Argument from Roman Law in current International Law: Occupation and Acquisitive Prescription

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Argument from Roman Law in current International Law: Occupation and Acquisitive Prescription
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  26 EJIL  16 (2005), 25–58 These words of Thomas Holland were quoted by Hersch Lauterpacht (1897-1960)at the beginning of his Private Law Sources and Analogies of International Law , firstpublished in 1927. 2  In this book, his doctoral thesis, Lauterpacht showed that inter-national law, doctrine as well as practice, largely drew on private law. Concepts andrules that were common to the main – Western – municipal private law systems hadfound their way into public international law. International tribunals and arbitralbodies turned to private law for inspiration when existing international law did notprovide a satisfactory solution to the problem at hand. As Lauterpacht recognized,many of these notions had their roots in Roman law. Lauterpacht made a fundamental contribution to the debate on international law.The practice of referring to private law refuted the positivist doctrine of state volun-tarism. As positivism and state sovereignty gradually lost ground, the profile of Lauterpacht’s argument was raised. But while, since 1927, there has been muchscholarly debate on private law analogies in general, the particular function of Romanlaw has been less discussed. Most international lawyers take for granted that manyprivate law analogies stem from Roman law. In some particular cases, the bloodlineshave been exposed. But there has been little discussion on the role Roman law playsin current international law as a source of inspiration, in other words, what theargumentative value of it is. 3  The purpose of this article is to assess the role that argument from Roman law playsin current international legal practice. This will by done by analysing the practice of the International Court of Justice since 1945. The discussion is limited to a fewinstances of the use of Roman law which will be analysed in depth. In the practice of the Court, territorial and boundary disputes hold an important place. The internationallaw of the acquisition of territory and the delimitation of international boundariesmakes use of several rules derived from Roman law. Two of those examples of argumentfrom Roman law will be assessed: occupation of terra nullius  (Section 4) and acquisitiveprescription (Section 5). The argument will be limited to disputes concerning land. But first, the various functions that Roman law can conceivably have in the forma-tion and elaboration of international law have to be defined. As very little of relevancehas been added to Lauterpacht’s view on the use of Roman law argument, it is onlyright to use his thoughts on the matter as a point of departure. To this, a more extensivesurvey of the historical interaction between Roman and international law thanLauterpacht provided will be added, which will lead us to a fine-tuning of Lauterpacht’sviews on the use of Roman law (Section 3). Before entering this discussion, Lauterpacht’sthought on private law analogies in general needs to be clarified for two reasons(Section 2). First, his references to Roman law are brief and largely implicit. One cannotsurmise Lauterpacht’s views on Roman law argument outside the context of his gen-eral theory of private law analogies. Second, whether one deems private law analogiesas fundamental as Lauterpacht did or not, it is only through the process of private law 2  H. Lauterpacht, Private Law Sources and Analogies of International Law (With Special Reference to InternationalArbitration)  (1927). 3  For a recent example of a study on the Roman srcins of a particular principle ( uti possidetis ) see: J. Castellinoand S. Allen, Title to Territory in International Law. A Temporal Analysis  (2003).  Argument from Roman Law in Current International Law  27 analogies that Roman law has a role to play in current international law and thediscussion on its role becomes relevant to the contemporary international lawyer. 2Private Law Sources and Analogies of International Law Lauterpacht’s Private Law Sources and Analogies  read like an impressive catalogue of private law concepts and rules which had been transposed to the law of nations. The lawof treaties was tributary to contract law. The rules governing the acquisition of territoryfound their srcins in property law. State responsibility was twin to torts law, while insti-tutions, such as prescription, mandate, servitude, lease as well as the basic concepts of international procedural law, stemmed from Roman law and later private law systems. Lauterpacht not only listed private law analogies, he also staunchly defended andpromoted their use. For him, the historical and contemporary practice of turning toprivate law served as a strong rebut against mainstream positivism of the late 19thand early 20th centuries. It was no surprise to him that the majority of internationallawyers denied the significance of private law analogies and turned a blind eye tothem. The widespread use of private law in international legal practice struck at theheart of the positivistic bulwark in two different ways. First, the practice refuted voluntarism, the claim that treaties and custom were theonly existing sources of international law. Only through their consent – in treaties orcustom – could states be bound to international law. Reference to private law rulesand concepts was ‘likely to subject the sovereign will of States to rules which havenever received their express consent’. 4  Nineteenth-century international lawyers,according to Lauterpacht, were commonly said to have defended voluntarism. However,upon closer look at the works of even some of the foremost ‘positivists’ like WilliamEdward Hall (1835-1894), Lassa Oppenheim (1858-1919) and Franz von Liszt(1851-1919), one saw that even they had not embraced so faithfully the positivisticcreed. In the end, claims to absolute sovereignty could not but lead to denying thebinding character of international law. Therefore, scholars like Lauterpacht’s ownteacher Hans Kelsen (1881-1973) as well as Léon Duguit (1859-1928) had pointedto the necessity of at least one basic objective rule of international law that guaranteedthe binding character of the law and transcended the sovereign will of the states.Also, many so-called positivists had not been able to completely shut out references toprivate law and to the law at large in their works. 5  Second, the application of private law rules to international law clashed with ‘theconception of the State as an entity of absolute legal and moral value’. 6  Accordingtothe positivistic creed, states fundamentally differed from persons in that they hadanabsolute right to self-preservation. The sacred, in the words of Lauterpacht,‘metaphysical’ character of states conveyed upon them interests and rights of ‘ahigher nature’. 7  Surely, the state could not be submitted to rules normal people lived 4  Lauterpacht, supra  note 2, at 44. 5   Ibid  ., at 43-59. 6   Ibid  ., at 43. 7   Ibid  ., at 74.  28 EJIL  16 (2005), 25–58 under. Lauterpacht once again stated that this position had proved to be untenableand had little foundation in the historical tradition of international law. The doctrineof the special nature of states stood at the basis of dualism, and thus of the exclusionofindividuals from the field of international law. But practice offered abundant proof that dualism had never truly existed. Moreover, the ‘state’ as a concept srcinatedfrom the analogy of the state with the individual and the transferring of the (natural)rights of individuals to the state. Lauterpacht quoted Hugo Grotius (1583-1645): ‘inrespect to the whole of mankind States took the place of private persons’. 8  The frequent references to private law in international judiciary and arbitral practice,according to Lauterpacht, offered proof that positivism did not offer an accurate layoutof contemporary international law. Private law analogies were far from a marginalfeature in international law, as Lauterpacht saw it. In 1927, Lauterpacht was anunknown quantity in the world of international law. But this was soon to change.Over the next three decades, he became one of the most prominent and influentialscholars of international law. 9  Among contemporaries, Lauterpacht’s thought standsout for its remarkable consistency. Far from retracting anything from what he hadclaimed in 1927, Lauterpacht went on to construct his system of international law onthe basis thereof. 10  Central to Lauterpacht’s thought was his rejection of non liquet . According to SirHersch, this concept had been introduced in international law by Emer de Vattel(1714-1767) and had developed into one of the hallmarks of positivism. It impliedthat international law as a legal system was incomplete. States were only subjected tothe rule of law in so far as they themselves had consented to the existence of a certainrule. In consequence, not all conflicts between states could be resolved through law.Therefore, international tribunals and arbiters could refuse to adjudicate if they foundthe law was incomplete and did not offer a solution to the dispute submitted to them. Throughout his many publications, Hersch Lauterpacht fiercely attacked non liquet as an excess of positivism. 11  Though the doctrine of non liquet  had met with wide-spread support among 19th-century scholars of international law, it had no footholdin judicial practice. Nor should it have. In Lauterpacht’s view, international law did 8  H. Grotius, Mare liberum  5 (1609) (author’s trans.); see on Grotius in this respect, R. Tuck, The Rights of War and Peace. Political Thought and the International Order from Grotius to Kant  (1999), at 79-89. Lauterpacht, supra  note 2, at 72-87, Grotius quotation at 81. 9  From 1938 to 1956, Lauterpacht was Whewell Professor of International Law at Cambridge. From1956 until his untimely death in 1960, he served as a Judge in the International Court of Justice. Graveson,‘Hersch Lauterpacht’, 10 ICLQ  (1961) 1; E. Lauterpacht, ‘Sir Hersch Lauterpacht, 1897-1960’, 8 EJIL (1997) 313; McNair, ‘Hersch Lauterpacht’, Proceedings of the British Academy  (1961) 371. 10  For some analyses and assessments of Lauterpacht’s thought see: Jenks, ‘Hersch Lauterpacht: TheScholar as a Prophet’, 36 BYbIL  (1960) 1; M. Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960  (2001), at 353-412, this chapter was previously published in 8 EJIL (1997) 215; Scobbie, ‘The Theorist as Judge: Hersch Lauterpacht’s Concept of the International JudicialFunction’, 8 EJIL  (1997) 264; Rosenne, ‘Sir Hersch Lauterpacht’s Concept of the Task of the Inter-national Judge’, 55 AJ   (1961) 825. 11  H. Lauterpacht, The Function of Law in the International Community  (1933; 2nd ed., 1973) and ‘SomeObservations on the Prohibition of “Non Liquet” and the Completeness of the Law’, in F.M. van Asbeck etal . (eds.), Symbolae Verzijl  (1958), 196.
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