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About this book

International Law is usually considered, at least initially, to be a unitary legal order that is not subject to different national approaches. Ex definition it should be an order that transcends the national, and one that merges national perspectives into a higher understanding of law. It gains broad recognition precisely because it gives expression to a common consensus transcending national positions.

The reality, however, is quite different. Individual countries’ approaches to International Law, and the meanings attached to different concepts, often diverge considerably. The result is a lack of comprehension that can ultimately lead to outright conflicts.

In this book, several renowned international lawyers engage in an enquiry directed at sorting out how different European nations have contributed to the development of International Law, and how various national approaches to International Law differ. In doing so, their goal is to promote a better understanding of theory and practice in International Law.

Table of Contents

Frontmatter

What Are and to What Avail Do We Study European International Law Traditions?

Abstract
In recent years, in parallel with the rising interest for the history of international law and the evolving of a separate discipline of “Comparative International Law”, interest for national international law traditions—and in particular for European international law traditions—has continuously grown. This process raises a series of questions, in particular whether the assumption of the existence of such traditions is compatible at all with the very nature of international law, about the meaning of “Europeanness” and about the end of such a comparative endeavour. The present book collects a series of analyses in this field undertaken by renowned international lawyers. Of course, such a project cannot claim to give definite, encompassing answers, but it can aim at providing a better understanding of why international law is as it is, evidence what may be at the roots of so many misunderstandings in the international law dialogue between nations and academics and also, on a more positive note, show to what extent a common language has evolved and what the different national contributions were to these achievements.
For the time being, studies of such a kind cannot be but electrical. Nonetheless, the hope is that they might contribute to a broader understanding of international law, offer a better comprehension in the discussion between international lawyers and perhaps build the basis for further studies in this area. This introductory chapter describes the research project as a whole, offers some methodological considerations and provides a short glimpse into the chapters of this book.
Peter Hilpold

The Concept of International Law: The German Perspective

Abstract
Germany does not embrace a specific national concept of international law. However, when it arose anew as a democratic State after the horrors of the Second World War, it set forth in its Constitution, the Basic Law, key principles providing for full conformity of its internal legal order with the requirements of the tenets of the international legal order. This fundamental determination permeates the entire body of domestic rules in the living practice of all governmental institutions. Regarding the legal order of the European Union, Germany follows the jurisprudence of its Court of Justice and complies generally with the primacy of European Union law as defined in the practice of the Court, reserving, however, its role as the ultimate guardian of the supreme values of the Basic Law making up the identity of the national legal order.
Christian Tomuschat

The ‘Austrian School of International Law’: The Influence of Austrian International Lawyers on the Formation of the Present International Legal Order

Abstract
Is there an Austrian cuisine? The great variety of dishes served in different Austrian regions would call for a negative answer. Is there an Italian cuisine? Anyone who has had the opportunity to compare dishes from Piedmont with those from Lombardy or Venetia, from Florence with those from Rome or even from Naples with those from Sicily—where again every part has its specialty—will probably deny this. Yet you can find definitions of ‘Italian cuisine’ in any encyclopaedia and quite a number of recipe books on Italian cuisine in any bookstore. The same is true for the Austrian cuisine.
Heribert Franz Koeck

The Concept of International Law: The Italian Perspective

Abstract
There is hardly any peculiar Italian ‘concept’ or ‘conception’ of international law. This chapter investigates what, if any, may be the ‘essence’ of the Italian culture which underlies the perception of law and affects, at its roots, the scholarly construction of the concept of international law from an Italian perspective. This work will, thus, firstly explore the ideas of five among the leading Italian international law scholars of the last two centuries before drawing attention to the thought of few globally renowned Italian intellectuals. The latter may offer some clues into the ‘Italian way’ to law, revealing a tension between two key attitudes: realism and humanism. Finally, the chapter will suggest an answer to this tension from the perspective of a realist-constructivist approach to international law.
Carlo Focarelli

The French Tradition of International Law

Abstract
As international lawyers, we know what international law is. But how should we approach “tradition?” Tradition, after all, is not a concept that has any meaning or relevance in the universe of the law, as long as the law is understood as it dominantly is as a set of rules produced according to certain predetermined formal processes. As a matter of fact, “tradition” has no existence at all in the formal universe of the law. How, then, can we address the (French) tradition of international law when our own disciplinary field does not provide us with the most elementary theoretical tools to analyze and, more crucially, to even define “tradition?” These tools must therefore be found elsewhere. The approach taken in this essay has thus resolutely set aside our own disciplinary field—international law—and has inquired into those other academic fields that scientifically engage with tradition. Rather than focusing on the content of tradition, disciplinary fields such as anthropology or sociology investigate the modus operandi of tradition, its fashioners and followers, its patterns and transmission processes.
Consequently, this essay shifts the focus from the substance of the French tradition of international law to an investigation into the role of transmission of disciplinary culture and the modus operandi of that tradition, i.e., the social and psychological mechanisms and processes by which traditions come into being and survive. The way in which we, as teachers, scholars, and practitioners, hand down our knowledge of international law to current and future generations of international lawyers is culturally determined. Examined through the looking glass of the rituals, cultural attitudes, and social practices of the French international lawyers’ community, tradition appears to reflect vested interests and extant power structures. Deeply committed to its own preservation, tradition can be portrayed as a collective illusion or belief, as a form of constitutive narrative that constructs the self-representation and orders the everyday activities of international lawyers. Such beliefs are shaped and sustainably developed over time by epistemic communities that rely on discrete power structures and appear committed to maintaining the status quo.
Drawing insight from other disciplines, I argue that tradition shapes an inside/outside perspective and determines a dramatically different perception between the quasi-religious value of a certain narrative to the insiders to a tradition and, conversely, the diluted or quasi-transparent mark that the very same narrative imprints on the outside. Traditionalism fails to recognize itself as choice, and it thrives on its being unaware of itself. Ultimately, the point is to raise awareness about competing traditions and approaches to international law. The “standardized discourse” (la perception homologuée) indeed forcefully reveals how much the dominant discourse operates as a nondiscourse, by disqualifying or even silencing different postures and dissonant voices.
Hopefully, by engaging in such self-reflection, one may become aware of the extent to which we all are the product of national traditions, whose rules and constraints determine how we think about international law.
Andrea Hamann

British Contributions to Public International Law

Abstract
Identifying ‘British’ contributions to international law is by no means straightforward: international law is, after all, international. From the very earliest days (Gentili in the sixteenth century), those teaching and even practising international law in Britain have included prominent individuals from abroad. One particularly British feature may lie in the fact that many of the leading British academics have also been practitioners before English and international courts, which may account for their practical approach to the subject. The influence of common law has been apparent, with its emphasis on the development of the law through decided cases and specific instances.
Britain has stood out for its strong commitment to international law, reflecting a long-standing commitment to the rule of law at home and abroad, and the expectation that the country will always seek to act in accordance with international law. This has been particularly so at moments of crisis, for example when force has to be used.
Michael Wood

Exploring Belgian and Dutch “Traditions” in International Law

Abstract
Can two small European countries surrounded by nations who shaped international law have an international law tradition of their own? Studying the example of Belgium and the Netherlands in this regard is an interesting way to look at the European tradition from a different perspective. By looking at the lives and work of Belgian and Dutch scholars and practitioners, it becomes clear that these countries have a rich international law tradition of their own, which exerted and continues to exert a significant influence on this area of law. This tradition, linked to their history, and also to their geography and their culture, is mostly shaped by the determination and passion of these scholars and practitioners.
Jan Wouters, Nina Pineau

International Law from a Nordic Perspective

Abstract
Rather than emphasizing commonalities, contemporary Nordic scholars often convey a shared sense of discomfort pertaining to the very notion of a distinct “Nordic” approach to international law. We try to overcome this lack of unity by looking at the phenomenon through the lens of the region’s most famous school of legal thought, Scandinavian legal realism. We begin, in Sect. 2, by identifying a tension at the root of Nordic approaches to international law between what we call “realist scientism” and “humanitarian activism,” and we highlight the conspicuous absence of the epistemological concerns of the Scandinavian realists in activist scholars’ approach to international law. In Sect. 3, we then turn to Scandinavian realism in relation to Nordic domestication of international law through the national judiciaries. By contrast, Nordic research on this subject is characterized by a manifest—but in our view mistaken—presence of Scandinavian realism. Sect. 4 addresses methodological and theoretical issues more broadly, asking, first, in Sect. 4.1, which disciplinary lenses are better suited for studying the specific characteristics of Nordic approaches to international law. Second, Sect. 4.2 provides some reflections on recent developments—an ongoing Methodenstreit—which seem to affect the composition of the disciplinary perspectives that jointly make up the landscape of current Nordic international legal scholarship. Sect. 5 sums up the conclusions of the chapter.
Jakob v. H. Holtermann, Astrid Kjeldgaard-Pedersen

The Russian Concept of International Law as Imperial Legacy

Abstract
While during the Soviet period differences in Russia’s concept of international law compared to the West were explained by Marxism-Leninism, in the post-Soviet period and at least during the later Putin era, civilizational differences have been referred to as the decisive factor. This contribution explores the idea that the main feature of the concept of international law in Russia is its imperial legacy—the need to protect the territorial integrity of the largest territorial state on Earth and a certain skepticism about the impact of human rights which might have a disruptive potential for the Empire. Imperial thinking also indicates that states that have seceded from the former (Tsarist) Empire might need to have a special (legal and political) relationship with the imperial center.
Lauri Mälksoo

International Adjudication Under Particular Consideration of International Criminal Justice: The German Contribution

Abstract
The emergence and development of the international criminal justice system is closely linked to Germany. Article 227 of the Peace Treaty of Versailles, which brought World War I to an end, granted the Allied the power to ‘publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties’. Moreover, the Allied were determined to try other persons before their military courts for violations of the laws and customs of war (Article 228, 229 Peace Treaty of Versailles). Although these provisions did not lead to genuine criminal prosecutions, they prepared the ground for the Military Tribunals of Nuremberg and Tokyo tasked with the ‘Prosecution and Punishment of the Major War Criminals of the European Axis’ in the aftermath of World War II. Germany was initially very sceptical towards the international criminal justice system; the majority of the population saw the Nuremberg trials as ‘victor’s justice’ and criticised that alleged war crimes of the Allied Powers—for example the bombing of Dresden and Königsberg (today Kaliningrad, Russia)—were not investigated. Over the years, however, this attitude has changed, and Germany meanwhile is fully committed to the fight against impunity for international crimes. This paper shows how Germany contributed to the negotiations on the establishment of a permanent International Criminal Court (1) and examines the influence of German legal doctrine on the international case law (2). It concludes with an overview on Germany’s efforts to prosecute international crimes on the national level (3).
Stefanie Bock

German and European Ordo-Liberalism and Constitutionalism in the Postwar Development of International Economic Law

Abstract
This contribution discusses the regulatory approaches of German-speaking countries to the design of European and international economic law since World War II. The US initiatives for the 1944 Bretton Woods Agreements and the 1947 General Agreement on Tariffs and Trade were driven by neoliberal, multilateral approaches prioritizing rule-based liberalization of market access barriers, deregulation, privatization, and “financialization” of markets as spontaneous information, coordination, and sanctioning mechanisms enabling private economic actors to pursue their economic self-interests. By contrast, the postwar German and European ordo-liberalism and the “Virginia School” of “law and economics” perceived markets as legal constructs, which cannot maximize general consumer welfare without legal limitations of “market failures,” “governance failures,” and “constitutional failures.” The federalism and constitutional protection of common market freedoms inside Austria, Germany, and Switzerland contributed to their promotion of ordo-liberal, constitutional approaches also in their external economic policies aimed at creating and progressively developing Europe’s microeconomic “common market constitution” not only inside the European Union but also in the broader “European Economic Area,” the European Free Trade Area, and the EU’s common commercial policies. The worldwide WTO legal and dispute settlement system was influenced both by neoliberal US initiatives as well as by ordo-liberal European proposals (e.g., for the design of the WTO dispute settlement system). The current US assault on the WTO Appellate Body system is driven by neoliberal interest group politics and hegemonic mercantilism by the US Trump administration.
Ernst-Ulrich Petersmann

Conclusions

Abstract
In the introductory chapter, it has been set out that this collective writing constitutes “work in progress”. As such, it might be awkward to come, at this stage, to “conclusions”, at least if this term is intended in a traditional sense, i.e. that such conclusions should give definite, comprehensive answers.
Peter Hilpold
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