Browse results

Editor-in-Chief: Wei Zhang
Editors: Ruoyu LI, Chong Zhang and Hui Shi
This volume presents the Concept of a Human Community with a Shared Future as a new path towards the realization of human rights. This idea tries to encourage all countries and economies to focus on a shared future and common destiny for all humankind as well as to work together to build a Human Community with a Shared Future through interdependence and joint development.
The present volume consists of a collection of texts arising from conferences organized by the China Society for Human Rights Studies. The texts centre on the concept of the Human Community with a Shared Future, reflecting the current reality and extent of human rights thinking with respect to both law and policy in establishment circles in China, and helping to demonstrate the likely direction of official policy in the near future.
The Asian Yearbook of Human Rights and Humanitarian Law aims to publish peer-reviewed scholarly articles and reviews as well as significant developments in human rights and humanitarian law. It examines international human rights and humanitarian law with a global reach, though its particular focus is on the Asian region.

The focused theme of Volume 4 is Law, Culture and Human Rights in Asia and the Middle East.
Author: Shreya Atrey
This volume in the Brill Research Perspectives in Comparative Discrimination Law addresses intersectionality from the lens of comparative antidiscrimination law. The term ‘intersectionality’ was coined by Kimberlé Williams Crenshaw in 1989. As a field, intersectionality has a longer history, of nearly two hundred years. Meanwhile, comparative antidiscrimination law as a field may be just over a few decades old. Thus, intersectionality’s tryst with antidiscrimination law is a fairly recent one. Developed as a critique of antidiscrimination law, intersectionality has had a significant influence on it. Yet, intersectionality’s logic does not seem to have infiltrated the logic of antidiscrimination law completely. Comparative antidiscrimination law continues to develop with intersectionality in sight, but rarely, in step. On the occasion of the 30th anniversary of Crenshaw’s seminal article that coined the term in the context of antidiscrimination law, Shreya Atrey explores this irony. Her article provides a meta-narrative of the development of the two fields with the purpose of showing what appear to be orthogonal trajectories.
Author: Valentina Vadi
This treatise investigates the emergence of the early modern law of nations, focusing on Alberico Gentili’s contribution to the same. A religious refugee and Regius Professor at the University of Oxford, Alberico Gentili (1552–1608) lived in difficult times of religious wars and political persecution. He discussed issues that were topical in his lifetime and remain so today, including the clash of civilizations, the conduct of war, and the maintenance of peace. His idealism and political pragmatism constitute the principal reasons for the continued interest in his work. Gentili’s work is important for historical record, but also for better analysing and critically assessing the origins of international law and its current developments, as well as for elaborating its future trajectories.
Author: Valentina Vadi

Abstract

Who was Alberico Gentili? What did he contribute to the early modern law of nations? Why does his work still matter today? What is his legacy for the future of international law? To address these questions, and to examine and critically assess Gentili’s contribution to international law, it is necessary to keep in mind his persona, i.e. his family background, education, and life experience, as well as the historical, political, and cultural context in which he lived. Gentili’s life deserves scrutiny and attention as his thought becomes intelligible only when seen against its historical, political, and cultural context.

The life of Alberico Gentili is a compelling story of success with all of the themes of a great narrative: faith, ambition, adventure, and a voyage into unknown lands, as well as conflicts, contradiction, and paradox. Born into a noble family in the Italian town of San Ginesio, Gentili studied law and graduated with a doctorate from the University of Perugia. Because of his Reformed beliefs and in order to escape the Inquisition, he fled to England, transitioning from a world of peril and fear to one of adventure and fame. He was part of an influential network and eventually became Regius Professor at the University of Oxford.

To illuminate Alberico Gentili’s contribution to international law, Chapter 2 provides a ‘thick description’ of Gentili’s life by exploring the social, cultural, and political context in which he lived and sets the scene for the subsequent legal inquiry. This chapter tries to avoid portraying Gentili’s life as a series of events unfolding in a linear fashion. Rather, particular attention is given to the elements of discontinuity in the course of his life, i.e. those crucial moments at which he faced difficult choices. The chapter uses different, albeit related, dimensional scales moving from macro- to micro-levels of analysis. At the macro-level, Gentili’s life was permeable to the major political, historical, and social events of his time. Therefore, while examining the trajectory of Gentili’s life, the chapter also briefly considers the main political, cultural, and religious processes of the sixteenth century. At the micro level, the chapter places Gentili within a transnational system of relations that changes according to chronological and geographical variables. Gentili belonged to various political, cultural, and intellectual networks and his life was shaped by his contacts with individuals, networks, and institutions. Such interpersonal linkages can offer useful units of analysis for comprehending Gentili’s complex identity.

To map Gentili’s life, the chapter relies on the combined use of literary, historical, and legal sources, as well as the Gentilian Manuscripts at the Bodleian Library in Oxford. The chapter also takes into account recent archival discoveries. The chapter contributes to the existing literature in two ways. First, it makes use of important recently de-classified sources to provide new insights into Gentili’s life. Second, by mapping Gentili’s intellectual network it unveils previously unknown aspects of his personality, life, and work.

In: War and Peace
Author: Valentina Vadi

Abstract

Although the foundational structure of international law emerged over centuries and the discipline is the product of a combined rather than individual effort, it seems appropriate to compare Alberico Gentili and Hugo Grotius’ works systematically on a range of themes to illuminate the genesis of given international law concepts and to attribute these concepts to their respective authors. In particular the chapter considers how Gentili influenced Grotius, and the extent to which Gentili’s thought can be detected in Grotius’ writings. It also discusses how the Renaissance canons of originality differ from those of today.

The chapter compares Gentili and Grotius’ respective works on a range of themes. Such comparison does not merely have historical value; rather, it can provide a better understanding of the history and theory of international law. Juxtaposing the scholarly works of Gentili and Grotius on a range of themes can help to establish whether or not Grotius borrowed certain concepts from Gentili’s work. It also clarifies the unique and original contributions Gentili and Grotius respectively made to the early modern law of nations.

In order to analyse Gentili and Grotius works, the chapter proceeds as follows. Section 1 briefly highlights why the analysis is needed and introduces the life and work of Hugo Grotius. Section 2 illustrates the different writing styles of the two scholars. Section 3 discusses the similarities and differences in their methods of argumentation. Section 4 compares some key elements of the Gentilian and Grotian theories of the law of nations, ranging from the concepts of natural law, international community, defensive and offensive warfare, peaceful dispute settlement, prisoners of war, non-combatants and, lastly, the law of peace treaties. Section 5 critically assesses the converging divergences of their respective arguments. Finally, the chapter concludes with a critical assessment, focusing on the respective contributions of these scholars to the early modern law of nations. Gentili had a profound influence on Grotius’ thought; at the same time there remain notable differences in their legal theories.

In: War and Peace
Author: Valentina Vadi

Abstract

This book contributes to current debates on the history and theory of international law by focusing on the life and work of the sixteenth-century Italian émigré, legal scholar, and practicing lawyer, Alberico Gentili (1552–1608). A Protestant who lived in exile and Regius Professor of Civil Law at the University of Oxford, Gentili contributed substantially to the development of the law of nations. Although he lived in an age of religious wars, clashes of cultures, struggles for hegemony and religious intolerance, Gentili sketched out fundamental concepts of international law while also separating international law from both theology and municipal law. Not only is his work historically relevant, but it is crucial to understand contemporary issues and ongoing debates regarding the maintenance of international peace, the safeguarding of cultural diversity, and international justice.

This book aims to develop a solid understanding of, and position on, Alberico Gentili’s contribution to international law. As Gentili’s work has been characterized by some ambiguities, this book combines both textual and contextual analysis. Not only does it carefully examine the text of the Gentilian works, but it also contextualizes the works in the political, cultural, and legal environment in which Gentili lived, in order to shed some light on this enigmatic scholar, and to map and critically assess the seminal contribution he made to the theory of the law of nations.

By unveiling the dialectical oscillations of the Gentilian thought between opposing poles, this work provides the reader with the critical tools necessary to appreciate the complexity of the Gentilian opus against the lights and shadows of the sixteenth century. It also provides the reader with a complete analytical framework of Gentili’s major theoretical contributions to international law, which may be of use to both practitioners and scholars with an interest in the past, present, and future of international law.

In: War and Peace
Author: Valentina Vadi

Abstract

In the early modern period, empire was a complex, ambiguous, and elusive notion, reflecting a wide spectrum of both theories and practices of power. Three parallel notions of empire could be identified in state practice. First, the concept of empire (imperium) increasingly referred to external sovereignty (supremitas). No longer were states mere parts of a greater political entity; rather, they were perfect communities, complete in and of themselves (communitates perfectae). Such an idea of empire was a by-product of state formation. Second, the concept of empire increasingly referred to internal sovereignty, that is the capacity of the nation to govern itself, regardless of form, and pursue the achievement of its own destiny. In the attempt to overcome civil strife, monarchs increasingly centralized power and adopted forms of political absolutism. Third, as states consolidated their internal power, they sought to increase their external power. Empire started to indicate any form of political, economic or military power of one nation over another. These different conceptualizations of empire reflected the emergence of modern states, the transformation of international relations, and the European expansion.

What role did Alberico Gentili play in the debate on the legitimacy of empire and European expansion? Certainly, Gentili participated in the debate about the (il)legitimacy of conquest, highlighting the necessity of resisting the Spanish Empire. In his works, Gentili considered war and peace, power and justice, empire and resistance to imperialism. At first sight, the Gentilian system presents some normative ambivalence. While some of the elements of his system, such as humanitarian intervention and preventive defence could seem to be used to advance imperial claims, other elements, including the condemnation of wars based on religion or cultural diversity, the criticism of the terra nullius argument, could be used to oppose empire. The ambivalence of the Gentilian language could allow it to serve imperial and non-imperial purposes alike. Was he ‘celebrating policies of empire’? Or was he formulating a theory of anti-hegemonic resistance within international law?

Chapter 6 focuses on Gentili and the injustice of empire and proceeds as follows. First, the chapter examines how Gentili dealt with the challenge of cultural diversity and tried to give coherence to the new reality of cultural and legal pluralism. Second, it briefly discusses the legal debate over the (il)legitimacy of European expansion and conquest. Third, it discusses how early modern scholars relied on the Roman model to debate the (il)legitimacy of the European expansion. In particular, it examines and critically assesses Gentili’s De armis Romanis addressing the question of whether Gentili supported or opposed hegemonic expansion. Divided into two books, De armis Romanis remains an ambiguous work. The first book constitutes a fierce indictment of the injustice of the Roman Empire while the second book provides a wordy defence of its justice. Because Gentili does not explicitly clarify his stance, the true meaning of this work has remained controversial: did Gentili endorse an imperialist stance or support an anti-hegemonic position? Finally, after having examined themes of external sovereignty and imperial expansion, the chapter illuminates Gentili’s theory of internal sovereignty. This theory complements the Gentilian theory on external sovereignty and can shed further light on the enigmatic scholar.

In: War and Peace
Author: Valentina Vadi

Abstract

Chapter 4 illuminates some of the key contributions Gentili made to the theory of general international law and sets the ground for the following chapters that focus on specific areas of international law, such as the law of war and the law of the sea. The chapter discusses the Gentilian vision of the international community as a cosmopolis—the city of all—and looks at the way he develops the notions of, and elaborates on the interplay between, the law of nations and natural law. It then discusses Gentili’s reflection on the early modern diplomatic law, international dispute settlement mechanisms, and his contribution to the secularization of international law.

A Renaissance humanist adhering to the Reformation, Gentili responded to the religious and political challenges of his time, rethinking the relationship between theology and the law of nations. While earlier authors addressed various international questions relying almost exclusively on theological arguments, Gentili examined international relations from a different standpoint, namely that of international law. According to Gentili, the international community—which he also called the ‘community of [hu]mankind’, or ‘global commonwealth’—included all of the states of the world, not merely those of Christendom.

The chapter proceeds as follows. First, it addresses the question of whether Alberico Gentili can be considered to be one of the founders of international law. Second, it examines Gentili’s contribution to the notion of the law of nations (ius gentium). Third, it discusses and critically assesses his contribution to the evolution of the law of diplomatic immunity. Fourth, it illustrates Gentili’s contribution to the theory of the peaceful settlement of international disputes. Finally, it illuminates Gentili’s contribution to the secularization of international legal theory.

In: War and Peace
Author: Valentina Vadi

Abstract

In the early modern period, the law of the sea (ius maris) remained vague, incomplete, and inconsistent to a large extent. Only a few treaties addressed issues of the law of the sea bilaterally and in a fragmentary fashion. In parallel, the existing customs addressed issues of the law of the sea only in a ‘patchy’ way, and the network of doctrinal authorities led to many inconsistencies. As a result, the regulation of the world’s oceans, that is, the main conduit of movement of peoples and transmission of goods and ideas at the time, remained a site of contestation. For nations and private actors alike (be they merchants and sailors as well as adventurers and pirates), the ocean of law (oceanus iuris) was no more secure than the forces of nature and men on their maritime routes. Is the sea capable of being owned? If so, who owns the sea? Or, does the sea belong to all? Or, if ownership of the seas is materially impossible, can nations exercise some control over activity at sea?

The chapter explores how Alberico Gentili addressed these key questions contributing to early modern developments of the law of the sea. Such scrutiny is both timely and important, as developments in the law of the sea have shaped world history over the past 500 years. Because Gentili’s contribution to the law of the sea is ‘strikingly innovative’, significant, and ‘foundational’, it deserves further scrutiny. In order to discuss the Gentilian contribution to the law of the sea, this chapter relies on his De iure belli, the Hispanica Advocatio, archival materials as well as legal, historical, and literary secondary sources. Gentili influenced the development of the law of the sea in two key ways. On the one hand, he contributed to the conceptualization of the freedom of the sea, the freedom of communication, and the freedom of commerce. On the other hand, he conceptualized the notion of the territorial sea and envisioned a number of exceptions and derogations to the above-mentioned freedoms, in order to balance the interests of the coastal state and those of the international community. He also condemned piracy and privateering as crimes against humanity. Because Gentili served as the advocate of Spain before the High Court of Admiralty in London, his contribution to the development of the early modern law of the sea combined both theoretical and practical aspects.

The chapter explores Gentili’s contribution to the law of the sea, focusing on three main features. First, it discusses Gentili’s approach to the spatial ordering of the sea and examines his twofold contribution to the conceptualization of the freedom of the seas and the notion of the territorial sea in the early modern law of nations. Second, the chapter investigates Gentili’s approach to the regulation of the sea as a place where merchants, pirates, and privateers as well as other non-state actors interacted. In this regard, the chapter illuminates Gentili’s view of these non-state actors and their role in the making of the law of the sea. It examines Gentili’s support for the freedom of international commerce and its regulation by states, and his sanctioning of both piracy and privateering in the early modern period. Third, the chapter discusses the Hispanica Advocatio, examining some of the maritime disputes in which Gentili served as counsel of Spain before the High Court of Admiralty. After providing a critical assessment, the chapter concludes.

In: War and Peace