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.

This chapter addresses the relationship between the Court and the Commission beyond the printed page. By focusing attention on the movement of members from one institution to the other, and to the customary exchanges in Geneva between the members of both the UN organs, it reveals the extent and contribution of the more subtle ties that bind the Court and the Commission.

This chapter examines the unparalleled influence that the Court’s decisions have had on the Commission’s codification and progressive development of areas of the law under its consideration. It illustrates not only the great extent to which many of the Commission’s propositions have borrowed their authority from the pronouncements of the Court, but also the significant impact of the latter on the Commission’s choices concerning terminology and programme of work. The chapter further demonstrates the Commission’s conscious efforts to support the Court’s cause more broadly, including by encouraging the expansion of the Court’s jurisdiction and by promoting the doctrine of the sources of international law enshrined in its Statute.

This chapter frames the interpretive regime of modern international law as a historical contingency and aims to trace its genealogy through an analysis of the codification process that led to the current regime. The contingency of the rules of treaty interpretation is hardly recognized in the official discourse. Treated as a matter of common sense or trans-historical customary international law, the rules of treaty interpretation set forth in the Vienna Convention on the Law of Treaties have for instance been applied to the interpretation of treaties dating back to the nineteenth century and a whole range of treaties concluded in the twentieth century before the entry into force of the Vienna Convention. There is, however, ample evidence that the interpretive approach of the Vienna Convention has by no means prevailed throughout the history of international law. This chapter identifies a series of factors ranging from the intellectual history of the discipline of international law and the contingencies of the codification process, to the political circumstances of the Cold War era and the rise of permanent international tribunals that can account for the normative outcome of the Vienna Convention regime.

There can be little doubt that foreign law has influenced the development of South American private law and that this continues to be the case nowadays. However, this chapter shows that even from the earliest stages of their historical development, these states did not merely copy legal solutions created elsewhere when receiving foreign influences. We adopt a historical perspective and a broad notion of legal transplants to expose foreign law’s influence over the shaping of South American private law and critically evaluate some dominant narratives. First, we analyse the various ways they have influenced the drafters of South American Civil Codes throughout the different waves of codification, as well as the strategies adopted. Afterwards, the inquiry moves to some particular subjects of South American contract law and traces various key shifts that occurred when shaping a liberalisation which, during the nineteenth century, went further than the contemporary European legislation: for instance, taking inspiration from Bentham. After that, we show an inverse movement during the last decades of the twentieth century, directed towards developing a more social conception of contract law, inspired mostly by the German and Italian Civil Codes, though not followed by all jurisdictions. It is concluded that although different European legal systems have informed South American private law, the result is an original blend that is a product of both the creative character of the solutions and the inspiration taken from sources not usually adopted elsewhere in the field of legal transplants.

This chapter develops along three lines. First, following a historical approach, it describes the birth and development of the civil law tradition – from the rediscovery of Roman law in the High Middle Ages to the enactment of the German Civil Code. The second part presents two cases where the civil law model has been transplanted outside of Europe: Latin America and Japan. The final part offers a critical outlook on what the civil law tradition means today.

In all human societies, whether primitive or advanced, there have been legal norms rejecting the use of force. Norms have emerged from custom. Written law may have resulted from the codification and development of customary rules. This happened in Sweden around 1200 A.D. when a central power succeeded in wielding control and secured the unification and development of regional norms into common rules that became binding on all. Over time majority decisions became the established mode of rules adoption. In the international community, no central power has attained control and there has been no legislature adopting rules binding on all states. At Westphalia, in 1648, after the thirty years war, and in Vienna, in 1815, after the Napoleonic wars, the great powers victors felt a responsibility to design a peaceful order. However, it was only through the joint adoption of the Covenant of the League of Nations and the Charter of the UN that the states of the world agreed on binding themselves under legal norms prohibiting the use of interstate use of force.

It is often said that while the West recognized the rule of law, China did not. Many scholars believe that Chinese courts applied Confucian norms of conduct that were expressed, not as rules, but as moral principles. Chinese magistrates, however, decided cases according to known rules. These rules concerned, not standards of conduct, but with the punishment appropriate in various cases of wrongdoing. A great deal of energy and intellectual sophistication went into determining how severely one offense should be punished compared with another. This concern went back to the first, and anti-Confucian dynasty, the Qin. It explains why the rule of law in China differed from the rule of law in the West, and why, although it was compatible with Confucianism, it was not an expression of Confucian moral principles.

To better understand the actual role of the law within the PRC, Western observers employed, over time, different filters: Chinese traditions, Confucianism, observance of Soviet patterns, independent Marxist-Maoism, legal transplants from the West, and so forth. This paper aims to investigate the role played by some Soviet legal theories in the making of Chinese civil law. In particular, it recalls the tension between Formalism and Anti-formalism in the making of a Civil law with Chinese characteristics, from the times of encumbering Soviet models to the most recent era of (re)codification.

Chapter 2 places Hegel’s views on the nature of constitutions in the context of contemporary discussions of what may be termed constitutional transferability, engaging in particular with the French Revolution and the English constitution. It introduces Hegel’s conception of the constitution as an organism, his denial of the possibility of deriving constitutions ‘a priori’, and his simultaneous support for the introduction of written constitutions and legal codification. Hegel’s account of the nature of constitutions is interpreted as supporting a specific kind of constitutionalism while discrediting another. Through a constitutionalist approach to world history, Hegel sought to resolve the inherent tension between universal demands of reason and local particularity, inscribing the progress of world history with freedom and the representative system. By showing that he could draw on prevailing views in doing so, Hegel’s influential attempt to reconcile organic growth with the demands of reason, history with freedom, and community with the individual is lifted out of isolation. His identification of the representative system with subjective freedom, introduced in this chapter, forms a recurring theme throughout the book.

This final chapter revisits the main findings of the book and ties them to the inquired legal events. The first part restates how property protection came to be prioritised over redistributional policies. The second part draws out the contradiction in the simultaneous proposition of a universal timeless legal order that at once claims to represent modernity. The chapter goes on to summarise how law emerges as a self-authorising practice through the lens of jurisdiction and temporal ordering. It concludes with a reflection of the relationship between the structures developed in this book and the two main pillars of legitimation for the contemporary regime of international investment law, namely the depoliticisation of conflicts and the promotion of development.

The international law of the sea is one of the oldest branches of public international law. Thus, it must be examined from the perspective of the development of international law in general. Originally, the law of the sea consisted of a body of rules of customary law. Later on, these rules were progressively codified. The Third United Nations (UN) Conference on the Law of the Sea, which successfully adopted the UN Convention on the Law of the Sea (the LOSC) in 1982, is of critical importance in the codification of the law. Furthermore, the international community and the situations that surround the oceans are constantly changing. Accordingly, it is also necessary to examine the evolutionary process of the law after the adoption of the LOSC. As a general introduction, this chapter will address the following issues in particular: (1) the principal functions of the law of the sea, (2) the sources of the law of the sea, (3) the principles governing the law of the sea (4) procedures of the Third UN Conference on the Law of the Sea (LOSC), (5) the principal features of the LOSC, and (6) the evolutionary process of the LOSC and the law of the sea.

Chapter 4 examines the codification of agricultural knowledge, the process through which practical knowledge was transformed into writing. Rather than asking whether this produced ‘useful’ knowledge to improve farming methods, it asks: for whom was such knowledge useful? It first identifies the construction of ‘agriculture’ as a literary category and an independent body of theory in the seventeenth century, departing from classical and medieval genres. The main section analyses four key modes of codification from 1669 to 1792: systematic, theoretical, experimental and observational. It argues that fundamentally all these modes of codification were shaped by the need to subordinate customary knowledge and labour and establish the supremacy of written knowledge. It further argues that the art of husbandry was codified in accordance with the cultural preferences and managerial interests of landowners, professionals and large farmers. Hence farming books provided a managerial knowledge suitable for the emerging occupational structures of agrarian capitalism.