Abstract
This chapter develops arguments about what statesmen expected from international law in the nineteenth century. Starting with an evaluation of an arms control agreement often decried as evidence of the failure of international law, the 1856 Black Sea Neutralization Treaty, institutions and sources of international law are set out. Next, the functions of international law are explored, developing arguments about the roles of law in diplomacy. Finally, the chapter describes enforcement of international law and the implications of enforcement through war. Nineteenth century expectations about international law provide rich insights into beliefs about the future of war, a largely unexplored avenue for interpreting pre-1914 diplomacy.
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Notes
- 1.
Finley Peter Dunne, Dissertations by Mr. Dooley (New York: Harper & Bros., 1906), 161.
- 2.
This chapter expands upon themes discussed in Scott Keefer, “‘An Obstacle, though not a Barrier’: The Role of International Law in Security Planning during the Pax Britannica,” International History Review 35, no. 5 (2013): 1.
- 3.
As quoted in B. H. Sumner, “The Secret Franco-Russian Treaty of 3 March 1859,” English Historical Review 48, no. 189 (1933): 78. It is also noteworthy that the obligations in this article were undertaken by the state, while most of the remaining articles established a duty on behalf of the two emperors. Early nineteenth-century legal doctrine distinguished between personal obligations which ended with the rule of the monarch, and those undertaken by the state, which would survive. Grewe, The Epochs of International Law, 514. The use of both styles of obligation indicated an intention that these provisions would remain in existence for a long time, but without promise of immediate fulfilment.
- 4.
Baumgart, Peace of Paris 1856, 192–93.
- 5.
W. E. Mosse, The Rise and Fall of the Crimean System 1855–1871: The Story of a Peace Settlement (London: Macmillan & Co., 1963), 161–62.
- 6.
Oct. 19/31 1870 Gortschakow’s Telegram Ending the Neutralization of the Black Sea, in Wilhelm G. Grewe, ed., Fontes Historiae Iuris Gentium: Sources Relating to the History of the Law of Nations, 3 vols., Vol. 3 (Berlin: Walter de Gruyter, 1992), 473. However, as the earliest ironclads had been tested by French forces in the Crimea, their development was not entirely unforeseen.
- 7.
Granville to Buchanan, Nov. 10, 1870, in Correspondence respecting the Treaty of March 30, 1856, FO 881/1901 (Nov. 1870–Feb. 1871).
- 8.
See David J. Bederman, “The 1871 London Declaration, Rebus Sic Stantibus and a Primitivist View of the Law of Nations,” American Journal of International Law 82, no. 1 (1988): 8.
- 9.
Bloomfield to Granville, Nov. 24, 1870, in FO 881/1901; Paget to Granville, Nov. 19, 1870, in FO 881/1901.
- 10.
Sir Charles Dilke, Hansard 3rd ser., CCV, 901, 915, Mar. 30, 1871; Somerset Beaumont, id. at 917.
- 11.
Marquess of Salisbury, Hansard 3rd ser., CCIV, 1367, Mar. 6, 1871. Radical Liberals also followed this logic, but advocated a more isolationist policy, avoiding any treaty obligations.
- 12.
Baumgart, Peace of Paris 1856, 194; Mosse, Rise and Fall of the Crimean System, 182.
- 13.
Grewe, The Epochs of International Law, 514–15. Nussbaum, A Concise History of the Law of Nations, 198–99; Bederman, “1871 London Declaration,” 39–40.
- 14.
Muntz, Hansard 3rd ser., CCV, 927, Mar. 30, 1871.
- 15.
Lord Granville, Hansard 3rd ser., CCIV, 246–247, Feb. 14, 1871.
- 16.
Roger Parkinson, The Late Victorian Navy: The Pre-Dreadnought Era and the Origins of the First World War (Chippenham, United Kingdom: Boydell Press, 2008), 51. On the complexity of maritime industries and industrial dependency on government orders, see Marder, The Anatomy of British Sea Power, 37–42.
- 17.
Grant, Rulers, Guns, and Money, 93.
- 18.
Gardiner, Conway’s All the World’s Fighting Ships, 1860–1905, 177, 78.
- 19.
The relative Russian naval ascendancy in the region was due as much to Turkish disinterest in maintaining its fleet after 1876 as to Russian efforts to bolster its fleet. Grant, Rulers, Guns, and Money, 80–81.
- 20.
F. W. Maitland, “A Prologue to a History of English Law,” Law Quarterly Review 14, no. 53 (1898): 13.
- 21.
See Schücking, The International Union of the Hague Conferences on the goal of world federation; John Austin, The Province of Jurisprudence Determined (London: John Murray, 1832) on the lack of effective sanction in international law. Martti Koskenniemi described the reformist element in nineteenth-century international law, epitomized by the early history of the Institute of International Law. See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001), 91. This branch of legal scholarship was driven by a goal of reforming international society, and its accounts of international law focused upon what law might become rather than what statesmen perceived it to actually be. Often critical of older generations of legal scholarship, with their descriptive accounts of extant legal relationships, primarily expressed through treaties negotiated out of expediency rather than universal principles, the reformers sought an international legal system based firmly upon concepts of interdependence.
- 22.
“[T]his federation of Europe is the embryo of the only possible structure of Europe which can save civilization from the desolating effects of a disastrous war.” Lord Salisbury’s Speech on the Lord Mayor’s Day, in “The Guildhall Banquet,” The Times, Nov. 10, 1897, at 6.
- 23.
Koskenniemi, The Gentle Civilizer of Nations.
- 24.
Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order, (Cambridge: Cambridge University Press, 2004), 91 et. seq.
- 25.
Stephen C. Neff, War and the Law of Nations: A General History (Cambridge: Cambridge University Press, 2005), 162.
- 26.
Nussbaum, A Concise History of the Law of Nations, 237.
- 27.
Koskenniemi, The Gentle Civilizer of Nations, 33, 209.
- 28.
Nussbaum, A Concise History of the Law of Nations, 231–32.
- 29.
See generally Koskenniemi, The Gentle Civilizer of Nations, 210–11. Most legal theories implicitly acknowledged this reservation, see, e.g., Moore, A Digest of International Law, Vol. V, 221. However, few theorists emphasized this reservation over the general rule. Isabel Hull has further explored differences in German international legal theory as practiced in wartime, demonstrating how exceptions trumped law. Isabel Hull, Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca: Cornell University Press, 2005); A Scrap of Paper: Breaking and Making International Law during the Great War (Ithaca: Cornell University Press, 2014).
- 30.
US Const. Art. 6. Moreover, in the nineteenth century, the United States government argued that its constitution prevented it from contracting binding alliances, as treaties were ratified solely by the Senate, but Article I of the Constitution placed the power to declare war in the hands of both houses of Congress. See Christopher H. D. Howard, Britain and the Casus Belli, 1822–1902: A Study of Britain’s International Position from Canning to Salisbury (London: Athlone Press, 1974), 128.
- 31.
See generally id., especially 126 et. seq.
- 32.
On the binding nature of treaties as a source of national law, see Samuel B. Crandall, Treaties, Their Making and Enforcement (New York: Columbia University Press, 1904), 151 et seq., especially 59–60.
- 33.
“Pacta sunt servanda is the pervading maxim of International, as it was of Roman jurisprudence.” Sir Robert Phillimore, Commentaries Upon International Law (Philadelphia: T. & J.W. Johnson Law Booksellers, 1855), Vol. II, 56.
- 34.
Wheaton, Elements of International Law, 187.
- 35.
Phillimore, Commentaries Upon International Law, Vol. I, 62.
- 36.
A. Pearce Higgins, The Binding Force of International Law (Cambridge: Cambridge University Press, 1910), 3.
- 37.
In preparing for an international conference to be held on bombardment, the Foreign Office sought to explain the current state of the law on the topic. The Foreign Office organized a file with numerous excerpts from scholarly works, indicating the influence of these experts on official opinion. Papers respecting the Bombardment of Unfortified Towns, Requisitions, etc., FO 83/1652 (1834–1898).
- 38.
Clive Parry, ‘The Legal Advisers of the Crown’ in Clive Parry, (ed.), A British Digest of International Law, Part VII Organs of States (London: Stevens & Sons, 1965), 242 et. seq.
- 39.
Id.
- 40.
See, for example, Foreign Office to the Law Officers of the Crown, Sep. 18, 1899, in Reports by the Law Officers of the Crown, FO 881/7356 (1899) advising on legal ramifications of the 1899 Hague Conventions.
- 41.
“Sir Edward Hertslet Obituary,” Aug. 5, 1902, The (London) Times, 5.
- 42.
For instance, Herstlet was called on to provide advice regarding the existence of any treaty limiting the number of British ironclads stationed in the Mediterranean, holding there was no obligation. Edward Herstlet, Memorandum Respecting the Number of British and Foreign Ships of War in the Mediterranean, FO 881/5716, (January 28, 1889).
- 43.
See Howard, Britain and the Casus Belli, 94–95; Parry, “The Legal Advisers of the Crown,” 251.
- 44.
Nussbaum, A Concise History of the Law of Nations, 235–36. Unlike his near-contemporary Wheaton, Phillimore was never translated.
- 45.
Charles H. Stockton, Outlines of International Law (New York: Charles Scribner’s Sons, 1914); Davis, Outlines of International Law; Halleck, Elements of International Law; J. B. Porter, International Law, Having Particular Reference to the Laws of War on Land (Fort Leavenworth, Kansas: Press of the Army Service Schools, 1914); Elihu Root, “The Sanction of International Law,” American Journal of International Law 2, no. 3 (1908); Cushman K. Davis, A Treatise on International Law Including American Diplomacy (St. Paul, Minnesota: Keefe-Davidson Law Book Co., 1901).
- 46.
Mahan, Armaments and Arbitration; Helmuth von Moltke and Johann Kaspar Bluntschli, “Les Lois De La Guerre Sur Terre,” Revue de droit international et de législation comparée 13 (1881).
- 47.
Lieber, Instructions for the Government of Armies of the United States in the Field.
- 48.
Phillimore, Commentaries Upon International Law, Vol. I, 68.
- 49.
The term had been coined by Jeremy Bentham in the late eighteenth century, and well into the nineteenth century other terms such as “the public law of nations” remained in currency.
- 50.
Phillimore, Commentaries Upon International Law, Vol. I, 39–41.
- 51.
“Custom is the older and the original source of International Law in particular as well as of law in general.” Lassa Oppenheim, International Law: A Treatise, 2nd ed. (London: Longmans, Green and Co., 1912), Vol. I, 22.
- 52.
G. F. Von Martens, A Compendium of the Law of Nations, trans. William Cobbett (London: Corbett & Morgan, 1802), 47–48; Wheaton, Elements of International Law, 49–50, 188; Phillimore, Commentaries Upon International Law, Vol. I, 38; “[t]he most useful and practical part of the Law of Nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement;” Maine, International Law, 32; Hall, A Treatise on International Law, 323; Westlake, Chapters on the Principles of International Law, 78, 83; Thomas Joseph Lawrence, The Principles of International Law, 4th ed. (Boston: Heath and Co., 1910), 101 et. seq., 326–27. This was not merely a matter of scholarly theory but of state practice, as seen with the Declaration of London.
- 53.
Lawrence, The Principles of International Law, 101 et. seq.
- 54.
E.g. Clive Parry, “Foreign Policy and International Law,” in Foreign Policy under Sir Edward Grey, ed. F. H. Hinsley (Cambridge: Cambridge University Press, 1977), 91.
- 55.
The classic statement on sources of international law is Article 38 of the Statute of the International Court of Justice.
- 56.
Hall, A Treatise on International Law, 323 et. seq.
- 57.
Additionally, the Anglo-French and Anglo-Russian ententes were enshrined in binding legal documents. But while these created legal obligations, they contained no binding duties to intervene militarily, and only regulated colonial and policy disputes. The broader policies enshrined in ententes remained outside of any legal obligation.
- 58.
Phillimore, Commentaries Upon International Law, Vol. I, 576–77; Treaty of Constantinople, Mar. 12, 1854, Preamble “[T]heir said Majesties being fully persuaded that the existence of the Ottoman Empire in its present Limits is essential to the maintenance of the Balance of Power among the States of Europe …”; Treaty of Stockholm, Nov. 21, 1855, Preamble “[The parties] being anxious to avert any complication which might disturb the existing Balance of Power in Europe …” both in Hurst, ed., Key Treaties, Vol. I, 299, 315. Many legal texts recognized the balance of power as a precondition for international law. See Alfred Vagts and Detlev Vagts, “The Balance of Power in International Law: A History of an Idea,” American Journal of International Law 73, no. 4 (1979).
- 59.
For example, Declaration Between the United Kingdom and France respecting Egypt and Morocco, Apr. 8, 1904; Hurst, ed., Key Treaties, Vol. II, 760.
- 60.
The Treaty of Berlin provided a key example.
- 61.
“Declaration of Paris, Apr. 16, 1856,” American Journal of International Law 1, no. 2 Supplement (1907); Geneva Convention for the Amelioration of the Condition of the Sick and Wounded of Armies in the Field, Aug. 22, 1864; Declaration of St. Petersburg; the Hague Conventions of 1899 and 1907.
- 62.
Emphasis added. British Note to the Italian Government in Regard to a Mediterranean Agreement, Feb. 12, 1887, Hurst, ed., Key Treaties, Vol. 2, 635.
- 63.
Compare this language to that of the Triple Alliance of 1882: Article II stated in case Italy was attacked by France, “the two other Contracting Parties shall be bound to lend help and assistance with all their forces to the Party attacked.” First Treaty of Triple Alliance between Austria-Hungary, Germany and Italy, May 20, 1882. Similarly, the initial draft of 1892 Franco-Russian Military Convention provided strong obligations: At Article 1 “If France is attacked by Germany, or by Italy supported by Germany, Russia shall employ all her available forces to attack Germany” creating an outright obligation not only to fight but to actually attack Germany, the article going on to state that in the case of attack on Russia, France “shall employ all her available forces to fight Germany.” Draft of Military Convention between France and Russia, 1892. Emphasis added. Both in Hurst, ed., Key Treaties, Vol. II, at 611, 668.
- 64.
Earlier in the century, Clarendon had preferred to keep the exact nature of British obligations vague, in order to prevent guaranteed states like Portugal and Belgium from flaunting unconditional British support at their enemies. See Howard, Britain and the Casus Belli, 96. These concerns also influenced British alliance negotiations with Japan, although ultimately Britain accepted formal treaty obligations. See Draft Dispatch from Lansdowne to MacDonald, Dec. 24, 1901, CAB 37/59/142 (1901) at 2.
- 65.
Austin, The Province of Jurisprudence Determined, 138, 46–48, 208.
- 66.
Grewe, The Epochs of International Law, 509–10. While foreign ministers like Salisbury commented on the lack of binding nature of treaties, the Foreign Office never subscribed to this view and continued to treat treaties as legally binding. Moreover, Salisbury’s conduct indicated that his own views were more complex than he admitted in political speeches. See generally Howard, Britain and the Casus Belli. and specifically, 126 et. seq.
- 67.
“The capability of being enforced by compulsory means is not the only or the most essential characteristic of Law. That characteristic lies much more in this – that it is the rule and order governing all human communities in all spheres and dimensions of private and public life, and also of the social relations of Peoples and States with one another, which is also International Law. Compulsion only issues from the community as such. This is the order which ought to be upholden – the life regulated by law is the common life of States.” Kaltenborn, as translated in Phillimore, Commentaries Upon International Law, Vol. I, 77. Lawrence, The Principles of International Law, 3, 9–11; Halleck, Elements of International Law, 54.
- 68.
“Municipal law itself is constantly and systematically violated by the average citizen … We do not ask of law that it should absolutely suppress all action which is opposed to its dictates; its function is performed when it imposes a definite and powerful check upon any such action; more we cannot require of it.” Thomas Baty, “The Basis of International Law,” Macmillan’s Magazine 78, no. 466 (1898): 280.
- 69.
Lawrence, The Principles of International Law, 3.
- 70.
For instance, domestic law has not eliminated bank robberies, only made them rare enough that the public has confidence placing its money within banks. A vast proportion of law is regularly disobeyed, including speed limits on the highways, but the rules are enforced sufficiently to keep the highways relatively safe. Law enforcement is always relative and contextual, dependent upon numerous factors, varying upon neighborhood, time of day, and even weather, as witnessed by the prevalence of crime in many cities during the dog days of summer.
- 71.
As a normative question, each state determines for itself the nature of its domestic legal obligations. The question of whether international law was truly law can be simply answered by recourse to national legal texts. In the nineteenth century, Great Britain held international law to be legally binding. See Edward Wavell Ridges, Constitutional Law of England (London: Stevens & Sons, 1905), 424–26.
- 72.
Baty, “The Basis of International Law,” 279.
- 73.
The Kaiser impatiently claimed this as his policy. “To prevent him [the Russian Czar] from making a fool of himself before all Europe, I have agreed to this nonsense. But in practice I will continue as before to trust only in God and my sharp sword! And will shit on all the resolutions!” Norman Rich, Friedrich Von Holstein: Politics and Diplomacy in the Era of Bismarck and Wilhelm II (Cambridge: Cambridge University Press, 1965), 607. However, the record of German treaty ratification indicated that agreements were cautiously entered into.
- 74.
He claimed that “collective guarantees” made by all the great powers, such as the 1867 agreement, could only be brought into effect if all powers agreed to participate in the defense of the guaranteed state, an unlikely situation as these same nations were the only parties likely to invade the guaranteed state. If one of them invaded Luxembourg, there would be no collective defense of the hapless state. Howard, Britain and the Casus Belli, 79. A collective guarantee required intervention only when other guarantors intervened, but an invasion of the guaranteed state by one of these parties would not excuse the others of this duty. Oppenheim, International Law: A Treatise, 601–02.
- 75.
Howard, Britain and the Casus Belli, 79–80.
- 76.
The political cost of breaching legal obligations also depended on the nature of the breach, and the array of states capable of sanctioning the conduct. See the following section on this point.
- 77.
Memorandum of the Colonial Defence Committee, Jul. 19, 1886, quoted in Committee of Imperial Defence, The Hague Conference: Notes on Subjects which might be raised by Great Britain or by other Powers, at 5, CAB 38/10/76 (Oct. 26, 1905).
- 78.
The Hague Conference, at 9, CAB 38/10/76.
- 79.
Clarendon to Palmerston, Apr. 15, 1856, in FO 27/1169.
- 80.
For an excellent exposition of this process, see Abram Chayes, “An Inquiry into the Working of Arms Control Agreements,” Harvard Law Review 85, no. 5 (1972).
- 81.
Howard, Britain and the Casus Belli, 172.
- 82.
Sir William Harcourt, Hansard, 4th ser., LVIII, 1420, June 10, 1898.
- 83.
Clarendon to Palmerston, Apr. 12, 1856, Clarendon Papers, C. 135, ff. 540–541.
- 84.
Charles Ottley, Memorandum, Dec. 14, 1906, in Admiralty – Grey Correspondence: Admiralty 1905–1913, FO 800/87, (1905–1913), 88–89.
- 85.
Palmerston to Clarendon, Sep. 25, 1855, Clarendon Papers, C. 50, ff.98–99. See Howard, Britain and the Casus Belli, 57.
- 86.
Ian H. Nish, The Anglo-Japanese Alliance: The Diplomacy of Two Island Empires 1894–1907 (London: Athlone Press, 1966), 167, 94–95, 230. Nish noted that while Great Britain and Japan had interests in common, “it was necessary to codify their common interests in the diplomatic language of a treaty …”, 239–240. Marder, The Anatomy of British Sea Power, 427–28.
- 87.
Marder, Dreadnought, Vol. I, 238. Although outside the timeframe of this present study, in 1921, the British attempted to gain American adherence to the Anglo-Japanese alliance, recognizing explicitly the value of the treaty in keeping Japanese policy aligned with that of the West. One correspondent described it as placing a bad elephant “between two good elephants to behave.” Memorandum by Fletcher of a Conversation with Willert, May 31, 1921, Dep. of State 741.9411/96, as quoted in Thomas H. Buckley, The United States and the Washington Conference, 1921–1922 (Knoxville, Tennessee: University of Tennessee Press, 1970), 30. Prior to the Washington Conference of 1921, the British stressed the goal of maintaining the alliance “as we cannot afford to risk the open hostility of Japan.” Victor Wellesley, General Survey of Political Situation in Pacific and Far East with Reference to the Forthcoming Washington Conference, Oct. 20, 1921, in Washington Conference Memoranda, FO 412/118 (1921) at 3.
- 88.
W. N. Medlicott, Bismarck, Gladstone, and the Concert of Europe (London: Athlone Press, 1956), 41–44. In 1880 Russia sought an alliance with Germany to circumvent that nation’s hostility, rather than to affirm common interests. Id., 41.
- 89.
Otto von Bismarck, Otto Von Bismarck, The Man and the Statesman, trans. A. J. Butler (New York: Harper & Brothers, 1899), Vol. II, 270–71. The crux of Austin’s theory was that without the threat of compulsion and the authority to administer it, law “properly so-called” did not exist. But “the largest number of rules which men obey are obeyed unconsciously from a mere habit of mind. Men do sometimes obey rules for fear of the punishment which will be inflicted if they are violated, but, compared with the mass of men in each community, this class is but small …” Maine, International Law, 50.
- 90.
“There must be a coercive force somewhere, because mankind obeys that law, nations obey it. In the first place there is the force of opinion. In the next place, there is the force of pacific retaliation, of restrained intercourse, of international boycotting and outlawry, of unfriendly legislation. And then, finally, there is the supreme arbiter and coercive force of war.” Davis, A Treatise on International Law, 26, see 26–28; “In reality the source of its strength are three: (i) a regard – which in a moral community often flickers but seldom entirely dies – for national reputation as affected by international public opinion; (ii) an unwillingness to incur the risk of war for any but a paramount national interest; (iii) the realisation by each nation that the convenience of settled rules is cheaply purchased, in the majority of cases, by the habit of individual compliance.” Frederick Erwin Smith, International Law, 2nd edn (London: Dent and Co., 1903), 16; See also Maine, International Law (1888) 50; Halleck, Elements of International Law, 54.
- 91.
Westlake, Chapters on the Principles of International Law, 7.
- 92.
Travers Twiss, The Law of Nations Considered as Independent Political Communities, Vol. I On the Right and Duties of Nations in Time of Peace (Oxford: Oxford University Press, 1861), 18, 20–21; Phillimore, Commentaries Upon International Law, Vol. III, 59–67.
- 93.
Phillimore, Commentaries upon International Law, (1857) Vol. III, 60.
- 94.
Travers Twiss, The Law of Nations Considered as Independent Political Communities, Vol. II On the Rights and Duties of Nations in Time of War (Oxford: Oxford University Press, 1863), vii.
- 95.
Phillimore, Commentaries Upon International Law, Vol. III, 99.
- 96.
Id., Vol. III, 100; Twiss, Law of Nations, Vol. I, vii; Wheaton, Elements of International Law, 249–53.
- 97.
Wheaton, Elements of International Law, 191; Lawrence, A Handbook of Public International Law, 66–67; Von Martens, A Compendium of the Law of Nations, 56–57.
- 98.
Phillimore, Commentaries Upon International Law, Vol. III, 143. Even if these rules were not always observed, their breach gave rise to rights, including retaliation.
- 99.
Wheaton, Elements of International Law, 81.
- 100.
Id., 82.
- 101.
Foreign Office to Loftus, Jan. 20, 1875, in FO 83/485.
- 102.
Westlake, Chapters on the Principles of International Law, 232–33.
- 103.
Prussia began the period as part of the anti-revolutionary coalition, returned to benevolent neutrality towards France until 1805, fought against France briefly in 1806–1807 before becoming a quasi-satellite providing troops guarding the flank of the French invasion of Russia, then switching sides again in early 1813. Russia remained neutral much of the first decade, entering the coalition against France before Napoleon’s seizure of power, then following the peace of Tilsit in 1807 schemed with France in plans to divide Europe before ending up as enemies again in 1812. Spain started in the first coalition against France, soon switching sides until invaded by the French. Austria never sided openly with France, but as late as 1813, sought to maintain Napoleonic France as a counter-weight to Russia, reluctantly entering the war when peace negotiations failed.
- 104.
The Declaration of London from the Point of View of its effects on Neutral Shipping and Commerce, Feb. 1, 1911, in CAB 37/105/6 (1911) at 6. But see Christopher Martin, suggesting that the Admiralty feared intervention by smaller Mediterranean neutral states rather than great powers. Christopher Martin, ‘The Declaration of London: A Matter of Operational Capability’, Historical Research lxxxii, no. 218 (2009): 742–744. Either way, the rules had been crafted to prevent neutral intervention.
- 105.
“Untitled,” Aug. 1, 1899, The (London) Times, 9.
- 106.
Emphasis added. The Hague Conference, at 9, CAB 38/10/76.
- 107.
Phillimore argued that states had to obey rules in war in order to allow peace negotiations. Phillimore, Commentaries Upon International Law, Vol. III, 146.
- 108.
Edmund Slade made this point during the London Conference in an internal memo while discussing the laws of contraband: “Also, we must not forget that we are not always belligerent. During the last century we have more often been neutral than belligerent, and during the century before more often belligerent than neutral.” Edmund Slade, Memorandum of Dec. 14, 1908, at 3, in London Conference on International Maritime Law, ADM 116/1079, Part 2 (1908–1909).
- 109.
Phillimore justified intervention upon the balance of power. Phillimore, Commentaries Upon International Law, Vol. I. 574, 76–77. The doctrine of intervention remained problematic in international law, and subject to abuse. Thus, it did not receive full acceptance by all authorities. See Lawrence, A Handbook of Public International Law, 31–33.
- 110.
Twiss, Law of Nations, Vol. II, 16; Thomas Joseph Lawrence, Essays on Some Disputed Questions in Modern International Law, 2nd ed. (Cambridge: Deighton, Bell & Co., 1885), 209.
- 111.
Simpson, Great Powers and Outlaw States, 115.
- 112.
Lawrence, A Handbook of Public International Law, 51–52.
- 113.
Lawrence, Essays, 226–27. See also Westlake, Chapters on the Principles of International Law, 92, 98 recognizing the existence of the European Concert while not conceding legal inequality.
- 114.
See Grewe, The Epochs of International Law, 429 et. seq.
- 115.
See, for example, Foreign Secretary Viscount Castlereagh’s views on the role of great powers in Simpson, Great Powers and Outlaw States, 99.
- 116.
Lawrence, Essays, 228, 30.
- 117.
Westlake, Chapters on the Principles of International Law, 100–01; Lawrence, Essays, 232–33.
- 118.
Phillimore, Commentaries Upon International Law, Vol. I, 589. Wheaton held the view that the balance of power was political and lay outside the law, although states that truly disturbed the European equilibrium generally did so overtly, furnishing substantive grounds to justify war. Wheaton, Elements of International Law, 82–83. See generally, Vagts and Vagts, “Balance of Power in International Law.”
- 119.
Westlake, Chapters on the Principles of International Law, 265–66. Koskenniemi suggests that the Institut de droit international also rejected Henry Maine as a member because of his defense of alliances. Koskenniemi, The Gentle Civilizer of Nations, 75.
- 120.
Phillimore, Commentaries Upon International Law, Vol. I, 588–89.
- 121.
The Hague Conference, at 9, CAB 38/10/76.
- 122.
Smith, International Law, 9.
- 123.
Id., 16.
- 124.
Maine, International Law, 52–53.
- 125.
See Howard, Britain and the Casus Belli, 112. The Foreign Office avoided the issue of obligations by claiming that Turkey had no right to invoke the provisions; only the other great power parties could activate the casus belli, none of whom had any interest in doing so.
- 126.
Id., 104, 11–12.
- 127.
Salisbury, Hansard 4th ser., XLVII, 1013, Mar. 19, 1897.
- 128.
In an earlier piece, he simultaneously warned against overreliance on international law, noted the lack of legal institutions à la Austin, yet acknowledged the role of law as a grammar for international relations and an obstacle to transgressions or in his words, “to many States, less quietly disposed, they diminish the temptations of war.” Salisbury, “The Land Question of Ireland: Issued by the Irish Land Committee,” Quarterly Review, 151, no. 302, (Apr. 1881): 543–544.
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Keefer, S.A. (2016). International Law in the Nineteenth Century. In: The Law of Nations and Britain’s Quest for Naval Security. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-39645-3_3
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