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Nationality, Alienage and Early International Rights

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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.

ABOUT THE SPEAKER : Dr Jankiewicz is a Max Weber Fellow at the European University Institute, Florence.

ABOUT THE SEMINAR : The Legal Histories beyond the State series is an initiative of the Lauterpacht Centre for International Law, the Centre for History and Economics, and the Cambridge Centre for Political Thought. It brings together historians, political theorists and lawyers who are interested in the social, economic and political dimensions of law in the early modern and modern periods. We focus on the ways in which law and legal institutions order and organize space and people. This encompasses both imperial and international law, and domestic public and private law in its manifold influences on the nature and form of relations across borders. We are interested in legal actors and institutions, both national and supranational; doctrines and concepts, like jurisdiction; and also diverse forms of legal border-crossing, including the migration of people, ideas and objects across time and place. Embracing new trends in legal and historical research, we pursue the exchange of legal ideas in formal and informal contexts, and the creation, appropriation and interpretation of law by non-traditional actors, and in unexpected places.

Some sessions will be devoted to discussion of new, published work in the field, and others to the sharing of works-in-progress, whether draft articles, chapters or book prospectuses, with a core group of scholars from a variety of disciplines.

All are welcome.

This talk is part of the Legal Histories beyond the State series.

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