Abstract
The nineteenth century era of international law is often cited as being dominated by a realist ideology, which was a result of the flexible and unregulated nature of this model of international law. As a result, much focus is placed on how European states often utilised international law to justify colonial expansionist policies. However, this fails to highlight some of the essential cosmopolitan developments that took place during the nineteenth century such as the Hague Conventions, the Geneva Protocols, and the Permanent Court of Arbitration. Subsequently, I seek to illustrate how the nineteenth century model of international law was a product of both realism and cosmopolitanism by investigating the development of the international legal system during this era. I argue that the emergence of realist and cosmopolitan paradigms of international law in the nineteenth century are a result of the prevalence of realpolitik influences in the nineteenth century era of international law. As states adopted a pragmatic approach to global governance, the international legal system became an amalgamation of competing ideologies influencing the international stage when most appropriate. Thus, this paper provides a more nuanced understanding of the history of global governance to avoid dogmatic assumptions of international affairs.
Introduction
Often, academic literature covering the nineteenth century era of international law portrays this period to be one that is disorganised and flexible in nature, allowing for imperialist politics to dictate international law. David Kennedy in particular claimed that it was these characteristics that weakened the capacity to utilise international law to prevent large-scale crises from breaking out. In fact, Kennedy suggested that the First World War was a juncture between ‘two different cultural, political and social orders’. Subsequently, the War was thus a breakaway from the chaos that was such a prevalent feature of the nineteenth century,Footnote1 solidifying the need for ‘forcing [an] acknowledgment of interdependence’.Footnote2 This contextualises why the international legal system experienced a revolution following the end of the First World War where a central body (the League of Nations) was formed to regulate and organise international relations and international law. The flexible nature of the international legal system during the nineteenth century fed the heightened anarchy of the international stage, hence the often-cited connection with this era and realism. However, although the flexible nature of the nineteenth century model allowed realist politics to dominate the international stage, this does not give a full account of this era. This period witnessed cosmopolitan developments to ensure international peace and security such as the Hague Conventions, the Geneva Protocols, and the Permanent Court of Arbitration. Such developments continue to influence contemporary forms of global governance and indicates that this model of international law had the potential to ensure international peace and security.
As these diverging narratives indicate states’ dichotomous approaches to international law, I utilise Anne-Marie Slaughter’s disaggregated state theory to claim that the state is in fact not one single unitary entity engaging with the international legal system. Instead, the state is disaggregated with certain components engaging with international law to pursue realist objectives, whilst other components of the state are helping to realise a cosmopolitan vision of international law. It is on this basis I intend to analyse the impact of the competing traditions of cosmopolitanism and realism on the international legal system during the nineteenth century to gain a more nuanced perspective of this era. By analysing these diverging narratives of the nineteenth century model of international law, I will claim that this era of international law was both a reason and an inspiration for the drastic changes that were implanted in the League of Nations model of international law. This gives rise to my suggestion that states engaged with the international legal system pragmatically, oscillating from cosmopolitanism and realism when it best suited their interest to either serve the international community or focus solely on the accumulation of power.
To prove this claim, I firstly analyse the literature that paints the traditional depiction of the nineteenth century model of international law as disorganised and flexible, facilitating a realist trend in relations between states. Moreover, in analysing the realist vision of this era of international law, the intention is to show that the more influential states continued to commit and comply to international law when engaging with one another in order to protect their colonial expansionist ambitions. This meant that the international legal system was built on a precarious foundation, prone to collapsing if such states considered other (more hostile) means for engagement. I then examine the cosmopolitan development during the nineteenth century with a particular focus on the Congress of Vienna, the Hague Conventions and the move towards the professionalisation of international law. Such examinations indicate that the nineteenth century model of international law possessed the potential to ensure international peace and security. In fact, such arguments regarding the capacity for this model of international law to ensure international peace and security persist despite the perceived weaknesses of the international legal system being disorganised, flexible and vulnerable to realist sensibilities. In the final section, I shall attempt to synthesise these seemingly competing illustrations of the nineteenth century model international law to identify states’ realpolitik agenda to international law. In exploring the realpolitik dominance in the nineteenth century era, I will attempt to illustrate the distinctions between realpolitik and realism in order to demonstrate how both cosmopolitanism and realism were able to influence the nineteenth century era of international law concurrently. The attempt to synthesise these opposing depictions of this period is an exercise in illustrating the complexity of international affairs. Furthermore, it is an endeavour in not simply analysing and summarising history in absolutes; but rather appreciating the reality that competing visions and movements co-exist and influence global governance simultaneously. Consequently, conclusions will be drawn to clarify how the nineteenth century model of international law impacted the development of the League of Nations model of international law to further demonstrate the nuanced nature of the nineteenth century.
Nineteenth century system of international law
The pre-World War I international legal system differed vastly to the one that was developed following the end of the war. Kennedy noted that the pre-war international legal system as an ‘era of unbridled sovereign autonomy, a Hobbesian world of independent and all-too-often capricious princes competing for colonies, respect, and power’.Footnote3 The international community was consequently balanced by the presence of the Great Powers. Thus, Holsti states that, ‘a significant feature of eighteenth-century European international politics was the relatively even distribution of diplomatic influence and military capabilities among the major states… This relatively equal distribution of power and influence made it possible for the dynastic states to shift alliance partners without radically upsetting the structure of the whole system’.Footnote4
It is also important to note positivism’s ascendency in international law influenced the flexible and disorganised nature of the nineteenth century model of international law. As positivists rejected natural law ideals of sovereign states being bound by an overarching natural order, the sovereign became the apex of the hierarchical order of international law. Authority emanated from their decisions, and thus not only was the legal order structured around the customary law or treaties the sovereign would develop but the legal system developed in a fluid and pragmatic manner without focus and direction. Subsequently, ‘the rules of international law were to be discovered not by speculative inquiries into the nature of justice or teleology, but by a careful study of the actual behaviour of states and the institutions and laws which they created’.Footnote5 For international lawyers such as John Westlake rules of law must be determined by the members of the international society and not by undefinable elements such as teleology for example.Footnote6 There are certainly benefits to adopting a positivist approach. It assures greater clarity in the legal system allowing ley actors to design the rules by which they operate under on the international stage. However, this disorganised and flexible approach brought with it the vulnerability that led to the collapse of the nineteenth century model of international law. This vulnerability was a result of the international legal system lacking a regulator within the system to ensure compliance to international law.
The nineteenth century international legal system was a model that was predicated on protecting the interests and aims of the major colonial powers of the nineteenth century.Footnote7 Kennedy suggests that the nineteenth century model ran from 1789 to 1914,Footnote8 because ‘for an international lawyer the nineteenth century is a pattern before it is a period’.Footnote9 In this case, the pattern was the lack of a regulator overseeing the development of international law, which lead to a more a disorganised and flexible legal system. Consequently, the design of this model was state-centric, focused on protecting the sanctity of sovereignty whilst also allowing colonial powers to distance themselves from the other nations.Footnote10
In fact, the differentiation between ‘civilised’ and ‘non-civilised’ nations facilitated European ambitions not only to dominate the international stage but also international law. The turn to positivism during the nineteenth century enabled such differentiations, for positivists during this period insisted on separating the civilised from the uncivilised, deeming European law to bear greater importance over non-European law. Positivism maintained the separation of European nations and non-European nations that was prevalent in natural law.Footnote11 It was a continuation of the notion that those who did not follow the Christian faith could not be treated equally under laws set by Europeans.Footnote12 Many positivist writers such as Henry Wheaton argued that a different set of rules regulated ‘civilised’ European and ‘un-civilised’ non-European nations, with connotations inferring perceptions of superiority. Wheaton argued that:
‘Is there a uniform law of nations? There certainly is not the same one for all the nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilized and Christian people of Europe or to those of European origin’.Footnote13
‘It is simply and massively asserted that only the practice of European states was decisive and could create international law. Only European law counted as law. Non-European states were excluded from the realm of law, now identified as being the exclusive preserve of European states, as a result of which the former were deprived of membership and the ability to assert any rights cognizable as legal’.Footnote15
This feature is apparent when analysing the use of the treaty system to safeguard colonial territories. Take for example Britain and France’s competition to sign a treaty with Iran during the early period of the nineteenth century. Britain was eager to sign a treaty with Iran in order to protect its territorial dominance over India, and in return Britain would assist Iran if it faced a threat from France or Afghanistan.Footnote17 Though agreements were made, they were never formally ratified. When Iran felt threatened by Russian southward expansion, they requested Britain’s help. Britain refused as the threat was not from France or Afghanistan. Insulted by the lack of solidarity, Iran turned to France, signing a treaty in 1807, which granted France passage to India through Iranian territory.Footnote18 Concerned about its colony, Britain quickly ratified a treaty with Iran which prevented Iran from allowing France to use their territory to attack India as long as Britain would assist Iran against any unspecified attackers, regardless of whether Britain was in peace with them.Footnote19
Furthermore, the treaty system was also used for imperial expansion. The Treaty of Nanjing was signed by Britain and China in 1842, when China was pressured to sign the treaty under the threat of a British assault in the Nanjing region. The treaty granted Britain access to five ports for trade and residence as well as the successful cession of Hong Kong to Britain.Footnote20 Further treaties were agreed between Britain and China, the 1843 General Regulations for Trade at Five Ports and the Supplementary Treaty of the same year, to specify trade tariffs.Footnote21 With Britain’s success in China, other nations followed suit as China was forced to conclude similar treaties with the USA and France in 1844, and Sweden and Norway in 1847. Britain, France, USA and Russia pressed forward with the system of extra-territoriality in China, with a second round of unequal treaties where opium trade was legalised, foreign merchant ships were permitted to navigate the Yangtze River, opened additional ports and foreign warships were allowed to cruise along the seacoasts and be stationed in inland waters.Footnote22 However, it was not just China that was vulnerable to colonial expansionism, as the African continent was a key focus. Colonial powers use’ of international law during their engagement in Africa typifies the notion that international law was regularly utilised or even developed for the sake of imperialist ambitions. When examining Britain’s interaction with West African polities, the former utilised treaties to acquire more land in the West African region. Treaties were concluded by British Imperial agents with West African leaders on the premise of ‘commercial privileges, the preservation of peace, the abolition of the slave trade, or other humanitarian- inspired reasons’Footnote23 paving the way for ‘inserting clauses that provided for the transfer of partial or complete territorial sovereignty’.Footnote24 This strategy is evidenced when exploring Thomas Buxton’s The African Slave Trade and Its Remedy where he recounts how African leaders were incentivised to abolish the slave trade and to cede portions of their land for commercial expansionism through the conclusion of treaties.Footnote25 Furthermore, though the acquisition of land should be considered separate to the acquisition of private property rights and land, the treaties concluded with African communities ‘made illegal encroachments’ on the land rights of such communities.Footnote26 Such encroachments highlights that the use of international law in regulating relations in West Africa had been to the benefit of British interest as various western doctrines were selectively incorporated into the nineteenth century model of international law for the sake of colonial ambitions. No more is such a phenomenon more apparent than when during ‘nineteenth-century imperialism yet another category was introduced in [international] legal doctrine, namely territorium nullius. While terra nullius signified empty lands, territorium nullius indicated lands devoid of sovereign control by western states’.Footnote27
Ultimately, the colonial expansionism that the nineteenth century witnessed acutely demonstrates a central drive behind this model of international law during this period. This system of international law nurtured an environment of coexistence, rather than cooperation,Footnote28 focused on ‘shielding oppressive states from accountability and exposing weak and economically disadvantaged states to intervention and severe forms of material deprivation’.Footnote29 The flexibility, lack of structure and focus on sovereignty created an open field for expansionist policies dictated by a realist ideology. An integral focal goal of the nineteenth century model of international law was not international peace and security, but instead the maintenance of stable relations amongst the so-called ‘civilised nations’ so that these select few could continue their endeavours to realise imperialist ambitions. This feature of the nineteenth century model of international law is well represented in the Berlin West African Conference 1884–1885, also known as the Berlin Conference. A central aim of the Berlin Conference was to ensure that the scramble for Africa would not ensue through a series of hostilities but instead through the introduction of a new legal instrument, known as the General Act, which regulated European colonisation in Africa. This legal provision ensured colonial expansionism would take place with less tension between the great European powers. Furthermore, state powers were using international law to legitimise imperialist ambitions. Article 34 established that:
‘Any Power which henceforth takes possession of a tract of land on the coasts of the African continent outside of its present possessions, or which, being hitherto without such possessions, shall acquire them, as well as the Power which possesses a Protectorate there, shall accompany the respective act with a notification thereof addressed to the other signatory powers of the ac’.Footnote30
‘The signatory powers of the present act recognise the obligation to ensure the establishment of authority in regions occupied by them on the coasts of the African continent, sufficient to protect existing rights, and, as the case may be, freedom of trade and of transit under the conditions agreed upon’.Footnote31
This prevalent feature of the nineteenth century model of international law demonstrates that ‘law was moving away from the mid-nineteenth-century ideas of justice and equality’,Footnote34 to be dominated by a realist agenda for expansion and acquiring greater power. In The Gentle Civilizer, Koskenniemi refers to Enrico Catellani and his pessimistic viewpoint of nineteenth century international law. Cattellani described the century as closing with ‘imperial domination, methodological enslavement of populations and war’.Footnote35 Such descriptions of the nineteenth century model of international law paints an era of powerful states using and developing international law to protect their standing on an international level, whilst setting the framework for further expansion. The manner in which the great powers of the nineteenth century era utilised the international legal system typifies the claim that whilst such states that hold an influential position on the international stage saw an advantage in committing and complying to international law for the sake of their realist interest, the legal system was able to function well. Indeed, throughout the nineteenth century the ad hoc and flexible nature of international law allowed the great powers of the nineteenth century to coordinate colonial expansionism without unwanted friction or hostilities with one another.
In fact, studying the genesis of ius in bello in Europe during the late nineteenth and early twentieth century is an indication of the imperialist-centric nature of international law during this period. There are several accounts on why the first Hague Conference was initially organised. Victorian Chancellor, J.B. Atlay, argued that the Hague Conference was a response to the Franco-Prussian and Crimean conflicts, commenting that the ‘disciplined troops [of] the nations of Europe had practically reached an accord as to the maximum of severity with which warfare could be carried on’.Footnote36 However, other accounts are less narrow in explaining the urgency behind the Conference. For example, Lesaffer argues that rising tensions between the great European powers, coupled with the emergence of US and Japanese imperialism, yielded the ideal situation for the ‘peace through law’ movement.Footnote37 The power of balanced constructed following the Congress of Vienna had been disturbed by the unification of Germany. Irrespective of the various accounts describing the initiative to organise the first Hague Conference what was clear was that ‘the laws of war were, originally and superficially at least, part of a purely European story’.Footnote38 A natural result of the genesis of international humanitarian law being a so-called ‘purely European story’ was the selective application and development of this area of international law. For example. the exclusionary nature of international humanitarian law at the time was to not identify violent conduct in Africa as warfare but instead as maintaining order or acts of ‘pacification’.Footnote39 Furthermore, certain developments in international humanitarian law were prevented when compromising certain hegemonic powers’ colonial ambitions. For example, Britain refused to sign the 1899 declaration prohibiting expanding bullets as such munitions were needed against African and Asian tribes.Footnote40
The disorganised, unregulated and decentralised nature of international law firmly placed the architecture of the legal system in the hands of the hegemonic powers of the time. Thus, the nineteenth century model of international law was a system that not only nurtured the colonial fervour that gripped this era, but also encouraged competition between the major European powers. Powerful states committed and complied to international law in relations with one another as it was the most advantageous approach for their colonial ambitions. This trend within international law perhaps sets the scene for World War I at the start of the twentieth century. It is comprehensible how such competition to conquer the globe resulted in these powers turning on one another when the international culture at the time can be identified with a thirst for domination.
An alternative view
For all the indications that the nineteenth-century model of international law set the stage for World War I, this era of international law did also focus on the idea of peace. Indeed, international lawyers of the time made significant advancements that continue to reverberate in contemporary international law and global governance. Indeed, the focus on ensuring peaceful relations between the great European powers for the sake of greater stability was an integral characteristic of the nineteenth century model of international law.
The French Revolution is often seen as the catalyst for the nineteenth century model of international law. Indeed, this event was seen to have:
‘Fundamentally changed the European balance of power [as] it not only saw other states exploit this situation elsewhere, as reflected in the subsequent partitions of Poland in 1793 and 1795, but also saw them misjudge the strength of the revolutionary movement, which swiftly was to find an echo outside France’.Footnote41
‘Every international event that affected Europe, however small or divisive, was understood to be the responsibility of the great powers. They were, and self-consciously held themselves to be, accountable for mediating, restraining and organising solutions to benefit both the system and themselves. In other words, to use Hedley Bull’s terminology, the great powers acted as custodians of the system and of its weaker players and took their custodial duties very seriously indeed’.Footnote45
The success of the Concert of Powers system of global governance was predicated on the commitment made by the major European powers to maintain the balance not only with one another put across Europe as a whole. This commitment materialised in an interventionist approach to any disputes, be it small or large, that may jeopardise European political harmony. However, the Concert did not contain a formal process of dispute settlement, but rather depended on the ad-hoc approach taken by the major European powers dependent upon the dispute. Often, representatives of the five powers convened only when the need arose and usually this would be at the end of a limited war or when a lightening of tensions was required. This feature exemplifies the most striking aspect of the nineteenth century model of international law, in that the legal system during this period was ad-hoc and unregulated, depending predominantly upon diplomacy both formal and informal. Nonetheless it was a successful strategy on numerous occasions during the nineteenth century that resulted in numerous treaties that resolved various disputes. For example, ‘the Treaty of London (1831) that settled Belgium’s independence, the Declaration of Paris (1856) that brought the Crimean War to an end, the Treaty of London (1867) that neutralised Luxembourg and the Brussels Convention (1874) that established, among other things, workable international laws relating to the treatment of interned soldiers and prisoners of war’.Footnote48 In total, there were twenty six conferences attended by the major European powers between 1822 and 1914,Footnote49 and though the Concert was scrapped after the war, its lasting legacy is evidenced by the United Nations Security Council and its adoption of such a model in dealing with threats to international peace and security, all be it that the processes of the Security Council is markedly different from the nineteenth century system.Footnote50
Though the Concert of Powers system was highly dependent upon the interests of the major European powers and the focus was more so on peace and security within Europe, it nonetheless signifies that the nineteenth century model of international law was not predicated solely on encouraging competition between the major European powers. Most importantly the Concert of Powers system demonstrates the capability for effective global governance and an international legal system that was structured adequately enough to maintain international peace and security. Certainly, the selfishness of these states allowed for the Concert of Europe system to achieve a sustained level of success as stability in Europe benefitted their cause however, the major European powers did ‘adopt a mediating “disinterested” role when necessary’,Footnote51 thus demonstrating a concerted effort to maintain peace in Europe during this era.
Another feature of the nineteenth century model of international law that has had a lasting legacy in the legal system is the Hague Conferences and the subsequent Hague Conventions in 1899 and 1907. Though these events did not revolutionise international law away from international lawyers focused on national interests and foreign policy, it reinforced the aim of securing international peace,Footnote52 evolving international law to be better equipped to maintain international peace and security for future eras. Firstly, the Hague Conference of 1899 was significant for the establishment of the Hague Permanent Court of Arbitration. Led by Britain and the US, and favoured by all the major European powers except Germany, the PCA was the first of its ilk, an international judiciary which handled grievances any nations may have with one another. This feature in particular indicated the emergence of a more structured international legal system not so dependent upon an ad-hoc and flexible approach. Furthermore, the first Hague Convention built on the rules of the 1874 Brussels Convention. The second Hague Conference strengthened the significance of the PCA and added to international humanitarian law, fleshing out lawful conduct during warfare for both land and sea. In fact, alongside the establishment of the PCA, the Hague Conventions’ contributions to international humanitarian law should not be overlooked, for although they did not progress peace on an international level the Hague Conventions were nonetheless an important bridge for the emergence of modern international humanitarian law during the mid to late nineteenth century and contemporary international humanitarian law. Thus, the Hague Conventions evolved international humanitarian law so that development toward the contemporary state of IHL was possible during the twentieth century. Beyond the point of development, the Hague Conventions themselves continue to play an important role in regulating lawful conduct during warfare. The important additions that the Hague Conferences and Conventions made to international law can be summarised by how they became a precursor to what was to come with the League of Nations model of international law and beyond. In fact, the perception of the Hague Conferences is that of the ‘two first modest steps in the incremental process leading to the prohibition on the use of force’.Footnote53 Article 12 of the Covenant of the League of Nations is indicative of the lasting legacy of conferences. Obligating members of the League to resist resorting to war when a dispute arose and instead submitting the dispute ‘either to arbitration or judicial settlement or to enquiry by the Council’Footnote54 were considered to be ‘the next logical steps to the work at The Hague’.Footnote55 Thus the conferences indicated that peace and security more firmly became a central concern and an aim for the international legal system as the Hague Conferences and Conventions thrusted such an aim to be an ever more integral focal goal of international law. This feature of the nineteenth century model of international law highlights the nuance and complexity of this era as cosmopolitan ideas were important influences for international lawyers whilst these Conferences were taking place during a time of rising tensions between major powers pursuing realist visions of international law such as the Spanish–American War, the Anglo-Boer War, the Boxer Rebellion and the Russo-Japanese War.Footnote56
As the nineteen-century model of international law moved into the twentieth century, the legal system consolidated the ever-growing professionalisation that it experienced during the late nineteenth century and which endured and intensified not only just before the breakout of World War I, but also during the conflict and beyond. International law became more scientific in nature as annual meetings, regular publishing journals and conference proceedings became a common occurrence, justifying the suggestion that international lawyers spoke from a higher level of authority based on a thicker layer of expertise. Benjamin Coates supports this viewpoint as he states that international lawyers:
‘Also spoke from within a gendered context, presenting themselves as defenders of an ethic of self-restrained manhood against supposedly “irrational” pacifists and unhinged warmongers. Legalists were serious, scientific men policymakers could trust, or at least so they argued’.Footnote57
One of the strengths of this period of professionalisation was that it operated in tandem with the growing dominance of positivism in international law. This period moved further away from the model of international law that maintained a natural law influence. North American lawyers pushing for the professionalisation of international law instead sought out their perception of ‘true justice’ which consisted of a scientific approach that would be impartial, mature and reserved, most importantly not vulnerable to the impulses of pacificism, which Scott deemed as ‘displeasing to men of affairs, whose support is essential to the triumph of the peace movement’. ‘For these jurists, the best legal scholarship consisted of the careful study of court reports and judicial decisions, which revealed the development of law across decades and centuries’.Footnote62 Another key figure behind the positivist shift in international law was Lassa Oppenheim who, similar to Scott, endorsed the scientific method to international law, arguing that without the a proper knowledge of the task of the science of international law, international lawyers their ‘work without a proper knowledge of the task of our science, without knowing how to make use of the assertions of authorities, and without the proper views for the valuation and appreciation of the material at hand’.Footnote63 Though the criteria raises legitimate criticism, particularly how this legalist approach was intended to represent a supposed ‘manly’ vision of international law,Footnote64 the move toward a more scientific international law was an important evolution that maintained its impact to the extent that it remains a foundational characteristic of the international legal system to this day. It highlights the professionalisation that international law underwent, as the discipline focused more so on the processes and procedures of international law with theoretical postulations taking somewhat of backseat in the mainstream discourse. Thus, international law became more technical, for the aim was to structure the actualisation of international peace, which had already commenced with the drafting of the Hague Conventions.
Incidentally, the aim of achieving international peace was another integral feature of the professionalisation the international legal system underwent. Though these lawyers found the ‘moralistic conception of international law’ problematic as it was vulnerable to naivety and impracticability, they were fully committed to achieving international peace and sought out a scientific approach to do so. However, for these lawyers international law would not achieve peace through moralistic sentiments but as Christopher Columbus Langdell suggests by the case-method. Thus:
‘Law consisted of principles, or doctrines, which could be inducted from studying judicial decisions. The solution to any particular future legal problem could in turn be deduced from the principles. The work of the legal scholar, then, was to create a taxonomy of law by identifying central principles and presenting a guide to their application’.Footnote65
These features demonstrated that international law was already starting to move away from the ad-hoc feature of the nineteenth century model of international law to a more structured system that did not depend solely upon the actions of states and their approach to each unique interaction with other states. At the start of the twentieth century, state relations were beginning to be governed by predetermined rules that would attempt to establish widespread conduct for all those that were a part of the ‘society of states’. Of course, these rules were still established by states, however the importance of this evolution of international law was that in attempting to better structure the legal system it provided the blueprint for what was to come with both the League of Nations and United Nations model of international law.
The dominance of realpolitik in international law
If the view that the nineteenth century model of the international law was only as Kennedy noted, a platform for a Hobbesian world of independent states seeking to fulfil their colonial ambitions, then the outbreak of the First World War and international law’s failure to prevent it comes at no surprised. Through such a paradigm, the outbreak of war seemed more of a case of when rather than if. However, as explored above the nineteenth century model of international law was not simply a realist vision. Important developments during this era of international law took place that not only lay the foundation for future models of international law but also advancements were made in the set-up of the international legal system to effectively prevent the outbreak of a large-scale crisis for its contemporary setting. Thus, analysing the Concert of Powers system, the Hague Conventions and the professionalisation of international law, which was slowly turning it from a system of coexistence to a system of cooperation for peace, it seems that international law had developed adequately enough to stop World War I from taking place. As Abbenhuis states, ‘there was no inevitability of war breaking out in 1914’Footnote66 for ‘the means and modes of crisis management that had served Europe’s leaders quite well for more than a century’ could still operate adequately enough to prevent War.
So, although the nineteenth century model of international law did fail to prevent the outbreak of a large-scale crisis, what is most remarkable about this model is that competing paradigms of international law occurred concurrently. In fact, these competing illustrations show the state is not one uniform entity that operates with a singular voice. Adopting Anne-Marie Slaughter’s disaggregated state concept to explain why two competing visions developed during the nineteenth century model of international law helps some way to articulate this point. This concept effectively explains that whilst the legal system was evolving to focus on the concept of peace, it was simultaneously moving further away from realising such a goal throughout the nineteenth and early twentieth centuries. Slaughter suggests that to look at the international system through the lens of unitary states results in a narrowed perception for there are multiple levels of states that have created their own networks with their respective counterparts to work on specialised matters. For example, legislators have often come together ‘within the framework of numerous international treaties and organizations and have begun to link up with one another more spontaneously to share information and coordinate activity regarding issues of common interest, such as human rights, environmental protection, and opposition to the death penalty’.Footnote67
Although, Slaughter had a more contemporary international system in mind, the Hague Convention and professionalisation of international law during the latter end of the nineteenth century era of international law seems to reflect an era where state officials, international lawyers and academic thinkers were working on the evolution of international law into a system focused on international peace whilst other components of states were either utilising international law to fulfil colonial ambitions or flouted their obligations under international law once tensions between European powers were intensifying. In fact, scrutinising key figures during the Hague Conferences demonstrates this point succinctly. The First Hague Conference was an initiative initially proposed by Russian Foreign Minister Count Mikhail Muraviev, in the name of the young Tsar Nicholas II in order to exchange ‘ideas in furtherance of national economy and international peace in the interests of humanity’. Going into the conference there were a mixture of opinions about whether international law could enhance peace and security on the international level. Perspectives ranged from those that were sceptical that ‘legal settlements of disputes could prevent wars’; ‘dangerous in that they could mislead people about the likely turn of events’; and for those that were apart of the ‘then-active peace movements and others strongly believed that states could renounce war and instead accept judicial settlements of disputes’.Footnote68
These opinions not only caused contestation between states, but within the team of delegates themselves such as with the US delegation that comprised both international lawyers and military men. International lawyers were represented by the head of the US delegation Andrew D. White, who was a cofounder of Cornell University and was committed to the furtherance of international law. Whilst a well-remembered figure during both Hague Conferences was Alfred Thayer Mahan, a US naval officer that had adopted a realist approach to international law, as he stated:
‘Time and staying power must be secured for ourselves by that rude and imperfect, but not ignoble arbiter, force - force potential and force organized - which so far has won, and still secures, the greatest triumphs of good in the checkered story of mankind’.Footnote69
Through this vantage point the suggestion can be made that both visions of international law were operating in tandem on the basis of a precarious balance during the nineteenth century. The realist vision would perhaps be considered the more dominant trend in the nineteenth century era of international law. This is because the evolutionary trends of international law could only take place if such developments facilitated healthy relations between the major European powers and did not endanger their colonial ambitions. The Concert of Powers system is a strong indication of this for although the attention on peace was an integral aspect, it was dependent upon achieving a balance amongst the five major European powers. Secondly, the realist vision is perhaps associated more so with the more dominant components of the state, namely heads of states. Therefore, although such evolution in the international legal system is generally welcomed by most components of the state, once imperialist ambitions or the European power balance was at risk, this vision of international law was compromised. An example of this is when the Declaration of London was established in 1909, which was championed for standardising the conditions of maritime warfare to protect the rights of neutrals. However, the likes of Great Britain never ratified the Declaration, and when the Naval Prize Bill was defeated in the UK Parliament in 1911, it signalled a level of uncertainty for what was to happen to relations between the major European powers. The reasoning behind not ratifying the Declaration was because, ‘in 1911, Britons were on the whole more aware of the likelihood of becoming involved in a continental war and feared the results of such a conflict’.Footnote74 Moreover, throughout the War, the belligerents effectively ignored the terms of the Declaration.Footnote75
Thus, states oscillated between cosmopolitanism and realism due to a realpolitik trend in international relations and international law. It is important to note, that there is often a misunderstanding of the relationship between realism and realpolitik. At best, the two concepts are tightly connected, and at worst, they are considered different names for the same ideology. Often realpolitik is assumed to be an extension of the works of Thucydides, Hobbes and Machiavelli, and ‘as old as statecraft itself’.Footnote76 This inherently presupposes a raison d’état spirit and the usual trademarks of realism which infers a state focus on the accumulation of power for the benefit of national interests. Moreover, realism is better associated with the English and American thinking of international relations.Footnote77 Yet, the origins of realpolitik are distinctively German, as the term was coined by Ludwig August von Rochau in his treatise Grundsätze der Realpolitik (The Principles of Realpolitik). Rochau sought to achieve the liberal ideal through hard thinking and a sense of pragmatism for, ‘realpolitik does not move in a foggy future, but in the present’s field of vision. It does not consider it’s task to consist in the realisation of ideals, but in the attainment of concrete ends’.Footnote78 Thus, realpolitik is not concerned with espousing a specific moral agenda, but instead interested in the realisation of state or community interests. Inevitably, Rochau attempted to navigate realpolitik away from the form of idealism and realism in the international relations discipline in the pursuit of finding practical solutions to the ‘quintessential dilemmas of modernity’.Footnote79 Pondering a little longer on the relationship between realism and Realpolitik highlights the difference between the two theories for ‘classical realists note that realpolitik presupposes rational thinking, which they argue, should not be taken for granted’.Footnote80 Realist thinking can be adopted without rationalist thinking for the accumulation of power can take place without any form of practical thinking. Morgenthau asserts this point by stressing that:
‘Superstition still holds sway over our relations within society… The numerous failures of the United States to recognise and respond to the polycentric nature of Communism is a prime example of this defect. The corollary of this indiscriminate opposition to Communism is the indiscriminate support of governments and movements that profess and practice anti-Communism. American policies in Asia and Latin America have derived from this simplistic position. The Vietnam War and our inability to come to terms with mainland China find here their rationale… The demonological approach has shifted our attention and concern towards the adherent of communism and away from the real threat: the power of states, Communist or not’.Footnote81
However, this is not to say that realpolitik thinkers are not open to adopting a realist or cosmopolitan mindset. Indeed, Rochau states that this does not mean ‘that politics are free of the problem of moral duty, only that there is a limit at which the actual possibility of carrying out such a duty ceases’.Footnote82 In this sense realpolitik thinking is opportunistic to what realism and cosmopolitanism can offer for a state or community’s interests in a specific scenario. In fact, the nineteenth century era of international law shows that to find practical solutions an adoption of either cosmopolitanism or realism in specific instances was important. The competing narratives of the nineteenth century model of international law is indicative of the realpolitik dominance for states remained malleable to the opportunities presented by realist or cosmopolitan theories, indicating an anti-dogmatic sentiment in this era of international law. There are three reasons for the realpolitik dominance in the nineteenth century era of international law. The first is related to the structural nature of this era of international law. As the nineteenth century era was disorganised in nature and lacked a central regulating entity, there was no navigator that could steer the direction and key themes of the legal system in an organised fashion. As a result, key actors of international law operated on a basis of pragmatism in the face of the fluctuating nature of the international stage. Menning discusses that even at the time there was ‘an awareness by its practitioners of the constraints acting on them; the pursuit of the attainable, hence limited goals; an appreciation that political fortunes can change at barely a moment’s notice’.Footnote83 Furthermore, this meant that the international legal system was heavily dependent upon the cooperation between the Great powers. The argument that the nineteenth century model was more dependent on the contribution of the Great Powers than other models of international law is permissible due to its decentralised nature. Coates argues that:
‘The legalist project envisioned an international peace that did not challenge the fundamental form of the nation-state. It reconciled sovereignty and internationalism by assuming that nation-states would learn to act in a more “civilized” manner. No central authority would be required. The key was for each state to understand and obey its rights and duties’.Footnote84
The final reason is linked to Slaughter’s theory of the disaggregated state. If various branches of the state are engaging with the international legal system with different projects, it is reasonable to consider that they are inspired by different theories or focused on achieving certain aspirations. A prime example of this is when looking at the diverging interaction of Germany’s interaction with international law during the nineteenth century. Germany demonstrated a reluctance to accept international law as binding, which was stirred by an ‘unsettling fear that the use of international law by foreigners could restrain Germany’s meteoric rise’Footnote.88 Germany was reluctant to sign the Geneva Convention in 1864,Footnote89 and after the Franco-German War, they failed to ratify the Brussels Convention in 1874, which ‘set down the basic rules governing the treatment of prisoners of war, the laws of belligerent occupation, and the treatment of civilians’.Footnote90 Furthermore, by establishing the Triple Alliance between themselves, Austria and Italy by 1882, distinct sides were being formed, signalling the crumbling of the Concert of Powers model. However, whilst one component of the German state demonstrated cynicism toward the Hague Conventions and its effect on German sovereignty,Footnote91 figures such as Walther Schücking, an international lawyer and German politician, welcomed the creation of the Hague Conventions as positive step toward ‘Weltstaatenbund’ (world federation).Footnote92 Such an example highlights that states were inherently prone to adopting a realpolitik approach when interacting with the international legal system, as a dogmatic insistence of one theory over another would have failed to articulate the complex reality of the state as an entity with many voices and diverging aspirations. The reality of the nineteenth century model of international law is only plausible if room for pragmatism and flexibility was provided and the competing narratives of this era of international law is indicative of the fact that the disaggregated nature of the state garnered a realpolitik approach.
Conclusion
Although the nineteenth century model of international law was too flexible in approach leading to ad-hoc sensibilities, which was not aided by the decentralised nature of the system, this era of international law had produced important advancements that have not only influenced future models of international law but were more than capable of finding a peaceful resolution to the rising tensions in Europe. International law was moving ever closer to establishing international peace as a focal goal in a way that did not continue an era of coexistence but started an era of cooperation. As Walther Schücking noted in his commentary on the Hague Peace Conferences in 1912: ‘we are in an age of the telephone and wireless telegraphy, an age in which international law has entered upon a very rapid development’.Footnote93 International lawyers were embracing this era of communication and closer ties by evolving the legal system as numerous international organisations were established and the professionalisation of international law helped present the endeavour of achieving international peace with greater legitimacy. Therefore, the nineteenth century model of international law cannot simply be painted as a Hobbesian era, where hegemonic states used international law merely to advance their interests. This era of international law should also be noted for making important cosmopolitan developments that have become foundational aspects of modern international law.
To demonstrate this complex depiction of the nineteenth century mode of international law it is interesting to contemplate the impact it had had on the League of Nations model of international law. The nineteenth century model of international law was as much a reason as well as the inspiration for the drastic changes witnessed in the League of Nations model and also future models of international law. Turning to the reasons for such changes, the nineteenth century model of international law can be seen as a cautionary tale in how not to design the international legal system. The flexible and disorganised nature of the nineteenth century model of international law was an influential factor to the collapse of this model, culminating in the breakout of World War I. It facilitated the ‘balance of power’ doctrine to thrive as the ‘the nineteenth century idea argues “we have no eternal allies, and we have no perpetual enemies. Our interests are eternal and perpetual, and those interests it is our duty to follow”’.Footnote94 Without a regulating authority, states dominated the international stage with free reign to pursue their national interests in whatever manner they chose fit, which gives further credence to the notion that this era of international law was dominated by a realpolitik trend. This is not to say that the League of Nations model was not impacted by such motives; the League’s inability to prevent World War II is indicative of this.Footnote95 However, an international organisation that is seen as a regulator establishes some form of objectivity to the machinations of international law, providing a counterbalance to the nationalist tendencies of states. The move from a disorganised international legal system to one that was formalised and structured is indicative of the fact that the drafters of the League of Nations model of international law made a concerted effort to veer away from the nineteenth century model, in order to avoid over-indulging realist tendencies.
However, the nineteenth century model of international law did also prove to be inspirational for the drafters of the League of Nations model. The spirit of cosmopolitanism was carried over to the establish the League. Indeed, one could consider the League to be the realisation of a cosmopolitan project as it committed to the idea of collective security, bringing the concept of an international community more vividly in focus. Consider the impact of Woodrow Wilson on the League of Nations, irrespective of US’ withdrawal. Wilson’s famous fourteen points was foundational for establishing the League and this in spirit was a liberal vision, intended to garner peace and security for the international community as a whole. These advancements were a continuation of the cosmopolitan developments experienced during the nineteenth century, whether it be the professionalisation of international law, the Hague Conventions or the PCA. Rather than abandoning these cosmopolitan advancements in the face of failing to prevent World War I, it galvanised the drafters of the League of Nations model to further pursue such initiatives.
The fact that the nineteenth century era of international law had such diverging impacts upon the League of Nations model demonstrates the insistence that one should not caricature this era as simply an era of Hobbesian politics, for states engaged with the international legal system pragmatically, oscillating from cosmopolitanism and realism when it best suited their interest. Rather than citing this period as a staunchly realist paradigm, I would argue that this era of international law should be best seen for its disorganised and flexible sensibilities which encouraged states to engage with international law with a realpolitik tendency. As a result of this realpolitik tendency, the nineteenth century model of international law was made up of a series of realist and cosmopolitan initiatives, either one rearing its head when called upon by the necessities of the international stage. In periods where European powers were focused on colonial expansionist policies for example, the nineteenth century model of international law would take on a realist fervour. On the other hand, in times of consternation and concern for the breakout of crisis, the spirit of cosmopolitanism was prevalent in the development of the international legal system. Thus, it can be argued that there is no absolutist depiction of the nineteenth century model of international law, where one ideology dominated the other. Instead, the reality is that competing visions and movements co-existed and influenced this era of global governance simultaneously.
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Deepak Mawar
Deepak Mawar is a Lecturer of Public International Law at Tilburg University. He is the author of States Undermining International Law: League of Nations. United Nations. Failed Utopianism (2021). His current research focus is on the history of international law, legal philosophy and political theory.
Notes
1 Kennedy, David. ‘Move to Institutions’. Cardozo Law Review 8 (1987), 841–988, 853.
2 Ibid, 854.
3 Ibid, 854.
4 Holsti, K.J. International Politics- A Framework for Analysis, (Englewood Cliffs, NJ: Prentice-Hall, 1992), 64.
5 Anghie, Anthony. Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005), 43.
6 Westlake, John. Chapters on the Principles of International Law (Cambridge: University Press, 1894), 63. This was in response to Samuel Pufendorff’s advocation for the use of natural law in regard to immunities of ambassadors.
7 Berman, Nathaniel. ‘A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits of the Interwar Framework’. Harvard International Law Journal 33 (1992), 353–79, 353.
8 Kennedy, David. ‘International Law and the Nineteenth Century: History of an Illusion’. QLR 17(1) (1997), 99–138, 105.
9 Orakhelashivili, Alexander. ‘The 19th Century Life of International Law’. in Research Handbook on the Theory and History of International Law, ed. Alexander, Orakhelashivili (Cheltenham: Edward Elgar, 2011), 441–55, 441.
10 Falk, Richard. ‘Revisiting Westphalia, Discovering Post-Westphalia’. Journal of Ethics 6 (2002), 311–52, 312.
11 Vitoria’s work on Spanish and Indian relations during the sixteenth century is a good indication of this notion. Vitoria argues that although Indians possess the power of reason and therefore should be seen as an equal to Spain in an international legal system predicated on the universal values of natural law, as the cultural and social practices are inferior to Spain, according to the Vitoria, unequal treatment is justified. According to Vitoria, Indians have the potential to meet the ideal Western standard, however transformation is necessary which affords Spain ‘the extraordinarily powerful right of intervention and may act on behalf of the people seen as victims of Indian rituals: “it is immaterial that all the Indians assent to rules and sacrifices of this kind and do not wish the Spaniards to champion them.”‘See Anghie Imperialism 2005 (n.5), 22 & Vitoria, Francisco de. De Indis et de Ivre Belli Relectiones (Ernest Nys ed., JohnPawley Bate trans., Washington, DC: Carnegie Institution of Washington, 1917), 159.
12 Anghie, Imperialism 2005 (n.5), 52–3.
13 Wheaton, Henry. Elements of International Law, (Philadelphia: Carey, Lea & Blanchard, 1836), 10.
14 Ibid, 48. See also Lesaffer, Randall C. H., Roman Law and the Early Historiography of International Law: Ward, Wheaton, Hosack and Walker (February 23, 2007). Available at SSRN: https://ssrn.com/abstract=964862 or https://doi.org/10.2139/ssrn.964862.
15 Anghie, Imperialism 2005 (n.5), 54.
16 Westlake, Chapters 1894 (n.6), 137.
17 Hopkirk, Peter. The Great Game: On Secret Service in High Asia (Oxford: Oxford University Press 1990), 31–2.
18 Ibid, 32–3.
19 Ibid, 35–6.
20 Treaty of Peace, Friendship, Commerce and Indemnity between Great Britain and China, 29 August 1842, Ratifications exchanged at Hong Kong, 26 June 1843, Arts. I–III.
21 Orakhelashivili, 19th Century Life 2011 (n.9), 451.
22 Wang, Tieya and The Hague Academy of International Law. International Law in China: Historical and Contemporary Perspectives. (Leiden: Martinus Nijhoff, 1990), 237–40. https://referenceworks-brillonline-com.tilburguniversity.idm.oclc.org/entries/the-hague-academy-collected-courses/*A9780792312239_02
23 Van Hulle, Inge. Britain and International Law in West Africa (Oxford: Oxford University Press, 2020), 37.
24 Ibid.
25 Buxton, Thomas. The African Slave Trade and Its Remedy, (London: William Clowes and Sons, 1840), 283. See also Van Hulle, Britain 2020 (n.23), 77.
26 McAuslan, Patrick. ‘Land Law and the Making of the British Empire’ in Modern Studies in Property Law, Vol 4. ed. Elizabeth Cooke (New York: Bloomsbury Publishing, 2007), 25. See also, Cassel, Pär K. Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth- Century China and Japan (Oxford: Oxford University Press, 2012).
27 Van Hulle, Britain 2020 (n.23), 44. See also Fitzmaurice, Andrew. ‘The Genealogy of Terra Nullius’ Australian Historical Studies 38 (2007), 1–15, 11.
28 Kennedy, International 1997 (n.8), 101.
29 Falk, Revisiting 2002 (n.10), 312.
30 General Act of the Conference of the Plenipotentiaries of Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Italy, the Netherlands, Portugal, Russia, Spain, Sweden-Norway, and Turkey (and the United States) respecting the Congo, signed at Berlin, 26 February 1885, Art.34, 501.
31 Ibid, Art.35, 501.
32 Herbst, Jeffrey. States and Power in Africa (Princeton: Princeton University Press, 2014), 59.
33 Young, Crawford. The African Colonial State in Comparative Perspective (Yale: Yale University Press, 1995), 139.
34 Koskenniemi, The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2001), 98.
35 Ibid. See also E. Catellani, ‘Le droit international au commencement du XXe siècle’, RGDIP, VIII (1901), 585.
36 Atlay, J.B. ‘Legitimate and Illegitimate Modes of Warfare’, Journal of the Society of Comparative Legislation, 6 (1905), 10–21, 12.
37 Lesaffer, Randall C. H., ‘The Temple of Peace. The Hague Peace Conferences, Andrew Carnegie and the Building of the Peace Palace (1898-1913)’. Mededelingen van de Koninklijke Nederlandse Vereniging voor Internationaal Recht, Preadviezen, 140 (2013), 1–38, Tilburg Law School Research Paper No. 024/2013, Available at SSRN: https://ssrn.com/abstract=2350189 or https://doi.org/10.2139/ssrn.2350189.
38 Mégret, Frédéric, ‘From ‘savages’ to ‘unlawful combatants’: a postcolonial look at international humanitarian law’s ‘other’’, in International Law and Its Others, ed. Anne Orford (Cambridge: Cambridge University Press, 2006), 265–317, at 270.
39 Ibid, 270–1.
40 Ogston, Alex. ‘Continental Criticism of English Rifle Bullets’, British Medical Journal 1 (1899), 752–7, 752.
41 Duchhardt, Heinz. ‘From The Peace of Westphalia to the Congress of Vienna’, in The Oxford Handbook of the History of International Law. eds. Fassbender, B & Peters, A. (Oxford: Oxford University Press, 2012), 633.
42 Abbenhuis, Maartje. An Age of Neutrality: Great Power Politics, 1815-1914, (Cambridge: Cambridge University Press, 2014), 39.
43 Ibid, 40.
44 Schroeder, Paul. W. The Transformation of European politics 1763–1848, (Oxford: Oxford University Press 1994), 477. See also Schroeder, Paul W. ‘International Politics, Peace, and War, 1815–1914’ in The Nineteenth Century. Europe 1789–1914, ed. T. C.W. Blanning, (Oxford: Oxford University Press, 2000), 158–209.
45 Abbenhuis, Age 2014 (n.42), 41. See also, Bull, Hedley. ‘Order vs. justice in international society’, Political Studies, 19 , no. 3 (1971), 269–83.
46 Duchhardt, Peace 2012 (n.41), 651.
47 Steiger, Heinhard. ‘Peace Treaties From Paris to Versaille’, in Peace Treaties and International Law in European History, ed. Randall Lesaffer (Cambridge: Cambridge University Press, 2004), 59–102, 61.
48 Abbenhuis, Age 2014 (n.42), 42.
49 Bridge, F.R. & Bullen, R. The Great Powers and the European State System 1814–1914 (Harlow: Pearson, 2005, 2nd ed.), 4.
50 Schulz, Mattias. Normen und Praxis. Das Europäische Konzert der Grossmächte als Sicherheitsrat 1815–60 (Oldenbourg: De Gruyter, 2009).
51 Abbenhuis, Age 2014 (n.42), 44.
52 Huek, Ingo. ‘Peace, Security, and International Organisations: The German Lawyers and the Hague Conferences’, in Peace Treaties and International Law in European History, ed. Randall Lesaffer (Cambridge: Cambridge University Press, 2004), 254–69, 256.
53 Lesaffer, R. ‘Peace Through Law: The Hague Peace Conferences and the Rise of the Ius Contra Bellum’, in War, Peace and International Order? The Legacies of the Hague Conferences of 1899 and 1907, eds. Maartje Abbenhuis, Christopher Ernst Barber & Annalise R. Higgins, (Milton Park, Abingdon, Oxon, New York, NY: Routledge, 2017), 31–51, 32.
54 Covenant of the League of Nations, 28 June 1919, Article 12.
55 Lesaffer, Peace 2017 (n.53), 48.
56 Eyffinger, Arthur. The 1899 Hague Peace Conference: The Parliament of Man, the Federation of the World (Netherlands: Springer, 1999). See also, Eyffinger, Arthur. ‘A Highly Critical Moment: Role and Record of the 1907 Hague Peace Conference’, Netherlands International Law Review 54, no. 2 (2007), 197–228.
57 Coates, Benjamin. Legalist Empire: International Law and American Foreign Relations in the Early Twentieth Century, (Oxford: Oxford University Press, 2016), 7.
58 De Benedetti, Charles. The Peace Reform in American History, (Indiana: Indiana University Press, 1980), 79. See also Lutzker, Michael. Arnold. The ‘Practical’ Peace Advocates: An Interpretation of the American Peace Movement 1898-1917, (1973), 3.
59 ‘History of the Organization of the American Society of International Law’, ASIL Proceedings 1 (1907), 27–31. See also, J.B. Scott, “American Society of International Law Preliminary Organization,” ASIL Papers, Box 1; ‘Root Heads New Body on International Law’, The New York Times, January 13 1906.
60 Coates, Legalist 2016 (n.57), 67.
61 Amorosa, Paolo. Rewriting the History of the Law of Nations: How James Scott Brown Made Francisco de Vitoria the Founder of International Law, (Oxford: Oxford University Press, 2019), 88.
62 Coates, Legalist 2016 (n.57), 69.
63 Oppenheim, Lassa. ‘The Science of International Law: Task and Method’. American Journal of International Law 2 (1908), 313–56, 314.
64 Coates, Legalist 2016 (n.57), 74–5: By stressing the legal aspect of international law, legalists highlighted their self- control and impartiality and, by extension, their manliness. Legalists made clear that their proposed court would involve “the cold and passionless application of a principle of law to the facts involved in the controversy.” A true court required “judges acting under the judicial sense of honourable obligation, with a judicial idea of impartiality.” True justice demanded true professionals; and these professionals had to be mature, reserved, impartial, and, by extension, male. In case anyone doubted as much, the ASIL forbade women from becoming members.
65 Ibid, 63. See also Grey, Thomas. C. ‘Langdell’s Orthodoxy’, University of Pittsburgh Law Review 45 (1983–94), 1–54, 13; Kimball, Bruce. A. The Inception of Modern Professional Education: C. C. Langdell, 1826-1906 (North Carolina: The University of North Carolina Press, 2009), 6.
66 Abbenhuis, Age 2014 (n.42), 223. See also, Mulligan, William. The Origins of First World War (Cambridge: Cambridge University Press, 2010); Steiner, Zara.S. & Neilson, Keith. Britain and the Origins of the First World War, (New York: Red Globe Press, 2003), 265; and Stevenson, David. Cataclysm: The First World War as Political Tragedy (New York: Basic Books, 2004), 9.
67 Slaughter, Anne-Marie. A New World Order, (Princeton: Princeton University Press, 2004), 15.
68 Caron, David. ‘War and International Adjudication: Reflections on the 1899 Peace Conference’ The American Journal of International Law 1 (2000), 4–30, 5.
69 Mahan, Alfred. A Twentieth Century Outlook, The Interest of America in Sea Power, Present and Future (Boston: Little, Brown, 1897), 177–8.
70 Mahan, Alfred. The Peace Conference and the Moral Aspect of War, Lessons of the War with Spain and Other Essays (Boston: Little, Brown, 1899), 230.
71 These were ‘a ban on the use of poison gas in naval warfare, a ban on the “dum-dum” expanding bullet, and a five-year moratorium on the dropping of bombs from balloons or from other similar airborne platforms.
72 Holls, Frederick. The Peace Conference at The Hague (New York: Macmillan, 1900), 119.
73 White, Andrew. The Autobiography of Andrew Dickson White (New York: Century, 1922), vol.2, 347.
74 Abbehuis, Age 2014 (n.42), 230.
75 Tracy, Nicholas. Sea Power and the Control of Trade: Belligerent Rights from the Russian War to the Beira Patrol, (Milton Park: Routledge, 2005), 125–128.
76 Bew, John. ‘The Real Origins of Realpolitik’, The National Interest 130 (2014), 40–52, 42.
77 Emery, Henry C. ‘What is realpolitik?’, The International Journal of Ethics 25, no. 4 (1915), 448–68.
78 Rochau, Ludwig Von. Foundations of Realpolitik, Vol. 2 (1868).
79 Bew, The Real 2014 (n.76), 42.
80 Rathbun, Brian. ‘The Rarity of Realpolitik: What Bismarck’s Rationality Reveals about International Politics’, International Security 43, no. 1 (2018), 7–55, 7.
81 Morgenthau, Hans (Ed. Kenneth W. Thompson). Politics Amongst Nations: The Struggle for Power and Peace, (1997), 9.
82 Emery, What is Realpolitik 1915 (n.77), 451.
83 R. Menning, The Art of the Possible: Documents on Great Power Diplomacy 1814–1914 (McGraw-Hill College, 1996), 141. See also Abbenhuis (2014), 43.
84 Coates Legalist 2016 (n.57), 71.
85 W Mulligan, The Origins of First World War (Cambridge UP, 2010), 227.
86 Searing, James. F. West African Slavery and Atlantic Commerce: The Senegal River Valley, 1700– 1860, (Cambridge: Cambridge University Press, 2002). See also Hargreaves, John. D. Prelude to the Partition of West Africa, (New York: MacMillan, 1963), 136.
87 Van Hulle, Britain 2020 (n.23), 46.
88 Abbenhuis, Age 2014 (n.42), 151.
89 Wolfke, Karol. Great and Small Powers in International Law From 1814-1920, (Wroclaw: Société des Sciences et Letres de Wroclaw, 1961), 54–5.
90 Dowdeswell, Tracy. L. ‘The Brussels Peace Conference of 1874 and the Modern Laws of Belligerent Qualification’. Osgoode Hall Law Journal 54, no. 3 (2017), 805–50, 805.
91 Grewe, W.G. The Epochs of International Law, (Berlin: Walter de Gruyter, 2000), 440.
92 Schücking, Walther. The International Union of Hague Conferences, (Oxford: Clarendon Press, 1918), 28. See also, Koskenniemi, Gentle Civilizer 2004 (n.34), 217; Clark, Ian. International Legitimacy and World Society, (Oxford: Oxford University Press, 2007), 64; Perris, George. H. A Short History of War and Peace (New York: Henry Holt & Co., 1911), 241.
93 Ibid, 7–8.
94 Baaz, Mikael. ‘Back to the Future: Promoting Peace through International Law’, Leiden Journal of International Law 30 (2017), 775–792, 775.
95 Mawar, Deepak. States Undermining International Law: League of Nations, United Nations, Failed Utopianism (New York: Palgrave Macmillan, 2021), chapter 3.