International Law

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INTERNATIONAL LAW

a law between european states
a procedural law
nationalism
eurocentrism
right to go to war
pacifism and humanitarianism
professionalization
bibliography

In 1795 the French National Convention received a proposal for a declaration on the law of nations. Although it was never formally adopted, the idea of national self-determination on which it was built had already been used in the Revolutionary Wars and became part of the official justification of the early Napoleonic campaigns in France's nearby territories. It is therefore no surprise that in legal terms, the post-Napoleonic restoration sought formally to reinstitute the Droit public de l'Europe (European public law) as the foundation of the diplomatic relations between European powers. Those principles had been articulated as part of the rationalistic natural law in the eighteenth century by the Swiss lawyer Emmerich (Emer) de Vattel in Le droit des gens (1758), but it was left for German public lawyers such as the Göttingen jurisconsult Georg Friedrich von Martens and the Heidelberg professor Johann Ludwig Klüber to link them to the 1815 settlement at Vienna.

a law between european states

The system was founded on the sovereign independence of the European states existing in 1815 and states with populations of European origin (the United States and later the Latin American republics). Those states were assumed to enjoy independence and territorial inviolability, and the law that was binding on them was assumed to emerge from their sovereign will. Although legal theory was divided between adherents of rationalist natural law and the proponents of an emerging historical jurisprudence, neither put seriously to question the foundational nature of European statehood for the legal system. Irrespective of the doctrinal differences regarding the justification of the system, theory and practice agreed on two corollaries.

First, it followed from the independence of European states that they could only be bound by their consent. Thus there emerged a dense network of treaties—approximately sixteen thousand of them—in the period between 1815 and World War I. The treaties were no longer limited to military alliances but extended to the most varied aspects of technical and economic cooperation.

Although by far the largest number of treaties were still bilateral, toward the end of the century, an increasing amount of multilateral ("lawmaking") treaties laying out general rules of conduct and open for ratification by (European) states generally were adopted on matters such as maritime law (Paris Declaration, 1856), humanitarian rules of warfare (Geneva Convention, 1864; Hague Conventions, 1899, 1907), European behavior in Africa (Berlin Act, 1885), and the prohibition of slavery and the slave trade (Act of Brussels, 1890). The internationalization of navigable waterways such as the Rhine and the Scheldt was dealt with at the Vienna Congress and became the object of specific regulation later in the century. The Danube was opened for international navigation in the Peace of Paris, 1856, while the 1885 Berlin Act sought to do the same with the Congo and Niger Rivers. A convention of 1888 and treaties between the United States and Britain and Panama provided for the Panama Canal (1901, 1903). The establishment of the General Postal Union (Bern, 1874; later Universal Postal Union, UPU, 1878) began the move to regulating technical international cooperation within permanent organizations on matters such as the protection of industrial property and artistic works (1883, 1886), on rail transport (1890), radio and telegraphic communications (1906), as well as, for example, on the unification of weights and measures (1875) and health and hygiene (1903, 1907). The experience with the international unions and their secretariats was sometimes articulated in doctrine as "international administrative law" and gave significant support to the movement to permanent institutions and the League of Nations after World War I.

Second, whether the system was dated from the French Revolution or the Vienna settlement, it followed that those states that were in existence at that "year zero" received a special administrative function. Any changes in the system, including above all the admission of new members, would henceforth be controlled by the existing body of states. This lay the legal foundation for the predominant role of the Quadruple (later Quintuple) Alliance. Although the principle of legitimacy propagated by the Holy Alliance never dominated the Droit public de l'Europe, European affairs were regulated through Great Power consultation in formal congresses and conferences, of which the most notable after the Vienna Congress (1814–1815) were the Congresses of Verona (1822), Paris (1856), and Berlin (1878), the latter two dealing with the perennial "Eastern Question." The technique of collective recognition emerged as the means of entry for Greece (1821–1829) and Belgium (1830) into statehood. It was also used at Berlin (1878) to bring about the statehood of Bulgaria, Romania, and Serbia-Montenegro, and later in Berlin (1885) to lay the groundwork for the recognition of the "Independent State of the Congo" and to agree on some basic rules of European occupation of Africa. However, when the powers contemplated intervention to prevent Spain's South American colonies from attaining independence, the United States responded with the Monroe Doctrine (1823), which consolidated the formal independence of these new territorial units as well as American guardianship over them.

a procedural law

The Droit public de l'Europe sought above all to regulate the interaction between European states both inside and beyond Europe. At its heart stood the formalization of the rules of European diplomacy. The ranking order of diplomatic representatives was regulated at Vienna and in the Aachen Protocol of 1818. The inviolability of diplomatic representatives was agreed on in bilateral treaties with non-European states. The intensification of commercial relations and foreign travel led to the reestablishment of the practice of consular relations after its decline in the Middle Ages. By 1910 the principal European powers had established about fifteen hundred professional consular offices. Instead of diplomatic immunities, the consuls enjoyed "functional" privileges relative to their position. Outside Europe, consular jurisdiction was set up by treaty as a means to extract criminal or civil disputes involving Europeans from local courts.

Scattered interstate arbitration had existed since the Jay Treaty (1794), but the successful 1872 settlement between Britain and the United States of the Alabama case, which had to do with the British violation of its neutrality duties during the U.S. Civil War, gave a great boost to the use of arbitration. The first step toward a permanent jurisdiction was taken at the 1899 Hague Peace Conference, as the Permanent Court of Arbitration was set up as a list of arbiters and a secretariat established in The Hague. The establishment of a real international court had to wait, however, until the setting up of the Permanent Court of International Justice as part of (though formally independent from) the League system in 1922.

nationalism

The rules agreed to at Vienna aimed to reestablish great-power primacy in Europe. Later, and increasingly after 1848, the Droit public de l'Europe began to be read in view of the emerging principles of nationality and self-determination. The unification of Italy (1860) and Germany (1870–1871) called for a nationalist reading of international law. In Italy, liberal jurists such Pasquale Stanislao Mancini (1817–1888) articulated a "principle of nationalities" as the heart of the law, while German-speaking public lawyers developed complex theories of sovereignty sometimes to challenge (e.g., Adolf Lasson, 1837–1917) but more often to affirm a complex interdependence between domestic jurisdiction and international law (e.g., Georg Jellinek, 1851–1911).

eurocentrism

The consolidation of nation-states in Europe supported the understanding of international law as a cultural achievement of European civilization. This is why the emphasis on sovereignty and consent never really undermined international law. On the contrary, liberal jurists and politicians such as the British prime minister William Ewart Gladstone (1809–1898), for example, integrated their nationalism within a cosmopolitan vision of the European nations' shared modernity. This was also visible in the strong support international law gave to the policy of formalizing European rule in the colonies after the 1870s and insisting on native treaties or effective occupation as a condition of formal title.

The scope of application of most international law, however, remained limited to relations between European states acting within Europe or the colonies. Although the "system" itself was not understood as applicable outside Europe, some parts of it were still extended to relations between Europeans and some of the more civilized "Oriental" states such as China, Japan, Siam, Egypt, and the Ottoman Empire. Although the Ottoman Empire was officially approved into the "European family of nations" in the Peace of Paris in 1856, this had little consequence to continuing European encroachments into its decaying realm. Colonial relations between Europeans and "half-civilized" countries were formalized in protectorate treaties and other unequal arrangements such as "capitulation regimes," which provided protection for European traders and travelers. Relations with "uncivilized" or "savage" communities of Africa and the Pacific islands were articulated by principles of natural law or acts (often of taking possession) with a more or less dubious international status.

right to go to war

Although old theories of "just war" were formally incompatible with the view that the sovereignty of European states also included their unrestricted legal right to go to war, diplomats rarely treated warfare as a privilege and constantly invoked legal justifications such as a prior breach of treaty on the adversary's side. Toward the end of the century, lawyers became increasingly critical of "power politics," and formal doctrines such as "selfdefense" and "self-help" were developed in order to regulate the right to wage war (jus ad bellum). Nevertheless, warfare involved the formal equality of the belligerent parties in a way that gave room to a highly developed law of neutrality whose rules were detailed in such instruments as the Declaration of Paris (1856) and especially the 1907 Conventions on rights and duties of neutrals in land and maritime warfare.

pacifism and humanitarianism

After midcentury, unregulated warfare seemed scarcely compatible with European humanitarian and pacifist sentiments. The 1864 Geneva Convention set up procedures for the treatment of wounded soldiers and established the neutrality of the Red Cross. Repeated failures to observe the Convention in the Franco-Prussian War (1870–1871) led finally to the 1899 and 1907 Hague Peace Conferences, which adopted a series of conventions constituting the "Hague Law" on humanitarian rules of warfare. The Hague Conferences were intergovernmental conferences that sought to legislate general rules for the world and thus also provided a precedent to the diplomatic universalism that animated the work of the League of Nations. In addition to military and diplomatic experts, most delegations now for the first time included international lawyers, sometimes (as in the case of France), in key positions.

professionalization

During the Napoleonic Wars (1803–1815), international law, known as "law of nations," was taught at universities as part of natural law and was widely perceived either as a set of ethical principles providing an abstract justification for great-power diplomacy or simply a collection of the agreements that European states had concluded with each other. By midcentury, however, internationally minded liberal lawyers from Europe, the United States, and South America began to think of international law as part of the modernization of European societies. These lawyers organized themselves into a profession by the establishment of the first international law associations—the Institut de droit international and the Association for the Reform and Codification of International Law (later International Law Association) in 1873. They were instrumental in the launching of the first international law journals such as the Revue de droit international et de législation comparée (Brussels, 1869), Zeitschrift für internationales Recht (Berlin, 1891), the Revue générale de droit international public (Paris, 1894), and the American Journal of International Law (Washington, D.C., 1907). At the same time, the first chairs of international law proper were set up at European universities and the teaching of "the law of nature and of nations" was transformed into teaching of the rules and principles of the "international law of civilized nations." By the end of the century, Vattel's 1758 treatise was replaced by the often many-volumed textbooks, sometimes expressly written as "codes" of international law. These included works by Johann Kaspar Bluntschli (1872) and Franz von Holtzendorff (1885) in Germany; Henry Joseph François Xavier Bonfils (1898, later Bonfils-Fauchille) in France; Pasquale Fiore (1879–1884) in Italy; John George Phillimore (1854–1861), William Edward Hall (1880) and Lassa Francis Lawrence Oppenheim (1905) in Britain; Carlos Calvo (1868) in Argentina; and Fyodor Fyodorovich von Martens (1882) in Russia. Analogous formalization never took place in the United States, where the old overviews by James Kent (1826) and Henry Wheaton (1836) continued to appear in new editions.