Legal aspect of globalisation (geography, law and politics)

Introduction:
Geopolitics-> linked together by the law
A legal order can be crated only when a political order has a special orientation. There is an order of
international law, an order of states-> with a lot of different states it is not always affirmative that there is
also an order.
The Eurocentric order arose during the Copernical revolution (and the discovery of America).
To understand what an order is:
-always linked to the specific geographical condition and to a specific set of rule.
Considering the aspect of globalisation, the previous order is no more the same as the actual order that is
the subject of the analysis, this new order will fail if the past is not taken in account (ius publicum
europium) which characterized the last 5 centuries.

NOMOS=the aspect of the link between law, politics and geography.

Nomos also describe the first measure of a part of a land-> its division for the appropriation (possible only
after the measure), to establish for example the boundaries between pieces of land.
For ancient Greeks there was no difference between establishing the law and I landing appropriation: the
creation of a legal order is the same thing as creating the law and dividing the land.
In Plato, on the other hand, it signified skedon-> a pure and concrete rule.
For Aristotle-> distinction between the concrete order (politeia) and the many individual nomoi (plural of
nomos); in Athens when the legislator created an order not only imposed the law but also divided the land
in another way. However, in his text, Aristotle made another distinction between nomos and something
else. He says that nomos is synonym of the rule of the medium sized and well distributed land. Nomos is
also the rule of middle classes.
For Xenphon-> politeia vs. psephismata.
Nemein is the verb of nomos which means to divide and refers to the radical title (=the distributive law of
mine and thine; indeed, one of the other meaning of nomos is wall, as the wall is generally used to divide.
This Greek perspective is different from the modern and actual perspective, so is it true that law develops
and changes.
Legality= function mode of state burocracy
Legitimacy= something that stay before and behind legality, establishes that a specific national statue order
can create some norms.
Since these two aspect developed, law is no more linked to geography or politics but only to the written
rules.
Nomos BASILEUS= nomos as king; is another way of conceiving law. In this case nomos is considered as
nothing more than an arbitrary right of the stronger; in Tindaro and Plato it is the full immediacy of the
power which is not mediated by the law, is a complete legal power that constitute an historical event and
constitute legitimacy.
OTHER MEANINGS of nomos: fence, dwelling place, district, pasturage.
All these meanings testify the links between all these fields= the existence of something within boundaries
or borders.
With the creation of the state this concept of ancient order changed-> from the roman empire to the res
publica critstiana.

Lecture 2- land appropriation as a constitutive process

This is a constitutive process of an order. The history of mankind is full of migrations, they made the history
in many continent and ages (ex. Roman empire and barbaric invasions). Sometimes migration= land
apprehension or LANDNHAME (appropriation of a piece of land- process of establishing a new order by
identifying a new space and its apprehension based on the firm land)-> element to understand the
globalisation phenomena.
After land appropriation there is land division: LANDTEILUNG (the moment in which it’s established that the
radical title for property); division means the creation of portion divided between individuals or other social
groups-> how human beings have structured social community, ex. In roman law division took place
according to the importance of the pater familia, in the conquest of America each man had the possibility
to take his own piece of land.
These 2 process are characterized from an internal/external point of view: in the case of appropriation
there is a division between what’s inside and outside such division, in the case of division there is a
subdivision between the subject within the land it divided.
During the process of land appropriation, law/order and law/land are one single thing-> law is land
appropriation and division, they cannot be divided.
Land appropriation (as in the case of America) occurs with every territorial change and every appropriation
can take place when there is an order; ex. Crusades (European conquest Arabic’s lands) -> there was an
already existing order, then came the land appropriation with the beginning of a new order.
However not every appropriation leads to a new order; ex. France and Germany in 18 th century (Germany
takes French territories but the order takes the same)-> not always there is a new nomos (order).
To establish if there is a modification of an order there must be considered:
-whether there is free land to be held (which does not belong to anybody else)-> positivist says that
appropriation is a matter of fact and not law
//WHEN AN ORDER IS ESTABLISHED THERE IS A SET OF RULES ACCEPTED BY THE MEBEMRS OF THE ORDDER
THAT MAY ARISE IN THE ORDER ITSELF-> if there is no order there are no rules to regulate the life and all
the aspect to maintain the order through times//.
The basic event that change from a political point of view the European ideas was the discovery of the new
world (America): the approach to law, the basic concept acquired by the scholars and common people.

The mother of the law

The mother of the law is the land; soil can be considered as a measure of justice.
Boundaries can be applied to the sea; however, it is not possible to build these boundaries in concrete.
The land is free, as far as the sea. Before the great power the freedom of the sea was simple.
Sea is antithetical to the land, an order cannot be created through apprehension or the establishment of
boundaries

Land appropriation in practice

Land appropriation is also finding a new colony, divide the territory and establish a new order. Division is
external because what belongs to the territory is part and remains on the territory, anything else outside
the division doesn’t matter (religion is part of the division).
There is no distinction between public and private law, it started in mediaeval period and arrived to the
national state: public and private have a modern meaning only when a new entity (the national sate) is
created.
The theory of land appropriation was reconstructed by different by different political thinker, many thought
that there was a link between law and land:
-Gianbattista Vico-> the first law was received by human beings and was given by heroes, it was given
through the agrarian laws (which dealt with agriculture: what the soil produce)
-John Locke-> the first and most important essence of political and legal power is the jurisdiction over the
land, land is the key element to understand the law and the English common law; domination power is
primarily over the land (not ruling directly over the people, but over the land and the people who live on it)
-Immanuel Kant-> doctrine of the supreme proprietorship of the land; there is a pre-condition at the base
of the order there is land which derives from an original acquisition of land; not only a logical precondition
but also historical.

There is a third element. Since the 12th century mankind had the dominion over another part of heart: air.
There is a relationship between land, sea and air …

……..
Pre global nomoi
Before the globalisation all the previous empires thought and considered themselves the centre of the
world, and all around there were other provincial regions inhabited by the barbarian groups, however if the
world was seen from an outside point of view there were all this empire which shouldn’t have got in touch
between each other.
The ancient interconnections were not a global level, but were only temporary interconnection mostly for
economic purposes, so there was lacking a global and coherent system until the geographical revolution.
There was not a common horizon between the different nomoi (orders), neither there was a clear
conception between the land order and the city-> all the order were grounded, there was only a terrestrial
order on the land, since empires were not interested to the sea.
There were not only relations between empire, since the relations were also within the people of the
empire-> the real aim was to maintain a cosmos …..
This order was broken by the advent of the res publica Cristiana (6 century after the fall of the roman
empire)-> in this period the mediaeval order arose from the order of the roman empire, more precisely
from the land appropriation of migrating people outside the empire; appropriation happened trough
conquest (without any resect of the legal situation before the conquest), so roman found a way to deal
with this problem: the land was given by the emperor himself to the tribes and regulated by institution of
hospitalitas (link with military order-> when an army settled on a specific land) = barbarians had the right of
housing and maintenance while romans were still owner, this lead to a new order called the roman-
barbarian order.
The res publica Cristiana was made of Christian people, not only from the religious point of view but also
from the political and cultural aspects: there was a territory with an order, outside this order there were
non-Christian people on the Christian- missionary soil which must’ve been converted. Then there was a
continuity between the roman empire, the new Roman-Germanic empire and the byzantine empire (sense
of unity); the other religious-political power was the Islamic empire (the enemies) that represented s a
potential acquirement from the res publica through the Crusades-> different European princes fighting
together for the same goal.
Wars within Christian people own a legal order-> rules of war are established; there were just and unjust
wars.
Role of katechon
Res publica Cristiana had 2 authorities: the pope and the emperor. These authorities were together at the
service of the same aim, such as the salvation of the soul after death. There are 2 authorities and 2
important places: Jerusalem and Rome.
Emperor: transmitted the law, was not an eternal institution, historical power-> aim was to restrain the
appearance of the anti-Christ and so to save the world from the evil
Pope: through the church it was eternal-> aim save the soul of the people belonging to Christ.
Salvation of the soul-> katechon (the power that restrain).
Since they had the same importance from the conceptual point of view, but in the real life the pope said to
be superior to the emperor.
The legal orientation of the res publica was found on the system of feudalism (land of the landowner,
linked and maintained by other people by the vassalage)-> relationship between individuals were personal
bonds, so a plurality of personal bonds where the common element is land.
Beside the feudalism there were also municipalities and reigns, royal houses-> because the empire is not a
centralized power as the national state, so there was space for other authorities subordinated to the
emperor but still important.
12-14th century struggle between the two powers, each of them claimed its power above the other -> in
this situation new political and legal entities started their development (beginning of national state),
neither empire nor church could face these entities.
In this moment the order of katechon failed, there was not a Cristian empire but different entities with a
bureaucratic power on a specific land (military, taxation power).
With the division of the church were born two way of thinking: catholic and protestant church -> no more a
single power (the pope) able to comprehend the entire res publica.
The dissolution started with these 2 phenomena and fro the 14-15th century also the jurists started to break
the link between the roman law and the empire, they were now at the service of the monarchical powers
(no more a unique Christian space but different monarchical territories divided by boundaries).
In this situation arose the national sates governed by the king. The first problem was the legitimation -> the
king has a serious prerogatives belonging to him because he is the state.
1648 peace of Westphalia-> end of wars between various national state
Discovery of America-> change in the European perspective, Europe was no more the centre of the world
because there were also other lands+ seas and oceans (without a political order).
Consequently, the apprehension of these new spaces became an issue for the various European lands, it
was needed a new political order (=ius publicum europium).
Rome and Jerusalem were no more the centre of the world, also from a scientific point of view (the first
were the catholic, they could establish the rule of division).
These new spaces were divided and distributed through a system of lines (by pope Alexander VI) -> line of
tordesillas in favour of Spain.
Rayas
When drawing a line, powers agreed and shared a common authority: when drawing a raya, powers
stipulate a contract-> establishment of 2 different space (freedom of mission+ freedom of commerce and
navigation).
This concept is different from the institution of amity lines -> appeared for the first time in a secret clause
of cateau-cambresis treaty in 1559 (in this period the fight between the 2 churches had begun); this lines
delimited the European space, outside there was the new world and also between European law and
nothing else (all the rules had a meaning on the European soil, but outside the line the struggle between
the great powers had no rules, rules of apprehension had no limits).
Amity lines delimit where the civilized world ends and where begins the state of nature (the law of the
strongest), there is no more common authority-> it means that the partition of the world is between part
with rules and part where the force could be used freely without boundaries.
Amity lines has a second limit: the sea was not only a part of space that could be apprehended.
State of nature opposes to the civil mode of existence-> (Hobbes) from one state there is the state created
to provide an order in Europe, on the other state the life of a man is always in danger (homo homini lupus).
The third type of line was the line of western hemisphere-> the counter attack of the new world against
Europe, developed in end of 18th century which was the war of American independence from English power
to start creating a new huge country power; they were the new global actor outside Europe, so it was clear
that US would have developed the new conception of 2 hemispheres (east and west).

Land appropriation of a new world:

De Vitoria: first attempt to adapt the order of the res publica Cristiana to the new world; his way of thinking
was objective and impartial as he belongs to the second scholastic way of thinking
….
His starting point were the titles of the emperor and the pope, they are inappropriate. He underlined that
the American people, tough barbarians, were not animals but human beings and were no less humans than
the European conquerors.
According to Sepulveda natives are savages and barbarians, so they must be excluded and made free
appropriation for the Europeans.
For De Vitoria, discovery was not a legitimate title for acquisition, since the new land is a novelty in Europe
it is not for the peoples of such lands (ex. Spaniards and barbarians are unconditionally reciprocal and
invertible)-> he did not used historical arguments (ex. Christian idea of history) but only deductive
reasoning based on Aristotelian logic.
If we consider Vitoria as a theologian it arrives to the conclusion that the American war is not unjust-> he is
not rejecting his previous position but he states that the conquest is a good thing, a positive fact because it
is a war to convert people to the true faith (Christianity); missionary mandate = just war.
The foundation of the conquest is the papal missionary mandate.
Vitoria’s arguments were used by other thinkers of the protestant faith, they developed this moral doctrine
into a more general and neutral ius naturale and gentium (they are father of the modern international law);
they arrive to a different aim-> no more theologians like Vitoria to decide the doctrines (ex. What was used
by Vitoria within the Spanish word, was used by Grotius and other as a new tool that could justify the trade
wars between the great powers in the sea space). Also the political situation changed with new power
(England, Netherlands) able to compete on the seas with Spain and Portugal.
In Vitoria thinking there are concept that justify apprehension of land and resources by the possibility to
fight a just war-> during the republica Christiana there were multiple types of war (inside Christianity and
outside with other orders) and there was no distinction between war of aggression and war of defence but
only if the war could have been considered just or unjust; the possibility to convert other people goes with
the possibility to navigation, to trade and so on.
From the 16th to the 20th century, post medieval age, there was the birth of the state and with it the end of
just war -> each state is sovereign so each state has the same rights and duties in the states community, so
the state could be considered a just enemy (Justus hostis= define the only actor which is legitimate to start
a war), now the aim that war between state are legitimate (means that there are rules also for the war).
The actor which are not Justus hostis are criminals because they have no legal value to bring a war (so only
the state could): pirates did not recognize the new order, they worked outside the rules (but if he works for
a great power they were legitimated agents). This new distinction belongs to Alberico Gentili.
This view lasted till the end of IIWW, after this system collapsed-> Justus hostis was no more the centre of
the political thinking, because a new concept of war entered on the stage = discrimination war (enemy is no
more just) and a return to an old concept which is the just war now considered a criminal war.

Land appropriation of a new world: discovery and occupation

…
Roman catholic church was no more the central power, nor was the had a direct authority on the legal and
political life of the peoples of Europe. The centre was the monarchy with the king, and France was the first
state to become sovereign in terms of its juridical consciousness-> France was the first power from the end
of 16th century to overcome the predial civil war using the concept of sovereignty.
The first to elaborate this doctrine was Jean Bodin -> res publica was not Christian church but was the
commonwealth (the state).
After Bodin came Gentili: pope had no legal title for land apprehension, and peace could only be
guaranteed by the sovereign state (consequently the pope’s mandate had no more political relevance).
All the other powers (ex. Feudal power and privileges) were cancelled, there was only the king and all the
land belonged to him, he was also the actor in the new international global order. Also the law started to
be the law of the relationship between the great power (treaties, conventions), so from this moment we
can start speaking of a modern international law (no more ius gentium).
Outside Europe it was no more possible to use the principle of just war, neither the conception of
missionary land apprehension-> elaboration of the concept of occupatio (to resolve the struggle between
states): Occupation was a legal title deriving from the discovery of new land.
In this period the true legal title was the discovery -> for the jurists of those centuries discovering meant
having a superior knowledge and consciousness which justified the land apprehension (have a control on
land and use territories’ sources).
In this moment the status of occupied land was not the same of the mother land, from 18 th century
occupation signified the suspension of different statues of colony and the transformation of these new
lands parts of the state (incorporation into the mother and state) -> effective occupation lead to the
creation of a bureaucratic apparat in the occupied land. Before these spaces were only dominated using
trading companies which had the only aim to provide profits and use the land and the resources of the new
territories.
Grotius and Pufendorf in their thinking used numerous assumption of the mediaeval scholastic systems but
they transformed these notions in new concepts-> originated in mediaeval order and reformed in global
order. The new way of thinking was more rational, systematic philosophical approach and used a
positivistic approach, was conceived the law of the state and the approach of the jurists turned into a mere
assistance of the state.
Why do jurists study history?
To better understand and learn more on the present, to provide a context and serve as a philological tool. It
develops a critical capacity to analyse, a methodological tool fundamental for critical reasoning.
Historical dynamics can have many things in common, diverge on other points, cases of uniformity and
interactions. In this scenario one could talk about globalisation, but it may be not the correct-> there are
many different definitions about globalization (growing interconnections at global level; integration of
economic, cultural political and social systems; interdependences of the world’s economies; historical
process) but they not consider law system (not thinking exactly to statues and codes but to a bigger
dimension deemed as law). Another defect is that they do not focus on the very origin of this process but
only the effects that such process produce on the society. Globalisation is a system of rules, and such rules
change through times.
Modern history-> end of medieval period (discovery of America) till the French revolution (1789); after the
discovery of America start the age of discovery, new actors and dynamics emerged.
VOC (Dutch east India company)-> the first joint stock company in the world, was formed to merge Dutch
trading company to even larger company with the intent of imposing Dutch dominance over the oceans
and trade; was born on public initiative since the government helped these companies to adopt some
common rules in the collective interest.
1670 Charles II king of England created the Hudson’s bay company (still exists today as a Canadian
company).
Political power-> after western roman empire its institutions deteriorated, in this lack of institutions the
pope became more authoritative also from a territorial point of view, will lead to the creation of the holy
roman empire; these two power fought to establish who would’ve controlled who; with the peace of
Westphalia “cuius regio, eius regious” (hierarchy of legal sources, state law as primary instrument; law as
the voice of people in time and land).
Rules are essential for the market-> when the market refuses the rule bad things happens
Two actors of globalization: private act (mercantilism) and the power who gave rules for private initiative
(modern state).
Mercantilism= was the economic system of trade that spanned from the 16th century to the 18th century,
was based on the idea that nation’s wealth and power were best served by increasing trades, it spread with
some European companies with government-guaranteed monopolies (VOC and HBC).
Modern state= it’s linked with the concept of sovereignty (external power should avoid interfering in
another country’s affair; each state has in fact exclusive dominion over its territory)-> modern state is a
human community, represented by the Leviathan (massive body with a sword and crosier composed of
many individual people).
These 2 actors do not need same rules. Mercantilism was a system of statism which employed economic
fallacy to build up a structure of imperial state power; the state has the power to create rules and
mercantilist economic adventure cannot exist without the support of the state (commercial organization,
guarantee of monopoly, military defence, tax benefit, int. trade agreements, int. market stability) when
these elements are not enough there is war (ex. Anglo-dutch and French-dutch wars). On the other hand,
the state needs commercial initiative to ensure its internal prosperity.
Globalisation is the system of rules that emerges from the continuous interplay of trade dynamics and
public power-> the need each other but they pursue different goals generating instability in rules (the
system in unstable) which consequently require a continuous negotiation on rules (depending on the
balances there are different models of globalisation-> linked on how much the state intervene on the
dynamics and this also depend on how much we trust the market).
The balance point between the actors depend on the historical moment and the economic theory that
result in that moment the more appealing.
Statism= doctrine that the political authority is legitimate to some degree-> more or less state?
According to Adam Smith there should be applied the theory of “laissez-faire” (free market capitalism that
opposes to the state intervention), attacked the interference of the state in the economy with tariffs and
other policies, the idea is of less state on the market.
J. M. Keynes criticizes laisse-faire, he said that it doesn’t protect the weakest in the society and leads to
poverty and economic unbalances, he argued that the amount of government intervention must be
decided case by case.
These two elements represented the first paradigm of the global world and lasted until the IIWW.
After conclusion of IIWW there was the UN monetary and financial conference to regulate the order and
make it more stable and prosperous, required cooperation among countries-> states are selfish, wars
destroy economies, social discontent leads to new wars. So Bretton Woods Conference crated a set of rules
concerning int. trade and financial relations between the main industrialised countries.
In the second paradigm there are two important figures were White and Keynes, they had different
perspective on how to achieve this new order: Keynes imagined a model of supranational institutions
democratically participated in by states while white aimed only to achieve economic stability. White’s
approach prevailed on Keynes.
Bretton’s model was the first case of planned globalisation, resulted on a global institutional architecture
based on 3 pillars: international monetary fund (IMF), world bank (WB), general agreement on tariffs and
trade (GATT)-> aimed to create the rules to regulate economic dynamics (multilateralism, global
institutions, cooperation, supranational dimension).
In this dimension the trust is on the states, from the 80’s the deconstruction of finance and the economic
growth the space for politics was reduced, the decision that should’ve been made by the Bretton
institutions were made outside, financial interest eroded the space for politics.
In the third paradigm WTO played an important role, it replaced the GATT, it is an intragovernmental
organization to regulate and facilitate int. trade-> governments use WTO to establish and enforce the rules
that govern the international trade. GATT was replaced because WTO model is realized on the belief that
less rules will accelerate economic growth, it aims to eliminates tariffs, embargoes, quotas (which are the
only instrument that states can use to protect their internal economies and compensate market
imbalances).
Two models comparison:
Bretton= rules evolves through negotiation, institutionalized system, states preserve their power to
intervene to protect national economies from imbalances
WTO= rules only interested in global market dynamics, built on the belief less state, more market, state
totally renounce to protect their national economies.

….

The jus publicum europeum: non-discriminatory state wars

The new globalised legal order was conceptualized by scholars and thinker, each one added an aspect to
such international legal order.
The basis condition for a globalised order is to limit war. Rules are needed to regulate the war between
communities; when a community is destroyed it means that such community has no possibility to be part of
the order. The first to have in mind this aim was Jean Bodine: the only way to limit war was to build the
new order on this new entity called state, so a state-cantered order where wars between political entity
could be limited (limit= give rules).
Until the IIWW the key concept of the int. order is the non-discriminatory war -> parties have equal duty,
rights and reasons.
The changing point is the idea of Aquinas, for who the war must be just so he developed some
requirements to establish whether the war is just: pure goal of peace without hate and ambition, a justa
causa to begin a war, declaration of war by a legitimate authority, the prohibition of any untruth.
Modernity couldn’t establish which party was in the wrong or in the right when doing war-> with Bodine
the question was to establish who can decide and declare war, the answer is only the sovereign; the
sovereign was the only person who could declare war against another sovereign.
The war can be declared by the sovereign with a political decision, which must be regulated by rules
defining the bargain between the parties involved-> resolved the problem of justa causa.
If a state was not interested in deciding which state was right in war, this could remain neutral and not
intervene in the struggle.
The enemy of a war could only be another state and not the single individuals in the state.
All the other possible conflicts (rebelllison, iracy, barbarism) were not wars in the modern sense.
To this modern theory each scholar added an important piece to it.
Balthazar Ayala-> in his work he adopted the perspective of Bodine, now war was no more a problem of
justa causa but it should be conceived only a legal sense (not substantive sense of who is in right), a matter
of normativity (about rules that govern the war), he adopts the concept of sovereign of the state, he
expressed that war could only be public and that every conflict in the private sphere could no more
designated as war in the legal sense (if a private person started a rebellion he was a rebel but not a Justus
hostis).
Alberico Gentili-> was an Italian jurists influenced by humanism, his arguments on war are the same of
Ayala, he developed his assumption not on the medieval way of thinking but on the modern perspective, he
defined war in a clear legal sense saying that every consideration about jut war is removed and the
question is shifted on the formal quality of the war and of the representative of the state (war must be
intended only in legal sense without references to justice), the concept of war is developed through the
concept of just enemy (attention in establish who he is-> the solution is to pay attention to the quality of
the sovereign).
Grotius-> he had no a clear idea on the concepts linked to the new int. order; compared to Hobbes, Gentili
and Bodine he has no conceptual clarity, he is modern and adopts the new conceptualization but he is not
able in distinguishing what is a just war (from juridical concept) and the ancient problem of just cause of
war; he arrives to a better definition of what a state can claim after a victory in war (all that was acquired
and conquered in a war from the enemy can be retained by the victorious state); he emphasized the war as
the war to save the new legal order (happens when there is a power that tends to deny the existing
interstate order as the ground of the entire order-> in this case war is necessary) as in the case of French
revolution that changed the society and created a new order (first crisis of the order).
Richard Zouch-> he brought a work in which he uses in a new declination the expression “ius inter gentes”
(the law among people), he defines the new legal, conceptual order as the new law among nations and
states; he presents and defines this ius (makes a distinction in relationship): creates a subdivision between
various types of dominations and on this basis he determines the type of the enemy
Ex. Inimici (opponent without legal community, no deal but they are not hostis and so are not equal),
adversarii (opponent with a legal community destroyed by the civil war)
Pufendorf-> he deals with prize war which regulates the acquirement from the enemy and the
compensation for the costs of war (established in the treaty among states)
Bynkershoek-> Neutrality was a consequence of rights and equality of the states, neutral party remains
friends of belligerents and is obliged to treat them equally.
Vattel-> conceptualization of the legal institution and the role of the insurgent focusing on civil war and the
status of the rebels within a state and the creation of a civil war between the boarders of such state.
Kant-> provides the final result of all the developments presented, he defined the unjust enemy (state of
nature is a condition of injustice) he rejects just war as legal title to land-appropriation.
Rebellion is the recognition of a potential statehood, also rebellion can be understood through the key
concept of the state.
Unjust enemy-> a threat to the existence of the legal order and the possibility of peace among states and
people, the gaol for Kant is to arrive to the eternal peace; if there is a threat I can declare war in order to
prevent the threat, in this case the war can be conceived as a just war, Kant says nothing on who can
decided about the declaration of war (do not define a superior authority-> so ca be given to the single state
or to the whole community), this war only serve as rescue of the legal order so it cannot be a motif to
conquer another territory.
Occupation bellica of the territory of the enemy-> is a matter of land appropriation within the European
space (where there are entities that control territories), in the mediaeval period this provisional occupation
was considered to be the realization and execution of the right of self-defence, in the modern age is
assumed that war is not discriminatory and that there are sovereign states with equal rights and equal
duties (provisional occupation means the occupation of an area and not of other states, and is the refection
of substitution of sovereign in that area).
At the end of the 18th century with the French revolution which questioned the social, economic and
cultural method to administrate society-> a change in sovereignty in French revolution, was not a
provisional change but was also the apprehension of a subject that did not belonged to the same basic
constitution from a social, economic and political point of view. After the revolution the victorious power
tried to establish the previous order of the common substrates which was the only way to guarantee a
common ground for the community of state, but restoration failed in doing so. It was no more the age of
absolute state but the age of constitution.
In the new constitutional society became clear the distinction between public and private, all the aspects
related to society and the individual as the basis of new version of the old int. order where property, trade
and economy should be left non disturbed by those aspects concerning the public sphere; restoration
accepted these new concepts of the capitalistic society.
Now the struggle was no more the antithesis between change in sovereign and change of regime, the new
situation had some specific characteristics that were fundamental for the 19 th century society of states:
concepts of just enemy (all the states are equal), the concept of continental land war (war was a problem of
land, a fight between soldiers belonging to armies of different state-organized entities-> basic assumption
of how war had to be conducted= on the land, with armies), the principle of legitimacy (congress of Vienna
restored this principle) based on the democratic self-determination of the people, determination of private
and public sphere.
War does not disturb if there are rules and methods, the essential condition was that wars should be
resolved in great peace conferences and all the recognized members of the legal order participate to such
conference. Total war is dangerous because can destroy the constitution of the new order, so every power
has an interest in every territorial change within the European system-> collective agreements at European
conferences (ex. Peace of Westphalia, peace of Utrecht, Congress of Vienna).
Through these conferences and peace were modified the rules to maintain the order, the recognition from
other powers to be a great power had also legal consequences-> you could participate in creation of such
rules.
At the end of American civil war, European state recognized the power of America but it did not recognize
the European order. With the Monroe doctrine there was a line in the ocean that divided USA from Europe
which could no more have any land connection with the USA which were therefore not interested in
European affairs (Europe adapted to the new members such as Japan and USA)
Last apprehension of land from European powers during 19th century was regulated by the Congo
conference, which is the last peace treaty-> Until the IWW there was a period of great technical
development in European civilization, conceived as the age of positivism, was an age of faith in the future;
in this period all territories outside Europe were apprehended by European power, particularly the African
soil. Apprehension took place by treaties with the indigenous treaties, however these treaties did not
belong to the ius publicum europium because they were not binding as the treaty stipulated between the
great western powers-> they were not the legal title for apprehension so it was used the effective
occupation. The aim of these treaty was to establish the condition for exercise the power.
The form used in previous century to expand the colonial society appeared to be suspended by the state
development also in these affairs, its revival came at the end of 19th century ….
The final process of land apprehension and creation of treaties among state powers was the Congo
conference in 1884 held in berlin. At the end of 19th there is a globalisation order found upon European
power, beside new non-European actor (USA, Japan and new states of south America), so the world was no
more Eurocentric. At the conference were invited also non-European powers.
Art. 34 of this treaty-> requirement of notification to other powers to make valid the reclamation of a
certain area, so other power could make a rejection
Art. 35 -> recognize the substantive element, the true legal title valid for the apprehension of land and
effective occupation
The prevention of a European war for the conquest of this area had the meaning to guarantee the free
trade, to maintain the possibility of trading and to prevent the interruption of free commerce due to a war;
from this point of view we can see how the Congo congress created an amity line-> has the aim to extend
the possibility to limit war outside Europe (explains the neutralization of this area-> that territory cannot be
conquered by the various powers). There was a dissociation between legal rule in the treaty and the
effectual politics actions of the powers.
In the last decade of 19th century developed a jurisprudence deeply positivistic to be applied to these
treaties, formulated with any reference to the political situation of that period.
Congo colony became an independent state in 1885 and appropriated by Belgium-> Belgium was not a
great power but the participant to an order

The league of nations

It is established with the conference of Paris, held in 1919 and was supposed to end IWW and to create a
world of peace. It was not a European conference because states all around the world participated and
there were a lot of states that were not leading powers (as France) but associated with the major powers.
It is a world peace treaty but only mention Europe, does not deal about question outside Europe, no
mention of the entire world order, no treatment of hemisphere, no mention to the discipline of freedom of
the sea. The interest was the European continent, in effect new borders were drawn in central and eastern
Europe.
The league of nation had it quarter in Geneva, with the aim to guarantee peace on the European soil. It
permitted the creation of an alliance between the winning power of the war. It refused to address the
prominent problems linked to the bracketing of wars, nor had an idea of spatial order.
Until 1936 the application of economic sanction was not used until the case of Ethiopia-> was not a colony
but Italy still conquered and annexed it, even though it was a state of the league. On this point the league
did not reach a conclusion, but the president asserted that the decision of recognizing or not the
annexation should be left to the single states of the league. This special disorder became a characteristic of
the league, it had consequence on the order-> the problem was that there was a contradiction in the
league of nation itself. History arrived at appoint in which there was inspiration for universalism (global
monopoly of the power of a single state) and the ancient pluralism (with different grate powers with
different sphere of influences-> political, social and cultural). The league asserted a sort of not critical
universalism but it remained only in Geneva, was never transferred in a political act, so it was also unable
to adopt an internal balance of power because it was impossible to establish rule to maintain the status
quo since England and France had different conception about the status quo. For England it means to
maintain the domination of the oceans, for France it meant to arrive to specific stipulation between the
European states to guarantee new boarders in time.
The ambiguity present in the league of nation prevents the creation of rules. On one hand the league
remained committed to the ancient military concept of war, but it was also true that there were new
financial aspects that could represent a new way to do war (not more only a problem of armies, battles)
consisting in the annihilation of the enemy.
League failed to creating a pact for general and mutual assistance.
Two questions: the problem of territorial changes and the problem of neutralization of states.
It was impossible to establish a criterion on which found the status quo, not possible to define a legal title
for the apprehension of territory. There was a discussion about territorial changes, but they were not
possible due to the absence of a spatial order. Territorial changes had lost the importance they had in the
previous century due to the new element linked to the capitalistic economy.
Also the problem of neutralization was not addressed, there was the possibility to maintain neutrality (ex.
Swiss neutrality).
Monroe doctrine-> art. 21 states that this doctrine is a regional agreement that is not incompatible with the
league of nation charter. USA said that they would have never joined the league if the doctrine would have
not been recognized indeed the congress refused to join the league.