The Function of Public International Law


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Recent Developments

In the biographical mode of history writing, the persons studied may be politicians, legal practitioners, or scholars. The context in which the person described lived and worked can be featured.


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Or he rarely she can on the contrary be presented as a representative of an epoch. For a conceptual historian, for instance, the textual context of a legal text matters greatly. But beyond that, the contextualization of a legal idea or doctrine requires, in our view, an analysis of the Leitmotive and academic styles of the time. Often, the relevant process is determined by the domestic political situation of a state. Furthermore, the contextualization of events and ideas means to look at long-term developments and trends.

That perspective may lead to a relativization of what usually is considered a historical caesura or break. The First World War, for instance, was on the one hand a rupture, but on the other hand a bridge to the international law of the League of Nations period. The Linguistic Turn and Beyond. In all three modes of historiography the history of events, of concepts, and of people the writer is, to our mind, free to choose whether to write about events, texts, or persons, or about narratives or pictures about events, texts, and persons.

Behind this distinction lurks a fundamental epistemological problem, not limited to historiography but also present whenever we study contemporary events or texts. This also means, crucially, that there is no clear-cut difference between historiography and fiction. In contrast to this stance, we believe that an intersubjective consensus if only a very narrow one can be established among historiographers about the meaning and significance of past events, texts, and of the conduct and actions of individual people.

We deem three insights crucial for modern history writing, as follows:. Perspectives : The first insight is that history cannot be written from an external omniscient point of view. As lawyers, we inevitably use our own legal experience as a tool for understanding the past, and if we do so we tend only to see what we already know or believe to know. When both writers and readers are conscious of the inevitability of a subjective perspective, it is not unscholarly to approach an issue such as colonialism with ethical considerations or preferences.

Selectivity : Writing history on a given subject depends on making innumerable choices. The historian constantly must decide which facts, developments, documents, persons, and so on, he or she considers significant to his or her research question. What is important is that authors consciously reflect about the choices they make, and are explicit and transparent about them.

Historiography comprises even if only implicitly a diachronic comparison of the past international law with the present law. In order to describe, as a present-day author to a present-day readership old international legal institutions, both writer p.

The difference between the diachronical comparison of the past and present law and the synchronological comparison of different contemporary legal systems seems to be twofold. Second, in contrast to an at least potentially dialogical transnational legal comparison, no dialogue can be entertained with the past. But despite these two important differences, the comparative method be it diachronic or synchronic is in its basic structure similar.

Just as in comparative legal scholarship, the diachronic comparison needs a tertium comparationis to compare or only to relate another epoch's and region's legal institutions to the present ones. The choice of the tertium comparationis depends on the research question and on values. Depending on that choice, the outcome of the comparison will differ. So the point is that we need not only to compare, but to actively translate. The translation is even more complex if it does not only involve the temporal dimension translating from past to present meanings but additionally a regional dimension for example, translating Asian to European meanings.

Let us give some examples of translations undertaken in this Handbook. A writer might compare the Japanese Iiki 78 to the historical European concept of hinterland by pointing out that both concepts sought to establish and justify control over territory.

What is international law?

It could be further asked whether the North American Aboriginal peoples had prior concepts of boundedness akin to treaties, and to what extent the alliances with the Europeans mirrored these pre-existing concepts. For example, Muslim legal consultants have in the past strongly disagreed and continue to disagree about the meaning of Jihad. Capitulations had been issued unilaterally by Ottoman sultans, but many European and American jurists sought to endow them with greater legal force and therefore presented them as treaties imposing binding legal obligations upon both parties, not only on the non-Muslim power but also on the Ottoman sultans themselves.

Such jurists cast the capitulation not as a temporary and unilateral concession, but as an enduring and bilateral treaty. In contrast, the Ottoman lawyers generally insisted that the capitulations were not to be confused with treaties in the European sense. It has now become controversial which parts constituted a tributary system and which were mutual trade. Most often, we rely—for the comparison, or translation—on the lead categories of our historical, legal and social and cultural research, such as the state, politics, law, and justice, and use those as a tertium comparationis of diachronical or synchronical comparison.

But these lead categories have not in every part of the world and in any time corresponded to the same phenomena. Along this line, Shin Kawashima, in his chapter on China, argues that China's understanding of the Wanguo Gongfa in a Chinese context in the second half of the 19th century did not necessarily dovetail with the international community's understanding of international law by the first half of the 20th century. Additionally, the problem of perspective comes in. Even if we realize the experience, ideologies, myths, and values inscribed in the said lead categories, we inevitably do this within an aura which is itself saturated with meaning, and in which we as scholars have been socialized and trained.

Although new psychological research has demonstrated that not only value-judgments, but more generally the subject's way of intellectually grasping and structuring the world seems to be contingent upon culture, 88 these modes of thought and judgement are not fix and determined just as cultures do not have sharp boundaries or fixed identities.

Introduction to Public International Law

But something might also be gained. We wish briefly to situate the Handbook in the historiographical landscape of international law, and to acknowledge the previous work on which it builds. In a modern sense, the history of international law has been academically treated since the first half of the 19th century.

However, much of that history writing was either based on an assumption of linear progress which strikes contemporary observers as almost p. Lawyers, on their part, were generally not very much interested in legal history, and if they were, that history was usually the history of their own law for instance, Deutsche Rechtsgeschichte , of Roman law, or of canon law.

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Even today no single chair or university institute is—to p. If the number of scholars turning to historical questions of international law has been small, the circle of scholars who did not only write about particular events such as peace conferences and diplomatic summits, or the creation of a new state but who tried to give a systematic account of the modern history of international law is even smaller. The modern history of international law, according to the author, began at the time of the French invasion of Italy under Charles VIII of France in The author divided the succeeding periods according to the politically dominant power which in his view substantially influenced, or even created, the respective legal order.

This periodization p. A first manuscript of the Epochen was already completed in late , but in the conditions prevailing in Germany in the last months of the war the book could not be printed. However, in a long article published a year earlier Grewe had summarized the principal findings of his as yet unpublished book.

In this form, the book was published in While Grewe's resolute view of the history of international law as a function of great power politics was new, he continued a tradition of writing the history of international law begun in the 19th century. The founders of that tradition had taken the State as they experienced it in their times as a starting point for their historical reflections, and had looked back on the past with that particular form of State in mind.

Grewe revitalized that tradition and even carried it over the edge of a new century. He certainly reinvigorated the study of historical issues in international law, and drew the attention of a new generation of scholars to the discipline. Very differently from Grewe's work, Martti Koskenniemi's The Gentle Civilizer of Nations of , a series of essays covering the period from to , combined p.


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  • Koskenniemi challenged the metanarrative of progressive legal development, and emphasized concealed antinomies in international law and the problem of interests and values protected and promoted by international law. It is therefore unsurprising that, quite recently some new collective works on the history of international law have been published.

    Definition and scope

    But, we believe, studying the history of international law can help better to understand the character of that particular legal order, its promise and its limits. In the international context, however, no central government exists to structure interstate relations, and as such states interact in a condition of 'anarchy'. International law, as "a body of rules governing the mutual interaction not only of states but of other agents in international politics," emerges from this anarchical structure of international relations.

    The function of international law in international relations is to facilitate interstate cooperation.

    Public International Law Research Resources

    This session focuses on international law as a tool in the production of GPGH, describing the importance of international law and its practical and normative elements, the various actors that are the subjects of international law, the main sources of international law, the use of international law in the production of GPGH, a number of limitations in the use of international law in this context, and the key issues in the application of international law to GPGH production.

    This means that they have both duties and rights provided for by international law. Several branches of public international law combine to protect universal values relating to human dignity. Each represents a tool of protection and all should be considered as complementary and must be applied comprehensively. These branches are: international humanitarian law, international refugee law, international criminal law and international human rights law. Public international law comprises a body of rules which is concerned solely with the rights and obligations of sovereign states.

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