Legal Histories beyond the State seminar: 'Nationality, Alienage and Early International Rights' (Cancelled)

Please note this lecture has been cancelled

Lecture summary: The paper argues that private international law, as it was developed and applied in the late nineteenth century, resulted in the creation of international standards of equal treatment that were later enshrined in international human rights law. In doing so, it studies the normative, disciplinary and jurisdictional interactions occurring between public and private international law during the Victorian era regarding individual rights. The study also accounts for the important distinction between intra-European relations and the legal devices used by Western imperialist states in their interactions with extra-European entities. Developments in the treatment of non-nationals during the nineteenth century provide valuable insights into the origins of human rights because they inaugurate the debates about the desirability of common standards of treatment for individuals and groups.

Following the Napoleonic Civil Code, many Western European states recognized the rights of aliens based on reciprocity and comity to guarantee the analogous rights for their citizens abroad. However, reciprocity allowed for too differentiated a treatment of foreign nationals, and the need for transnational standards was voiced by Foelix in France, Savigny in Germany, and Mancini in Italy. By the 1850s the underlying logic of reciprocity was viewed with apprehension, and attempts were made to replace it with immutable, transnational rights. Paradoxically, the rise of minimum standards of treatment in Europe prompted the rise of the unequal treaties with non-European territories.

The paper provides a reading of international rights that accounts for the fluid boundaries between private and public law over time. Since no single treaty defined a common standard of treatment for aliens before modern human rights, both disciplines responded by developing the standard of equality between citizens and foreigners to ensure legal predictability in an increasingly interdependent world.

Dr Léon Castellanos-Jankiewicz  is a Max Weber Fellow at the EUI and Lecturer in the Law of International Organizations at Bocconi University.

This session is part of the Legal Histories beyond the State work-in-progress seminar series.

The paper will be distributed a week in advance to the seminar mailing list; if you would like to be added, please contact md718@cam.ac.uk.