This chapter examines the history of international law in the Americas at the time of the League of Nations. It focuses on the pioneering role of the Americas in international organisation through the Pan American Union and the pan-Americanisation of the Monroe Doctrine, the golden years of the US-led tradition of American international law associated with the American Institute of International Law (AIIL) and its codification projects in the 1920s. It also explores the debates over intervention provoked by the codification projects advanced by the AIIL and the tensions that emerged between the continental tradition of American international law linked to the AIIL and a regional and anti-interventionist one associated with the notion of Latin American international law. This latter tradition gained wider popularity in the 1920s and began to adopt a more radical and anti-imperialist posture. These two hemispheric and regional approaches to international law declined in the 1940s and 1950s across the Americas right at the time when the United States adopted a geopolitical and globalist strategy, departing from continentalist approaches to international law.

The contribution contends that current rules of diplomatic law have consolidated during the era of the League of Nations. This holds true, for instance, in relation to the main facets of the protection of diplomatic premises; that is to say, inviolability stricto sensu, the exemption from execution and the obligation to protect the premises against any intrusion. In fact, Article 22 of the 1961 Vienna Convention on Diplomatic Relations is largely based on the rules crystallised before the extinction of the League of Nations. As for the immunities of diplomatic agents, it is precisely in this period that the distinction between acts performed by the agent in the exercise of his functions and those carried out in his personal capacity crystallised in customary international law, even though immunity in the field of private law has been applied by domestic courts in a heterogeneous manner, especially when exceptions were at issue.

If, at the beginning of the twentieth century, thanks also to the influential works of Triepel and Anzilotti, the law of state responsibility came to be regarded as a distinct field, it was only in the period between the two world wars that this area of international law became the object of an intense scientific debate. The present contribution aims to assess the development of the law of state responsibility until 1945 by focusing on the events that provided a major impulse for this development, on the attempt at codification, on the case law of international courts and tribunals, and on the new general theories developed by authors such as Strupp, Kelsen, Lauterpacht, Eagleton and Ago. While the contribution aims to deal comprehensively with the law of state responsibility and its development in the period under consideration, particular emphasis will be placed on three issues: the problems associated with attribution of wrongful conduct; the consequences of international responsibility, and in particular the debate over the role of sanctions against wrongful conduct – the early signs of the emergence of a multilateral dimension of state responsibility.

This chapter examines the development of the law of the sea at the time of the League of Nations with specific focus on the entitlement to the oceans and the use of the oceans. This chapter first addresses the entitlement to and jurisdiction over marine spaces by examining the issue of the territorial sea, the contiguous zone, bays and islands. The chapter then examines the issue of the use of the oceans, focusing on the regulation of fishing and navigational rights in straits. Finally, the chapter will conclude that the era of the League of Nations can be thought to be one in which the traditional paradigm of the law of the sea was being formulated. However, the paradigm was qualified by the absence of an agreement with regard to the breadth of the territorial sea and rules regarding the delimitation of the territorial sea. In this sense, the paradigm in that period remained incomplete. Furthermore, the time was not ripe to establish a global legal framework for the conservation of marine living resources. Overall the law of the sea at the time was characterised by the reconciliation of competing interests of individual states.

This chapter offers a concise analysis of the legal framework on the protection of foreign investment at the time of the League of Nations, in many respects a rather turbulent period. Such legal framework was essentially composed of a rudimentary network of very heterogeneous bilateral treaties, some basic customary rules, and some broad general principles largely based on the notions of justice and equity. Many fundamental questions remain fiercely disputed, and insurmountable divergences between states to a large extent frustrated the attempts to codify the international rules on the protection of foreigners and their property. Yet the legacy of this period should not be underestimated. From a substantive perspective, state practice already demonstrated a certain convergence on some basic rules on the treatment of foreign investors, while some legal claims put forward by some states – including the so-called Hull formula concerning compensation for expropriation – failed to muster the general acceptance necessary to become legally binding rules. Regarding the settlement of investment-related disputes, an embryonic role for investors started to surface in this period.

We go back in history and discuss the historical dimension of sociolinguistics. We focus on life in the British Isles in the Early Modern period and discover that most of the British population spoke regional and social varieties. As a result of profound changes in society, the history of English is manifold and more diverse than is suggested by a Standard-oriented lens only. We look into language standardization in Late Modern England (1600–1900) and discuss the validity of data, as special care needs to be taken when assessing written data from times when education and schooling were a rare privilege. We present English language ideologies in general, particularly relating to standardization and the persistence of dialect variation. We end with a presentation of groundbreaking studies in English historical sociolinguistics to show how one can gain insights into variation and change despite methodological challenges.

Since its first codification in the early twentieth century, Iranian family law has followed the Shiʿi (Jaʿfarī) school of jurisprudence. In other parts of the Shiʿi world, the question of codifying Shiʿi family law has emerged more recently. This chapter argues that codification enhances the formal rule of law. In the past, family law codification was considered to conflict with a fundamental element of Shiʿi legal thought and religious practice, namely ijtihād, independent legal reasoning by qualified scholars, which makes for a living law. Based on a comparative analysis of Iranian family law and recent Shiʿi (draft) laws put forward in Afghanistan, Bahrain, and Iraq, this chapter discusses where modern Shiʿi family law is located between the “opposite” poles of the formal rule of law (where law is general, prospective, clear, and certain) and ijtihād. The findings indicate that, today, the two are not viewed as contradicting each other. Yet, while Iranian family law only serves as a limited model for other parts of the Shiʿi world, the comparison shows that Iran subjects Shiʿi family law to the formal rule of law more comprehensively than is the case in the other three analyzed countries.

The chapter deals with the central provisions of the two Latin codifications on the papal office, each in the context of the structure of the Code (norms on the supreme authority of the Church; position of the pope in the College of Bishops; legal qualification of papal authority, acquisition and loss of authority). In doing so, it is shown that the current Codex Iuris Canonici has essentially confirmed the concept of papal primacy that already distinguished the Code of 1917. Nevertheless, the question is then explored whether, according to the legal order of the Church, substantial developments or even modifications of the papal primacy, or at least its exercise, are possible. For this purpose, some perspectives are presented.

This concluding chapter makes an overall case for reinstatement of the right to resist in the human rights lexicon, in light of the preceding evidence and analysis. Reprising the persisting gaps in legal certainty, it summarizes the challenge of its reconsideration as a contemporary legal concept lacking express codification at UN level. It then sets an ‘agenda for reconsideration’, identifying both lex lata and lex ferenda options for clarification. Finally, supporting the contention that it is a potentially enforceable human right, it suggests a basic claims analysis template for applying the law as it stands.

This chapter addresses the status of recognition of the human right to resist in conventional international law, and the outcome of recent other international codification efforts. It first considers the universal human rights system, and the theory of implied recognition as an unenumerated right in the International Covenant on Civil and Political Rights, identifying the theorized elements and content using the analytical template. It also considers the right’s corroboration implied by provisions of the Refugee Convention and the Rome Statute of the International Criminal Court. It then considers the right’s fragmentation in the regional human rights systems, comparing the elements and content of the express provisions in the African Charter on Human and Peoples’ Rights and the Arab Charter on Human Rights with its apparent non-recognition in the European and Inter-American systems. Finally, the chapter considers the most recent international ‘soft law’ codification effort: a proposed provision on the right of ‘resistance and opposition to oppression’ in the draft UN Declaration on the Right to Peace, identifying its elements and content. After this second failure to codify the right to resist in a UN human rights instrument, it assesses prospects for, and the legal value of, future international codification.

Chapters Three concludes the study of this political and constitutional transition by exploring the most important legal reform of this time: the Indian Penal Code (1860). Codification represented a highly political exercise that established the terms of the relationship between the subject and sovereign in India, while also further entrenching ideas of colonial difference into the everyday administration of criminal justice. In this chapter, I first examine how the crisis of 1857 shaped the final design of the IPC. I then pay close attention to the figure of the judge and the institution of the jury. I argue that colonial ideas of caste, culture, race, and gender informed the distribution of discretionary authority across the code in ways that would prove consequential for the administration of colonial justice.

This chapter concerns an 1892 texbook on Egyptian criminal law by Muḥammad Ra’fat (d. ?), al-Durra al-Yatīma fi Arkān al-Jarīma. Exactly a decade before its publication, Egypt’s national (or native) legal system, as well as the political and moral philosophy underlying it, experienced important - both conspicuous and subtle - transformations whose character is much debated today. Ra’fat taught jurisprudence in the French section of the Khedival School of Law and his textbook was read by law students in late Ottoman (khedival) Egypt who were taught to understand the laws that govern their own society as commands of law (sing. qānūn) embodied in discrete articles of various applied legal codes. In this period, the Sharīʿa and the various rules of fiqh encompassed within the various Islamic schools of law (madhāhib) no longer explicitly governed Egypt’s criminal justice.

This chapter explores the Saudi judge and legal scholar Ibn Khunyan’s (b. 1376/1956) al-Kāshif fī Sharḥ Niẓām al-Murāfaʿāt al-Sharʿiyya al-Saʿūdī. This work focuses on the Saudi Code of Sharīʿa Procedure and follows the format of a European-style legal commentary, commenting on all 276 articles of the Code with reference to Islamic jurisprudence (fiqh). The section excerpted here discusses the first article of the Code of Sharīʿa Procedure (niẓām al-murāfaʿāt al-sharʿiyya), which stipulates the sources of the law applicable in Saudi courts. In addition to his explanation, Ibn Khunayn uses the commentary on the first article of the code as an opportunity to give an overview over the workings of the Saudi judiciary.

Chapter 4 is the first of three chapters laying a basic foundation in German law and politics. The chapter focuses on German legal history, including a deep history dating from the Roman encounters with the German barbarians up to the codification movement in the nineteenth century. The deep history shows how Germanic customary law, Roman Law, and Canon Law mixed to form modern German law. The chapter then shows how the process of development proceeded differently for private law (leading to the great codification of private law) and public law (with a tumultuous process of constitutionalization).

By way of conclusion, this chapter seeks to provide an overall assessment of what draws the Court and the Commission together, and of the impact that their “special relationship” has produced. In pulling the threads together, it explains that the interaction between the two organs has turned out differently to that which was originally envisaged, and that the great weight accorded by each of them to the work of the other has challenged the exclusive basis of State consent for international law’s validity. In a legal system that remains heavily dependent on unwritten rules of customary international law that require authoritative determination, the ultimate result has been that the Court and the Commission together assume a public order role not foreseen for either of them by their founders.

This chapter provides a detailed account of the impact that the Commission’s work has had in shaping the Court’s case-law. In addition to surveying and classifying all those instances in which the Court has to date been ready to refer expressly to the Commission’s output, the chapter demonstrates that reliance on the Commission’s work has often been more implicit. The question is then posed as to the basis for such recourse and the advantage afforded by it.

This chapter sets the scene for an appreciation of the contemporary relationship between the Court and the Commission by tracing its roots in the broader ideal of the pacific settlement of disputes and the rule of law in international affairs. Taking stock of developments dating back to the nineteenth century, it illustrates that the long-standing movements for an international court and for an international code were not unrelated, and that a certain vision did exist for the way in which their present institutional manifestations were to interact. That original vision, which has been lost in time, has thus far attracted less attention from commentators than its importance requires.

This introductory chapter explains the scope and purpose of the present study; the methodology pursued; and the structure of argument presented in subsequent chapters.

This chapter addresses in detail those rare occasions in which the Court and the Commission have adopted differing positions on the legal questions before them. In exploring both the potential for such disagreements and how they have been handled, the chapter shows that these instances attest to the strength of the inter-institutional relationship rather than undermine it. It also points out, however, that harmony comes at a cost.