de les examiner à la lumière des pratiques diplomatiques, mais aussi au regard des dynamiques politico-religieuses des XIXe-XXIe siècles, et notamment des principes et des exigences constitutifs de la modernité. Il conviendra d’en mesurer l’évolution historique dans la typologie, la méthode, les contenus, la portée et les espaces concernés. On s’intéressera tout particulièrement aux modèles de rapports entre l’Église, l’État et la société que portent ces accords, ainsi qu’aux mutations opérées, depuis les États confessionnels ou engagés dans une relation particulière avec l’Église catholique, jusqu’à l’approche renouvelée de ces relations après la seconde guerre mondiale et surtout Vatican II, fondée sur le concept de liberté religieuse.
Jeudi 28 février
Pontificia Università Gregoriana – Aula Magna9hAccueilNuno da Silva Gonçalves sj, Recteur de la Pontificia Università Gregoriana
- Marek Inglot sj, Doyen de la Faculté d’Histoire et des Biens culturels de l’Eglise de la Pontificia Università Gregoriana
Discours inaugural
- Fabrice Jesné, Directeur des études pour les époques moderne et contemporaine à l’École française de Rome
Introduction
- Sua Em. Rev.ma Cardinale Pietro Parolin, Secrétaire d’Etat de Sa Sainteté François
10h30Grammaire concordataireDiscutant : Settimio Carmignani Caridi (Università di Roma Tor Vergata)
- Roberto Regoli (Pontificia Università Gregoriana), Marie Levant (LabEx EHNE, Sorbonne Université)
- François Jankowiak (Université Paris-Sud), Les variations typologiques des accords entre le Saint-Siège et les États dans la doctrine juridique française. Modèles publicistes et approches canoniques, XIXe-XXe siècles
- Carlo Fantappiè (Università degli Studi Roma Tre), Dinamismi concordatari e modernizzazione ecclesiastica. Riflessioni metodologiche
14hLes concordats au temps des révolutionsDiscutante : Rita Tolomeo (Sapienza Università di Roma)
- Fabrice Bouthillon (Université de Bretagne Occidentale), Trois sœurs. Les trois déplorations pontificales de 1809, 1931 et 1937 sur le sort des trois concordats de 1801, 1929 et 1933
- Roberto Regoli (Pontificia Università Gregoriana), Con la Repubblica, l’Impero e i sovrani restaurati. Due secoli di trattati nel ventennio di Pio VII
- Anna Baranska (Université catholique de Lublin), La Congrégation des Affaires Ecclésiastiques Extraordinaires et les négociations concordataires : participation, pensée, résolutions (1814-1878)
16h30Pratiques concordataires et diplomatie vaticaneDiscutante : Liliosa Azara (Università degli Studi Roma Tre)
- Andrea Ciampani (Università LUMSA di Roma), Mutamento socio-politico, Chiesa e concordati. La riflessione vaticana alla vigilia del Concilio
- Nicholas Doublet (University of Malta), The Congregation of Extraordinary Ecclesiastical Affairs and the politics of concordats between the pontificates of Pius X and Benedict XV (1903-1922)
- Marie Levant (LabEx EHNE, Sorbonne Université), Le Vatican et l’Europe entre les deux guerres : le programme concordataire
Vendredi 1er mars
- András Fejérdy (Institute of History of Hungarian Academy of Sciences), La pratica concordataria nell’Ostpolitik vaticana
École française de Rome – Salle de conférences9hStratégies universelles et espaces périphériquesDiscutant : Roberto Regoli (Pontificia Università Gregoriana)
- Consolacion Fernández Mellén (Università del País Vasco), Negoziare l’eccezionalità? Le proposte di nuovi concordati per la Chiesa delle Antille spagnole (1851-1898)
- Edouard Coquet (Sorbonne Université), Des « accords » originaux entre le Saint-Siège et la France : les négociations sur les biens de mission dans l’espace colonial français, du traité de Versailles aux décrets Mandel (1919-1939)
11h30Mutations et adaptationsDiscutante : Marie Levant (LabEx EHNE, Sorbonne Université)
- Olivier Sibre (Institut Georges Pompidou, SIRICE), Les tentatives de conventions du Saint-Siège avec la Chine depuis la fin du XIXe siècle : obstacles et défis de la faiblesse et de la puissance
- Jacques-Olivier Boudon (LabEx EHNE, Sorbonne Université), Les nominations épiscopales dans les concordats du XIXe siècle
- Vicente Cárcel Ortí (Roma), Spagna: Dai concordati (1851 e 1953) agli accordi parziali (1976 e 1979)
- Cécile Gonçalvez (École des hautes études en sciences sociales), Mutations et adaptations de la diplomatie du Saint-Siège au Portugal à l’aune du concordat de 2004
14h30Renouvellements concordataires ?Discutant : András Fejérdy (Institute of History of Hungarian Academy of Sciences)
- Friedrich Bechina, Melanie Rosenbaum (Congregation for Catholic Education of the Holy See), Tendencies in bilateral and multilateral treaties of the Holy See of recent decades in the field of Higher Education
- Enrico Galavotti (Fondazione Giovanni XXIII per le scienze religiose), Il Concilio e il Concordato
- Paolo Valvo (Università Cattolica del Sacro Cuore), Il “continente de esperanza” tra passato e futuro: gli accordi Stato-Santa Sede in America Latina da Pio XII a Benedetto XVI
Conclusions
- Anthony O’Mahony (Blackfriars, University of Oxford), The Question of Religious Freedom in 'interreligious' contexts since Vatican II: The Holy See's Agreements with the Kingdom of Morocco (1983), the State of Israel (1993) and Palestine (2015)
- Giuseppe Dalla Torre (Università LUMSA di Roma), Laura Pettinaroli (Institut Catholique de Paris)
This book is an inquiry into the role of law in the contemporary political economy of hunger. In the work of many international institutions, governments, and NGOs, law is represented as a solution to the persistence of hunger. This presentation is evident in the efforts to realize a human right to adequate food, as well as in the positioning of law, in the form of regulation, as a tool to protect society from 'unruly' markets. In this monograph, Anna Chadwick draws on theoretical work from a range of disciplines to challenge accounts that portray law's role in the context of hunger as exclusively remedial. The book takes as its starting point claims that financial traders 'caused' the 2007-8 global food crisis by speculating in financial instruments linked to the prices of staple grains. The introduction of new regulations to curb the 'excesses' of the financial sector in order to protect the food insecure reinforces the dominant perception that law can solve the problem. Chadwick investigates a number of different legal regimes spanning public international law, international economic law, transnational governance, private law, and human rights law to gather evidence for a counterclaim: law is part of the problem. The character of the contemporary global food system-a food system that is being progressively 'financialized'-owes everything to law. If world hunger is to be eradicated, Chadwick argues, then greater attention needs to be paid to how different legal regimes operate to consistently privilege the interests of the wealthy few over the needs of poor and the hungry.On the author:
Anna Chadwick is a Lord Kelvin Adam Smith Fellow at the University of Glasgow. She started her current job after completing a two-year Max Weber Fellowship at the European University Institute, in Florence. She was awarded her doctorate by the London School of Economics and Political Science (LSE) in November 2015, and holds a Masters Degree in Public International Law and International and UK Human Rights Law (LLM) from King's College London, and an LLB from the University of Leeds. Anna spent one year working for the legal charity, Reprieve, where she undertook investigation and research on death penalty cases. She is also part of a joint research initiative on food and finance. In 2017, she co-designed and taught a new Masters course 'Food, Law, and Finance' at International University College of Turin. Anna has also taught courses on International Human Rights Law, and World Hunger and the Global Legal Order.
Law printing changed dramatically in the reign of Charles I. This article shows that the legally imposed monopoly on printing books of the common law (the law patent) was breached regularly and seemingly with impunity. Piracy, false attributions of authorship and concerns about quality all appear from the late-1620s onwards. The article explains these changes by stressing a number of factors: changes related to the holder of the patent and those printing under it; difficulties and tensions in the enforcement of the patent; and unauthorized printing creating a more competitive (and therefore challenging) market for law printers.Felony Forfeiture at the Manor of Worfield, C.1370–C.1600 (Spike Gibbs)
Felony forfeiture has recently received attention by historians working in both politico-legal and economic traditions. However, its history within the context of local lordships remains underexplored. By utilizing an exceptionally rich set of cases recorded in the court rolls of the manor of Worfield for the period c.1370–c.1600, this article explores the exercise of the franchisal rights to felons’ goods of one manorial lord. It demonstrates that these rights were extensive, and their application provides an excellent opportunity for historians to reconstruct the material living standards of late medieval villagers. It argues that the legal context of the manorial court makes the lists of goods recorded exceptionally valuable, in that the lives of the felons who owned these goods can be explored, highlighting this through one detailed case study. The conclusion also emphasizes the importance of considering the collaboration of tenants in the manorial forfeiture process, and that this was probably a crucial element in the success of seigniorial enforcement of this franchise.Thirteenth-Century Origins of Punitive or Exemplary Damages: The Statute of Westminster I (1275) and Roman Law (Jason Taladiaros)
This article highlights the importance of the Statute of Westminster I in the history of the concept of punitive or exemplary damages in the Anglo-American legal tradition. Maitland had long ago noted that its provisions allowing for double and triple reparation had similarities to duplum and triplum remedies in Roman law. But this tentative hypothesis has not been further explored by scholars. In this article I suggest that the antecedents for the provisions on multiple reparation in Westminster I may lie in the Roman law delicts of furtum or iniuria and their links to actions in duplum and triplum, based on conceptual similarities in the substantive nature of the wrongdoing. This article explores possible avenues for direct Roman law influence as well as indirect means of transmission, namely by non-Roman law sources of concepts analogous to Roman law.The Contribution of Contemporary Mathematics to Contractual Fairness in Equity, 1751–1867 (Ciara Kennefick)
Contract law and mathematics are, at first sight, singularly unlikely bedfellows. Yet, the influence of each discipline on the other has been significant. The primary claim in this article is that equity’s reception of the mathematics of probability in the second half of the eighteenth century led, at the beginning of the following century, to the development of a striking rule under which contracts for the sale of certain types of property could be rescinded if there was a deviation, however minimal, from the fair price. An almost purely mathematical question was, essentially, the only one which was pertinent. Vestiges of this remarkable episode are still visible today the statutory provision which ultimately removed this anomalous rule in 1867, the Sale of Reversions Act, survives in section 174 of the Law of Property Act 1925. This article uncovers and reconstructs the richly interdisciplinary aspect of this now entirely dormant provision. In so doing, a significantly novel perspective on the much debated question of contractual fairness from the second half of the eighteenth century to 1867 emerges: contractual fairness was at the heart of early probability and subsequently, probability was at the heart of contractual fairness in English law.
Book reviews:
A History of Australian Tort Law 1901–1945: England’s Obedient Servant? (Richard A. Buckley)(read more on Taylor&Francis Online)
Strange Bedfellows: Marriage in the Age of Women’s Liberation (Rebecca Probert)
From the Nuremberg Trials to contemporary human rights, Jews have long played prominent roles in the making of international law. But the actual ties between Jewish heritage and legal thought remain a subject of mystery and conjecture even among specialists. This volume of biographical studies takes a unique interdisciplinary approach, pairing historians and legal scholars to explore how their Jewish identities and experiences shaped their legal thought and activism. Using newly-discovered sources and sophisticated interpretative methods, this book offers an alternative history of twentieth-century international legal profession – and a new model to the emerging field of international legal biography.Table of contents:
Describe your career path. What led you to where you are today? Finnish academic life has undergone profound changes during the last two decades. After I started my postgraduate studies, post grads and post docs have become increasingly dependent on external funding. Consequently, my so-called career resembles more a patchwork of funding and research projects than a path. Between 1997 and 2014, I had 12 different contracts, including post doc funding from the Academy of Finland, the Helsinki Collegium for Advanced Studies and the Turku Institute for Advanced Studies. Practically all were acquired through competition. Young researchers have to “sell” their research ideas and themselves as realizing these to funding institutions. Only a small percentage is successful. I have been lucky not to have other career breaks than maternity/parental leaves and even more fortunate to be hired in 2014. This was my first permanent job. I am currently one of the three professors of legal history of Finland. To my knowledge, I am also the first female full professor of legal history in the Nordic Countries. As for personal qualities, I am really passionate about research. When my scientific curiosity is awakened, I will dig until I get answers. Legal history research allows me to combine many interests: history, law, languages, people, art and so on. Writing is also fun and I have no difficulties in producing text.Read further here.
La République est une et indivisible, assuraient les révolutionnaires. Son histoire, en revanche, ne l'est pas. Il n'est plus possible aujourd'hui de l'écrire d'un bloc ou comme une longue généalogie qui ferait de nos démocraties les héritières plus moins fidèles d'Athènes, de Sparte ou de Rome. Résolument européen, ce volume a donc pour ambition de retracer l'ensemble des traditions politiques, des doctrines philosophiques ou religieuses et des aspirations collectives qui ont dessiné l'histoire des républicanismes régimes républicains. De Rome à Florence, de la Révolution anglaise aux Révolutions américaines et françaises, des oligarchies urbaines à la République souligne la diversité des expériences historiques et rappelle les obstacles, les échecs, les détours au cours de celles-ci dans la poursuite des idéaux de liberté, d'égalité ou de justice. C'est donc une histoire plurielle, ouverte, souvent exaltante mais tout aussi souvent contrariée, que dévoile confié à quelques-uns des meilleurs spécialistes européeens actuels. Il s'y dévoile page après page et par-delà les singularités historiques, des traits communs ou un air de famille du Républicanisme, qui s'impose alternative au libéralisme et au populisme en récusant la religion du marché du premier et l'essentialisation du peuple du second pour appeler à la construction d'un espace commun de confrontation et de fabrication de l'intérêt général.List of contributors:
Manuela Albertone, Serge Audier, Marie-Claude Biais, Yannick Bosc, Olivier Christin, Alexandre Fontaine, Florence Gauthier, Christopher Hamel, Samuel Hayat, Marie Lauricella, Thomas Maissen, Stéphanie Roza, Catherine Secretan, Stéphan Soulié, Céline Spector, Ilaria Taddei.More information with the publisher.
In deciding whether to rule against a state party, international courts regularly confront a compliance dilemma: declare the state in breach of the international regime but with the risk that it will defy the court’s authority; or defer to the state but at the price of acquiescing to an unjust or undesirable outcome. Specifically, international adjudicators must solve this dilemma in a context of uncertainty, that is, without knowing with exactitude whether or not the state will prefer complying with an adverse ruling over overt defiance. I use a simple strategic model to cast light on this aspect of the compliance dilemma. Building off from the model’s insights, I then discuss the practices, doctrinal tactics and institutional mechanisms apt to reduce uncertainty and minimize state defiance. I highlight, in particular, the advantages of defiance avoidance mechanisms that help create informational feedback loops like test-the-water dicta and double-tier review. I illustrate how these mechanisms have been deployed by two of the world’s most powerful international courts, the European Court of Justice and the European Court of Human Rights. Finally, I consider the limitations of these mechanisms along with the possibility for other international dispute settlement bodies to replicate them.
Nearly three decades after the Cold War, the present-day hostilities between India and Pakistan have shifted the focus of the threat of nuclear escalation to South Asia. It is in this context that this article seeks to assess the legality of India’s military nuclear doctrine under international law. Academic literature on the use of nuclear weapons has largely shied away from discussing the legality of specific military doctrines or ‘policies of deterrence’ of the nuclear weapon states, treating them as issues of military strategy that are beyond the realm of international law. This article hopes to challenge that dichotomy. Though several branches of international law are relevant to any discussion on nuclear weapons, this article shall only examine India’s nuclear doctrine through the lens of jus ad bellum. Specifically, this article shall focus on whether India’s nuclear doctrine constitutes a threat to use force, and if so, whether such threat is lawful. The article concludes that India’s nuclear doctrine can be construed to be a specific threat to use force against Pakistan, and that such threat may be unlawful for contemplating the disproportionate use of force.Richard Clements, "From bureaucracy to management: The International Criminal Court’s internal progress narrative"
Within international institutions such as the International Criminal Court (ICC), lawyers increasingly encounter managerial practices which are designed to improve organizational efficiency and cost-effectiveness. Charting this trend, scholars have analyzed these practices with a view to make them more legitimate. However, this scholarly focus overlooks the role of managerial practices in legitimizing and thus sustaining the institutions in which they are embedded. In this article, I ask how managerial practices operate to boost the ICC’s reputation among its global audience. I find the answer in the Court’s use of the juxtaposed images of bureaucracy and management, with all their negative and positive associations. The Court uses these images to narrate a story of its own internal evolution from inefficient bureaucracy to efficient and well-managed organization. This hidden narrative of institutional progress functions rhetorically to frame, focus and distract the attention of the Court’s global constituencies.
In recent years, the academic field of international institutional law has taken a clear ‘constitutional’ turn. In this normative endeavour, liberal ‘rule of law’ ideals are being reinvigorated, translated and projected onto international organizations. This article trades this well-trodden path for a socio-legal inquiry into how the ‘rule of law’ is produced, practiced and performed in the everyday political and operational life of one specific international organization (the World Bank) during one contentious historical episode. To grasp what it means for ‘law to rule’, I argue, we need to expand our archives to the daily praxis of legality: the actors that embody it; the consciousness that drives it; the politics that rely on it; and the fragile institutional balances that give it meaning. Grounded in this pragmatist perspective, I retrace the intervention of legal expertise during the Bank’s turn to state reform in the wake of the Cold War. Descending from principles to practices, from norms to acts, from abstract heights to situated performances, the article not only strives for an enhanced understanding of the ‘rule of law’ within the World Bank, but also aims at a critical methodological intervention in the field of international institutional law.Erika de Wet, "The invocation of the right to self-defence in response to armed attacks conducted by armed groups: Implications for attribution"
The right to self-defence in Article 51 of the United Nations Charter is increasingly being invoked in response to armed attacks conducted by armed groups located in a territory of another state, with or without the (direct) assistance of such a state. This article examines the implications of the invocation of the right to self-defence under these circumstances for the principles of attribution within the jus ad bellum paradigm. First, it illuminates how the threshold requirements for indirect armed attacks (that is, the state acting through a private actor) have been lowered since the 1986 Nicaragua decision of the International Court of Justice. In so doing, the article suggests that in order to prevent a complete erosion of the benchmarks of an indirect armed attack, the notions of ‘substantial involvement’ in an armed attack, ‘harbouring’, and ‘unwillingness’ should be interpreted as manifestations of due diligence. Thereafter, the article illustrates that there is also an increasing attribution of armed attacks directly to non-state actors, notably those located in areas over which territorial states have lost control. Such states could be depicted as being ‘unable’ to counter the activities of non-state actors. The article further submits that particularly in these instances, the principle of necessity within the self-defence paradigm can play an important role in curbing the potential for abuse inherent in the vague notion of ‘inability’, if interpreted in light of Article 25 of the Articles on State Responsibility for Internationally Wrongful Acts.Dire Tladi, "The international law commission’s recent work on exceptions to immunity: Charting the course for a brave new world in international law?"
In the summer of 2017, the International Law Commission adopted a draft article on exceptions to immunity. The Draft Article adopted provides that immunity ratione materiae does not apply with respect to certain international crimes, namely crimes against humanity, the crime of genocide, war crimes, the crime of apartheid, torture, and enforced disappearances. These exceptions do not apply to immunity ratione personae. The Draft Article was adopted after a vote and was severely criticized by some members of the Commission. It has also received mixed reaction from states, with some supporting its content while others have opposed it. In the aftermath of the adoption of the Draft Article, there has also been academic commentary, some of which has been critical. The (main) criticism levelled against the Draft Article is that it does not represent existing law and has no basis in the practice of states. This article seeks to evaluate the criticism by considering whether there is any state practice in support of the Draft Article proposed by the Commission.Geraíd Ó Cuinn & Stephanie Switzer, "Ebola and the airplane – securing mobility through regime interactions and legal adaptation"
This article concentrates on a particular controversy during the 2014 Ebola outbreak in West Africa; the mass cancellation of flights to and from affected countries. This occurred despite authoritative advice against such restrictions from the World Health Organization (WHO). During a public health emergency such as Ebola, the airplane sits at a site of regulatory uncertainty as it falls within the scope of two specialist and overlapping domains of international law; the WHO International Health Regulations (2005) and the Convention on International Civil Aviation. We explore how legal technicalities and objects, by promoting functional interactions between these two specialized regimes of law, were utilized to deal with this uncertainty. We show how the form and function of these mundane tools had a significant impact; assimilating aviation further into the system of global health security as well as instrumentalizing the aircraft as a tool of disease surveillance. This encounter of regimes was law creating, resulting in new international protocols and standards designed to enable the resumption of flights in and out of countries affected by outbreaks. This article therefore offers significant and original insights into the hidden work performed by legal techniques and tools in dealing with regime overlap. Our findings contribute to the wider international law literature on fragmentation and enrich our understanding of the significance of relational regime interactions in international law.Mohammad Shahabuddin, "The ‘standard of civilization’ in international law: Intellectual perspectives from pre-war Japan"
This article establishes the normative connection between Japan’s responses to regional hegemonic order prior to the nineteenth century and its subsequent engagement with the European standard of civilization. I argue that the Japanese understanding of the ‘standard of civilization’ in the nineteenth century was informed by the historical pattern of its responses to hegemony and the discourse on cultural superiority in the Far East that shifted from Sinocentrism to the unbroken Imperial lineage to the national-spirit. Although Japanese scholars accepted and engaged with the European standard of civilization after the forced opening up of Japan to the Western world in the mid-nineteenth century, they did so for instrumental purposes and soon translated ‘civilization’ into a language of imperialism to reassert supremacy in the region. Through intellectual historiography, this narrative contextualizes Japan’s engagement with the European standard of civilization, and offers an analytical framework not only to go beyond Eurocentrism but also to identify various other loci of hegemony, which are connected through the same language of power.More information on Cambridge Core.
