1 [NB: This is a very unevenly developed draft, produced for the convenience of the participants to the Conference "Whose

international Community? Universalism and the Legacies of Empire", Columbia University, April 29-30, 2005]

NATIONALISM, UNIVERSALISM, EMPIRE: International Law in 1871 and 1919

Martti Koskenniemi

Whose International Community? Universalism and the Legacies of Empire; Columbia Department of History, April 2005 CONTENTS:

I INTRODUCTION

II 1871 II.1. Rejection of the Droit public de l'Europe II.2. A liberal reconciliation of European nationalism with "civilization" II. 3. The Unity of Public and Private International Law II. 4. Imperialism. The civilising mission. Expansion of formal sovereignty

III A NEW BEGINNING III.1. Rejection of the naive and unmethodological approaches of the previous law III.2. Against Sovereignty III.3. Break of public and private international law

III.4. Turn to International Institutions

IV REFLECTIONS FOR TODAY

I: INTRODUCTION

International law was born in the aftermath of the FrancoPrussian war of 1870-71. On 8 September 1873 eleven men met at the Town Hall of Ghent in Belgium, adopting the Statute of the Institut de droit international, defining the organisation that is to say, themselves - as the "organ of the juridical conscience of the civilised world".1 This was the first time when a group of professional men identified each other as "international lawyers", united by the aim of advancing liberal progress in Europe and extending its civilization into the colonies.

Of course, there had existed an tradition at European universities of teaching something called "law of nature and of nations". Professors of politics and public law, diplomats and practising lawyers had written about the droit public de l'Europe, principles of universal jurisprudence and of European diplomacy, treaties, war and special topics such as the law of the sea. Before the Ghent meeting, however, no profession had defined itself as the "juridical conscience of the civilised world". Few of the 11 men came from the tradition of European public law and even those who did, thought of it as rather a part of the problem than of its resolution.

Modern international law emerged with the political ascendancy of liberalism in the late 19th century. Shocked by the brutality of the Franco-Prussian war of 1870-71, a group of lawyers, humanitarian and political activists, decided that action should be taken to ensure continuous liberal progress in Europe and in
1 Annuaire de l'Institut de droit international . See further my The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960 (Cambridge 2001), p. 39-41 and the notes therein.
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the colonies. They were largely successful. By the end of the century, the profession had been organised. University chairs of international law had been created all over Europe. Thick, manyvolumed textbooks and international law journals had stared to appear in several languages. Arbitration was understood as an effective cure for inter-European rivalries and relations with the "Orient" were formalised by annexation and colonial government. The Hague Peace Conferences of 1899 and 1907 inaugurated the era of international legislation as part of the mass politics of industrial societies.

International law died its first death on 1 August 1914. When the Secretary-General of Institut, Albric Rolin (1843-1937), informed the members that owing to the impious war, the meeting scheduled for Munich the following October had to be cancelled, one of the most well-respected German members, the criminologists and internationalist Franz von Liszt (1851-1919) responded by noting that far from being impious, the war was sacred, and sent in his resignation.2 All the other Germans save one followed his example.

Around 1919, modern international law had been born a second time - though the date is now harder to pin down. It was born at different locations at different moments. As the Institut temporarily ceased its activities, the Deutsche Gesellschaft fr Vlkerrecht emerged in Kiel and Berlin through the assistance of the German foreign ministry in 1917. It was followed by several other institutions, the proliferation reflecting the political division of German society. In Britain, war-time discussions led to the setting up of the Grotius Society whose Transactions became the first British international law publication in 1915. According to its statutes, the society was "to be restricted, as
For the attitudes of Liszt and other Germans, see Florian Hermann, Das Standardwerk. Franz von Liszt und das Vlkerrecht (Nomos, Badan-Baden 2001), p. 101-129.
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regards membership, to British subjects; it [was] to be a purely British society".3 British legal culture was slow to accommodate international law that was felt, perhaps, not to qualify as real law until lawyers at the London School of Economics and Cambridge in the 1930s demonstrated that it could be practised as technically as criminal law or contracts. If one looks for a decisive moment for the re-birth of international law in France, that is surely the establishment of the cole des hautes tudes internationales with the Paris law faculty that commenced giving courses to foreign and domestic lawyers and diplomats in 1921.

International law was reborn after the First World War in a different spirit, out of reciprocal criticisms by former enemies, wary of the language of civilization, pinning its hopes in formal international organisations, especially the League of Nations. The Institut continued meeting and discussing issues of public and private international law. The Hague Academy of International opened its doors in 1923. But the idea of professional jurists as the core of the law's liberal and internationalist spirit was no longer credible.

The Second World War killed international law a second time. This time, the corpse consisted of an institutional legalism, a faith in the necessary development of science, technology and the laws of an interdependent modernity towards a federal world order. The autopsy was performed in particular by European lawyers, often of Jewish descent, who escaped into the United States after the collapse of the Geneva system. They inaugurated political "Realism" as the only responsible posture towards an inherently dangerous international world. The UN Charter and the laws of Cold War coexistence were both permeated by this spirit.

In this paper I want to make two points.

3

H. Goudy, 'Introduction' 1 Transactions of the Grotius Society (1915), p. 1.

I want to suggest, first, that the commonplace criticism of inter-war international law as "idealistic" or "legalistic" leaves the previous generation unscathed. The men of 1919 established international law's second life on a rejection of the heritage of that first generation. Because we today's international lawyers have learned to be wary of what we believe are the "mistakes" of 1919-1939, we may be blind to the extent we may be re-living the moment of 1871. Like the inter-war lawyers, we find it impossible to think of ourselves as the "juridical conscience of the civilised world". But even as we reject that language, much of today's rethinking about international law grasps towards its underlying mission.

Second, I wish to provide an account of the principles of coherence in the two births of international law, 1871 and 1919. Each had a liberal mainstream that was nationalist and universalist at the same time. But the two were reconciled differently, giving rise, in each case, to a different vulnerability. The men of 1871 reconciled their nationalism with their universalism by a sentiment of civilizational progress, associating it with liberal internationalism in Europe and formal empire in the colonies. By contrast, the men of 1919 did not possess a stable notion of European civilization. Unlike their predecessors, they were anti-imperialists. As a result, they hovered insecurely between their particular nationalism and their abstract universalism, as mediated through the League of Nations. International law did its first death owing to its amateurish sentimentality and its faith in the intrinsic goodness of European civilization. Its second death resulted from its failure to construct any substantial faith outside the nation-state by reference to which it could have tamed the developments of an illeberal world.

II: 1871

Modern international law arose out of the activities of six men. The key figure is the Belgian avocat Gustave Rolin-Jaequemyns (1835-1902), a liberal-radical politician and humanitarian activist who admired the German Katheder-Sozialisten, organised the first meeting of the Institut de droit international and became its Secretary-General and later President. Rolin had earlier participated in international charity meetings and had set up an Association international pour le progs des science sociales in Brussels in 1862. Together with two friends, John Westlake (1828-1913), a London barrister who had written a wellreceived treatise on private international law, and Tobias Asser (1838-1913), an Amsterdam lawyer, he had also set up the first professional journal of international law, the Revue de droit international et de lgislation compare in 1869.4

Like most liberals, Rolin had been shocked by the way the belligerent parties in the Franco-Prussian war had breached the 1864 Geneva Convention and misused the insignia of the Red Cross. In the course of 1872 and early 1873 he met with two other lawyers in order to see what could be done to strengthen international law, the Swiss humanitarian activist Gustave Moynier (1826-1910) who had presided over the 1864 Geneva conference and the Heidelberg Professor Johann Caspar Bluntschli (1808-1881) who had published a first scholarly codification of international law a few years earlier. Together the five men Rolin, Asser, Westlake, Moynier and Bluntschli invited a sixth one to preside over the meeting in Ghent. This was Italy's Foreign Minister, Pasquale Mancini (1817-1888), well-known as a supporter of the principle of nationalities and an advocate of

See Albric Rolin, Les origines de l'Institut dfe droit international 18731923. Souvenirs d'un tmoin (Brussels, Vromant 1923) and Koskenniemi, Gentle Civilizer, p. 11-19, 39-41.

the unification of rules of private international law among European States.

These six men were part of a new generation whose views about the role of law in international life differed completely from two earlier traditions of writing about the law of nations. These were the humanist naturalism that had emerged with Grotius and Surez and continued in academic writing about the law of nature and of nations through derivations from rational principles and the normatively oriented diplomatic history often called Le droit public de l'Europe that too, received its pedigree from Grotius but had developed within German public law and concentrated on describing the procedures of European statecraft.

The men behind the Institut de droit international were neither philosophers nor diplomats. They had no interest in abstract derivation of principles from human nature and they thought of the past diplomacy of European princes and of the balance of power as something to be done away with by the increasing modernisation of European societies. These men participated in the political, economic and social transformations of their countries as members of Parliament, sometimes of Government, advocating increased franchise and public opinion as instruments for European peace and progress. If they spoke the language of civilisation, this was to advocate liberal reform and peace inside Europe, and the transformation of "Oriental" nations in the image of European modernity. Rolin's Manifesto in the first issue of the Revue de droit international contained this programme:

"In the matter of personal status, the abolition not only of slavery but of servitude; in civil matters the freedom of establishment; in penal matters, the creation of a more

just relationship between the crime and the punishment and the application of the punishment in the interests of the criminal as well as that of society; the suppression of the criminalisation of usury, and of privileged corporations, the liberation of the value of gold and silver, and the freedom of association"5

Now six men could obviously not bring all that about. But each came from a wider circle. The centre, in 1871, was Belgium. This was in part owing to the presence, at the law schools in Brussels and Ghent of active internationalists such as the Roman lawyer Alphonse Rivier (1835-1898) and the legal historian Francois Laurent (1810-1887), Rolin's friends, who soon started

teaching and publishing text-books in public and private international law in a new tone.6 The Rolin family played a formidable role with Gustave's brother Albric and his son Edouard both later serving as the Institute's Secretary-General. In the Netherlands, Asser's good contacts with his government enabled him to push forward the codification of private international law rules so efficiently that he was awarded for this effort the Nobel Peace Prize in 1911. Holland, the country of Grotius, became a centre for much of the internationalist activity in 1871-1914.

In Germany and Switzerland legal reform often coincided with protestant (or perhaps better, anti-Catholic) activism something shared by Rolin - and it is impossible to exaggerate the influence of Protestant public lawyers such as Bluntschli and criminal law reformers such as Franz von Holtzendorff (18291889) as they applied their new domestic law methods to international law in the 1870's and 1880s. Holtzendorff, who
5 Gustave Rolin-Jaequemyns, 'De l'tude de la lgislation compare et de droit international', (1869) 1 RDI p. 11. 6 See Alphonse Rivier, Lehrbuch des Vlkerrechts (Stuttgart, 1889); Francois Laurent, Droit civil international, (Brussels 1880)

established the German Juristen-Verein together with Bluntschli, attended the Ghent meeting and later organised the publication of the many-volume Handbuch des Vlkerrechts that collected practically all important German public lawyers under a joint project. The Italian school remained committed to the Mazzinian "principle of nationalities" and included, aside from Mancini, its most influential representative, also the slightly younger Pasquale Fiore (1837-1914) whose writings supplemented national self-determination by individual human rights as the core of a new cosmopolitan law.

Westlake, unable to attend the Ghent meeting, became the main representative of internationalism among the British lawyers. Having lost his seat in the Parliament (owing to his breach with Gladstone on the issue of Irish Home Rule), he landed in the Whewell chair of international law left vacant by Sir Henry Sumner Maine in 1888.7 Two other British lawyers should be mentioned. James Lorimer (1818-1890) occupied the Chair of Law of Nature and of Nations in Edinburgh and his fame rests on his idiosyncratic natural law. Though he was active in the Institute, and appreciated by his colleagues, his eccentric opinions prevented him from having much of an influence.8 The fame of the Oxford Professor T.E. Holland (1835-1926) does not rest on his historical essays or his op-ed pieces in The Times but on the subsequent editions of his "Elements of Jurisprudence" that came out first in 1880 and sought to

In England there was virtually no university teaching in international law at all in the first half of the century. After the reform of legal education in mid-century, the first chairs of international law were set up in Oxford in 1859 (the Chichele Chair with Montague Bernard [1820-1880] as its first occupant) and in Cambridge in 1866 (the Whewell Chair with William Harcourt [1827-1904]). See Koskenniemi, Gentle Civilizer, p. 33-34. 8 Lorimer was anti-semite and thought Islam as a degenerate religion. He advocated the conservative "de facto" principle as the key to legal title.

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establish something he called "general jurisprudence" as a universal legal method.9

As the Franco-Prussian war ended in 1871, the only international law chair in France was that of Droit de la nature et des gens at the Collge de France, held by the diplomatic historian Charles Giraud. It was unthinkable for Rolin to invite him and, besides, he might not have come owing to the sense that the Institut might be German-oriented owing to Bluntschli's presence. In 1874 all was changed by the appointment of the commercial lawyer Louis Renault (1843-1918) to the Paris chair. Part of the generation that revolted against the formalism and individualism of the exegetic school, Renault soon established himself internationally as one of the most respected practitioners in the field. His students would publish textbooks and teach public and private international law according to the solidarist doctrines en vogue in the Third Republic.

These men form the institutional, ideological and professional core of international law between 1871 and 1914. Four aspects unite them.

II.1. Rejection of the Droit public de l'Europe.

As liberal reformers, the lawyers of 1871 associated the old doctrines of "European public law" with the post-Napoleonic Concert and a conservative world they rejected. Where the representatives of that tradition had written for the instruction of princes and diplomats, the members of the Institut wrote for practising lawyers, businessmen, politicians and within an international, bourgeois culture. They shared a concept of law that was both culturally sensitive and oriented
T.E. Holland, Elements of Jurisprudence (11th edn. Clarendon, Oxford 1910). For a recent discussion of Holland's "project", see William Twining, Globalisation & Legal Theory (London, Butterworths, 2000), p. 26-33.
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towards social and political transformation. As a young man, Bluntschli had been Savigny's student in Berlin and had in several writings articulated a historical-organicist view of law in general and public law in particular. The self-description of the Institut as the "organ of the juridical conscience of the civilised world" came from Bluntschli's pen and expressed an anti-formalist legal theory for which law was an intrinsic part of the social organism for which its historicity, like its constant development, was a key part. Bluntschli and the other members of the Institut shared a notion of progressive history, associating "progress" with the increasing civilisation of European society. Hence, for example, Bluntschli's textbook took the form of a prepared codification. It was as much de lege lata as de lege ferenda and hardly worried over such subtle distinctions. In fact, Bluntschli held, law - including international law - was always, and should therefore be captured as, law "to-come" ("werdendes Recht").10

In his early manifesto Rolin had already referred to Kant and he and his friends had intuitively adopted the Kantian idea of "universal history with a cosmopolitan purpose". As they neither were nor thought of themselves as philosophers, they rarely elaborated on the implications of this idea beyond vague generalities about civilizational progress through stages. It was sufficient to associate "progress" and "civilization" with increasing influence of liberal ideas.

The new textbooks and articles after 1871 always made a point of distinguishing between their modernity - Rolin and his friends spoke of their sprit d'internationalit - and the principles of Great Power primacy and balance of power that had characterised the diplomacy of the Concert of Europe. Bluntschli had earlier written on political science and on various aspects of private

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and public law. He recounts his reasons for turning to international law in the 1860's as follows:

"I was convinced that international law existed in a relationship of reciprocal influence to the increasing civilisation and that every large human progress meant also progress for international law".11

Late 18th and early 19th century lawyers had written about the history and forms of European diplomacy. The men of 1871, by contrast, did not think that was the proper way to discuss law. As Savigny had taught, law was culturally based in the spirit of a people. It did not come about, nor exist in, the superficial mores of European diplomacy. But though culturally based, the law was articulated into existence by the lawyers themselves. This is the context in which the declaration by Rolin and his friends to be the "juridical conscience of the civilized world" becomes clear. They saw it as their task to give legal expression to the progressive nature of European civilisation. The law would not be found in diplomatic forms but in the conscience of those legal professionals who represented the liberal spirit of Europe's civilized modernity.12

II. 2. A liberal reconciliation of European nationalism with "civilization"

This perspective also determined the way the men of 1871 reconciled their nationalism with their universalism. As liberals, they shared a concept of nationalism that was
Betsy Roeben, Johann Caspar Bluntschli, Francis Lieber und das moderne Vlkerrecht 1861-1881 (Baden-Baden, Nomos 2003), p. 102-104. 11 Bluntschli, Denkwrdiges aus meinem Leben III p. 170. 12 For this sentiment, see e.g. Gustave Rolin-Jaequemyns, De la ncessit d'organiser une institution scientifique permanente pour favoriser l'tude et le progrs du droit international, V RDI 1873 p. 463-491.
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individualistically inclined and therefore always able of being explained from the perspective of a universal design or purpose. Though Bluntschli was a strong defender of national selfdetermination (and advocated German unification under Prussia), he, like the others, postulated to international law an endstate that was a "human world order" ("sein Ziel ist die menschliche Weltordnung").13 In a small pamphlet on the relationship between nationalism and humanity he arycoualted quite expressly his view of the tasks of international law as science. Though the national spirit gives rise to cultural forms such as art and science, at their highest level, both leave their national environment: "Die besten Werke der Wissenschaft und der Litteratur sind auch in ihrem Gemeinwerte eher menschlich als national".14

Even as Bluntschli agreed with Savigny that law is an emanation of the history and spirit of a nation, he also agreed with Savigny who saw no difficulty to link this idea with universalism:

"Was in dem einzelnen Volk wirkt, ist nur der allgemeine Menschengeist, der sich in ihm auf individuelle Weise offenbart".15 All the men of 1873 accepted nationhood as a fundamental fact of the international society. They were thus called upon to explain how it could be reconciled with their cosmopolitanism. They did this by distinguishing between what Rolin called l'esprit national and le prjuge national, nationalism in its beneficial and malignant forms and held the former quite compatible with a

14

Bluntschli, Das moderne Vlkerrecht, p. 18-19, 59. Bluntschli, Die nationale Staatenbildung und der moderne Deutsche Staat (Berlin, Habel, 1881), p. 18. 15 Bluntschli, Das moderne Vlkerrecht, p. 21.

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well-ordered international realm.

16

Holtzendorff, for example,

a frequent commentator in Rolins Revue and a member of the inner circle of the Institut described the dialectic of nationalism and cosmopolitanism as analogous to that between individual autonomy and communal solidarity in domestic society. Its national properties did not exhaust the identity of a State; like an individual it was both independent of and related to the outside world. As currents of air circulated through space irrespectively of political boundaries, the spirit of humanity animated the lawbooks of different nations.17

In such ways the lawyers of 1871 integrated their nationalism in a larger, humanist vision of European civilization, sometimes defining nationhood in the standard liberal way as an aggregate of, or political compact between, individuals. Westlake, for instance, seemed to have no theory of nationhood at all but thought that the States duties and rights were "only the duties and rights of the men who compose them".18 Bluntschli certainly never imagined that there was any conflict between his nationalism and individual rights: each was defined in terms of the other.19 In the preface of his codification of international law, Bluntschli expressly noted that there were general human rights (allgemeine Menschenrechte) that constituted a permanent limit to State sovereignty. For him as for his friend and Francis Lieber (1800-1872), the defence individual liberty went
Rolin-Jaequemyns, 'De l'tude de la lgislation compare et de droit international', p. 16. 17 Franz von Holtzendorff, Handbuch des Vlkerrechts. Erster Band. Einleitung in das Vlkerrecht (5 vols., Berlin, Habel, 1885) vol. I, p. 38-9. Similarly, cf. James Lorimer, Institutes of the Law of Nations (2 vols. Edinburgh and London, Blackwood, 1883) vol. I p. 9-11. Holtzendoff also argued that the importance of nationhood lay in the fields of history, culture and psychology - it was normally sufficient for lawyers to focus on States and to dismiss speculation about principles of nationalism. While nationalism might have a factual influence on the law, it remained outside normative analysis. Holtzendorff, Handbuch I, 40-1. 18 John Westlake, Chapters, p. 78. 19 Bluntschli, Das moderne Vlkerrecht, p. 20. "Niemals darfber dem nationalen Princip das hhere humane vergessen werden. Nur innerhalb des
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hand in hand with a (moderate) nationalism.

20

There was no

sense that stress on nationhood would have required on State sovereignty. On the contrary, the "principle of nationalities" invoked by the Italian school after Mancini, but also by many others, opposed the nationality of individuals against the sovereignty of the territorial State. Here the "nation", conceived in a liberal way, was a cosmopolitan, not a statistterritorial principle.

It was then not for nothing that Bluntschli's codification as well as, for example, that of the Italian, Pasquale Fiore (18371914), expressly held fundamental human rights as the core and objective of (modern) international law.21 The individualism of the men of 1871 is often left unnoticed because they do not normally speak the language of (Grotian) natural law or natural rights. That was, after all, an old-fashioned rhetoric with politically ambivalent links to the Revolution. Their individualism was much less a theory than a set of assumptions about the nature and direction of European modernity, indissociably linked with their cultural cosmopolitanism and the liberal reforms they advocated all over Europe.

II. 3. The Unity of Public and Private International Law

The lawyers of 1871 did not wish to limit themselves to considering issues of treaty-making, warfare or diplomatic protocol. Modernity was internationalising much wider aspects of the lives of European populations. An ambitious reformer needed to grasp all of what they identified as the sprit
humanen hat das nationale Wahrheit und Berechtigung", Bluntschli, Die nationale Staatenbildung, p. 32. 20 On the relationship between Bluntschli and Lieber, See especially Roeben, Johann Caspar Bluntschli, Francis Lieber, op. cit. supra.

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d'internationalit of their time. Discussions of the law applicable between civilised States was always accompanied by debates on the development of rules on private legal relationships as well. This was natural inasmuch as the relevant problem seemed to deal with the conflict of the legislative jurisdiction of two or more States: "whose law shall govern a private legal relationship with a linkage to several jurisdictions"? This could be seen as a conflict of legislative sovereignties - in other words, as a typical problem of public international law.

The Droit public de l'Europe had concentrated on statehood, diplomacy and war. The focus of the new generation was completely different. Rolin practised in private law and his position in Belgium's liberal government in 1879-1884 was as minister of education, not of foreign affairs. Westlake's academic fame rested on his publication in 1858 of a treatise in private international law in which he had introduced continental ideas about legal development to his English readership, that is to say, on the law applicable to international legal relationships between subjects of private law - conflicts of law and legal harmonisation in particular. Asser never published anything larger on public international law. Instead, he was instrumental in persuading his government to support the idea, originally proposed by Mancini, of the development of a code for dealing with international private law relations - the origin of the Hague Conference on Private International Law.

Rolin, Westlake and Asser had already invited Mancini to participate in the propagation of liberal legislative reform through their Revue in 1869 - ironically, it had been Mancini, an expert in private, not public law, who persuaded them to
See Pasqwuale Fiore, Le droit international codifi et sa sanction ujuridique (Paris, Pedone 1890), and the discussion in my Gentle Civilizer, p. 54-57.
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insert the reference to public international law in the Journal's title. They now also invited Mancini - by far the most famous of them - to chair the Ghent meeting. As expected, this gave a definite direction to the scholarship and codification

of private international law in Europe.

Mancini was a key legal influence in the Italian Risorgimento. In his inaugural lecture at the University of Turin in 1851 he proposed the principle of nationalities as the foundation of all international law, public as well as private. This meant, among other things, that the law governing the legal relationships of a person should be based on the person's national law - a cosmopolitan view that expected that territorial States would honour foreigners' national backgrounds. Mancini was several times Italy's foreign minister and minister of justice. He was instrumental in the drafting of Italy's Civil code of 1865 that privileged the criterion of nationality against territoriality. In subsequent years, he advocated the unification of private international law on this basis publishing, in 1874, in Clunet's Journal de droit international a programme for the conclusion of treaties that would make the key rules of private international law "uniform and obligatory".22 The whole problem of the law, he wrote, was about regulating the conflict between the power of the State and the right of the individual. An individual has a right to have his national law applied to him even on foreign territory. On the other hand, the public law relations should remain territorially based. A threefold distinction emerged. The public law of the State should govern political relations. A "necessary private law" would capture a person's national background and a "voluntary private law" - contracts - would give effect to the autonomy of the will.

Mancini, De l'utilit de rendre obligatoire, sous la forme d'un opu plusieurs traits internationales, une certain nombre de rgles gnrales, 5 Journal de droit international (Clunet, 1874) p. 221, 285.

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These ideas were immediately accepted by the Institut which started to propagate universalism through treaties. In his early Introduction au droit international (1879) Renault took a firm stand in favour of universal codification of rules on conflicts of laws. The "personalism" of the Italian school soon spread into the profession more generally. Two of the most important private international lawyers on the continent - the Belgian Laurent and the French Andr Weiss (1858-1928) - each followed suit. As teaching of private international law began in France in the 1880's Weiss immediately defined it as having to do with reconciling the rights of individuals with the sovereignty of the State.23

Laurent, a member of the Institut, based his individualist principles for the choice of law in private international law on the idea that the nationality of the individual is the most basic, foundational aspect about that individual. It should therefore determine his legal relations. Laurent felt, however, that national laws were ultimately unable to regulate the conflicts and that especially human rights are independent from or nations and that sooner of later jurists will agree on them. He extended this cosmopolitan view expressly outside Europe, even, and opposed thereby the application of the law of the territorial state, apart from cases of ordre public. Laurent dedicated his 1880 Droit civil international to Mancini.24

As the Franco-Prussian war ended, another member of the Institut, Edouard Clunet (1845-1922) established his Journal de droit international - today best known as "Clunet" - that was exclusively devoted to private international relationships. Clunet himself - another liberal activist - emphasised the close
Torsten Gihl, Den internationalle privatrttens historia och allmnna principer (Stockholm 1951), p. 252. 24 Francois Laurent, Droit civil international (8 vols. Brussels, Bruylant, 1880-81). See also Jean-Louis Halprin, Entre nationalisme juridique et communaut de droit (Paris, PUF 1999), p. 91-93.
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connection between public and private international relationships and saw the subject-matter of the latter (and of his own journal) as not merely dealing with individuals who happened to be in a foreign state but with "the international relations between commercial, financial and industrial groups who had become the most important".25 The Institut and the Revue both distributed their activities and the space of their pages equally to both topics.

Also the great textbooks at the end of the 19th century adopted both private and public international law. Teaching of these two fields was united: Westlake in Cambridge, Triepel in Berlin, Despgnet in France etc. all taught the two topics together.

Since its inception, the Institut prepared numerous reports and suggestions on these questions. But even more important was Asser's Hague Conference on Private International Law. The first session of the Conference in 1893 was attended by 13 governments and was chaired by Asser himself. All the participants were in agreement with the idea, propagated by Mancini, Westlake and Asser, that private international law should be understood as binding law, and not as mere comity. There was a also a large consensus on the individualist, even cosmopolitan approach preferred for most question by the majority of the Institut members - that is, deciding the legal questions on the basis of the national law of the person instead of the law of the territorial state where he happens to find himself or to which the legal relationship has its closest link.26

Although the Hague Conference had a rough beginning and the first Treaties of the Conferences of 1900 and 1904 did not receive much support, the personality principle was largely
Hugh L. Bellott, 'Matre Clunet. Obituary', BYIL 1922, p. 187. See further Halprin, Entre nationalisme juridique et communaut de droit, p. 102.
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accepted especially on the continent by the end of the 19th century. In 1907, for example, the German F. Meili speculated on the possibility that the Hague Treaties might create a veritable international code of private and criminal law relationships, and thus a framework of a procedurally established international community.27 Nonetheless, even at this stage the United States and to some extent Britain remained outside of these efforts. Both continued to advocate the domicile criterion for applicable law - at least to some extent owing to reason that there were so many foreigners in both and that the application of their national laws would have been a tremendous source of confusion.

II. 4. Imperialism. The civilising mission. Expansion of formal sovereignty

If the men of 1871 advocated progressive reform inside Europe, they also supported the extension of European civilisation in what they called the "Orient". In the previous years, Western colonisation had been principally undertaken by private traders and trade companies, with the involvement of Western States kept at the minimum. Following the reports of travellers and missionaries in the 1870s and 1880s, European liberals stared to be increasingly concerned over that practice. French writers such as Gaston Jze and Charles Salomon wrote important analyses of colonial law, attacking the greed and brutality of the colonial companies and suggesting the effective extension of Western administration into unoccupied territories.28 The Swiss humanitarian lawyer and member of the Institut, Joseph Hornung, indicted European brutality in the colonies in a series of five

F. Meili, Die Zukunft ded internationalen Privat- und Stafrechts 1 ZVR (1907), p. 131-5. 28 Charles Salomon, L'occupation des territoires sans matre (Paris, Giard, 1880); Gaston Jze, tude thorique et pratique sur l'occupation comme mode d'acqurir les territoires en droit international (Paris, Giard & Brire, 1896).

27

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articles, by far the most elaborate treatment of colonial law in Rolin's Journal, calling for a moral mission to protect and educate the natives and prepare them for the coming world federation.29 But even Renault shared the criticisms of the way the colonialists have behaved:

"Too often the so-called civilised nations have abused their power in regard to the so-called barbarian, have declared unjust wars against them and have violated the most elementary rules of law".30 The lawyers of 1871 insisted that the work of "civilization" required direct rule and effective sovereignty for the European colonizer. There was to be no more laissez-faire in the colonies than there should be at home. From 1878 onwards, the members of the Institut suggested the regulation of the "Congo question" in by an international solution. They greeted with enthusiasm King Lopold's ventures and the establishment of the "Independent State of the Congo" in 1885. Indeed, many Institut members participated in this process in different roles, supporting the King's claims before the US senate, writing tracts about the way in which the "Congo State" was administered and even participating in its administration.31 Rolin himself observed in 1889 that colonization by chartering companies failed to distinguish between ownership and imperium and to guarantee the proper treatment of the populations: direct rule was infinitely better.32 Annexation, if it came to that, should be called annexation and insist on the duties of the administrator in

Joseph Hornung, 'Civiliss et barbares', 17 RDI (1885), p. 1-18, 447-470 and 539-569 and 18 RDI (1886), 188-206 and 281-289. 30 Louis Renault, 'Introduction l'tude de droit international', in L'Oeuvre internationale de Louis Renault (1843-1918) (Paris, Les ditions internationales, 1932), p. 16-17. 31 See my Gentle Civilizer, p. 155.166. 32 Gustave Roli-Jaequemyns, L'anne 1888 au point de vue de la paix et du droit international, XXI RDI 1889 p. 192. Nonetheless, he presumes that "...si mauvaise que puisse tre l'administration d'une compagnie de marchands europens, elle est toujours meilleure que celle d'un sultan.", id. Cf also id. p. 193-6.

29

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regard to the protection of both the populations residing in that territory.

The members of the Institut were particularly critical of the dilution of the administrative duties associated with "protectorates" in international practice and saw the 1885 Berlin African Congress as an opportunity to set up clear criteria for the degree of administration that the European State should extend to Africa. This left them disappointed with the vague formulation of article 35 of the Berlin Act. The German Professor M. Martiz prepared a draft declaration making it clear that both occupation and protectorate ("occupation titre de protectorat") should lead to formal rule.33 There were to be clear conditions for effective possession. Obligations in regard to the protection of acquired rights and protection and education of the natives were to be identical. The proposals were not accepted, however. Members were finally unwilling to limit the flexibility that was provided to European powers by the system of Article 35.

In 1875, the Institut commenced a study on the possibility to extend European international law "into the Orient". A questionnaire was sent out with the purpose of finding out whether the beliefs of Oriental and Christian States as regards the position of foreigners were sufficiently similar to admit the oriental "dans la communaut gnrale du droit international". It turned out that the question could not be answered in general terms. A distinction was to be made by reference to the degree of civilization of the country concerned. While some Orientals were "des pirates et mme des

Rapport de M. Martiz, Annuaire de l' Institut de droit international 1885-1891 (dition abroge) p. 429.

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cannibales", others such as Turkey, Siam, China and Japan had long and stabile relations with the West.34

Following their cultural view of law, the lawyers developed a three-level analysis of societies as "savage", "half-civilised (barbarian)" and "civilised". They were unanimous that the international law of European (i.e. "civilised") nations could not be applied to the non-Europeans as such. (Unlike sometimes assumed, this did not mean that no law at all would have been applicable in the Orient). If the law did have a cultural basis, then of course different rules should be applied to such different groups. Nevertheless, because they also shared a progressive notion of history, they had little doubt that the "Orient" was progressively transforming into Europe's likeness.

Behind all this activity in support of the formal colonisation of non-European territory was a view of historical development necessarily following the path taken in Europe. Although the "standard of civilisation" was never clearly defined - indeed, its usefulness rested in part on its open-endedness - it was clear that the enjoyment of the rights and duties of statehood was dependent on the attainment of the kind of political rule that resembled European sovereignty.

The task of civilization thus required formal empire for many reasons: as a way to check the activities of traders and adventurers, as a form of protection of native populations and as a way to organise the civilising mission. But it was also necessary as example of the kind of "civilised" type of rule that would slowly be taken over by the natives as they would attain fiull-fledged statehood and be accepted in an international community that - and here the lawyers were agreement - would one day encompass the whole humankind.
34

Sir Travers Twiss, Rapport, Annuaire de l'IDI 1879 p. 301.

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II 1919 A NEW BEGINNING

The Great War shook the foundations of the international law profession. Nothing remained as it had been before. A first meeting of the Institut was improvised in Paris in May 1919 among members who were present at the Peace Conference or could otherwise travel there. No Germans attended. The meeting was hosted by the Dean of the Paris Law School, one of France's representatives at the Peace Conference, Ferdinand Larnaude who in his opening speech made no secret of how he had seen the war: "France has been the defender of law in this war, as it has always been in the course of its history".35

The generation of lawyers who had invested their sprit d'internationalit in the Institut so as to ensure liberal progress in Europe and the civilization of the "Orient" had passed away. Rolin-Jaequemyns had died already in 1902, Asser and Westlake in 1913, Renault in 1918, Oppenheim in England and Liszt in Germany in 1919. Some had made an abrupt turn in their careers. Antoine Pillet (1857-1926), Renault's projected successor in France, one of the two editors of the Revue gnrale de droit international public, the "theorist" among the French international lawyers, was so outraged by the peace - by the leniency towards Germany and the weakness of the League as a safeguard for France's security - that he turned completely to private law, never publishing anything in public international law which he felt had been infected by the weakness of the Hague and Geneva systems.36

35 Discours de M. Larnaude, 27 Annuaire de l'Institut de droit international (1919), p. 294. 36 See especially Antoine Pillet, Les lecons de la guerre present au point de vue de science politique et du droit des gens (Paris, Plon 1915).

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In 1871 European lawyers had written from a palpable sense of what "civilization" meant and where it was leading to. In Europe, it would support continued liberal progress. Outside Europe, it would change modernise the "Orient". By 1919, this outlook had collapsed. The failure of the Hague treaties to regulate the conduct of the war appeared as a mere tip in the iceberg of the law's shameful complicity in the diplomatic system - especially the system of sovereignty - that had been responsible for the war. Stories of European brutality and the reluctance of parliaments to allocate funds for colonial purposes undermined what was left of the mission civilisatrice. Pre-war international law now began to appear alternatively as politically naive and methodologically amateurish, alternatively as a cynical facade over continued European Realpolitik.

Towards the end of the war, a huge amount of pamphlets, brochures, articles and books on the future of international law was published all over Europe and the United States. Anxious questioning about the reasons for the failure of old law and what to replace it with was spread throughout the profession. Answers to those questions emerged in an intensely diversified way and from varying national experiences.

In Belgium, the Revue de droit international re-started publication in 1919 with an overwhelming focus on the law of the Versailles settlement. Many essays dealt with war criminality, especially German breaches of humanitarian law and the extradition of the Kaiser. Many articles were intensely nationalistic: Had Belgium received a large enough chunk of Eupen-Malmdy? The volume of 1921 began with Minister Paul Hymans' review of League activities (p. 5-16) and an overview by Maurice Bourquin of the negotiations for the Permanent Court of International Justice. The year began with two issues completely

26

devoted to the League. But more than half of the regular issues, too, was about League-related activities.

Many German lawyers had turned into supporters of the war effort. The case of the legal polyglot Josef Kohler (1849-1919) is typical. Kohler had set up the Zeitschrift fr Vlkerrecht und Bundesstaatsrecht in 1906 as the first German Journal devoted to international law. Its spirit had been humanitarian and pacifist. Kohler had even defended the unorthodox position that private individuals and companies - railway companies, banks, international commissions - should be understood as subjects of international law by reading treaties and diplomatic acts as providing authentic rights for them.37 One of his coeditors was the German migr Lassa Oppenheim (1858-1919) who had been naturalised in 1900 as a British citizen, replaced Westlake as the Whewell Professor in Cambridge and had published the most successful international law textbook of the twentieth century.38 Oppenheim worked as the Zeitsschrift's co-editor in Britain, writing articles and reviewing books for it. In 1914, however, Kohler dismissed him after he had defended British interests in German naval warfare. The Journal now took a spectacular turn against its earlier stands. Accordingly, Kohler also fired the German pacifist, Hans Wehberg (1885-1962) from the Journal. He defended Germany's violation of Belgium's neutrality at the outset of the war by reference to a notion of Notrecht and advocated a German-led hegemonic reconstruction of the European diplomatic system after the war.39

Wehberg and the left-liberal Walther Schcking (1875-1935), the future German judge at the PCIJ, maintained a relatively

J. Kohler, Vlkerrecht als Privatrechtstitel, 2 ZVR (1908), p. 209-230. For some of this detail, see Mathias Schmoeckel, Lassa Oppenheim (18581919), in Jack Beatson & Reinhad Zimmermann, Jurists Uprooted. GermanSpeaking migr Lawyers in Twentieth-Century Britain (Oxford University Press, 2004), p. 583-600. 39 See Koskenniemi, Gentle Civilizer, p. 213-15.
38

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consistent international attitude through the war - but even they refused to regard Germany as responsible for it. They enjoyed a moment of visibility towards the end of the war but had little lasting influence in a profession that saw its main task as opposing the Western effort to dominate Europe through the League. Here, there was much to be accomplished. A study conducted in 1919 by the German League of Nations Association (Deutsche Liga fr Vlkerbund) observed the dreadful state of knowledge of international law at law faculties and in public administration. An extended effort at teaching international law more widely was needed, the study concluded, emphasising carefully that only thus could Germany oppose the domination of the League by Entente powers.40

But although international law teaching had been given by public law professors, its standard was very high.41 Even after 1919 German lawyers continued to make important (though often unnoticed) contributions to the discipline. For example, Theodor Niemeyer (1857-1939), the force behind the Deutsche Gesellschaft fr Vlkerrecht, established towards the war's end, transformed his own Journal - the Zeitschrift fr internationales Recht into another generalist international law review in 1919. Niemeyer's background was in private international law and he sought to find a sociological grounding for the representation of international organisations as international administrative law. Before and after the war, from his position as Rector of the University at Kiel he advocated a "positive internationalism" that would be based on economic and scientific progress and transgress the limits between private and public

Moritz Liepmann, 'Die Pflege des Vlkerrechts an den deutschen Universitten (191), 6 Monografien der Deutschen Liga fr Vlkerbunbd, p. 515. 41 As pointed out by H. Trepel, 'Ferdinand von Martizt. Ein Bild seines Lebens und seines Wirkens', 30 Zeitschrift fr internationales Recht (1922), p. 30.

40

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law.

42

He was accompanied by Walter Kaufmann from Frankfurt

whom sought to conceptualise international organisation and private transnational activities in terms of a kind of international administrative and integration law.43 They were, however, overshadowed by the more visible and often quite polemical activities of the men around the newly established Keiser-Wilhelm Institute in Berlin such as Victor Bruns, Heinrich Triepel and Carl Schmitt. It was the latter, of course, who carried the day after 1933.

At the end of the war, in Britain there were only the two professorships at Oxford (Chichele Chair from 1859) and Cambridge (Whewell Chair from 1866). Compulsory international law teaching was given only in the latter. In London it was taught only at the LSE by Dr Alexander Pearce Higgins who had taken over as lecturer as Oppenheim had moved to occupy the Whewell chair in Cambridge in 1909.44 Though Pearce Higgins received a personal chair in 1919, he still noted the:

"scarcely veiled contempt with which international law is viewed by practising members of the Bar and of the legal profession in general".45

See Th. Niemeyer, Vom Wesen des internationalen Rechts, 20 ZiR (19010), p. 1-15 and Rechtpolitiche Grundlegung der Vlkerrechtswissenschaft, 31 ZiR (1924), p. 1-39. 43 W. Kaufmann, Die moderne, nicht-staatliche internationale Verbnde und Kongresse und das internationale Recht, 2 ZVR (1908), p. 436-440. But contrast this to the impressive Karl Neumeyer, Internationales Verwaltungsrecht (Zrich, Recht und Gesellschaft, 1936) in which international administrative law signified the international norms to be applied and interpreted in national administrations. See also the recent discussion by Milos Vec, Recht und Normierung in der industriellen Revolution (mimeo, 2004, on file with author), p. 116-151. 44 Occasional lectures in the subject were given by Sir John Macdonell, Quain Professor of Comparative Law at University College. For an overview of the sitiation, see E.D. Whittuck, 'International Law Teaching', 3 Transactions of the Grotius Society (1918), p. 43-59. 45 A Pearce Higgins, 'The Present State of the Study of International law in England', 39 LQR (1919), p. 510.

42

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However, the situation ameliorated after 1923 with Arnold McNair (1885-1975) and Hersch Lauterpacht (1897-1960) determined to establish the discipline on a professional basis by showing that it could be taught and practised as technically as any part of domestic law. Apart from through the development of the "Cambridge School", this was achieved by the publication of the first collection of international case-law, the Annual Digest of Public International Law in 1929 and by ensuring that successive editions of Oppenheim's International Law would find their way to the shelves of foreign office legal advisors all over the world.46

In France, the legal establishment reacted in twofold ways to the war. Some such as the Catholic lawyer Louis Le Fur (18701943), professor of international law in Paris since 1925 when his appointment over the leftist Georges Scelle (1878-1960) was loudly applauded by the Action francaise,47 focused on attacking Germany and German culture as responsible for most of the evils of modernity.48 But the mainstream married itself tightly with the League. The two most influential lawyers, Lon Bourgeois (1851-1925) and Larnaude participated in President Wilson's Crillon Committee and Bourgeois even became the first President of the League Council, later propagating the League in various French conferences and societies. Scelle, too, whose fame later vastly exceeded that of his rival Le Fur, saw already in 1919 the League in view of the correctness of his "solidarist" thesis about the necessary development of the modern world into a federal hierarchy.49

See also my Hersch Lauterpacht (1897-1960), in Jack Beatson & Reinhard Zimmermann, Jurists Uprooted. German-speaking migr Lawyers in Twentiethcentury Britain (OUP 2004), p. 601-661. 47 See Marc Milet, La facult de droit de Paris face la vie politique. De l'affaire Scelle l'affaire Jze 1925-1936 (Paris LGDJ 1996). 48 See e.g. Louis Le Fur, Guerre juste et juste paix (Paris, Pedone 1920). 49 Georges Scelle, La Pacte des Nations et sa liaison avec Le Trait de la paix (Paris, Sirey, 1919).

46

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In 1920 in Paris an Ecole de droit international was set up at the University of Paris. Its curriculum was full of lectures by French or Francophile lawyers and the League figured prominently on its lecture agenda. The cole was set up by three of the most active Paris internationalists at the time, Alejandro Alvarez (1868-1960), Albert Geouffre de Lapradelle (1871-1955) and Paul Fauchille (1858-1926), to educate diplomats from all over the world. It would continue what Alvarez described as the "radiation" of the French spirit around the world.50

In 1919, none of the four elements that characterised the sprit of the international law of 1871 were present. First, there was no longer any political need to reject the Droit public de l'Europe. On the contrary, the criticisms of the diplomacy of the late-19th century in fact made the old 18th system of formal balance seem not so bad after all. Second, the pre-war effort to align nationalism with internationalism seemed scarcely credible: the notion of "civilization" had turned out a facade for one's national preference. So much of the legal establishment fell back on a more straight-forward nationalism, focusing for example on the justice or otherwise of the Versailles Treaty, or then an internationalism that put its hopes in the institutional activities of the League. Third, public and private international law broke apart institutionally and ideologically and started to develop through their own, autonomous channels. Fourth, formal imperialism was no longer supported by lawyers any more than by European populations. Political rule over non-European territory was failing and expensive and increasingly incompatible with a novel international climate.

The law of 1919 was based on four other points of focus.

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III.1. Rejection of the naive and unmethodological approaches of the previous law

As the new generation sought a firm foothold, it rejected what it saw as the methodological naivet of the men of 1871. Bluntschli, typically, was seen as advocating an practising an impressionistic style in which the legal and the political were completely mixed within each other. Already Bluntschli's German successors such as Carl Bergbohm (1849-1927), August Bulmerincq (1822-1890) and Paul Heilborn (1861-1932) had questioned the scientific credentials of the "organic" school that was often seen as speaking the language of natural law only in a slightly modernised form. For the self-consciously positivistic methods of later German public law Bluntschli's ideas such as Rechtsgefhl, Rechtside and of Rechtbewusstsein were unscientific mysticism or "political jurisprudence" that had to be exorcised from legal science.

The idea of civilization that was central to the men of 1871 played on commonplace intuitions that were largely shared and in little need of a serious academic defence. After 1919, however, it was easy to seek the reasons for its failure in its reliance on that weak and impressionistic notion, its political alignment with a liberalism that had been failing all over Europe. A serious legal study needed a more robust methodological grounding.

Here, too, the narratives remain intensely national. In Germany, discussion of international law's method was conducted within the public law frame that was divided between the classical formalism of the Gerber-Laband type and more sociologically inclined orientations building especially on the work of Georg Jellinek (1851-1911). The formalist school was represented by
50

Alejandro Alvarez, L'cole internationale de droit international, 27 RGDIP

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lawyers such as Karl Strupp (1886-1940) or indeed Schcking and Wehberg whose work focused on the interpretation of the League Covenant and other acts of contemporary diplomacy, especially from a German perspective.51 The formalist orientation peaked, of course, in Hans Kelsen's (1881-1973) pure theory of law that based international law's foundations on anti-statist, neokantian premises. Several German-speaking lawyers such as Josef Kunz and Alfred Verdross built on an expressly Kelsenian methodology which, at this early stage, failed to receive much of a hearing from outside the German-speaking realm.

The more sociologically inclined public lawyers who built on the work of Jellinek and Max Weber included Rudolf Smend (1882-1975) and Carl Schmitt (1888-1983). These, like the influential naturalist Erich Kaufmann (1880-1972) were, however, men of the political right and anything but inclined to speak in terms of a Vlkerrechtsgemeinschaft in the manner of the liberal neokantian formalists who aligned with Kelsen. The only exceptions on the sociological side were, first, the Swiss Max Huber (18741960), later a member of the PCIJ and President of the International Committee of the Red Cross, who had in 1910 published a small study on the "Sociological foundations of International Law" which used a theory of economic and cultural interdependence as international law's positive-scientific basis and, second, Niemeyer and his colleagues, trying to articulate a legal system out of the activities of functional international organisations. Most sociologically oriented German-speaking lawyers shared the view of Dietrich Schindler who spoke in the Hague Academy in the 1930's, emphasising the limited use of sociological methods in international law. The League was an irrelevant formal compromise, Versailles had no social grounding

(1920), p. 145-152. 51 Schcking-Wehberg, Die Satzung des Vlkerbundes (Berlin, Vahlen, 1921); Karl Strupp, Das Werk von Locarno (Berlin, De Gruyter, 1926).

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and international affairs should be conducted more by wisdom and statecraft than by law.52

In France, the sociological orientation took a completely different direction. This had already began with Pillet who, coming from Bordeaux like Durkheim, had propagated an early "functionalist" reading of statehood in his early essays in the Revue gnrale.53 In all spheres of the French legal academia, the demise of the formalist and individualist principles of the Code civil had liberated a strong sociological orientation.54 Lon Duguit (1859-1928), for instance, sometimes regarded as the father of French public law, had written his Doctorat in private international law espousing a rigorous methodological empiricism. For him, all public law - including international law - dealt with the relations between individuals, namely those who govern and those who are objects of government. This became part of the emergence of "solidarism" - the "official philosophy of the Third Republic", represented in international law above all by Bourgeois who had served several times as minister, headed the French delegations to the Hague Peace Conferences in 1899 and 1907 and had participated in the drafting of the Covenant.55

"Solidarism" was the idea of law as a fact of society as well as a norm of sociability. We are born as debtors to society, from the outset under an obligation to work for the social community to which we owe our lives. This was a factual and a normative doctrine in the way of much sociology, an Ersatz form of natural
Dietrich Schindler, Facteurs sociologiques et psychologiques de droit i8nternational, 46 RCADI (1933-IV), p. 255, 299-307, 318-320. 53 Antoine Pillet, Le droit international puvblic, ses lments constitutifs, son domaine, son objet, 1 RD^GDIP (1894), p, 1-32 and Recherches sur les droit fondamentaux des tats dans l'prdre des rapports internationaux et la soplution des conflits qu'ils font natre, 5 RGDIP 1898), p. 66-89, 236-264 and 6 RGDIP (1899), p. 503-532. 54 A good overview is in Jean-Andr Arnaud, Les juristes face la socit du XIXe sicle nos jours (Paris, PUF 1975).
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law. It was taken much further by the most important inter-war French lawyer, the left-liberal Georges Scelle (1878-1961). For Scelle, the international world was always already a "society" and as such, possessed an intrinsic hierarchical constitution. The developments in science, economy and technology would not create a world federation - but they would compel human beings to realise that it is already there and thus to legislate out of their will what in any case is necessary.56

No sociological orientation emerged in Britain. Nevertheless, British lawyers were instrumental in the development of another novel method, namely the view that international law was in essence no different from domestic law and that it could therefore be both studied and practised like the latter. The "domestic analogy" that was, for example, the core of Lauterpacht's teaching in the 1920's and 1930's moved the focus away from diplomacy and statesmanship and sought to relocate the centre of legal activity in the practical world of applying and interpreting international rules by lawyers, and especially by courts.57

III. 2. Against Sovereignty

What most of these novel methodological orientations shared was a critique of nationalism and of sovereignty and of the language of "civilization" that was now often seen as a camouflage for the sovereign politics of the speaker's homeland. The attack on sovereignty went through practically all international law thinking after 1919. Much of this was, however, a barely
55

On the "solidarism" of Duguit, Bourgeois and others, see my Gentle Civilizer, p. 284-316. 56 See Georges Scelle, Prcis de droit des gens 2 vols. (Paris, Sirey, 193234) 57 See e.g. Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London, Longman's 1927). For an analysis juxtaposing the universalism of Scelle to that of Lauterpacht, see Carl Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff (Berlin, Duncker & Humblot, 1938).

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camouflaged attack on Germany. In his address to the Grotius Society at Gray's Inn in April 1918, Lord Parmoor observed that there was a School

"that presses to its extreme limit the doctrine of National Sovereignty and regards war as not only without disapprobation but as the best solvent of international difficulties."

This figment of his imagination, he then went on, "holds a strong position in Germany" though he also graciously granted that "it had advocates in other countries. too".58 The view of sovereignty-centrism and positivism as especially German doctrines was overwhelming. In both of his main inter-war works from 1927 and 1933, Hersch Lauterpacht chose "positivism" as his academic target, associating it with ("Hegelian") doctrine of sovereignty that peaked not only in an outright denial of international law but also in the doctrine of the "special" character of international law that was merely "the most modern for of denying international law".59 The defennders of "positivism" and "sovereignty" in his footnotes, as in those of his British and French colleagues were always Germans - Hegel, Lasson, and also, quite absurdly, the conservative idealist Erich Kaufmann60 who built a distinguished career at the legal advisor of the German Foreign Ministry both before and after the Second World war. The same in France, too, where Le Fur even included Kelsen, Kant and Luther in this group of sovereigntymongers.61

Lord Parmoor, The League of Nations, 4 Transactions of the Grotius Society (1919), p. xvii. 59 Hersch Lauterpacht, The Function of Law in the International Community (Oxford, Clanendon 1933) p. 405. 60 Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London, Longman's, 1927), p. 44-47. 61 Le Fur, Guerre juste, op, cit. p. 23, 29 and Le Fur, Rgles gnrales du droit de la paix, 54 RCADI (1953-IV) p. 44.

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The attack on sovereignty came from three directions: as a methodological critique, a sociological critique and a moral indictment. The sharpest methodological critique came from Kelsen and his followers who understood the State not as something preceding or standing over the law but as something constructed by the law. It was the sum total of the rights, powers and competencies that State officials possessed. To think otherwise was to believe in "sovereignty" as a metaphysical or mythical quality in statehood that was inadmissible for a scientific approach to the matter.62 For this approach "sovereignty" was often simply an expression of an ideological nationalism that it opposed. Whether coming from positivists or natural lawyers, the methodological critique was accompanied by a unitary, cosmopolitan view of law.63

The sociological attack on sovereignty emphasised then (as it still does) the strength and thickness of the network of interdependencies that bind any State and thus undermines the illusion of self-sufficiency on which the idea of an absolute State freedom - "sovereignty" - is based. This view was quite central to the French doctrines, articulated forcefully in the Duguit's public law theory which dismissed the very notion of "State" as an unscientific myth. Only facts count. The State is only a lot of people behaving, as subjects or objects of government, endowed with larger or narrower powers. In attacking sovereignty Georges Scelle saw "solidarity" in a universal light. The nation was an accidental organisation principle of a universal society that was always already united. A key person was Alejandro Alvarez who preached the turn in 1919 to a new law on solidarist assumptions. The Great War had epitomised what he called a turn from an "ancien rgime" to a "rgime nouveau",
See above all, Hans Kelsen, Der soziologische und der juristische Staatsbegriff (2nd edn. Tbingen, Mohr, 1927) and Das Problem der Souvernitt (2nd edn. Tbingen, Mohr, 1928). 63 See for instance, Alfred Verdross, Die Einheit des Rechtlichen Weltbildes auf Grundlage der Vlkerrechtsverfassung (Tbingen, Moihr, 1923).
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from individualism and formalism to solidarity and realism, the latter crystallised in the League of Nations. Max Huber's sociological critique of sovereignty was more moderate and was based on quite familiar notions about increasing interdependence as an offshoot of modernity aligning State interests within supranational organisation.64

The moral attack on sovereignty was often combined with the methodological and the sociological critiques. It received its power from an understanding that the Great War had itself been produced by absolute or extreme ideas about national sovereignty. Thus morally argued attacks on sovereignty became an intrinsic part of the novel natural law. Suffice it to cite the German naturalist Viktor Cathrein (1845-1931) who indicted the pre-war "national egoism" and sought a way "back to the

old natural law, back to faith in a personal God and the principles of Natural Law".65 Ironically, the same message was preached on the French side with unconcealed anti-German tones by the Catholic Louis Le Fur.

III.3. Break of public and private international law

The lawyers of 1871 had understood public and private law as a unity that reflected the modernity of a single, cosmopolitically oriented European civilization. With the break of that latter notion, public and private international law drifted apart. As the hope of legal harmonisation and the development of a uniform code of private relationships withered, also the personalistic
Max Huber, Die soziologischen Grundlagen des Vlkerrechts (Berlin, Rothschild, 1928 [1910]). Another anti-positivist argument denied that State will was the basic source of international law. To answer the question why would will bind, one needed reference to something outside will outside the frame of strict naturalism or Kelsenian formalism, that explanation was received from some appeal to social necessity. See e.g. Maurice Bourquin, Rgles gnrales du droit de la paix, Paris, Sirey, 1932), p. 75-80.
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doctrine of pre-war private lawyers was set aside by a territorial conception and a return to the notion that whatever the relevant principles, they were binding only as comity.

Already before the war, many voices had denounced the naturalist principles that underlay the cosmopolitanism of men like Mancini, Bluntschli or Westlake. For these lawyers, law was territorially grounded; the spiritual nation was a fiction. If this was so, then the law could only emanate from , and remain relative to the political structures of the State. This was articulated for example by the influential Italian public law theorist and sociologist Santi Romano (1875-1947) in 1918, identifying the legal order with the public institution and lay the foundations for one type of institutionalist theory of law (also Hauriou). Outside institutions, there was nothing but imagination. A concrete law would emerge from and be implemented always in a particular institutional order and tradition. The most famous post-war Italian international lawyer, Dionisio Anzilotti (1867-1950), a leading member of the Permanent Court of International Justice was also widely known as a leading theorist of the positivist camp: private international law was not the law of a supranational order but the law of individual countries that had to do with the ways in which the courts of that country would resolve questions of jurisdictional conflict.66 This approach would become predominant in most of Western Europe by the Second World War.

Many developments pushed away from the idea of a supranational law. One of the them was the growth of legal anti-formalism. For instance, the views of Hermann Kantorowicz (1877-1940) and his "free law" school in Germany focused on judicial decision-making and the manifold nature of the sources that were applicable in
Viktor Cathrein, Die Grundlage des Vlkerrechts (Freiburg, Hersed, 1918). On the turn to "positivism" and territoriality in inter-war doctrines of private international law, See Halprin 1999, p. 122- 131.
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these practices. For it, trying to draw stable conclusions from a supranational order of legal principles could only be a political sham. Apart from the French solidarists, it seemed impossible for lawyers with a sociological or "realist" orientation to link the law applicable to international relationships to any clearly determined sociological base beyond the State. Whether one saw the State as an organic (or historic, national, political) community or an institution for the exercise of public power, it was the State (and not the abstract and intangible realm of the "international") in which law as a sociological reality was present.

The birth of comparative law pointed in the same direction. This was founded on the recognition of significant differences in legal systems and the need for a scientific comparison. This was both against earlier naturalism that supposed a uniform ethos and a direction in all law as well as positivism whose textcentred approaches fell short of the kinds of social science that was becoming firmly established. One of these persons was Ernst Rabel (1874-1955) whose aims were both academic and practical; to make lawyers understand and operate in regard to different legal systems.67 He wished to give a competitive edge to German lawyers. There is, a recent commentator has noted, "a strong strand of nationalist pride in Rabels' writings during the 1920's".68 His privatiste approach also "tended to exclude issues of public law" and thus reinforced the separation.69

III.4. Turn to International Institutions

For a recent discussion,. see David J. Gerber, Sculpting the Agenda of Comparative Law: Ernst Rabel and the Facade of Language, in Annelise Riles (ed.), Rethinking the Masters of Comparative Law (Hart 2001), p. 197-8. 68 Gerber, p. 198. 69 Gerber p. 206.

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A fourth conclusion was the end to the language of a European "civilising mission". Together with the rest of European populations, international lawyers had lost the taste of the imperial venture. Universalism could no longer count on Europe's unilateral efforts in the colonies. Formal imperialism was replaced by a turn to international institutions, especially the universal institutions of the League.70 Henceforth the universalism of the lawyers would no longer rely on the enlightened policies of European sovereigns. On the contrary, those policies would now become part of the very problem that international law was understood to deal with. Instead, the representatives of the universal are from now on the official intergovernmental organisations that are read throughout the legal world by implicit or express reference to the domestic analogy, as implementers of the pacification and unification of the international world that domestic states had been carrying out in European history.71

In his memoirs Max Huber points to the revolutionary sense of President Wilson's war-time institutional proposals. During the Hague era, he writes, proposals for compulsory mediation either political or legal - and sanctions against a law-breaker could not be even thought, let alone spoken of at diplomatic gatherings. Here was the most significance consequence of the war - the turn to a public discussion about how to organise the international community.72 Sir John Fischer Williams from London pointed out that on all the crucial questions that were problematic about the law as it stood in 1914 the absence of a distinction between just and unjust war, concentration on the
For a useful reading of the League's Mandates' system in this light, see Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005), p. 115-195. 71 For an elaborate argument including a wide variety of examples - about the rhetorical turn to institutions in a tradition of international law for which the war meant a decisive break with past, see David Kennedy, The Move to Institutions, 8 Cardozo Law Review (1987), especially p. 849-902.
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procedures of war and the absence of institutions for peaceful change - the Covenant of the League offers a remedy, or the promise of a remedy.73 Some drew quite far-reaching legal conclusions from the new state of things. Thus Jonkheer van Eysinga from Leiden discussed the relationship between the resolutions of the League and national constitutions. The resolutions, he thought, would self-evidently be superior to national constitutions.

"Cette hirarchie entre les deux sphres de droit, celle de la collectivit des tats, represents par la Socit, et celles des autonomies nationales, sempble s'imposer d'elle-mme at n'avoir pas besoin d'tre motive".74

At the first Conference of the International law Association after the war, in Portsmouth in 1919 - everyone spoke of the promise of the League of Nations. (See RDI 1919 p. 421-440).

The importance of this must be rightly understood. Post-war lawyers could no longer afford to believe in the natural development of civilization and peace. They could not assume that their nationalism would lay down peacefully with their internationalism. The sense of automatic progress that the Victorian generation had linked to modernity was lost. From now on, the influential American jurist and natural lawyer James Brown Scott (1866-1943) wrote, it was "heresy" to speak of the Hague system.75 Peace and development had to be artificially created, just like the State had created peace among warring
Max Huber, Koexistenz und Gemeinschaft. Vlkerrechtliche Erinnerungen aus sechs Jahrzehnten, Zrcher Student 3/1956, p. 10-11. 73 Sir John Fischer Williams, A New International Law, in Chapters on Current International Law and the League of Nations (London, Longmans, 1929), p. 70. 74 Jonkheer van Eysinga, 'Le droit de la SdN et les constitutions nationales, 1 (3) RDI (1919), p. 144.
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tribes or religions in the domestic realm. There had to be compulsory dispute settlement, majority voting and, above all, a mechanism of sanctions against those who would not play by the rules of the state-community.76 The Harvard Professor Manley Hudson (1866-1960), member of the PCIJ saw the turn from the Hague to the Geneva system as move from the "dogmas of nationalism" to "the ideal of world order", associating the latter less with the provisions of the Covenant or the policies of the League than with "the viability of the institutions which it created".77

In other words, the key difference between the way the men of 1871 had looked at the international unions and conferences and the way the lawyers of 1919 conceptualised the League and other international organisations lay in the domestic analogy adopted by the latter. International institutions would be seen as functional equivalents to the organs of the domestic state: The Assembly a kind of parliament, the Council a kind of government. Where the lawyers of 1871 had been quite sceptical of official diplomacy, the lawyers of 1919 reconceived it in terms of an autonomous institutional logic that could be detached from their even perhaps more profound suspicion of diplomacy itself. No doubt, theories of interdependence, ideas about democracy and the public opinion pushed in this direction. Where pre-war lawyers had seen two types of "international" relations, those between European or "civilised" States and those between European and civilised on the one hand and "Oriental" nations on the other, the post-war generation saw just one single field of "the international" that was at the same time "universal" and to be administered by a machinery that could also not be anything but "universal".
J.B. Scott, Introduction, in Otfried Nippold, The Development of International Law after the World War (transl. by A Hershey, Clarendon. Oxford, 1923), p. viii. 76 Nippold, Development, passim. 77 Manley Hudson, By Pacific Means (New Haven, Yale Press, 1935), p. 20, 23.
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It became thus natural for lawyers educated in domestic law, and seeing all law through the lenses of what was familiar at home, to start to think of this subtle social realm, too, as one where law would apply in the same way as it did at home.78 Much of the official rhetoric of the League supported this. Above all, however, it was solidified by the habit to think of the tasks of the League and of international law generally by reference to the division of powers under the liberal theory of the State. For international law to be real "law", it had to govern the international society in the same way that domestic law governed domestic society. This would mean that there would have to be some type of an international "legislative" function, permanent adjudication and some type of enforcement against law-breakers.

This is how many of the lawyers of 1919 saw the League and the new international law that emerged from the war. Multilateral treaty-making become the legislation of a single, universally extensive international public realm, the Permanent Court of International Justice would emerge in 1922 as the first international court with a general jurisdiction. And Articles 15 and 16 of the League Covenant provided for a compulsory system of settlement at the end of which lawful war could finally be conceptualised as enforcement against the Covenant-breaker (e.g. Kelsen).

Hersch Lauterpacht's "Private Law Sources and Analogies of International Law" that came out in 1927 was merely one but a particularly striking and influential statement of this position. Most of international law, he argued there, was and had always been taken from domestic law: the law of treated was but contracts writ large, the law of territory was the law of property. Sovereignty was like domestic law ownership -

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controlled and limited by the international legal order just like ownership was framed within the domestic legal system. The whole of the practice of the Permanent Court was understood in this same way. International law could now finally be seen as the practical law of an international society. The skills lawyers learn in interpreting and systematising the law and in participating in cases and assisting clients could now be exercised in the international field as efficiently as in any of the domestic legal fields.

Of course, most lawyers readily recognised that the international legal system also fell short of the domestic one. The international legal system was - to use a favourite statement - a primitive system which must rely on self-help and self-interpretation and whose organisational level had not been very developed. But behind this - as indeed indicated by the very word "primitive" - was the understanding that the system would slowly develop in a more organised and co-operative direction. Perhaps unconsciously, most lawyers were thinking in terms of the Kantian "idea for a universal history with a cosmopolitan purpose". Even such a careful observer as Sir Fredrick Pollock (1854-1937), while emphasising that the League of Nations was no "super-State" still inserted it in a historical trajectory from Grotius and the drafters of the peace plans such as Sully, Penn, Rousseau and Kant, and thus firmly situated in the direction of global federalism.79 The authoritative commentary by Schcking and Wehberg defined the League as a confederation (Staatenbund) with many activities resembling those of a State.80 Although lawyers disagreed about the legal qualification of the League (there was agreement,

This is a key point in Ole Spiermann, International Legal Argument in the Permanent Court of International Justice (Cambridge University Press, 2005). 79 Sir Fredrick Pollock, The League of Nations (2nd edn. London, Stevens, 1922). 80 Walther Schcking & Hans Wehberg, Die Satzung des Vlkerbundes (2nd edn. Berlin, Vahlen, 1924), p. 103-134.

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however, that it was not a Super-State), in one way or another, it was always seen in terms of a historical development that led inexorably - perhaps like Maine's view of the development of national societies "from status to contract" - to federalism sometime in the future. The more the lawyers admitted that the League was not a world federation, the more the implication was that this is precisely what it was bound to become.

IV: REFLECTIONS FOR TODAY

Now "1919" led to a failure. The view of international law as an autonomous system (based on an equally autonomous notion of an international "society") that could be studied through a scientific method that did not hark back on the sovereignty of the state and that was an aspect of the public law of an international community, understood as analogous to the national community was of course terribly vulnerable to intellectual criticisms and to world events. Each of the three aspects of the domestic analogy failed in the course of the 1930's.

1) Failure of legislation - the 1930 Codification conference; 2) Formal dispute-settlement - under-use of the PCIJ; 3) Enforcement - the disasters of Manchuria, Rheinland and Abyssinia.

All of this led to the end of the inter-war international law. This was the end of an idea of a law that had a distinct method, that was autonomous of State policy, that was like the domestic public law of European societies and that was launched into federalism by the institutions of the League of Nations. One of the sharper observers of the time, James Brierly from Oxford canvassed the outlook for international law in 1944 by setting

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aside the domestic analogy. The international social world was different from the domestic world. The League was not a legal system "but simply a standing Conference system". International law would also play a different role there from the role played by domestic law:

"in the main a laissez faire system, having as its chef function to demarcate the spheres within which each sovereign state is free to exercise its domestic jurisdiction without any legal obligation to defer to the interests of any other state".81

My suggestion is that this criticism - like the critiques by Carr, Morgenthau and other "realists" - against the institutionalist faith of the inter-war lawyers was largely correct when applied to the post-war cosmopolitans (though beside the point when applied to most of the sociologically oriented inter-war lawyers). But it did not undermine the previous generation, the "men of 1871", who were not institutionalists in the same way that many of the "men of 1919" were. I would like to suggest that the historically and culturally informed (and of course "Eurocentric") cosmopolitanism of 1871-1914 has remained relatively unharmed by the disappointments of the inter-war generation. This is why I see the debates about the transformation of international law after the end of the Cold War seeking to bring about something like the sensibility of my "men of 1871". This will, however, necessitate a novel explanation of why the "civilising" universalism of the West, carried under the banner of a new, interventionist international law would not be just another form of imperial ethos, Berlin 1885 in a novel key.

J. L. Brierly, The Outlook on International Law (Clarendon, Oxford 1944), p. 95.

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