International Organisations Law

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a short history ofinternationallawStephen C NeffSUMMARYThis history will emphasize broad trends ininternationallaw, in both the conceptual sphere

and in State practice. The discussion will move chronologically, beginning with a cursory lookat the ancient world, followed by a rather fuller discussion of the great era of naturallaw inthe European Middle Ages. The classical period (16001815) witnessed the emergence of adualistic view ofinternationallaw, with the law of nature and the law of nations co-existing(more or less amicably). In the nineteenth centurythe least known part ofinternationallawdoctrinaire positivism was the prevailing viewpoint, though not the exclusive one.Regarding the inter-war years, developments both inside and outside the League of Nationswill be considered. Since the post-1945 period will occupy most of the remainder of this

book, this discussion will confine itself to a few historically-oriented comments on some ofits most general features.

I. introductionNo area ofinternationallaw has been so little explored by scholars as the history of t hesubject. is is a remarkable state of affairs, probably without parallel in any other aca-demic discipline (including other branches oflaw). Although this intellectual scandal (asit well deserves to be called) is now being remedied, we are still only in the earliest stages ofthe serious study ofinternational legal history. Many blank spots exist, some of which willbe identified in passing in the discussion below.

is short historyinevitablyvery short historycan give only the most general fla-vour of the major periods of development ofinternationallaw. It will accordingly not bepossible to give more than the most token attention to developments outside the Westernmainstream. Both ideas and State practice will be covered. e ideas chiefly concernwhat internationallaw was thought to consist of in past t imes. State practice is concerned

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stephen c neffwith what States actuallydid. It was the two in combinationif not always in closeharmonythat made internationallaw what it became.

II. ancient worldsFor a vivid indication of how persons from even the most diverse cultures can relate toone another in a peaceful, predictable, and mutually beneficial fashion, it is difficult to topHerodotuss description of silent trading between the Carthaginians and an unnamedNorth African tribe in about the sixth century BC. When the Carthaginians arrived in thetribes area by ship, they would unload a pile of goods from their vessels, leave them on thebeach and then return to their boats and send a smoke signal. e natives would then comeand inspect the goods on their own, leave a pile of gold, and retire. en t he Carthaginians

would return; and, if satisfied that the gold represented a fair price, t hey would take itand depart. If not satisfied, they would again retire to their ships; and t he natives wouldreturn to leave more gold. e process would continue until both sides were content, atwhich point the Carthaginians would sail away with their gold, without a word exchangedbetween the two groups. ere is perfect honesty on both sides, Herodotus assures us,with no problems of theft or conflict (Herodotus,Histories, p 336).is silent trading arrangement may have been successful in its way, but a process ofinteraction so inflexibly ritualistic and so narrow in subject matter could hardly sufficefor political interactions between States, even in ancient times. Most people probably havethe feeling that something rather more elaborate is required to merit the grand name ofinternationallaw. Indeed, the ambiguity of the term internationallaw leads to variousdifferent answers to the question of wheninternationallawbegan. If by international

law is meant merely the ensemble of methods or devices which give an element of pre-dictability to international relations (as in the silent-trading illustration), then the origin

may be placed virtually as far back as recorded history itself. If by internationallaw ismeant a more or less comprehensive substantive code of conduct applying to nations, thenthe late classical period and Middle Ages was the time of its birth. If internationallawis taken to mean a set of substantive principles applyinguniquely to States as such, thenthe seventeenth century would be the starting time. If internationallaw is defined as theintegration of the world at large into something like a single community under a rule oflaw, then the nineteenth century would be the earliest date (perhaps a trifle optimistically).If, finally, internationallaw is understood to mean the enactments and judicial decisionsof a world government, then its birth lies (if at all) somewhere in the futureand, in alllikelihood, the distant future at that.If we take the most rest ricted of these definitions, then we could expect to find thebest evidence for a nascent internationallaw in the three areas of ancient Eurasia thatwere characterized by dense networks of small, independent States sharing a more or lesscommon religious and cultural value system: Mesopotamia (by, say, t he fourth or thirdmillennium BC), northern India (in the Vedic period after about 1600 BC), and classicalGreece. Each of these three State systems was characterized by a combination of politicalfragmentation and cultural unity. is enabled a number of fairly standard practices to
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emerge, which helped to place inter-State relations on at least a somewhat stable and pre-dictable footing. ree particular areas provide evidence of t his development: diplomatic

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5relations, treaty-making, and the conduct of war.1 A major additional contribution of theGreek city-States was the practice of arbitration of disputes, of which there came to be a

very impressive body of practice (see Ager, 1996).It was not inordinately difficult for some of these practices to extend across deeper cul-tural lines as well. One of the earliest surviving treaty texts is between Egypt and t heHittite Empire, from the thirteenth century BC. e agreement concerned an imperial

division of spheres of influence, but it also dealt with t he extradition of fugitives. e prob-lem of good faith and binding force was ensured by enlisting the gods of both nations (twothousand strong in all) to act as guardians (Bederman, 2001, pp 147150).With the advent of the great universal religions, far more broadly-based systems ofworld order became possible. One outstanding example was the Islamic empire of the sev-enth century AD and afterwards. Significantly, the body oflaw on relations between States

within the Muslim world (theDar al-Islam, or House of Islam) was much richer thanthat regarding relations with the outside world (theDar al-Harb, or House of war). Buteven with infidel States and nationals, a number of pragmatic devices evolved to permitrelations to occur in predictable wayssuch as temporary truces (in lieu of treaties) orsafe-conducts issued t o individuals (sometimes on a very large scale).2In Western history, the supreme exemplar of the multinational empire was Rome. Butthe Roman Empire was, in its formative period, a somewhat tentative and ramshackleaffair, without an over-arching ethical or religious basis comparable to the Islamic reli-

gion in the later Arab empire. at began to change, however, when certain philosophi-cal concepts were imported from Greece (from about the second century BC). e mostimportant of these was the idea of a set of universal principles of justice: the belief t hat,amidst the welter of varying laws of different States, certain substantive rules of conduct

were present in allhuman societies. is idea first surfaced in the writ ings of Aristotle(Rhetoric, p 1370). But it was taken much further by the philosophers of the Stoic school,who envisaged the entire world as a single world city-State (orkosmopolis) governed bythe law of nature. Cicero, writing under Stoic influence, characterized thislaw of natureas being spread through the whole human community, unchanging and eternal (Cicero,Republic, pp 6869).is concept of a universal and eternal naturallaw was later adopted by t wo other

groups, the Roman lawyers and the Christian Church, and then bequeathed by them tomedieval Europe. e lawyers in particular made a distinction that would have a verylong life ahead of it: between ajus naturale (or natural law properly speaking) and ajusgentium (orlaw of peoples). e two were distinct, but at t he same time so closely inter-connected that the differences between them were often very easily ignored. Naturallaw was the broader concept. It was something like what we would now call a body of

scientific laws, applicable not just to human beings but to the whole animal kingdom aswell. ejus gentium was the human component, or sub-category, of it. Just as thelawof nature was universal in the natural world, so was thejus gentium universal in thehuman world.1 On the Middle Eastern and Greek practice, see generally Bederman, 2001. On ancient India, see Bhatia, 1977.

2 On Islamic views ofinternational law, see generally Khadduri, 1955.

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III. the middle ages: the natural law erae European Middle Ages offers an intriguing picture of dizzying variety and com-

plexity, combinednot always very coherentlywith the most sweeping universality.e variety was most apparent in the de-centralized world of feudalism, with its com-plex and interlocking layers of rights and duties, and its diffusion of governmental powersand jurisdictions. e universality was evident in two major spheres: philosophicallyand jurisprudentially, in the continued stress on naturallaw; and politically, in the HolyRoman Empire and in the revival of Roman law which underpinned it.

A. the universalist outlook: medieval natural lawe European Middle Ages became the great age of natural-law thought. During this

period, natural-law conceptions developed under the umbrella of the Catholic Church.But it must be remembered that the idea was not specifically Christian in its inception,but rather was a legacy of the classical Stoic and Roman legal traditions. e dominanttraditionrepresented outstandingly by omas Aquinaswas rationalist in outlook,holding the content of the naturallaw to be susceptible of discovery and application bymeans of human reason rather than of revelation.Natural law is one of the many parts ofinternationallaw that have never received the

systematic study that they merit. In the present context, only a few of its most salient fea-tures can be noted.3 Perhaps its single most outstanding feature was its a ll-embracingcharacter. It encompassed and regulated the natural and social life of the universe in allits infinite varietyfrom the movements of the stars in their courses to the gurgling ofthe four humours through the veins and arteries of the human body, from the thoughtsand deeds of all of the creatures of land, sea, and air, to those of human beings and theangels in the heavens. Its strictures applied universally to all cultures and civilizat ions,past, present, and future.ere continued to be, as in the ancient period, a distinction between thejus naturaleand thejus gentium, though still without any very sharp line between the two. ejusgentium was much the lesser of the two, being seen largely as an application of the broadernatural law to specifically human affairs. Sometimes it was regarded as comprising uni-versal customs of purely human creationand therefore as a sort of supplement to naturallaw properly speaking. esejus gentium rules were sometimes referred to as secondarynatural-law rules. It must be stressed that this originaljus gentium did not consist entirely,or even primarily, of what would now be called rules ofinternationallaw. Instead, it was


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a collection of laws common to all nations, affecting individuals in all walks of life, fromthe highest to the lowest, and dealing with all aspects of human social affairscontract,property, crime, and the like. It was more in the nature of an ethical system of universalor trans-cultural scope, setting out general norms of conduct, as opposed to a legal code

with a list of prohibitions and punishments. One aspect of this grand intellectual schemeshould be particularly stressed: the fact that there was no st rong tendency to think that anybody oflaw existed that was applicableuniquely to international relations as such. States,3 For a good short account of medieval natural-law theory, see generally Gierke, 1938.

Page 5a short history ofinternationallaw7like private persons, were permitted lawfully to wage war for such purposes as t he punish-ment of wickedness or, generally, for t he enforcement of the lawbut not for vaingloryor conquest or oppression.4is in fact was the conceptual kernel of natural laws mostoutstanding contribution tointernationallaw: the doctrine of the just war.

B. the pluralist outlook: the italian city-statesEven if (as the natural-law writers maintained) the whole of human society formed a sin-gle moral and ethical community, there was no denying that the world also consisted of

a welter of different polities, of a bewildering variety of sorts, and of varying degrees ofindependence from one anotherextending all the way from the great empire of Romeitself (ie, of Byzantium) to the patchwork of feudal jurisdictions which carpeted WesternEurope.Nowhere was the tension between the universalistic and the pluralistic tendencies ofthe period more evident, in practice, than in the debates over the legal status of the vari-ous independent city-states of northern Italy. ese obtained substantialde facto inde-pendence from the Holy Roman Empire in the late twelfth century, when the cities of the

Lombard League defeated the forces of Emperor Frederick I. ere was, however, consid-erable debate over what this independence really meant. To this matter, two of the most

prominent medieval lawyersBartolus of Sassoferato and his st udent Baldus of Ubaldis,who both wrote in the fourteenth centuryturned their attention. Broadly speaking, theconclusion of Bartolus (largely echoed by Baldus) was that the cities were independentin the sense of being wholly self-governing and independent ofone another, but that, intheir relations inter se, they continued to be subject to rules of t he Empire. Here we seethe first glimmer, in European society, of the concept of independence of States operat-

ing in conjunctionsometimes very uneasilywith subjection to a larger set of normsgoverning inter-State relations (Hinsley, 1986, pp 8182, 8890, 167174). For this reason,Bartolus has been called, with some justice, the first theorist ofinternationallaw (Sereni,1943, pp 5863).

C. developments in state practiceIt is from the pluralist rather than the universalist side of the great medieval conceptualdivide that we must look for innovations in State practice. e reason is easily seen: it is inthe day-to-day relation of different States and peoples with one another that t he practical

problems oflaw are most likely to arise.Much of the State practice in the Middle Ages consisted of t raditional ways inheritedfrom ancient times. e area of diplomatic relations is an example, with diplomats increas-ingly being accorded a broad (but not absolute) degree of immunity from judicial processin host States. Beginning in about the eleventh century, European (chiefly Italian) Statesbegan to conclude bilateral treaties that spelled out various reciprocal guarantees of fair

treatment. ese agreements, sometimes concluded with Muslim States, granted a rangeof privileges to the foreign merchants based in the contracting States, such as the right4 For a thorough exposition of medieval just-war theory, see Russell, 1975. For a shorter account, see Neff,2005, pp 4468.

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stephen c neffto use their own law and courts when dealing with one another. e same process was atwork in the sphere of maritime trading. e seafaring community made use of the laws ofOlron (which were actually a series of court decisions from the small island of t hat namein the Bay of Biscay), and also of a code of rules called theConsolato del Mare, compiledin about the t hirteenth century for the maritime community of Barcelona. ese cod es

governed the broad range of maritime activities, including the earliest rules on the rightsof neutral traders in wartime.Certain aspects of the conduct of war witnessed a high level of refinement in the MiddleAgesmost notably the law on the ransoming of prisoners of war (a welcome step forwardfrom the alternatives of enslavement and summary killing). elawof arms (as it wasknown) was expounded in the fourteenth century, first by John of Legnano and later by amonk named Honor de Bonet (or Bouvet), whose book entitled e Tree of Battles, of the1380s, became very influential.5 Accounts of medieval warfare, however, incline observ-

ers to harbour grave doubts as to whether even these practical rules exerted much realinfluence.With the European explorations of Africa and, particularly, the New World from thefourteenth century onward, questions of relations with non-European societies assumedan urgent importancewhile, at the same t ime, posing an immense practical test for theuniversality of natural law. e Spanish conquest of the Indian kingdoms in the New

World sparked especially vigorous legal and moral debates (even if only after the fact).e Dominican scholar, Francisco de Vitoria, in a series of lectures at the University ofSalamanca, concluded that the Spanish conquest was justified, on t he ground that theIndians had unlawfully attempted to exclude Spanish traders from their kingdoms, con-trary to natural-law rules. But he also confessed that his blood froze in his veins at thethought of the terrible atrocities committed by the Spanish in the process.6 In 155051,there occurred one of the major legal confrontations of history, when two prominentfiguresJuan Ins de Seplveda and Barolom de las Casasdebated, at length, the law-

fulness and legal bases of the Spanish conquest of the New World, under the judgeship ofthe theologian and philosopher Domingo de Soto. e result, alas, was inconclusive, as


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Soto declined to render a judgment (Pagden, 2001, pp 7779).In short, medieval internationallaw was a jumble of different beliefs and practicesfrom the rarefied conceptions of the law of nature, to the more serviceable rules by whichvarious communities conducted their actual day-to-day business, from warfare and diplo-

macy, to buying and selling.

IV. In the seventeenth and eighteenth centuries, a new spirit entered into doctrinal thoughton internationallaw. is is sometimes put in terms of a secularization of natural-lawthought. at, however, is a very misleading characterization, since natural-law itselfwas (and had always been) primarily secular in nature. What was new in the seventeenth5 On medieval

lawon the conduct of war, see Keen, 1965.

6 Vitoria, On the American Indians, inPolitical Writings, pp 231292; Letter to Miguel de Arcos, ibid,pp 331333.


9century was a willingness to give a degree of formal recognition to State practice as a truesource oflaw, rather than regarding it as merely illustrative of natural-law principles. eresult was a kind of dualistic outlook, with naturallaw and State practice maintaining a

wary, and rather uneasy, form of co-existencea state of affairs much in evidence to thepresent day.

A. grotius and hobbese principal harbinger of this new outlook was the Dutch writer Hugo Grotius, whosemajor workOn the Law of War and Peace was published in Paris in 1625a work so denseand rich that one could easily spend a lifetime studying it (as a number of scholars have).7As a natural-law writer, he was a conservative, writing squarely in the rationalist tradi-

tion inherited from the Middle Ages. In internationallaw specifically, he had importantforerunners, most notably the Italian writer, Alberico Gentili, who produced the first trulysystematic study of the law of war at the end of the sixteenth century.8Where Grotius did break important new groundand where he fully earned therenown that still attaches to his namewas in his transformation of the oldjus gentiuminto something importantly different, called thelaw of nations. e distinctive feature ofthis law of nations was that it was regarded as something distinct from thelaw ofnature,rather than as a sub-category or means of application of naturallaw. Furthermore, andmost significantly, thislaw of nations was not regarded (like the oldjus gentium) as a bodyoflaw governing human social affairs in general. Instead, it was a set rules applying specifi-cally to one particular and distinctive category of human beings: rulers of States. Now, forthe first time in history, there was a clear conception of a systematic body oflaw applicable

specifically to the relationship between nations. Eventually, although not until the lat eeighteenth century, the label internationallaw would be applied to this corpus of ruleswith Jeremy Bentham as the coiner of the term (Nussbaum, 1947, pp 135136).It should be appreciated that Grotiusslawof nations, or voluntarylaw as it was some-times known, was not designed to supplant or undermine traditional naturallaw. Farfrom it. e function of this law of nations was basically an interstitial oneof fillinggaps where the natural-law principles were too general, or devising workable rules aspragmatic substitutes where the application of the strict naturallaw was, for some reason,

unfeasible. e law of nature and the law of nations, in short, were seen as partners ratherthan as rivals. For this reason, t he earliest academic chairs in the field were commonlydesignated as being devoted to thelawof nature and nations, in (presumably) happypartnership. e first such chair was occupied by Samuel Pufendorf, at the Universityof Heidelberg in 1661. In the English-speaking world, the first one was created at theUniversity of Edinburgh in 1707.ere were some, however, who contended that the partnership between thelaw ofnature and the law of nations was anything but a happy one. Foremost amongst these7 Much of the study of Gr otius has been by political scientists rather than specifically by international

lawyers. Remarkably, there is n o comprehensive and accessible survey of his international legal thought andinfluence in English. For an older work that is still of value, see Knight, 1925. For a brief overview of his legal

thought, see Tuck, 1999, pp 78108. For a more thorough study, see Haggenmacher, 1983.8 On Gentili, see generally Van der Molen, 1968.

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stephen c neffdissidents was the English writer omas Hobbes, whose master workLeviathan was writ-ten in 1651, shortly after Grotiuss death. In sharp contrast to Grotius, Hobbes deniedthat the pre-political condition of human society had been orderly andlaw-governed. Hemaintained, instead, that it was a chaotic, even violent, world, with self-preservation as

the only true natural right (Hobbes,Leviathan, pp 8084). Security could only be attainedby the radical step of having all of the persons in a state of nature surrender their natural

rights to a sovereign power of their own creationwith the result that, henceforth, theonly law which they would live under would be the law promulgated by that sovereign.Natural law was not rejected in its entirety, but it was radically stripped-down, to the pointof being reduced, in essence to two fundamental tenets: a right of self-preservation, anda duty to perform contracts or promises. It was this stripped-down version of naturallawwhich, in the opinion of Hobbes, constituted the sole body oflaw between independent

nation-states.On this thesis, the only possible way in which States could construct a stable inter-national system was through the painstaking process of entering into agreements when-ever this proved feasible. e natural-law duty to perform promises was the fundamentalbasis of this system, with the detailed substantive rules being provided by the variousagreements that were actually concluded. ese agreements could take either of two forms:

written or unwritten. e written form, of course, comprised treaties, of the sort of thatStates had been concluding for many centuries. e unwritten form was customarylaw,which in this period was seen predominantly as simply a tacit or unwritten treaty.It is hardly surprising that, amongst traditional natural lawyers (ie, followers ofGrotius), Hobbess conclusions were unwelcome in t he extreme, since they entailed


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the ruthless discarding of so much of the content of traditional naturallaw. But theywere also not easily refuted. Some writers, such as Pufendorf, attempted to take at leastsome of Hobbess ideas into account, while still adhering to the older idea of a detailed,substantive natural law. Others basically ignored the Hobbesian challenge as best they

could and continued to expound natural law in a systematic manner. In fact, the seven-teenth and eighteenth centuries were the great age of systematic jurisprudence, in whichnatural law was re-housed (it might be said) in grand logical edifices of a hypothetico-deductive nature, modelled on that most magnificent of al l intellectual constructions,mathematics.e culmination of this systematic natural-law movement came in the mid-eighteenth

century, at the hands of the German philosopher Christian Wolff, who fittingly had been

trained as a mathematician. Wolffs massive eight-volume encyclopaedia of natural lawcontained detailed discussions of practically everything under the sun and even beyond(including a discourse on the characteristics of the inhabitants of other planets)whilepaying virtually no heed to State practice. It holds an honourable place on the list of theworlds great unread masterpieces.9e most famous and influential writer in the Grotian tradition was the Swiss diplomatEmmerich de Vattel, whose famous exposition ofe Law of Nationswas published in Londonin 1758. As the first s ystematicinternational-law treatise of the modern kind, it would not9 On Wolffs cosmological views, see Wolff,Cosmologia. Only the final volume of the main work on natu-ral law concerned international law. For an English translation, see Wolff, Law of Nations Treated Accordingto a Scientific Method.


11look drastically out of place on a twenty-first century bookshelf, as t he works of Grotiusor Wolff certainly would. Instead of setting out a grand philosophical scheme, Vattels

intention was to provide a sort of handbook for lawyers and statesmen. Moreover, itsgraceful style ensured it a wider usage by lawyers, judges, and lay persons than any otherinternational-law writing had previously had. It can make a good claim to being the great-

est international-law textbook ever written. With it, we stand at t he threshold of moderninternational-law writing.10In a number of ways, Vattelstreatise was a popularization of Wolffs ideas, but it waswritten in a very different spirit. Where Wolff had been disdainful of the voluntarylaw,Vattel fully embraced it, cheerfully and candidly expounding it alongside the naturallaw

whenever appropriate. He has been accused of inconsistencyof constantly being onboth sides of issuesbut that charge is unfair. e fact is that he had two bodies oflawto expound, which sometimes provided differing solutions to practical problems. He wasgenerally very forthright about which law he was treating at any given time. It is we whotend to misunderstand the nature of his task because the dualistic mentality of that era isso foreign to us.

e best example of the dualistic method concerned war. e naturallaw on just warsallowed a State to resort to force in self-help to vindicate a legal right that had actually beenviolated (or was threatened with violation)so that, in a given conflict, one side wouldbe fighting justly, and the other one not. e voluntarylaw, however, was not concernedover which party had the stronger legal claim to use force (ie, it did not deal with thejusad bellum, in legal terminology). Instead, it simply treated each sideas ifit had lawfullyresorted to war. It then contented itself with regulating the conduct of wars, fixing rulesfor both parties to apply, on an even-handed basis, in their contention against one another

(thejus in bello, in the common legal parlance). In effect, then, the naturallaw saw war interms oflaw enforcement and as a sanction for wrongdoing. e voluntary law, in contrast,saw war more in terms of a duel.

B. the laws of nature and nations in action e writing of Grotius and Hobbes and their followers was not done in a vacuum. Variousforces were at work in this period, which served to give this new law of nations a concretereality. One of the most important of these trends was t he emergence (gradual to be sure)of strong central governments, at least in Western Europe, which increasingly gained the

upper hand over the older, diffused jurisdictions of t he feudal age. Particularly importantfor this trend was the innovation of standing armies in place of the older temporary feudallevies. In addition, these centralizing Nation-States were coming to be seen as perman-ently existing, corporate entities in their own right, separate from the rulers who governedthem at any given timewith long-term interests and political agendas of their own.At least some of the flavour of the medieval natural law survived, however, chiefly in the

form of the idea of the existence of something that has come to be called the community ofStates. e clearest symbol of thisif that is t he right word for itwas the peace sett lementarrived at in Westphalia in 1648, at the conclusion of the irty Years War in Germany.It is curious that something called the Westphalian system is sometimes spoken of as a10 On Vattel, see generally Jouannet, 1998.

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stephen c neffsynonym of anarchy or of radical views of absolute State sovereigntyconceptions which

actually belong (as will be seen) to t he nineteenth century and not to the seventeenth.11 Inreality, the Westphalian settlement was an arrangement reachedwithin the framework ofthe Holy Roman Empire, with certain prerogatives of the imperial government carefullypreservedie, with the older medieval idea of independent States being subject, at thesame time, to certain higher norms. e Peace of West phalia did, however, provide a sortof template for later times in the way in which it marked out a division of labour (so to

speak) between national and international spheres, placing religion carefully in the realmof domestic law.e idea of a community of a community Statesdistinct from, but also analogous to, acommunity of individual personswas apparent in sundry other ways in the seventeenthand eighteenth centuries. One of these was in the concept of a balance of power. is washardly an altogether new idea, but in this period it attained a formal articulation and rec-

ognition that it had never had before (most notably in the Peace of Utrecht in 1713, at theconclusion of the War of the Spanish Succession). In conjunction with this concept, t he


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period was one of limitedthough also of frequentwarfare. At least in Western Europe,war was largely conducted with trained professional forces, and for limited ends. As aresult, European diplomacy bore more resemblance to a meticulous game of chess than toa lurid Hobbesian inferno of mayhem and turmoil. Even warfare often had a ritualistic air,

with its emphasis on manoeuvre and siege rather than on pitched battle.Economic relations manifested much this same combination of cooperation and com-petitiveness. On the competitive side, this period marked the high tide of mercantilism,with its intense rivalry for trade advantage. But there was also a high degree of coopera-tion, under an ever-strengthening rule oflaw, chiefly in the form of a network of treatiesof friendship, commerce, and navigation (FCN treaties in the standard legal parlance),

which provided a range of safeguards for merchants operating in and trading with foreign

countries.

V. e nineteenth century, extraordinarily, is the least explored area of the history of inter-national law. Its outstanding feature was the rise, and dominance, of the legal philosophyknown as positivism. is conferred ontointernationallaw a scientific glossor alterna-

tively, in the opinion of some, tied it into a narrow strait-jacket. But positivism did not, ornot quite, have the century to itself. A new tendency known as thehistorical school oflawmade some important contributions; and naturallaw, against heavy odds, managed tosurvive, although in new and unexpected ways.

A. the publiclawand system of europeWith the definitive defeat of revolutionary and imperial France in 1815, the victoriousEuropean powers (Britain, Prussia, Russia and Austria) crafted a new kind of peace sett le-ment, based not merely on the balance of material power between the major States but11 See, for example, the discussion of the l ogic of Westphalia in Falk, 1975, pp 5969.


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also on a set of general principles of a more substantive character. ese general principleswere, to be sure, of a decidedly conservative character. e goal was to craft a continent-wide set of political arrangements that would (it was hoped) keep the scourge of revolutionfrom breaking out again.e peace settlement was to be policed by the major powerswho were, of course,

self-appointed to the taskby way of military intervention where necessary. e powerseven had a grand name for their enterprise: the publiclawand system of Europe. islegal order was based on faithful adherence to treaty commitments, together with respectfor established laws and legitimate governments and property rightswithin the States ofEurope. But it also included a duty on the part of rulers to earn their legitimacy by pro-viding responsible and efficient government to their peoples and also by cooperating withmovements for orderly and peaceful change.A few of these interventions by the Concert of Europe may be noted briefly. e firstones were in the cause of legitimacy in the 1820s, when there were military interventionsto subdue revolutions in Naples and Sardinia (by Austria) and in Spain (by France). Alsoin the 1820s, the intervention of Britain, France, and Russia in the Greek independencestruggle led to independence for the Kingdom of Greece. Great-power involvement simi-larly led to Belgian independence in the 1830s. Sometimes the powers intervened diplo-matically in post-war peace settlements, if the terms imposed on the losing side looked tobe too destabilizing for the continent as a whole. is occurred in 1878, when the majorpowers stepped in to prevent Russia from exacting too harsh a peace against Turkey aftera victorious war.

On at least some of these occasions, humanitarian considerations played a part, along-side the more usual political jockeying. e most common cause for concern on this

front was the relief of Christian populations that were held to be victims o f oppressionin the Ottoman Empire. is was certainly one of t he motivations for the Greek inter-vention in the 1820s. In 1860, the powers intervened in a communal-violence crisis inthe Mount Lebanon area. e most forceful of these great-power humanitarian actionswas probably the one in Crete in 1897, when the powers stepped in to stop atrocities andcounter-atrocities between Greeks and Turks. In virtually none of these cases was there

a pure humanitarian motive, untouched by any other consideration. But some (argu-able) precedents were established for later advocates of the lawfulness of humanitarianintervention.e Concert of Europe system (if it could really be called t hat) was overtly hegemonic,in modern parlance. ere was little sign of any principle of equality of States. Still, theConcert of Europe did at least provide an idealif not always the realityof collective,

orchestrated State action for the preservation ofinternational peace. To that extent, itforeshadowed the post-1945 United Nations.International lawyers, however, never gaveit much attention.12 Instead, their ambitions were directed to another end: to unshacklinginternationallaw from its natural-law heritage and making it something like a science inthe modern sense of that term.12 For one of the few legal texts to tr eat this subject, see Dupuis,Principe dquilibre, 1909. See alsoSimpson, 2004, which devotes considerable attention to policing practices of the major powers in thenineteenth century.

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B. the positivist revolutionOn the conceptual front, the major feature of the nineteenth century was the dominantrole of positivism. By positivism is meant such a wealth of things that it may be best toavoid using the term altogether. e expression positivelaw had been in use since theMiddle Ages (since at least t he fourteenth century) to refer to the man-madelaw of par-ticular States, in contrast to divinelaw (ie, the commands of God) or natural law. Whatwas new in t he nineteenth century, however, was s omething called a positivephiloso-phy, the chief propounder of which was the French social philosopher Auguste Comte. Bypositive, Comte meant something like scientific or objective or empirical, in contrast


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to speculative or religious modes of thought. He maintained that the human race hadgone through three great historical stages: the theological, the metaphysical, and (now) t hepositive. In the theological stage, religious ideas had been dominant. In t he metaphysicalstage, legalistic and jurisprudential thinking had prevailedmeaning, in essence, naturallaw. But the third agethe positive era (as Comte called it)was now dawning, promis-ing the true and final liberation of the human mind from the superstitions and dogmas ofthe past.In its original form, positivism envisaged the emergence of a sort of technocratic utopia,in which the world would be governed not by clerics or politicians or lawyers (as in the pastbenighted ages of theology and metaphysics), but rather by engineers and industrialists

and financiers. is vision had first been put forward by the eccentric French nobleman,

the Comte de St-Simon, in the early nineteenth century.13 (Auguste Comtes early career,incidentally, had been spent as St-Simons secretary.) is early vision, taken to its logicalconclusion, envisaged the obsolescence of t he nation-state.is original positivism of St-Simon and Comte was a st range amalgam of technocracyand evangelism. Indeed, positivism actually did become a religion, with the most influ-ence, as it happened, in Brazil (whose national flag is emblazoned with the positivist mottoOrder and Progress). Not surprisingly, lawyers turned the positive philosophy in a some-

what different direction.

1. e positive philosophy applied to internationallawAs noted above, there was nothing the least bit new in the nineteenth century about theidea of positive law. What was distinctive about positivism as a school of jurisprudentialthought was the doctrinaire insistence that positivelaw is the only true law, ie, the whole-sale and principled rejection of naturallaw as a valid or binding guide to conduct. On thispoint, nineteenth-century positivism went even further than Hobbes, who was its majorprogenitor. e doctrinaire positivists (as they could fairly be termed), that is to say, held

fast to the voluntary law, while at t he same time breaking the link between it and thenatural lawthat link which had been so central a feature of the Grotian tradition. e

partnership between the law of nations and the law of nature, in short, was now regardedas irredeemably dissolved.One of the most central aspects of positivism was its close attention to questions of thesources ofinternationallawand, in particular, to the proposition thatinternationallawwas, fundamentally, an outgrowth or feature of the will of t he States of the world. Rules of13

On St-Simonism, see Manuel, 1956.


15law were created by the St ates themselves, by consent, whether express (in writt en treaties)or tacit (in the form of custom).Internationallaw was therefore now seen as the sum total,or aggregation, of agreements which the States of the world happen to have arrived at, atany given time. In a phrase that became proverbial amongst positivists,internationallawmust now be seen as a lawbetween States and not as a lawabove States. Internationallaw,in other words, was now regarded as a corpus of rules arising from, as it were, the bottom

up, as the conscious creation of the States t hemselves, rather than as a pre-existing, eter-nal, all-enveloping framework, in the manner of the old natural law. As a consequence,the notion of a systematic, all encompassing body oflawso striking a feature of naturallawwas now discarded. Internationallaw was now seen as, so to speak, a world of frag-ments, an accumulation of specific, agreed rules, rather than as a single coherent picture.In any area where agreement between States happened to be lacking, internationallaw

was, perforce, silent.Another important effect of positivism was t o replace the older, medieval, teleologicalpicture with what might be termed an instrumentalist outlook. at is to say, thelaw wasno longer seen as having any innate goal of its own, or as reflecting any universal masterplan. Instead, thelaw was now regarded, in technocratic terms, as a means for the attain-ment of goals which were decided on by political processes.Law, in short, was now seenas a servant and not as a master. It was to be a tool for practical workmen rather than aroadmap to eternal salvation.

Closely allied to the consent-based view ofinternationallaw was the firm insistence ofmost positivists on the centrality of the St ate as the principal (or even the sole) subject ofinternationallaw, ie, as the exclusive bearer of rights and duties on theinternational plane.States were now perceived as possessing what came to be called international personali-tyand, crucially, as also possessing a set of fundamental rights that must be protected atall times. Foremost of these fundamental rights was the right of survival or self-preserva-

tion. is meant that, in emergency situations, States are entitled to take action that wouldotherwise be contrary to law. e most dramatic illustration of this point in the nine-teenth century occurred in 1837, when the British government, faced with an insurgencyin Canada, sent troops into the United States, in pursuit of insurgents who were usingthat countrys territory as a safe haven. ey succeeded in capturing themiscreants, kill-ing several persons in the process and destroying a boat named the Caroline. e UnitedStates vigorously objected to this armed incursion into its territory. Britain justified itsaction as self-defence. e diplomatic correspondence between the two countries in this

dispute produced the classic exposition of the principle of self-defence: action in t he faceof a crisis that is instant, overwhelming, leaving no choice of means, and no moment fordeliberation.14

is remains today as the canonical statement of the criteria for the exer-cise by States of self-defence (although it really was a st atement of the general principle ofnecessity rather than of self-defenceper se).e stress on t he basic rights of States also gave to positivism a strongly pluralistic cast.Each nation-State possessed its own distinctive set of national interests, which it was striv-ing to achieve in an inherently competitive, even hostile, environment. Each State was sov-ereign within its territory. And each States domesticlawcould reflect that countrys ownparticular history, values, aspirations, traditions, and so forth. It was in this period that14 29British and Foreign State Paperspp 11371138.

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theprinciple of the sovereign equality of States became the fundamental cornerstoneoreven the central dogmaofinternationallaw, along with the concomitant rule of non-intervention of States into the internal affairs of one another.A final point is in order concerning the technocratic outlook of positivism. is had

the important effect of de-politicizinginternationallaw, at least in principle.Internationallawyers in the nineteenth century became increasingly reluctant to t respass into areas ofpolitical controversy. In this regard, they presented a sharp contrast to their natural-lawforbears, who had proudly worn the mantle of the social critic. e positivist lawyers weremore inclined to see themselves instead as the juridical counterparts of Comtesengineers.In particular, it came to be widely agreed that fundamental national-security interests

were questions of politics and not oflawa distinction that Grotius and Vattel would have

found difficult to grasp. By t he same token, positivism had a strongly non-moralistic fla-vour. Nowhere were these features more important than on t he subject of war. Positiviststended to view the rights and wrongs of a States decision to resort t o war (thejus ad bel-lum) as a political rather than a legal issue. erefore, war was now seen as a n inevitableand permanent feature of the inter-State system, in the way that friction was an inevitableand permanent feature of a mechanical system.

2. e professionalization ofinternationallawe scientific and technocratic and a-political ethos of positivism brought a new senseof precision, a business-like character to the study and practice ofinternationallaw. One

consequence of t his was an increasing sense of professionalism and, to a certain extent,of corporate solidarity. An important sign of this was the founding, in 1873, of two majorprofessional bodies in the field, theInternationalLaw Association and the Institut de DroitInternational. is was also the period in whichinternationallaw became a subject of uni-versity studies in it s own right, separate from general jurisprudenceand, in particular,from the study of natural law. ( is is also a subject which still awaits detailed treatment.)

e nineteenth century was also the period in which major systematic treatises beganto be written in the various European languages. Where Vattel had led, many followed. In

1785, Georg Friedrich de Martens wrote an important treatise, which departed from ear-lier writing in being based primarily on State practice rather than on natural-law doctrine.In English, the most notable early exposition was by Henry Wheaton, an American diplo-mat and legal scholar, whoseElements ofInternationalLawwas first published in 1836. Itspopularity is indicated by the fact that it was translated into French, Spanish, and Italian,

with new editions produced for fully a century after the first one. Wheaton was followedin Britain by Robert Phillimore, whose treatise of 185461 ran to four volumes (with twofurther editions). e first major German-language exposition was by Auguste WilhelmHe er in 1844 (which ran to eight editions by 1888). e first t reatise to be a consciousembodiment of the positive philosophy was by an Argentinian diplomat, Carlos Calvo,in 1868.15is text expanded from two to six volumes over the course of five editions to1896. e French were slightly later in the field, with aPrcis du droit des gens, by ophileFunck-Brentano and Albert Sorel in 1877. More influential was theManuel de droit inter-national publicby Henry Bonfils in 1894 (with eight editions by the 1920s). One of the most15 Calvo, 188081. For the first edition, in Spanish, see Carlos Calvo,Derecho internacional terico yprctico de Europa y Amrica (2 vols, Paris: DAmyot, 1868).


17popular texts was that of the Swiss writer Johann Kaspar Bluntschli, whose exposition in1870 (in French) took the form of a systematic code.A pronounced difference of style, if not of substance, emerged between the Anglo-American writers and t heir continental European counterparts. Doctrinaire positivism,

as a systematic philosophy, was primarily the product of continental writing, the t wo mostoutstanding figures being the Italian Dionisio Anzilotti ( later to be a notable World Court

judge) and the German Heinrich Triepel. English-language writers, for the most part,were more empirical in outlook, concentrating more heavily on State practice, court deci-sions, and the like, treatinginternationallaw as a sort of transnational version of Englishcommon law. is intellectual division of labour (so to speak) between the pragmatic andthe doctrinal remains in evidence to the present day.

C. the historical and natural-law schoolsIf positivism was by far the dominant trend in nineteenth centuryinternationallaw, itdid fall short of having a complete monopoly. Two other schools of thought in particularshould be noted. e first was a new arrival: thehistorical school, which was intimatelyconnected with the romantic movement of the period. Its impact ininternationallaw hasreceived, as yet, hardly any serious attention. e other alternative to positivism was nat-

ural law, severely reduced in prestige to be sure, but surviving rather better than has gen-erally been appreciated.

1. e historical schoolAt the core of the historicalschools philosophy was the thesis that each culture, or cultural

unit, or nation possessed a distinctive group consciousness or ethos, which marked it offfrom other cultures or nations. Each of these cultural units, as a consequence, could onlyreally be understood in its own terms. ehistorical school therefore rejected the univer-salist outlook of naturallaw. is opposition to universal naturallaw was one of the most

important features that thehistorical school shared with the positivists.In internationallaw, the impact of the historical school is evident in t hree principalareas. e first was with regard to customarylaw, where its dist inctive contribution wasthe insistence that thislaw was not a matter merely of consistent practice, however wide-

spread or venerable it might be. A rule of customarylaw required, in addition, a mentalelementa kind of group consciousness, or collective decision on the part of the actors toenact that practice into a rule oflaw (albeit an unwritten one). In fact, this collective men-tal element was seen as t he most important component of custom, with material practicerelegated to a clear second place. Customary law was therefore seen, on this view, as a kindof informal legislation rather than as an unwritten treaty (as the positivists t ended to hold).

is thesis marked the origin of the modern concept ofopinio juris as a key component ofcustomary international law.16e second major contribution of the historical school to international law was its the-ory that the fundamental unit of social and historical existence was notor not quitetheState, as it was for the positivists, but rather thenation-state. In this vision, t he State, whenproperly constituted, comprised the organization of a particular culture into a political


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16 See Tasioulas, 2007. See also irlway, below, Ch 4.

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stephen c neffunit. It was but a short step from this thesis to theproposition that a people (ie, a cul-tural collectivity or nation or, in the German term,Volk) had a moral right to organizeitself politically as a State. And it was no large step from there to the assertion that such a

collectivity possesses alegalright so to organize itself. is nationality school (as it wassometimes called) had the most impact in Italy, where its leading spokesman was PasqualeMancini, who was a professor at the University of Turin (as well as an office-holder in thegovernment of unified Italy). Although the nationality thesis did not attract significantsupport amongst international lawyers generally at the time, it did prefigure the later lawof self-determination of peoples.17e third area where the influence of the historical school was felt was regarding impe-rialisma subject that has attracted strangely little attention from international lawyers.It need only be mentioned here that the historical school inherited from the eighteenthcentury a fascination with stages ofhistory. Under the impact of nineteenth-centuryanthropological thought, there came to be wide agreement on a t hree-fold categorizationof States: as civilized, barbarian, and savage.18

e Scottish lawyer James Lorimer wasthe most prominent international-law writer in this category. e implication was all tooclear that there was a kind of entit lementmoral and historical, if not strictly legalforthe civilized countries to t ake their savage counterparts in hand and to bring them atleast into contact with the blessings of modern scientific life.

2. e survival of natural lawe dominance of positivism, with its stern and forthright opposition to the very conceptof natural law, brought that venerable body of thought to its lowest ebb so far in the historyof international law. Virtually the only important legal figure explicitly to claim allegianceto that tradition was Lorimer. It should not be thought, though, that the natural-law ideals

of old died out altogether. at was far from t he case. If they lost t he central position thatthey had previously held, they nevertheless maintained their hold in many ways that werenot altogether obvious.One reason that natural-law ideas were not always recognizable was that, to some extent,they were re-clothed into a materialistic and scientific garb. is was particularly so withthe new science of liberal political economy. Underlying this new science was a belief,

directly imported from traditional natural-law thought, in a natural harmony of interestsamongst human beings across the globe. is was first enunciated in a systematic way bythe French physician Franois Quesnay in the 1750s, and then developed into its modernform in Britain by Adam Smith, David Ricardo, and John Stuart Mill. e centrepiece oftheir programme was support for free tradeand, more generally, for a breaking downof barriers between individual economic actors the world over. ey were, in short, t hepioneers of what came to called globalization (Neff, 1990, pp 2844).In more traditional areas of international law, the legacy of natural law is most readily

discerned in the area of armed conflictspecifically concerning what came to be calledmeasures short of war. It has been observed that positivism basically accepted the outbreakof war as an unavoidable fact of international life, and contented itself with regulating17 On the nationality (or Italian) School, see Sereni, 1943, pp 155178. On the modern law of self- determination, see Craven, below, Ch 8.18 See Kuper, 1988, pp 7678.

Page 17a short history of international law19the conduct of hostilities. But that approach applied to war properly speaking. Regardinglesser measures of coercion, the legacy of just-war thought lingered on. is was the the-sis that a resort to armed self-help was permissible to obtain respect for legal rights, if

peaceful means proved unavailing. e most important of these forcible self-help meas-ures were armed reprisals. ese were far from an unusual occurrence. Indeed, the nine-teenth century was a golden age (if that is t he right word for it) of armed reprisals. emost common cause of such actions was injury to nationals t hat had gone unredressed bythe target country. A famous illustration was Britains action against Greece in the DonPacifico incident of 1850, in which Britain blockaded Greek ports to compel that countryto pay compensation for injury inflicted by mob action against a British subject. One ofthe largest scale operations was a blockade of Venezuelan ports in 190203 by a coalitionof major European powers, to induce that State to pay various debts that were owing toforeign nationals. Reprisals sometimes also included occupations of territory and evenbombardments of civilian areas.It could hardly escape the attention of observers that reprisal actions were, for obviouspractical reasons, a prerogative of the major powersand that they accordingly gave rise tosome strong feelings of resentment in the developing world. In the wake of the Venezuelanincident of 190203, the Foreign Minister of Argentina, Luis Drago, proposed an outright

ban against the use of force in cases of contract debts. at was not forthcoming. Buta milder restriction was agreed, in the so-called Porter Convention of 1907 (named forthe American diplomat who was its chief sponsor), adopted by the Second Hague PeaceConference. is convention merely required certain procedural steps to be taken beforearmed reprisals could be resorted to in debt-default cases.It is one of historys great ironies that the natural-law tradition, which had once been sogrand an expression of idealism and world brotherhood, should come to such an ignomin-

iously blood-spattered pass. A philosophy that had once insisted so strongly on the pro-tection of the weak against the strong was now used as a weapon of the strong against theweak. It is, of course, unfair to condemn a whole system of justice on the basis of abuses.But the abuses were many, and the power relations too naked and too ugly for the tastes ofmany from the developing world. Along with imperialism, forcible self-help actions left along-lasting stain on relations between the developed and the developing worlds.

D. the achievements of the nineteenth centuryOne explanation for the remarkable lack of attention by international lawyers to the nine-

teenth century lies perhaps in the pervasive dominance of doctrinaire positivism over


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international legal writing generally. ere was much, admittedly, that was unattractiveabout nineteenth-century positivism, particularly to modern eyesits doctrinaire quality,its narrow horizons, its lack of high ideals, the aura of superficiality raised to the pitch ofdogma, its narrowly technocratic character, its ready subservience to power. But it would

be wrong to judge it on these points alone because its solid achievements were many. If itlacked the breadth and idealism of natural-law thought, it also discarded the vaguenessand unreality that often characterized natural-law thought at its worst. In many ways,positivism was a breath (or even a blast) of fresh air, countering the speculative excesses ofnatural-law thought. Even if positivism sometimes went t oo far in t he opposite direction,we should nonetheless appreciate the valuable services that it performed in its t ime.

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stephen c neffIt is clear from even a cursory survey of the nineteenth century that, when the wills ofStates were coordinated, impressive results could follow (see generally Lyons, 1963). In thespirit of the St-Simonians, there were various forms of what would come to be called thefunctional cooperation of States. Progress on this front was most notable in the areas of

international communication and transportation: from the international river commis-sions that were set up to ensure freedom of navigation on the Rhine and Danube Rivers(which had been commercial backwaters since the Middle Ages), to special arrangementsfor the Suez and Panama Canals, to the founding of the International Telegraphic andUniversal Postal Unions (1865 and 1874 respectively). In the spirit of the liberal econo-mists, policies of tariff reduction gathered momentum (with conclusion of the Cobden-Chevalier Treaty in 1860 between France and Britain being the seminal event). Barriersbetween States were assiduously broken down in other ways as well. e late nineteenth

century became an age of remarkable freedom of movement of peoples, with migration ona massive scale (passports were unnecessary for much of international travel in the nine-teenth century). Capital too moved with great freedom, thanks to the linking of currenciesthrough the gold standard. e period was, in short, a great age of globalization, with the

world more closely integrated economically than it would be for many decades thereafter(and in some ways more so than today) (see Neff, 1990, pp 3871).e positivist era was also the period in which we first see the international communitylegislating by way of multilateral treaties, for the most part in areas relating to armed con-flict. e first major example of this was the Declaration of Paris of 1856. It restricted t hecapture of private property at sea, by providing that free ships make free goods (ie, thatenemy private property could not be captured on a neutral ship). It also announced the

abolition of privateering. Within five years, it attracted over 40 ratifications. In 1868, theDeclaration of St Petersburg contained a ban on exploding bullets. More importantly,it denounced total-war practices, by stating that theonlypermissible objective of war isthe defeat of the enemys armed forces. Alongside the law of warand in some ways inclose partnership to itwas the full flowering of the law of neutrality, which, for the firsttime, emerged in the full light of juridical respectability as a sort of counterpart to the

unrestricted right of States to resort to war on purely political grounds.19ere was legislation in other fields too. On the humanitarian front, the period wit-nessed a concerted effort by the nations of the world to put an end to slave trading. e cul-mination of this effort occurred in 1890, when the General Act of the Brussels Conferenceestablished an International Maritime Office (at Zanzibar) to act against slave trading.In the less-than-humanitarian sphere of imperialism, the major powers established, bymultilateral treaty, the rules of the game for t he imperial partitioning of Africa. is tookplace at the Berlin Conference of 188485. (Contrary to the belief of some, that conference

did not actually allocate any territories; it established t he criteria by which the powerswould recognize one anothers claims.)e culmination of nineteenth-century international legislationand the arrival ofparliamentary-style diplomacy and treaty-draftingcame with the two Hague PeaceConferences of 1899 and 1907. e first Conference drafted two major conventions: one onthe laws of war and one on the est ablishment of a Permanent Court of Arbitration (which

was actually a roster of experts prepared to act as judges on an ad hoc basis, and not a19 For the most magisterial exposition of this subject, see Kleen, 18981900.

Page 19a short history of international law

21standing court). e Second Hague Peace Conference, in 1907, was a much larger gather-ing than the earlier one (and hence less Europe-dominated). It produced 13 conventions

on various topics, mostly on aspects of war and neutrality.20Yet another major achievement of the nineteenth century was in the area of the peace-ful settlement of disputes. Although it was widely agreed t hat fundamental security issueswere not justiciable, the nineteenth century marked a great step forward in the practice ofinter-State arbitration. e trend began with the Jay Treaty of 1794, in which the UnitedStates and Britain agreed t o set up two arbitration commissions (comprising nationals ofeach country) to resolve a range of neutrality and property-seizure issues that had arisen

in the preceding years. ese were followed by a number of ad hoc inter-State arbitra-tions in the nineteenth century, of which the most famous, again between Britain and theUnited States, took place in 187172, for the settlement of a host of neutrality-related issuesarising from the American Civil War.21For all the impressiveness of these achievements, though, the state of the world waswell short of utopian. Economic inequality grew steadily e ven as growth accelerated. esubjection of much of the world t o the European imperial powers, together with t he gun-boat diplomacy that sometimes followed in the wake of legal claims, stored up a strongreservoir of ill-will between the developed and the developing worlds. Nor did the Concert

of Europe prove adequate, in the longer term, to the maintenance of international peace.e Franco-Prussian War of 187071 proved, all too dramatically, that war between majorpowers, on the continent of Europe, was far from unthinkableand the steady advancein weapons technology and armaments stockpiles promised that future wars could be farmore deadly than any in the past. In due course, the Great War of 191418 deliveredspectacularlyon that menacing promise.


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VI. the twentieth and twenty-first)

Since much of this book will cover twentieth-century developments, no attempt will bemade at comprehensive coverage here, particularly of the post-1945 period. But certainaspects of both the inter-war and the post-1945 periods which have received comparativelylittle attention so far will be emphasized.

A. the inter-war periode carnage of the Great War of 191418 concentrated many minds, in addition to squan-dering many lives. Many persons now held that nothing short of a permanently existing

organization dedicated to the maintenance of peace would suffice to prevent future ghastlywars. eir most prominent spokesman was American President Woodrow Wilson. efruit of their labours was the establishment of the League of Nations, whose Covenantwas set out in the Versailles Treaty of 1919. is new system of public order would be of an20 For an informative and lively account of these conferences, see Tuchman, 1966, pp 265338.21 For a detailed and informative account, see Crook, 1975.

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stephen c neffopen, parliamentary, democratic character, in contrast to the discreet great-power deal-

ings of the Concert of Europe. e League was, however, tainted from the outset by itsclose association with the Versailles peace settlement, an incubus which it never managed

to shake off.

1. e League and its supplementse League was a complex combination of conservatism and boldness. On the side of con-servatism was the decision to make no fundamental change in the sovereign prerogativesof nation-States as these had developed up to that time. No attempt was made to establishthe League as a world government, with sovereign powersoverits member States. Nor did

the Covenant of the League prohibit war. Instead, the resort to war was hedged about withprocedural requirementsspecifically that either a judicial or political dispute-settlementprocess must be exhausted before there could be war between League member States. Onthe side of boldness was the Covenants provision for automatic enforcement action againstany League member State resorting to war without observing the peaceful-settlementrules. is enforcement took the form of economic sanctions by all other League memberStates, a tactic inspired by the Allied blockade of Germany during the Great War. ere

was, however, no provision for military action against delinquent States.In due course, two major initiatives supplemented the Leagues efforts to maintainpeace. In 1928, the Pact of Paris was concluded, in which the States parties forsworeany resort to war as a means of national policy. e practical effects of this initiative,however, were not impressive. For one thing, no sanctions were provided. It was alsocarefully understood by the signatories that self-defence action would be permitteda

potentially large loophole. e second initiative was the Stimson Doctrine of 1932,announced by the United States (and named for its Secretary of State at the time) inthe wake of Japans occupation of Manchuria. It held that any situation brought aboutby aggression would not be accorded legal recognition by the United States. Here too,the immediate material impact was not great; but it had some precedential value, sincethe UN General Assembly endorsed it as a general principle of international relationsin 1970.Only on one occasion was the sanctions provision of the Covenant invoked: against Italy

for its invasion of Ethiopia in 193536. e sanctions failed to save Ethiopia, since the con-quest was completed before they could have any serious effect. is failure led to a periodof profound soul-searching amongst international lawyers as to what the role of law in theworld should be.22 It similarly led St ates into desperate searches for alternative sources ofsecurity to the League Covenant. A number of countries, such as Switzerland, Belgium,and the Scandinavian States, reverted to t raditional neutrality policies. But there were

also a number of imaginative proposals for informal, but coordinated, action by Statesagainst aggressors (eg, Cohn, 1939; Jessup, 1936). ere was even a sort of return to ad hocgreat-power management, in the form of a collective and coordinated non-interventionpolicy organized by the major powers at the outbreak of the Spanish Civil War in 1936.Unfortunately, this effort too was largely unsuccessful because of inadequate implementa-tion and great-power rivalry (see Watters, 1970).22 See, notably, Niemeyer, 1940.


232. e achievements of the inter-war periodAlthough the League failed as a protector against aggressors, it would be far wrong to sup-pose that the inter-war period was a sterile time in international law generally. Preciselythe opposite was the case. It was a time of ferment, experiment, and excitement unprece-

dented in the history of the discipline. A World Court (known formally, if optimistically,as the Permanent Court of International Justice) was established as a standing body, withits seat at the Hague in the Netherlands. It did not have compulsory jurisdiction over alldisputes. But it decided several dozen cases, building up, for the first time, a substantialbody of international judicial practice. ese cases were supplemented by a large number

of claims commissions and arbitrations, whose outpourings gave international lawyers avolume of case law far richer than anything that had ever existed before.e codification of international law was one of the ambitious projects of the period. Aconference was convened for that purpose by the League of Nations in 1930, but its fruitswere decidedly modest (consisting mainly of clarifications of various issues relating tonationality). But there were further initiatives by the American States in a variety of fields.

ese included a convention on the rights and duties of States in 1933, which includedwhat many lawyers regard as the canonical definition of a State for legal purposes.23eAmerican States also concluded conventions on maritime neutrality, civil wars, asylum,and extradition.


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e inter-war period also witnessed the first multilateral initiatives on human rights. Anumber of bilateral conventions for the protection of minorities were concluded betweenvarious newly created States and the League of Nations. In the event, these proved not tobe very effective; but they set the stage for later efforts to protect minority rights after 1945,

as well as human rights generally. e principle of trusteeship of dependent t erritorieswas embodied in the mandates system, in which the ex-colonies of the defeated countrieswere to be administered by member States of the League. But this was to be a mission ofstewardshipa sacred trust of civilizationunder the oversight of the League. Finally,the League performed heroic labours for the relief of refugees, in the face of very greatobstaclesin the process virtually creating what would become one of the most important

components of the law of human rights.

It was a period also of innovative thinking about international law. at the doctrinairepositivism of the nineteenth century was far from dead was made apparent by the WorldCourt in 1927, when it reaffirmed the consensual basis of international law, in the fam-ous (or infamous)Lotus case.24 But positivism also came under attack during this period,from several quarters. One set of attackers were the enthusiasts for collective security, asembodied in the League of Nations. e American scholar Quincy Wright was a notableexemplar. is group were sympathetic to t he return of just-war ideas, with the Covenants

restrictions on the resort to war and the provision for collective aid to victims of unlaw-ful war. eir single most notable contention was that neutrality must now be regarded asobsolete.Within the positivist camp itself, a sweeping revision of nineteenth-century thoughtwas advanced by writers of the Vienna School, led by Hans Kelsen. ey discarded theState-centred, consent-based, pluralistic elements of nineteenth-century positivism, while23 See Craven, below, Ch 8. 24 Lotus, Judgment No 9, 1927, PCIJ, Ser A, No 10.

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stephen c neffretaining its general scientific outlook. e Vienna School then reconceived internationallawand indeed the whole of lawas a grand, rationalistic, normative system.25eFrench lawyer Georges Scelle advanced a broadly similar vision, though with a sociologi-cal flavour, in contrast to the austere formalism of Kelsen.26

ere was even somethingof a revival of natural-law thought, most notably in the writing of the Austrian AlfredVerdross (who was something of a maverick member of the Vienna School).27In short, the inter-war period did not bring an end to war or aggression. But it was themost vibrant and exciting era in the history of the discipline up to that time (and perhapssince).

B.

In the immediate aftermath of the Second World War, international law entered upon a

period ofunprecedented confidence and prestige, for which euphoria might not be toostrong a word. International lawyers even found themselves in the (unaccustomed) roleof heroic crusaders, with the dramatic prosecutions of German and Japanese leaders forcrimes under international law at Nuremberg and Tokyo in the late 1940s (see generallyTaylor, 1992; and Cryer and Boister, 2008). At the same time, great plans for the futurewere being laid.

1. Building a new worlde founding of the United Nations in 1945, to replace the defunct League of Nations, wasa critical step in the creation of a new world order. With the UN came a new World Court(the International Court of Justice, or ICJ), though still without compulsory jurisdiction

over States. e heart of the organization was the Security Council, where (it was hoped)the victorious powers from the Second World War would continue their wartime alli-ance in perpetuity as a collective bulwark against future aggressors. (It may be noted thatUnited Nations had been the official name for the wartime alliance.) e UN thereforemarked something of a return to the old Concert of Europe approach. e special statusof the five major powers (the principal victors in the Second World War, of course) was

formally reflected in their possession of permanent seats on the Security Council, t ogetherwith the power of veto over its decisions.e UN Charter went further than the League Covenant in restricting violence. It didthis by prohibiting not only war as such, but also the use of force in generaltherebyencompassing measures short of war, such as armed reprisals. An express exception wasmade for self-defence. Regarding action against aggressors, the UN was both bolder andmore timid than the League had been. It was bolder in t hat the Charter provided not onlyfor economic sanctions but also for armed action against aggressors. e UN Charter wasmore timid than the League, however, in that sanctions (whether economic or military)were not mandatory and automatic, as in the League Covenant. e Security Councildominated by the major powerswas to decide on an ad hoc basis when, or whether, to25 On the Vienna School, see Kunz, 1934. For a clear and succinct account, see Friedmann, 1949, pp

105117. See also Nijman, 2004, pp 149192.26 See Scelle, 193234. See also Dupuy, 1990; Nijman, 2004, pp 192242.

27 See Verdross, 1927.


25impose sanctions. e result was to make the UN a more overtly political body than the

League had been.Parallel to t his security programme was another one for the promotion of global eco-nomic prosperity. e economic-integration effort of the nineteenth century, shattered bythe Great War and by the Great Depression of the 1930s, was to be restructured and giveninstitutional embodiments. e International Monetary Fund was founded to ensure cur-rency stability, and the World Bank to protect and promote foreign investment and (in due

course) economic development. Trade liberalization would be overseen by a body to becalled the International Trade Organization (ITO).In a host of other areas as well, the aftermath of World War II witnessed a huge increasein international cooperation. ere scarcely seemed any walk of life that was not being


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energetically internationalized after 1945from monetary policy to civil aviation, fromhuman rights to environmental protection, from atomic energy to economic development,from deep sea-bed mining to the exploration of outer space, from democracy and govern-ance to transnational crime-fighting. e cumulative effect was to weld the States of the

world in generaland international lawyers in particularinto a t ighter global commu-nity than ever before. It is easy to understand that, amidst all this hubbub of activity, acertain triumphalist spirit could pervade the ranks of international lawyers.e euphoric atmosphere proved, alas, to be very short-lived. Scarcely had the UNbegun to function than it became paralysed by Cold-War rivalry between the major powerblocswith the notable exception of the action in Korea in 195053 (only made possi-

ble by an ill-advised Soviet boycott of the Security Council at the relevant time). Nor did

the new World Court find much effective use in its early decades. e ITO never cameinto being (because of a loss of interest by t he United States). Plans for the establishmentof a permanent international criminal court were also quietly dropped. Nor did the UNCharters general ban against force have much apparent effect, beyond a cruelly ironicone: of propelling self-defence from a comparative legal backwater into the very forefrontof international legal consciousness. Since self-defence was now t he only clearly lawfulcategory of unilateral use of force, the UN era became littered with self-defence claims of

varying degrees of credibility, from the obvious to the risible. In particular, actions thatpreviously would have been unashamedly presented as reprisals now tended to be deftlyre-labelled as self-defence.28All was not gloom, though, by any stretch of the imagination. In non-political spheres,lawyers fared a great deal better, very much in the technocratic spirit of nineteenth-centurypositivism. e codification of international law, for example, made some major strides,

in large part from the activity of a UN body of technical experts called the InternationalLaw Commission. e principal areas of law that received a high degree of codification

included the law of the sea (with four related conventions on the subject in 1958, replacedin 1982 by a single, broader convention), diplomatic and consular relations (in the early1960s), human rights (with two international covenants in 1966), and the law of treaties(in 1969).At the same time, t hough, it was not so clear that the fundamentals of the subject hadchanged very much. e basic positivist outlook continued to have great staying power.

Some of the most important political and intellectual upheavals of the t wentieth century28 See Gray, below, Ch 21.

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stephen c neffleft strangely little mark on international law. Socialism, for example, far from being amajor challenge to lawyers, was actually a conservative force. Socialist theorists tended

to write more dogmatically in the positivist vein than their Western c ounterparts did,insisting with particular strength on t he upholding of respect for State sovereignty (seeTunkin, 1974). Nor did the massive influx of developing States onto the world scene bringabout any fundamental conceptual upheaval. For the most part, the developing countriesreadily accepted established ways, although they made some concrete contributions inspecific areas. One was t he establishment of self-determination as a fundamental, collec-tive human right. Another was in the area of succession to treaties by newly independentStates, with the States being given an option of choosing which colonial treaties to retain.

2. New challengesAround the 1980s, a certain change of atmosphere in international law became evident, as

something like the idealism of the early post-war years began, very cautiously, to return.ere were a number of signs of this. One was a sharp upturn in the judicial business ofthe World Court. is included a number of cases of high political profile, from Americanpolicy in Central America to the Tehran hostages crisis to the Yugoslavian conflicts of the1990s.29 In the 1990s, the ITO project was revived, this time wit h success, in the form ofthe creation of the World Trade Organization (WTO), which gave a significant impetusto what soon became widely, if controversially, known as globalization.30 Human rightsbegan to assume a higher profile, as a result of several factors, such as the global campaign

against South African apartheid and the huge increase in activity of non-governmentalorganizations.31e end of the Cold War led to tangible hopes that the original vision ofthe UN as an effective collective-security agency might, at last, be realized. e expulsionof Iraq from Kuwait in 1991 lent strong support to this hope. Perhaps most remarkableof all was the rebirth of plans for an international criminal court, after a half-century of

dormancy. A statute for a permanent International Criminal Court was drafted in 1998,entering into force in 2002 (with the first trial commencing in 2009).32In this second round of optimism, there was less in t he way of euphoria than there hadbeen in the first one, and more of a feeling that international law might be entering an ageof newand dangerouschallenge. International lawyers were now promising, or threat-ening, to bring international norms to bear upon States in an increasingly intrusive man-

ner. A striking demonstration of this occurred in 1994, when the UN Security Councilauthorized the use of force to overthrow an unconstitutional government in Haiti. In 1999,

the UN Security Council acquiesced in (although it did not actually authorize) a humani-tarian intervention in Kosovo by a coalition of Western powers. It was far from clear howthe world would respond to this new-found activismin particular, whether the world

would really be content to entrust its security, in perpetuity, to a Concert-of-Europe styledirectorate of major powers.International legal claims were being asserted on a wide range of other fronts aswell, and frequently in controversial ways and generally with results that were unwel-come to some. For example, lawyers who pressed for self-determination rights for vari-ous minority groups and indigenous peoples were accused of encouraging secession29 See irlway, below, Ch 20. 30 See Loibl, below, Ch 24. 31 See Steiner, below, Ch 26.

32 See Cryer, below, Ch 25.


27


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movements. Some human-rights lawyers were loudly demanding changes in the trad-itional practices of non-Western peoples. And newly found (or newly rejuvenated) con-cerns over democracy, governance, and corruption posed, potentially, a large threatto governments all over the world. Some environmental lawyers were insisting that,

in the interest of protecting a fragile planet, countries should deliberately curb eco-nomic growth. (But which countries? And by how much?) Economic globalizationalso became intensely controversial, as the IMFs policy of surveillance (a somewhatominous term to some) became increasingly detailed and intrusive, and as structuraladjustment was seen to have potentially far-reaching consequences in volatile soci-eties. Fears were also increasingly voiced that the globalization process was bringing

an increase in economic inequality.

VII. conclusionHow well these new challenges will be met remains to be seen. At the beginning of thetwenty-first century, it is hard to see the UN failing in the way that the League of Nationsdid and being completely wound up. No one foresees a reversion to the rudimentary waysof Herodotuss silent traders. But it is not impossible to foresee nationalist or populist

backlashes within various countries against what is seen to be excessive internationalactivism and against the litist, t echnocratic culture of international law and organiza-tion. If there is one lesson t hat the history of international law teaches, it is t hat the worldat largethe outside world if you willhas done far more to mould international lawthan vice versa. By t he beginning of the twenty-first century, international lawyers werechanging the world to a greater extent than they ever had before. But it is (or should be)sobering to think that the great forces of historyreligious, economic, political, psycho-logical, scientifichave never before been successfully managed or tamed. And only a

rash gambler would wager that success was now at hand. Perhaps the most interestingchapters of our history remain to be written.

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Johann Christian Dieterich).De Vattel, E (1916), e Law of Nations(Fenwick, CG (trans.)) (Washington, DC:Carnegie Institution of Washington).De Vitoria, F (1991),Political Writings(Pagden, A and Lawrance, J (eds))(Cambridge: Cambridge University Press).

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