So, international law, what is and what should be, its essence and the way forward, we don’t know, and we don’t have an idea, tectonic movements against the rapid pace of how the world moves in all kind of directions, commerce, trade, politics, wars, peace, etc.
All kinds of problems created due to the multiple interactions that happen on a daily basis at an international level, within such movement there is the international law, recently I started to read the book of Sir Hersch Lauterpacht, “Private Law Sources and Analogies of International Law“, astonishingly, since 1920 he advocated for the avoidance of a strict differentiation from principles of private law, to principles of international law.
In the next entries, I will be exploring this path, since I find it quite interesting, quite useful and quite paradigmatic. how the judicial instrument of analogy is used in order to transport a principle of private law to a principle of public international law, however, I will say not to be too strict into differentiating what is international private law to public international law, rather I prefer to refer only to International Law in order to convey an idea of unity within the system of international law.
The quote that I want to stress and put forward is by Arnold McNair, judge of the International Court of Justice and the first president of the European Court of Human Rights, in his foreword he established into the reference to article 38 of the Statute of the Permanent Court of International Justice that:
“If the Permanent Court of International Justice, and the many other tribunals which will of necessity be influenced by its example, are to push forward with energy the frontiers of international law into territory not yet included in its domain, it is essential that the resources of private law should be exploited ungrudgingly and to the full.”
So, the harder questions that the reality posses to International Law, if they cannot be properly be answered, then a step towards exploring the paths already taken by municipal law must be explored, this is to say, to do a comparative study of the generous experience taken from the past in the different jurisdictions and to see how they sorted out such problems, with which principles and why.
At the core, we may find not only municipal law commonly applied in different jurisdictions, but Roman Law, how it was understood and applied by the different Courts and Tribunals through history and how this application leads to the creation of principles of municipal law generally applied and how this common understanding may help in the proper application of such principles of international law by way of analogy.
Interestingly confusing, a great journey lays ahead.