Papers by Mónica García-Salmones
This article reviews the history and legacy of the nutrition approach in the law of International... more This article reviews the history and legacy of the nutrition approach in the law of International Organisations. The first promoters of international organisations working with food security shared the realist insight that food was a fundamental commodity in national and international economies. Therefore, they understood that the goal of greater distribution of food required massive structural economic reforms and truly global collaboration, starting with trade relations. Their nutrition approach was fundamentally a movement for free trade, advocating a single world economy and a single international organisation devoted to the economy, combined with the wish to secure a certain structural hierarchy among countries, articulated in turn as a programme for the (gradual) development of poorer economies. Their political realism was apparent in their wish for a hierarchical organisation of countries; and their utopianism in the idea that this hierarchy would eventually disappear. The nu...
The Cambridge Companion to International Organizations Law
This article reviews the history and legacy of the nutrition approach in the law of International... more This article reviews the history and legacy of the nutrition approach in the law of International Organisations. The first promoters of international organisations working with food security shared the realist insight that food was a fundamental commodity in national and international economies. Therefore, they understood that the goal of greater distribution of food required massive structural economic reforms and truly global collaboration, starting with trade relations. Their nutrition approach was fundamentally a movement for free trade, advocating a single world economy and a single international organisation devoted to the economy, combined with the wish to secure a certain structural hierarchy among countries, articulated in turn as a programme for the (gradual) development of poorer economies. Their political realism was apparent in their wish for a hierarchical organisation of countries; and their utopianism in the idea that this hierarchy would eventually disappear. The nutrition approach also entailed a vision for a common economy and for growing political unity among countries, either on a regional or global basis, although sovereign nations resisted it and it never materialised. The failure to establish an international organisation with authority to adopt economic decisions for the world with regard to food security has cemented the position of private international corporations as free riders, contributing to precariousness.
Cambridge University Press eBooks, Nov 30, 2022
Ecclesiastical Law Journal, 2019
This chapter traces the legal and political principles of two important schools of the 20th centu... more This chapter traces the legal and political principles of two important schools of the 20th century, the New Haven School and the School of Carl Schmitt and situates them in their geographical and historical contexts. It argues that both traditions were informed by a keen awareness of the earthquake caused in the international legal order by the collapse of the European empires after the 1930s. The contribution analyses commonalities, and specially differences in their political projects. It further argues that reaction against a naive positivism reigning during the past century in international law essentially determined the development in both schools’ understanding of the concept of sources of law. Another important factor in that endeavor was the peculiar geo-political projects of each school. In the discussion of Schmitt the chapter focuses on sources of domestic law and seeks to understand the relationship between the sources of domestic and international law as Schmitt saw it...
Journal of the History of International Law / Revue d’histoire du droit international
Studies on the nature of human rights have reached an impasse largely due to a general resistance... more Studies on the nature of human rights have reached an impasse largely due to a general resistance to engage with the continuity of ideas and theories drawn from religion, morality and ethics in the history of international law. With the impasse of human rights, the article refers to an epistemological deadlock about what human rights are. Studying the concept of natural rights, it is argued, offers a means of breaking this impasse and, ultimately, easing the current tension between historicism and essentialism in human rights theory. The article concludes that natural rights were means to decide the moral questions posed by the violent redistribution of (material) goods taken to be common by the theoreticians of the expanding European empires. Probing in this manner into natural rights’ early uses and embedded theories gives us new tools and fresh approaches to be employed in relation to the challenges posed by contemporary global politics.
Rechtsgeschichte - Legal History
AJIL Unbound
This essay focuses on the understanding of positivism in Prosper Weil's time, its trajectory ... more This essay focuses on the understanding of positivism in Prosper Weil's time, its trajectory since, and how that trajectory reflects changes that have occurred in global society in the intervening years. The world to which Weil spoke is neither in scientific nor in political and cultural terms the same as ours. Key positivist notions, such as neutrality or Weil's critique of the ideal of the unity of the international community and of the invocation of higher moral values, appear to chain sound normative principles while letting loose real power. At any rate, Weil's ideas have not survived globalization or the critical and historical turn taken in the discipline of international law. And yet “Towards Relative Normativity?” arguably owes its lasting significance to its grasp of the weight of the authority of law in international society.
SSRN Electronic Journal
Hans Kelsen’s interventions in the law of the Nuremberg trials have remained unexplored with the ... more Hans Kelsen’s interventions in the law of the Nuremberg trials have remained unexplored with the exception of notes in passim or a couple of brief studies. International criminal law, is true, was not Kelsen’s main object of study. However, the events culminating in Nuremberg, both the shocking Nazi policies and that Kelsen was an émigré in the United States were instrumental to precipitate his close engagement with international criminal law during the dawn years between 1942 and 1945. This chapter introduces the man and his ideas, traces elements of the pure theory that relate to the principle of individual criminal responsibility and, with the help of hitherto unknown archival material, describes for the first time Kelsen’s personal participation in the preparations of Nuremberg and the history behind his absence from the International Military Tribunal. The chapter concludes with a selection of two aspects of Kelsen’s activities as a legal advisor for the US War Crimes Commission: firstly, his insistence on the need for an international treaty as the legal basis of the IMT in order to avoid victors’ justice and problems of jurisdiction; secondly, his contribution towards the inclusion of individual criminal responsibility in the London Agreement.
International legal positivism has been crucial to the development of international law since the... more International legal positivism has been crucial to the development of international law since the nineteenth century. It is often seen as the basis of mainstream or traditional international legal thought. The Project of Positivism in International Law addresses this theory in the long-standing tradition of critical intellectual histories of international law. It provides a nuanced analysis of the resilience of the economic-positivist theory, and shows how influential its role was in shaping the modern frameworks of international law. The book argues that the rise of positivist international law was inseparable from philosophical developments placing the notion of conflict of interests at the centre of collective life. Where previously international thought was dominated by notions of the right, the just, and the good, increasingly international relations became viewed as 'interests' in need of harmonisation. In this context, international law was re-founded as the universal law that could harmonise the interests of both public and private international entities. The book argues that these evolutions in philosophical thought were bound up with the consolidation of capitalism, and with the ideas about human existence and human nature which emerged in that process. It provides an innovative analysis of the selected biography of ideas which it presents, including a detailed focus on the work of Hans Kelsen, one of the leading positivist thinkers of the twentieth century. It also argues that the work of Lassa Oppenheim should be included within this analysis, as providing some of the key founding texts of positivism in international law. This book will be a fascinating read for scholars and students of international legal theory, historians of ideas, and legal philosophers.
European Journal of International Law, 2015
This review article reviews the hardback (2011) and not the paperback edition (2013). The latter ... more This review article reviews the hardback (2011) and not the paperback edition (2013). The latter maintains its 2011 substance but is published together with a one-page preface and a series of annexes, including the book discussion on EJIL Talk!, http://www.ejiltalk.org/formalism-and-the-sources-of-international-law-an-introduction/ (last visited 12 May 2015), as well as a comment by Sahib Singh. In this review I refer to Sahib Singh's review of the book: 'Narrative and Theory: Formalism's Recurrent Return', 84 British Yearbook of International Law (2013) 304. 2 Koskenniemi identifies how the problems revolving around the grand theory extend to other normative claims of law: 'The problem of finding a credible explanation for the normative force of sources doctrine is to a great extent about the difficulty of constructing a "grand theory" about the foundation or purpose-in short, the "point" of law within which "sources" would have a central place.' Koskenniemi, 'Introduction', in M. Koskenniemi (ed.), Sources of International Law (2000) xi, at xii.
Oxford Handbooks Online, 2016
This chapter focuses on Lassa Oppenheim’s (1858–1919) groundbreaking work on the legal theory of ... more This chapter focuses on Lassa Oppenheim’s (1858–1919) groundbreaking work on the legal theory of international law, which was written at the beginning of the twentieth century. Oppenheim’s recognition of the economic interdependence of nations was one important factor in his success in establishing the international economic system as the supporting framework of his Family of Nations, and as the underlying theory of his international law. Afterwards, the chapter maps the complex legal theoretical transition embedded in the change of philosophical position as regards the understanding of universalism. This involves a move from the transcendent realist philosophy of an earlier era to the immanent philosophy of the Austrian positivists at the beginning of the century.
AJILUnbound, 2020
This essay focuses on the understanding of positivism in Prosper Weil's time, its trajectory sinc... more This essay focuses on the understanding of positivism in Prosper Weil's time, its trajectory since, and how that trajectory reflects changes that have occurred in global society in the intervening years. The world to which Weil spoke is neither in scientific nor in political and cultural terms the same as ours. Key positivist notions, such as neutrality or Weil's critique of the ideal of the unity of the international community and of the invocation of higher moral values, appear to chain sound normative principles while letting loose real power. At any rate, Weil's ideas have not survived globalization or the critical and historical turn taken in the discipline of international law. And yet "Towards Relative Normativity?" arguably owes its lasting significance to its grasp of the weight of the authority of law in international society.
The Dawn of a Discipline. International Criminal Justice and its Early Exponents. Tallgren, I. & Mégret, F. (eds.). Cambridge University Press (forthcoming)
Hans Kelsen’s interventions in the law of the Nuremberg trials have remained unexplored with the ... more Hans Kelsen’s interventions in the law of the Nuremberg trials have remained unexplored with the exception of notes in passim or a couple of brief studies. International criminal law, is true, was not Kelsen’s main object of study. However, the events culminating in Nuremberg, both the shocking Nazi policies and that Kelsen was an émigré in the United States were instrumental to precipitate his close engagement with international criminal law during the dawn years between 1942 and 1945. This chapter introduces the man and his ideas, traces elements of the pure theory that relate to the principle of individual criminal responsibility and, with the help of hitherto unknown archival material, describes for the first time Kelsen’s personal participation in the preparations of Nuremberg and the history behind his absence from the International Military Tribunal. The chapter concludes with a selection of two aspects of Kelsen’s activities as a legal advisor for the US War Crimes Commission: firstly, his insistence on the need for an international treaty as the legal basis of the IMT in order to avoid victors’ justice and problems of jurisdiction; secondly, his contribution towards the inclusion of individual criminal responsibility in the London Agreement.
Cambridge Companion to International Organizations Law (forthcoming)
This article reviews the history and legacy of the nutrition approach in the law of International... more This article reviews the history and legacy of the nutrition approach in the law of International Organisations. The first promoters of international organisations working with food security shared the realist insight that food was a fundamental commodity in national and international economies. Therefore, they understood that the goal of greater distribution of food required massive structural economic reforms and truly global collaboration, starting with trade relations. Their nutrition approach was fundamentally a movement for free trade, advocating a single world economy and a single international organisation devoted to the economy, combined with the wish to secure a certain structural hierarchy among countries, articulated in turn as a programme for the (gradual) development of poorer economies. Their political realism was apparent in their wish for a hierarchical organisation of countries; and their utopianism in the idea that this hierarchy would eventually disappear. The nutrition approach also entailed a vision for a common economy and for growing political unity among countries, either on a regional or global basis, although sovereign nations resisted it and it never materialised. The failure to establish an international organisation with authority to adopt economic decisions for the world with regard to food security has cemented the position of private international corporations as free riders, contributing to precariousness.
21 Journal of the History of International Law , 2019
Studies on the nature of human rights have reached an impasse largely due to a general resistance... more Studies on the nature of human rights have reached an impasse largely due to a general resistance to engage with the continuity of ideas and theories drawn from religion, morality and ethics in the history of international law. In using the word ‘impasse’, I refer to an epistemological deadlock about what human rights are. This article argues that studying the concept of natural rights offers a means of breaking this impasse and, ultimately, easing the current tension between historicism and essentialism in human rights theory. I conclude that probing natural rights’ early uses and embedded theories provides new tools and fresh approaches that may be employed in order better to understand human rights as they are now.
Translation and Brief Commentary of KV Fricker, On State Territory (1867)
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Papers by Mónica García-Salmones
Paying careful attention to his use of language, this chapter introduces Albert the Great’s (1200-80) contribution to natural rights into the scholarly debate between subjective and objective rights. Teacher of Thomas Aquinas, Albert’s work on ius naturale has been overshadowed in many aspects by the significance and impact of his student’s. However, Albert’s early appearance on the stage of empirical sciences as a student of nature has been widely recognized. Ecclectic in his use of sources, Albert would generously use Stoic writings, and would become as well a first rate commentator of Aristotle’s works. As a theologian, Albert’s Agustinian influences cannot be neglected. The text examined here, De bono (1242), constitutes an early and thorough elaboration of an original doctrine of natural right and, importantly, of natural rights. The natural rights that Albert describes appear to the modern student both curiously subjective and objective, not fitting the scholarly divide between Aquinian objective system of right and Ockhamist subjective powers as rights. Naturalism, jurisprudence and the demands of society concoted within a theological framework of the mind describe private property, occupation of free things, health, self-defence, worship and even elections as rights implanted in nature. On the one hand, God creates the human being to be good through universals of right inserted in nature. On the other hand, Albert encounters already the problem of the epistemological autonomy of the human being on the face of defective reason. In an uneasy equilibrium of authorities, Albert’s theology of human being’s participation in divine intellect, a power, concurs with the individual’s difficulty in applying the right in the concrete case.
of the history of natural law might facilitate addressing key current
issues relating to the Anthropocene era and offer an insight into the development
of the power of money.
The book relates how knowledge and nature were rearranged anew in
the theories of natural law developed in seventeenth-century England. It
locates that novelty of English natural law in its context and explains why
it remains relevant today. In so doing it broadens the classical language of
governance to encompass notions drawn from natural and social sciences,
the theory of knowledge and natural philosophy. These notions concern
health, human necessities, the light of nature, innate principles, abundance,
scarcity, utility, oeconomy, money and, indeed, the human body, all
of which have consistently been neglected in legalistic accounts of the history
of international law and studies of natural law, or only with theology
as a secondary element. My argument is that the Scientific Revolution was
as important as the Reformation in the process that transformed natural
law from a theological staple into a new philosophy for the development
of Europe. I argue that the sacred idea of nature was one of the casualties
of the Scientific Revolution, and the innate principles of practical reason
were another. They had to give way so that natural scientists could obtain
dominion over science and the humanities.
From the Middle Ages' early conceptualizations of rights and law to contemporary political theory, the chapters bring to life debates concerning the interaction of the meaning of the legal and the sacred. The contributors approach their chapters from an array of different backgrounds and perspectives but with the common objective of investigating the mutually shaping relationship of religion and law. The collaborative endeavour that this volume offers makes available substantial knowledge on the question of international law and religion.